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PETITIONER:

PREM KUMAR AND ANOTHER

Vs.

RESPONDENT:

STATE OF BIHAR

DATE OF JUDGMENT02/03/1995

BENCH:

PARIPOORNAN, K.S.(J)

BENCH:

PARIPOORNAN, K.S.(J)

ANAND, A.S. (J)

CITATION:

1995 SCC (3) 228 JT 1995 (3) 123

1995 SCALE (2)50

ACT:

HEADNOTE:

JUDGMENT:

PARIPOORNAN, J.:

1. The appellants in this appeal, Prem Kumar Singh (a),

Prem Singh S/o Mundrika Singh and Ramesh Singh S/o Chandrika

Singh are Accused Nos. 1 and 2 in Sessions Trial No. 219 of

1983, Additional Sessions Judge, Palamau. They have filed

this appeal against the affirmance of their conviction under

section 302 of Indian Penal Code, by the Patna High Court,

Ranchi Bench, Ranchi, by judgment dated 8.9.1989. The above

two accused, along with one Mundrika Singh, Accused No. 6,

father of Accused No. 1 Prem Singh, and eight others were

charge-sheeted to stand Sessions Trial for the murder of one

Tarkeshwar Prasad Singh on 13.1.1983 at 6.30 p.m. at a place

known as Ketat. Accused Nos. 1 and 2 were charged for of-

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fence under section 302 read with section 34 IPC for causing

the murder of Tarkeshwar Prasad Singh. They were also

charged for offence under section 307/34 IPC for attempting

to cause murder of Ghanshyam Languri and Rajnath Tewari, two

co-passengers, who boarded the bus along with Tarkeshwar

Prasad Singh. The remaining nine accused persons were

charged for offences under section 302/ 149 IPC. Accused

No. 6 Mundrika Singh was charged for offence, under section

147 IPC also, whereas the ten other accused persons were

further charged for offence under section 148 IPC read with

section 27 of the Arms Act. All the accused persons pleaded

not guilty for each of the charges framed against them. The

defence plea was that the death of Tarkeshwar Prasad Singh

in the bus, belonging to Santosh Transport Company, might

have been caused at the hands of some unknown dacoits and

the accused persons have been falsely implicated by the

informant because of long drawn enmity between the parties.

The plea of alibi was also put forward by Accused No. 6

Mundrika Singh, Accused No. 1 Prem Singh, Accused No. 10

Raja Dixit and Accused No. 7 Muni Dixit. On an analysis of

the entire evidence in the case, the Additional Sessions

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Judge, Palamau, by judgment dated 9.6.1987, held that on

instigation given by Accused No. 6 Mundrika Singh to kill

Tarkeshwar Prasad Singh, the deceased, Accused No. 1 Prem

Singh and Accused No. 2 Ramesh Singh intentionally caused

the death of Tarkeshwar Prasad Singh by firing at him with

their rifles in consequence of which Tarkeshwar Prasad Singh

died instantaneously on the spot. It was also found that in

the same act, Accused Nos. 1 and 2 also caused rifle shot

injury on PW 5 and 6 knowing fully well that in the

circumstances, by their act of firing inside the bus, it was

likely to cause the death of other passengers also and such

act was an attempt to commit murder of PW 5 and 6. The

Sessions Judge came to the conclusion that there is

absolutely no evidence of any other attack by the remaining

accused persons (other than Accused Nos. 1, 2 and 6). The

offence under section 27 of the Arms Act was also not proved

against such persons. In the result Accused No. 6 Mundrika

Singh was found guilty under section 302 read with section

34 IPC and convicted thereunder. Accused Nos. 1 and 2 were

found guilty for offence under section 302 IPC for causing

the murder of Tarkeshwar Prasad Singh and they were

convicted thereunder. They were also found guilty for

offence under section 307 IPC for attempting to commit the

murder of PW 5 and 6 and were accordingly convicted. Except

accused Nos. 1 and 2 and 6, the other accused were not

found guilty for any of the charges framed against them and

they were acquitted and discharged from the liability of

their respective bail bonds. Accused Nos. 1 and 2 were

sentenced to imprisonment for life under section 302 IPC.

Accused No. 6 was also sentenced to imprisonment for life

under section 302 read with section 34 IPC. Accused Nos. 1

and 2 were further sentenced to undergo rigorous

imprisonment for seven years for their conviction under sec-

tion 307 IPC. It was further held that both the sentences

passed against the Accused Nos. 1 and 2 shall run

concurrently. Accused Nos. 1, 2 and 6 filed Criminal Appeal

No. 90 of 1987 before the High Court of Patna, Ranchi Bench,

Ranchi. A Division Bench of the High Court, after a very

detailed discussion of the entire evidence, by Judgment

dated 8.9.1989, acquitted accused No. 6 Mundrika Singh and

con-

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firmed the conviction of Accused Nos. 1 and 2 under section

302 of the Indian Penal Code. The conviction of Accused

Nos. 1 and 2 under section 307 IPC was set aside. The High

Court observed that the case of Accused No. 6 Mundrika Singh

is not free from doubt and the case against him appears to

be similar to the other co-accused, who were acquitted by

the Sessions Judges. In this view, the conviction of

Accused No. 6 Mundrika Singh, appellant No. 3 before the

High Court, was set aside and be was acquitted of the

charge. But as regards Accused Nos. 1 and 2 the High Court

came to the conclusion that though their conviction and

sentence under section 307 of the Indian Penal Code are

liable to be set aside, their conviction and sentence under

section 302 IPC were justified. It is against the aforesaid

Judgment of the High Court dated 8.9.1989 Accused Nos. 1

and 2 have filed the above Criminal Appeal before this court

as per special leave granted in SLP (Crl.) No. 2059/89 dated

22.7.1991.

2. We heard Sri Rajender Singh, learned senior counsel for

the appellants and Sri H.L. Agrawal, learned senior counsel

for the respondent. Accused No. 6 Mundrika Singh and one

Chandrika Singh are brothers. Accused No. 1 Prem Singh is

the son of Mundrika Singh. Accused No. 2 Ramesh Singh is

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the son of Chandrika Singh. It is alleged that one Rajan,

brother of Accused No. 1 Prem Singh, and Bishwanath, brother

of Accused No. 2 Ramesh Singh, were murdered by Tarkeshwar

Prasad Singh. and others on 2.10.1982. The case was still

pending when the incident relevant to the instant case

happened on 13.1.1983 at about 6.30 p.m. at Ketat. It is

fairly clear from the evidence in the case, that enmity

exists between the members of the appellants' family and

those of the deceased family. The prosecution alleged that

on 13.1.1983 after attending the hearing of the murder case

of Rajan and Bishwanath at Daltonganj, Tarkeshwar Prasad

Singh accompanied by Bashishth Narain Singh, PW 8, as also

Sheo Pratap Singh and Ramadhar Pathak, boarded the bus

bearing Registration No. BRO 3555 of Santosh Transport

Company, for returning to Rehla at 5.30 p.m., and the bus

stopped for a while at the stop of Ketat, when car bearing

Registration No. WMB 5989 came from behind and stopped in

front of the bus. The time was about 6.30 p.m. Then Accused

Nos. 2 and 6 and their colleagues Satyender Singh, Munni

Dixit got down from the car. Accused No. 6 was empty handed

but the remaining persons were armed with rifles. In the

meanwhile Jeep bearing Registration No. BRO 2770, which also

arrived from the side of Daltonganj, stopped in front of the

bus. From that Jeep, Accused No. 1, armed with a rifle, and

his colleagues Rajeshwar Singh, Bishwanath Singh, Parsuram

Dixit, Basistha Dixit, Fakira Dixit and Chandardhan Singh

and two other unknown persons, all armed with guns alike,

alighted. The accused and other co-culprits started

proclaiming that as Tarkeshwar Prasad Singh was inside the

bus, he should be cut into pieces. On hearing this, the

passengers of the bus were struck with terror and started

fleeing away. Passengers were in the process of getting

down from front and rear entrances. At that time Accused

Nos. 1 and 2 came inside the bus from the front entrance.

PW 8 Dudhnath Singh, in order to hide his identity, had

wrapped his face with the chadar and rushed towards the back

door of the bus, when he saw Accused Nos. 1 and 2 firing

indiscriminately at Tarkeshwar

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Prasad Singh. In that firing Ram Raj Pandey - PW 5, a

forest guard, and Ghanshyam Languri - PW 6, a police offi-

cial, also received injuries. PW 8 Dudhnath Singh had by

that time managed to get down from the bus like many other

passengers and he concealed himself nearby in thick bushes.

On knowing that Tarkeshwar Prasad Singh had died, the

accused and others raised victory slogans and fled towards

Daltonganj in their car and jeep. On hearing the news, Sub

Inspector Sachchidanand Deo, PW 14, entered the information

as Entry No. 195 (Ex. 4) at 7.00 p.m. in Rehla Police

Station and rushed to the place of occurrence, arriving

there at 7.15 p.m. On seeing the police PW 8 Dudhnath Singh

came out of the hiding and made a statement (Ex. 5) which

was sent to the Police Station, Bishrampur and on this basis

the case was registered vide FIR (Ex. 7) at 9.00 p.m. PW 5

and 6 were transported to Daltonganj hospital. Though the

search was made for the culprits they were not found. The

Sub Inspector retained to the spot at about 1.30 a.m. and

prepared the inquest report with respect to the dead body of

Tarkeshwar Prasad Singh. He lifted three live gun car-

tridges vide seizure memo Ex. 9. PW 1 Bashishth Narain Singh

and Bipin Bihari Singh attested the documents prepared at

the spot. The dead body of Tarkeshwar Prasad Singh was

subjected to postmortem examination by Dr. R.K.P. Pandey (PW

4). One Dr. K., Singh conducted medical examination of PW 5

and 6. Statements of driver, conductor and other witnesses

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were recorded- The accused surrendered in court and were

arrested later and chargesheeted. One of the accused

Chandardhan Singh was subsequently murdered on 23.6.1983.

Accused Nos. 1, 2 and 6 were sentenced and other accused

were acquitted by Sessions Judge.

3. The postmortem examination of Tarkeshwar Prasad Singh

was conducted by PW 4 on 14.1.1983 at 10.50 a.m. at

Subdivisional Hospital, Daltonganj. The record relating

thereto discloses the following injuries : -

1. Six oval lacerated wounds with inverted

margins of the sizes varying from 1/4" to 1/2

"

in diameter on the middle and left side of the

front of the chest;

2. One oval lacerated wound with inverted

margins of the size 3/4" in diameter on the

upper part of the left side of abdomen with

two metal pieces embodied in the wound;

3. Three circular lacerated wounds with

inverted margins of the sizes varying from

1/4" to 1/2" in diameter on the right shoulder

with blackening of the skin around the wound.

Fractures of the body of the external bones of

third, fourth, fifth and sixth ribs and

cartilages on the right side, as well as the

fourth, fifth and sixth ribs and on the left

side were noticed. The third and the fourth

thorazix vertebra, the right of devicles,

right scapula, and the upper part of the

numerous on the right side were also found

fractured.

Injury Nos. 1 and 3 referred to above were

wounds of entry, while injury No. 2 was the

wound of exit. All the above injuries were

caused by fire arms. Death of Tarkeshwar

Singh had been caused by shock and hemorrhage

as a result of above noted injuries. The time

elapsed since death was with 12 to 18 hours of

the postmortem examination. All the injuries

individually were sufficient to cause death in

the ordinary course of nature.

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Ext. 3 is the postmortem examination.

The medical examination of PW 5 Ram Raj Pandey on 13.1.1983

conducted by Dr. K. Singh disclosed the following:

Lacerated wound on left side of neck 1" x 1/2"

surrounded by charring of skin. The X-ray

plate dated 14.1.1983 showed a big oblique

subset with small radio opaque particle. It

was a skin (deep) injury caused by afire arm,

may be a rifle. Age of the injury was within

24 hours. Ex. 2 is medico legal certificate.

Dr. K. Singh, who examined PW 6 found the following injury:-

One lacerated wound on left side of the

shoulder 3 " x 1". The depth could not be

probed. This injury was surrounded by

charring skin. The X-ray plate no. 41 dated

14.1.1983 showed three shots on the upper left

side of back. It was simple in nature caused

by afire arm such as a rifle or gun. Age of

the injury was within 12 hours. Ext.2/1 is

the medico legal certificate.

4. As stated earlier, the plea of the appellants was that

the prosecution allegations are untrue and that they were

innocent. Accused Nos. 1 and 6 and two other accused

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advanced the plea of alibi and examined DW 1 to 3 in support

of the same. The said evidence did not find favour with the

trial court. The appellants also examined DW 4 Kuldip Roy

and DW 5 Priya Brat Singh to show that Tarkeshwar Prasad

Singh was a terror.

5. Certain crucial aspects appearing in the case deserve

to be highlighted. Tarkeshwar Prasad Singh was shot dead

inside the bus bearing Registration No. BRO 3555 at the bus

stop Ketat at about 6.30 p.m. on 13.1.1983.The deceased met

with instantaneous death. PW 1, PW 2, PW 5 an PW 8 are the

eye witnesses. PW 8 lodge FIR on the same day at 7.30 p.m.

PW 5, forest guard, was a co-passenger and independent

witness. He also speaks about the incident and he was

injured in the act of firing by Accused Nos. 1 and 2. The

postmortem report and the evidence of PW 4 proves that the

injury resulted due to shots of fire arms. There was,

admittedly enmity between the family of the informants and

that of the accused. Deceased Tarkeshwar Prasad singh,

along with PW 1, 2, 8 and PW 5 & 6, and few others was

returning in the bus belonging to Santosh Transport Company,

on 13.1,1983, after attending the murder case of Rajan and

Bishwanath. The prosecution states that Prem Singh and

Ramesh Singh (Accused Nos 1 and 2), who came from behind in

the jeep and the car along with few others, fired fatal

shots at Tarkeshwar Prasad Singh with their rifles in

furtherance of common intention of the other accused per-

sons, which caused the instantaneous death of Tarkeshwar

Prasad Singh. The courts below have concurrently held that

the motive suggested by the prosecution against the accused

persons is established. When there is sufficient direct

evidence regarding the commission of the offence, the

question of motive will not loom large in the mind of the

court. It is true that this Court has held in State of UP.

v. Moti Ram & Ors. (1990 (4) SCC 389), that in a case where

the prosecution party and the accused party were in

animosity on account of series of incidents over a consid-

erable length of time, the motive is a double-edged weapon

and the key question for consideration is whether the pros-

ecution had convincingly and satisfactorily established the

guilt of all or any of

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the accused beyond reasonable doubt by letting in reliable

and cogent evidence. Very often, a motive is alleged to

indicate the high degree of probability, that the offence

was committed by the person, who was prompted by the motive.

In our opinion, in a case when motive alleged against the

accused is fully established, it provides a foundational

material to connect the chain of circumstances. We hold

that if motive is proved or established, it affords a key or

pointer, to scan the evidence in the case, in that

perspective and as a satisfactory circumstance of

corroboration. It is a very relevant, and important aspect,

(a) to highlight the intention of the accused and (b) the

approach to be made in appreciating the totality of the

circumstances, including the evidence disclosed in the case.

The relevance of motive and the importance or value to be

given to it are tersely stated by Shamsul Huda in delivering

the Tagore Law Lectures (1902)- The Principles of the Law of

Crimes in British India, at page 176, as follows:-

"But proof of the existence of a motive is not

necessary for a conviction for any offence.

But where the motive is proved it is evidence

of the evil intent and is also relevant to

show that the person who had the motive to

commit a crime actually committed it, although

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such evidence alone would not ordinarily be

sufficient. Under Section 8 of the Evidence

Act any fact is relevant which shows or

constitutes a motive or preparation for any

fact in issue or relevant fact."

In these circumstances, the only crucial factor falls for

determinationistosee whether satisfactory evidence was

available on record for bringing home the guilt of the

appellants/accused persons. We shall discuss in brief the

evidence of the four cye-witnesses PW 1,2,5 and 8, to the

extent it is necessary to show how far the prosecution has

established its case.

6. The main arguments advanced before us onbehalf of the

appellants-accused are (a) PW 1 to 8 arc not really eye

witnesses and they were not able to depose, who fired the

final shot and when; (b) the shot received by Tarkeshwar

Prasad Singh is of the gun and not of the rifle as spoken to

the prosecution witness; (c) there is inconsistency in the

prosecution evidence, and what is more the statement in FIR

is not fully substantiated.

7. We were taken through the evidence of PW 1, and 4

(medical witness), PW 5 independent witness (Forest Guard)

and PW 8 - first informant and PW 12, We have also gone

through the FIR appearing at pages 51-54 (paper book No. III

Annexure p-10) and also the statement given by the accused

in their examination under Section 313 of Criminal Procedure

Code. We shall now advert to the salient features disclosed

by the said evidence appearing in the case.

8. PW 1, Bashishth Narain Singh is the father-in-law of

Tarkeshwar Prasad Singh. He deposed before the Court that

himself, PW 2, PW 8 and the few others were in the Santosh

Bus when it stopped at Ketat village, a jeep and a car came

from behind and 10-15 persons armed with rifles and guns got

down from both the vehicles and shouted that Tarkeshwar

Prasad Singh is in the bus and he should be cut. He was

trying to get down from the bus to run away when Prem Singh

and Ramesh Singh, Accused Nos. 1 and 2, came from the front

gate with rifles along with Mundrika Singh (A-6). There

were amongst passengers,

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one Forest Department Official (PW 5) and another police

official (PW 6). He knew Mundrika Singh, Ramesh Singh and

Prem Singh for a long time. No doubt he had developed

weakness in the eyes two months prior to the date of

examination, but he had clear vision and his eyes were

alright at the time of the occurrence. He admitted that he

had given statement before the police that Ramesh Singh and

Prem Singh started firing at Tarkeshwar Prasad Singh after

entering into the bus. He heard the noise of firing when he

was fleeing from the bus and also heard the shout of

Tarkeshwar Prasad Singh to save him. PW 2 Ran Vijay Pratap

Deo, deposed that he boarded Santosh Bus in the evening to

come back to Rehla along with PW 1, PW 8 and Tarkeshwar

Prasad Singh and when the bus halted near Ketat village to

drop some passengers, a fiat car came from Daltonganj

direction and stopped before the bus. Accused Ramesh Singh

and others with rifles in the hands, and Mundrika Singh got

down. Mundrika Singh's hands were empty. A jeep also came

from behind and Prem Singh and others got down from the jeep

with the rifles. The jeep and the car surrounded the bus

and thereafter, he heard the noise of firing from the bus

gate. Prem Singh and Ramesh Singh were standing near the

front gate of the bus with rifle. The moment he came out of

the bus, he heard the noise of firing andsimultaneously the

shout of Tarkeshwar Prasad Singh. He also speaks about the

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enmity between the accused and Tarkeshwar Prasad Singh. Ac-

cording to him, there was indiscriminate firing in the bus.

PW 5, a forest officer and independent witness, stated

before the Court that he boarded Santosh Bus at Daltonganj

bus stand on 13.1.1983 and when the bus stopped in front of

Ketat village, 5-6 persons surrounded the bus and started

firing indiscriminately. He was injured due to firing

Tarkeshwar Prasad Singh died inside the bus, hit by the bul-

let. Persons firing were outside the bus next to the bus

door and were firing inside. The bullet hit the witness

after breaking the glass of the bus window. He knew

Tarkeshwar Prasad Singh before since he was a forest

contractor. PW -8 Dudhnath Singh, who gave the FIR

available at pages 51-54 of Volume III of the paper book, is

the brother-in-law of the deceased Tarkeshwar Prasad Singh.

In the FIR he has stated that along with Tarkeshwar Prasad

Singh, PW 1, 2 and others, they boarded the bus at

Daltonganj' and when the bus reached Ketat village at about

6.45 in the evening to drop a passenger, a car, belonging to

Chandrika Singh, bearing No. WHB 5989, came overtaking the

bus and stopped in front of It. The passengers, sitting in

it, got down and were armed with guns and rifles. He

recognised those persons Among them Ramesh Singh, Accused

No. 2, and others had rifles. immediately after this the

jeep, bearing No. BRO 770, came and Prem Singh, Accused 1,

and others got down with rifles in hand. All the persons in

the car and the jeep surrounded the standing bus and said

that 'sala' Tarkeshwar Prasad Singh is in he should be taken

out and cut into pieces. The persons traveling inside the

started begging for life and started fleeing. Prem Singh

and Ramesh Singh were identifying the, passengers and PW 8,

by hiding his face, got down from the rear gate. Tarkeshwar

Prasad Singh was in the back. As soon as the witness

reached the rear gate, he saw Prem Singh and Ramesh Singh

entering the bus from the front gate with their rifles and

started indiscriminate firing on Tarkeshwar Prasad Singh.

The

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witness ran outside to save his life, but while running he

heard Tarkeshwar Singh's shouts from inside the bus. He hid

himself in nearby bushes. The reason for this murder is

that Prem Singh, Ramesh Singh and others had enmity towards

Tarkeshwar Prasad Singh and wanted to take revenge due to

the pending murder case of Rajan and Bishwanath in

Daltonganj. As PW 8, the witness, substantially

corroborated what he stated in the FIR. He deposed that he

was travelling along with Tarkeshwar Prasad Singh, PW 1 and

others in the bus belonging to Santosh Transport Company.

At about 6.45 p.m. at Ketat village the bus stopped to drop

a passenger when a Fiat car bearing No. WHB 5989 stopped in

front of the bus and Ramesh Singh and others came out of the

same with rifles and thereafter a jeep bearing No. BRO 2770

came and Prem Singh and others got down out of the jeep with

rifles and all of them abusing Tarkeshwar Prasad Singh

stated that he should be cut into pieces. Prem Singh and

Ramesh Singh stood near the front door of the bus and fired

shots with rifles. PW 8 was successful in fleeing away by

covering his face with a chadar. He saw that Tarkeshwar

Prasad Singh got injured by the bullet inside the bus.

Tarkeshwar Prasad Singh was behind him when firing had taken

place. He did not see bullet being fired on any other

passenger other than Tarkeshwar Prasad Singh. Another

person. who was a forest guard, was injured, hit by a

bullet. The FIR available at pages 51-54 of volume III of

the paper book and the deposition of the eye witnesses, PW

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1, PW 2, PW 5 and PW 8, of when PW 5 is an independent

witness, clearly bring out the fact that Accused Nos. 1 and

2 came in a jeep and a car with rifles, with a few other

persons, that they got into the bus from the front and fired

indiscriminately at Tarkeshwar Prasad Singh. PW 5, a forest

officer as an independent witness, who himself sustained in-

juries, has also stated that Tarkeshwar Prasad Singh died

inside the bus due to hit by the bullets. 'Mere is no

contradiction with regard to the crucial aspects, namely,

that these witnesses travelled with Tarkeshwar Prasad Singh

in the same bus, that the bus stopped at Ketat village to

drop a passenger, at that time Accused Nos. 1 and 2 came in

a jeep and a car with rifles, from behind, along with

others, surrounded the bus and after proclaiming that

Tarkeshwar Prasad Singh is inside the bus and he should be

cut into pieces, they entered the bus and fired

indiscriminately, at Tarkeshwar Prasad Singh, which resulted

in the death of Tarkeshwar Prasad Singh instantaneously.

9. PW4 - Dr. R.K.Pandey, who conducted the postmortem

examination of the deadbody, proved the postmortem

certificate issued by him and also stated that the injuries

referred to in the certificate were caused by fire arms.

Ext. 3 - certificate - is in his own handwriting and signed

by him. Six metallic pieces recovered from the dead-body

were properly sealed and sent to the police. All the

injuries were caused by some fire arms. The postmortem re-

port - Annexure p-8, (Volume III of the paper book)-mentions

about two metallic pieces embodied in the wounds in the up-

per left side of the abdomen and also refers to a recovery

of total six metallic pieces. The postmortem report along

with the evidence of the medical witness PW 4 substantiates

that the injuries sustained by Tarkeshwar Prasad Singh were

as a result of shots received from the fire arms and that

they were fatal. Such injuries were,

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sustained by Tarkeshwar Prasad Singh only due to the shots

received from the fire arms, employed by the accused against

Tarkeshwar Prasad Singh, while in the bus as spoken to by

eye witnesses PW 1, PW 2, PW 5 and PW8. The direct evidence

in the case, amply corroborated by the motive of the

accused, positively points out the intention of the accused

to murder Tarkeshwar Prasad Singh.

10. Sachchidanand Deo, Inspector of Police, PW 14, who

recorded the FIR, stated that he had seized two bullet on

the front gate foot-steps of the bus and that he did not

find any rifle or gun at the place of occurrence or nearby

and that he recorded the FIR and other statements from the

witnesses etc. It is also important to notice that PW 8 has

given the number of the Fiat car and the jeep and PW 12

Chandreshwar Upadhyay, who came along with Prem Singh in

jeep has categorically stated that the number of the jeep is

BRO 2770 and Prem Singh regularly used to bring him in that

jeep.

11. Appellants' counsel made a feeble attempt to contend

that it is not clear in this case whether the injuries to

Tarkeshwar Prasad Singh caused by the rifle or by the gun.

The plea was that the cartridges recovered were not sent to

the ballistic expert nor was any ballistic expert examined.

Our attention was invited to the decision of this Court in

Mohinder Singh v. The State (1950 SCR 82 1), and in particu-

lar to the observations of the Court at page 828. We are of

the view that the said decision is distinguishable. It will

be found from page 825 of the Report that the accused in the

said case produced "a 12 bore gun" Ext. p-16, for which he

held the licence. He denied that he had fired

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with the said gun. His case was that Gurnam Singh, who

reached the spot at about the time of incident, had fired at

the deceased Dalip Singh. There were certain puzzling

features of the injuries of Dalip Singh, It is in that

connection the court observed as follows:-

"In a case where death is due to injuries or

wounds caused by a lethal weapon, it has

always been considered to be the duty of the

prosecution to prove by expert evidence that

it was likely or at least possible for the

injuries to have been caused with the weapon

with which and in the manner in which they are

alleged to have been caused."

The above observations were made in a case where the weapon.

with which the victim sustained injuries was before the

Court and there was doubt whether the injuries could have

been caused by using that weapon - Extp-16, in the reported

case. In this case, the rifles used by Accused Nos. 1 and

2 were never recovered. So, the prosecution could not, in

the circumstances, allege that a particular identifiable

weapon was used in committing the crime. There was nothing

to be examined by the ballistic expert. The observations in

Mohinder Singh v. The Slate (supra) should be understood in

the above peculiar context. There is no merit in this plea.

12.On a careful scrutiny of the evidence in the case,we are

candidly of the view that the finding of the courts below

that Prem Singh and Ramesh Singh, Accused Nos. I and 2, due

to enmity, had committed the murder of Tarkeshwar Prasad

Singh intentionally by firing repeated shots at him from

their respective rifles, is justified and their convictions

under Section 302 of the Indian Penal Code is proper and

unassailable. There is no merit in this appeal. It is

dismissed.

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