Keval & Ors. vs State Of U.P.

(Delivered by Hon’ble Salil Kumar Rai, J.)

The present appeal arises out of the judgment and order dated 19.09.1990 passed by the III Additional Sessions Judge, Bijnor in Sessions Trial No. 502 of 1987, arising out of Case Crime No. 250 of 1986, Police Station Noorpur, District Bijnor, whereby the accused/ appellants have been convicted under Section 302 read with Section 34 IPC and sentenced to imprisonment for life.

The appeal, insofar as appellant nos. 1 and 3 are concerned, was declared to have abated by orders dated 08.07.2019 and 04.02.2026, the latter order having subsequently been corrected by order dated 19.03.2026. The appeal, therefore, survives only in respect of appellant no. 2. The appellant no. 2 is the brother of appellant no. 3.

The prosecution alleged that in furtherance of their common intention, the appellants committed the murder of Om Prakash (hereinafter referred to as ‘the deceased’).

The prosecution case, as stated in the First Information Report, was that during the intervening night of 25/26.09.1986, the deceased was sleeping under a neem tree situated in front of his baithak, while his son Yogendra Pal Singh (hereinafter referred to as ‘the informant’) was sleeping on a cot nearby. At about midnight, the informant woke up on hearing the barking of dogs and saw Keval, appellant no. 1, and Dal Chandra, appellant no. 2, armed with country-made pistols, and Gaj Ram, appellant no. 3, carrying a lathi and a torch, standing near the cot on which the deceased was sleeping. Gaj Ram is alleged to have flashed the torch, whereupon Keval fired at the deceased. The bullet hit the deceased on his left thigh. On the informant raising an alarm, the appellants allegedly fled towards the west after threatening him. The deceased died shortly thereafter. The FIR further states that Mahipal Singh, the uncle of the informant and brother of the deceased, as well as Dalip Singh and Kurwa Singh, whose baithaks were situated near that of the deceased, had also witnessed the occurrence and recognised the appellants in the light of a lantern. The FIR also refers to previous enmity between the appellants and the informant. It is further recited in the FIR that the dead body was placed in a trolley attached to a tractor parked outside the police station. On the basis of the written report submitted by the informant, Case Crime No. 250 of 1986 under Section 302 IPC was registered at Police Station Noorpur at 2:45 a.m. on 26.09.1986. The written report and the First Information Report were exhibited before the trial court as Exhibits Ka-1 and Ka-13 respectively.

The Investigating Officer prepared the site plan on 26.09.1986. The site plan, marked as Exhibit Ka-9, depicts the respective positions of the accused, the deceased, the informant and the other witnesses, as well as the place where the lantern was stated to have been hanging. The significance of the positions shown in the site plan shall be considered at the appropriate stage in the judgment.

On the same day, the Investigating Officer took into possession the blood-stained portions of the strings of the cot on which the deceased had been sleeping, along with the paper relating to the primer of the cartridge which had caused the injury. The corresponding recovery memo was exhibited as Exhibit Ka-10. On 26.09.1986, the Investigating Officer also collected blood-stained soil and plain soil allegedly from the place of occurrence and prepared the corresponding recovery memo, which was exhibited as Exhibit Ka-11.

The lantern referred to in the FIR was also handed over to the Investigating Officer. After verifying that the gas lantern was in working condition, he returned it to the informant on supurdgi, with a direction that it be produced before the Court, if required. The recovery memo and supurdginama were exhibited as Exhibit Ka-12. The document bears the date 27.09.1986.

The inquest report was prepared at 8:00 a.m. on 26.09.1986 and exhibited as Exhibit Ka-4. The informant was one of the witnesses to the inquest. The dead body was thereafter sent for post-mortem examination, which was conducted at 2:15 p.m. on the same day.

The post-mortem report records the following injury on the body of the deceased: “Lacerated wound 5.5 cm × 3 cm × bone deep on the back and upper part of left thigh; muscles were coming out from the wound.” On dissection, all the muscles of the thigh were found full of blood. Pellets were recovered from the anterior aspect of the thigh and from the muscles on its anterior side. No abnormality was detected during internal examination. The post-mortem report was exhibited as Exhibit Ka-2.

After completion of the investigation, a charge-sheet, Exhibit Ka-3, was submitted against the appellants under Section 302 IPC. The case was thereafter committed to the Court of Session and Sessions Trial No. 502 of 1987 was registered against the appellants who were charged under Section 302 read with Section 34 IPC. The appellants denied the charge, pleaded not guilty and claimed trial.

To establish its case, the prosecution examined nine witnesses. The informant, was examined as PW-1. Dalip Singh, Kurwa Singh and Mahipal Singh were examined as PW-2, PW-3 and PW-4 respectively. All four had been named in the FIR as witnesses of the occurrence. Dr. Prem Prakash Garg, who conducted the post-mortem examination, was examined as PW-5. PW-6 was a formal witness who carried the dead body for post-mortem examination. PW-7 was associated with the filing of the charge-sheet. PW-8 was the Investigating Officer. PW-9 was also a formal witness who prepared the check FIR and the corresponding General Diary entry, exhibited as Exhibits Ka-13 and Ka-14 respectively.

PW-1 reiterated the FIR version in his examination-in-chief. According to him, appellant no. 1 and appellant no. 2 were armed with country-made pistols, whereas appellant no. 3 was carrying a lathi and a torch. Appellant no. 3 flashed the torch, whereupon appellant no. 1 fired at the deceased. PW-1 further stated that the written report had been dictated at his residence to one Rohtash Singh and that he had signed it after it was read over to him. He also stated that the dead body was placed in the tractor trolley and taken to the police station, where the written report was submitted. During cross-examination, however, PW-1 denied that the recital in the written report regarding the dead body having been placed in the trolley parked outside the police station had formed part of the report dictated at his residence. In his cross-examination, PW-1 admitted previous enmity between the appellants and the informant as well as PW-2 to PW-4. PW-1 stated that, approximately two and a half years before the occurrence, his uncle Brijesh Kumar had received money from Chandrapal, another brother of appellant no. 3, towards a proposed sale of his land but subsequently returned the money and refused to execute the sale deed. However, neither civil nor criminal proceedings had been instituted by Chandrapal in relation to the aforesaid transaction. PW-1 also stated that approximately two years before the occurrence, appellant no. 3 had instituted criminal proceedings against eleven persons, which included PW-1 to PW-4, alleging that they had cut and removed trees from his grove. It was admitted that appellant no. 1 was a witness in that case and had deposed against PW-1 to PW-4. The criminal case was stated to be pending at the time of trial. In his cross-examination, PW-1 further admitted that his haveli and baithak were situated at different places and that he sometimes slept in the haveli and sometimes in the baithak. He denied that he never slept at the baithak at night. Significantly, in his cross-examination, the witness stated that Mahipal Singh was sleeping in the ‘veranda’ of his baithak at the time of the occurrence and denied having told the Investigating Officer that at the time of occurrence, PW-4 was sleeping inside his baithak. In his cross-examination, PW-1 denied the suggestion that he had not witnessed the occurrence. According to the witness, he was lying on his cot when the deceased was fired upon and immediately rushed towards his father. When the witness reached the deceased, he saw him lying on his back with both legs turned inward.

PW-2, Dalip Singh, also supported the prosecution case and admitted that he was an accused in the criminal case instituted by appellant no. 3 against the prosecution witnesses. He denied having told the Investigating Officer that he had been sleeping inside the room of his baithak, maintaining that he had been sleeping outside. In his cross-examination, PW-2, however, stated that the shot had been fired before he woke up.

PW-3, Kurwa Singh, did not support the prosecution case and denied having witnessed the occurrence. He was declared hostile and cross-examined by the prosecution. The witness denied having been interrogated by the Investigating Officer and also denied the statement allegedly recorded under Section 161 Cr.P.C.

In his evidence, PW-4, Mahipal Singh stated that appellant nos. 2 and 3 were flashing their torches and that, after the occurrence, the accused fled towards the west. He stated that the dead body was taken to the police station because there was apprehension that the accused might otherwise take it away. PW-4 admitted the location of his baithak and that of the deceased as shown in the site plan. The site plan depicts the two baithaks as adjacent to each other, with a manger between the respective sahans. The sahans are shown in front of and east of the baithaks. In his cross-examination, PW-4 denied having told the Investigating Officer that he had been sleeping beneath an arandi tree and also denied the suggestion that he had subsequently improved his version regarding his location because, from beneath the arandi tree, it would not have been possible for him to witness the occurrence. At one stage of his cross-examination, PW-4 stated that, after being awakened by the barking of dogs, he went towards the deceased and saw him lying dead. At another stage, however, he stated that he saw the accused firing at the deceased while he was proceeding towards his own cot and was approximately one yard away from the cot of the deceased. PW-4 denied having told the Investigating Officer that he had witnessed the firing while sitting on his cot. He also denied having stated that he and other villagers reached the spot after the accused had fled and found that the deceased had died from excessive bleeding. During cross-examination on behalf of appellant no. 1, PW-4 stated that the firing took place approximately two minutes after he woke up. The witness also deposed that a petromax was hanging at the place of occurrence. PW-4 further admitted that appellant no. 3 had instituted criminal proceedings against him and other persons, including PW-1 and PW-2, alleging that they had cut and removed trees from his grove. He denied the suggestion that he was not an eyewitness and was falsely deposing because of previous enmity.

PW-5, Dr. Prem Prakash Garg, proved the post-mortem report. In cross-examination, he stated that the injury was not on a vital part of the body. He further stated that, had the legs of the deceased been amputated and immediate medical treatment provided, it was possible that he could have been saved. According to the doctor, the deceased had died within approximately two hours of sustaining the injury. He further opined that death could not have occurred immediately after the injury. PW-8, the Investigating Officer, stated that the site plan had been prepared on the instructions of PW-1 and that the positions of the deceased, the accused and the witnesses had been shown on the basis of the statements of the informant and other witnesses. His testimony regarding the position of PW-4 was inconsistent. At one stage, the witness stated that PW-1 had told him that PW-4 was sleeping in his baithak, while at another place he stated that PW-1 had told him that PW-4 was sleeping beneath the arandi tree as shown in the site plan. The witness further stated that PW-4 had told him under Section 161 Cr.P.C. that he was sleeping beneath the arandi tree at the time of the occurrence. The Investigating Officer also stated that PW-4 had told him that, after the accused fled towards the west, he and the other persons reached the spot and found that the deceased had died from excessive bleeding. PW-8 further stated that, while preparing the site plan, PW-1 had pointed out the place where PW-2 was sleeping, namely inside his baithak.

The Investigating Officer's evidence regarding Exhibit Ka-12 was also inconsistent. In his evidence, the Investigating Officer initially stated that the document had been prepared on 27.09.1986, thereafter corrected himself and stated that it had been prepared on 26.09.1986 and that the date 27.09.1986 had been wrongly recorded, but subsequently again stated that it had in fact been prepared on 27.09.1986. He denied the suggestion that Exhibit Ka-12 had not been prepared on 26.09.1986 because, by that day, the source of light referred to in the FIR and the site plan had not been told by the informant to the Investigating Officer.

In their statements under Section 313 Cr.P.C., the accused denied the incriminating circumstances put to them. Appellant no. 1 stated that he had been falsely implicated because he had deposed against the first informant and other prosecution witnesses in the criminal case filed by appellant no. 3. Appellant nos. 2 and 3 similarly attributed their implication and also deposition of prosecution witnesses to the enmity arising from the criminal case instituted by appellant no. 3 against the informant and other witnesses.

The trial court held that the medical evidence corroborated the prosecution case regarding the weapon used and the time of occurrence. The trial court held that the FIR had been promptly lodged and also rejected the defense contention that PW-1 and PW-4 were partisan or interested witnesses because PW-1 was the son and PW-4 the brother of the deceased and there was previous enmity between the witnesses and the accused. It held that the relationship between the witnesses and the deceased made their presence at the place of occurrence natural and accepted their testimony as eyewitnesses. At the same time, the trial court noticed serious circumstances affecting the reliability of Exhibit Ka-12 which it found doubtful and observed that the Investigating Officer had prepared it in an arbitrary manner. The trial court observed that the lantern had been described as a Petromax in Exhibit Ka-12, apparently to strengthen the prosecution case regarding the availability of sufficient light at the place of occurrence and that PW-4 had made an improvement regarding the presence of the Petromax with a view to corroborating Exhibit Ka-12. The trial court, however, held that the witnesses were sufficiently close to the accused to recognise them and that the deficiencies relating to the source of light did not materially affect their testimony. The trial court further noticed discrepancies between the site plan and the positions described by the witnesses but attributed those discrepancies to the careless manner in which the investigation had been conducted and held that they were not sufficient to discard the testimony of PW-1 and PW-4. It also noticed that the written report and the FIR stated that the dead body had been placed in a trolley attached to a tractor parked outside the police station. It observed that this circumstance indicated that the report had been prepared after the informant had reached the police station but again considered the circumstance insufficient to discard the FIR or the testimony of the witnesses, particularly in view of the prompt registration of the case. The trial court rejected the defence contention that motive had not been established, holding that motive was not of decisive significance where the prosecution case rested upon direct evidence. On the basis of the testimony of the eyewitnesses, the trial court concluded that all three accused had participated in the murder of the deceased in furtherance of their common intention and, on the findings, convicted the appellants under Section 302 read with Section 34 IPC.

Hence, the present appeal.

Assailing the judgment of the trial court, Sri Bhavya Sahai, the counsel appearing for the appellant no. 2 argued that the trial court failed to attach due significance to the recital in the FIR that the dead body had been placed in the trolley parked outside the police station which circumstance, according to the counsel, demonstrates that the FIR was not prepared at the residence of the informant, as claimed by him, but at the police station after deliberation and consultation. It has next been submitted that the positions of the witnesses shown in the site plan, prepared on the instructions of the prosecution witnesses, render it doubtful whether PW-2 and PW-4 could have witnessed the occurrence from the places where they were allegedly sleeping. The improvements made by the witnesses and the contradictions between their testimony before the Court and the statements attributed to them under Section 161 Cr.P.C., according to the counsel for the appellant, materially affect their credibility and demonstrate that they were not eyewitnesses. It was argued that the ocular testimony is inconsistent with the medical evidence, particularly regarding the time between the incident and the death of the deceased. It is submitted that the witnesses were interested in the outcome of the case because of the admitted previous enmity between them and the accused and consequently their evidence required careful scrutiny. The principal submission of the counsel for the appellant no.2, however, concerns the conviction of appellant no. 2 with the aid of Section 34 IPC. It was argued that the trial court failed to make any independent assessment of the role of the appellant no. 2 or to examine whether the evidence established that he shared the common intention of the other accused to commit the murder. It was submitted that no overt act, or any other role showing his participation in the crime, is attributed to appellant no. 2. According to the counsel for the appellant, the appellant no. 2 has effectively been convicted merely on the basis of his alleged presence at the spot and that he was armed with a country-made pistol which circumstance, it is urged, cannot by itself attract Section 34 IPC. It was also submitted that the prosecution had failed to establish any motive on the part of appellant no. 2 to murder the deceased. Motive, according to the counsel for the appellant, assumes significance in the present case because the alleged previous enmity disclosed by the prosecution evidence was directed against persons other than the deceased. The judgment of conviction is therefore submitted to be unsustainable.

The Additional Government Advocate, on the other hand, has supported the judgment of the trial court and submitted that there is no perversity in its findings warranting interference in appellate jurisdiction. According to him, the presence of PW-1 and PW-4 at the place of occurrence was natural and established by the evidence and their testimony was consistent on material particulars and was rightly accepted by the trial court. It was argued that minor discrepancies and inconsistencies in the testimony of an eyewitness cannot, by themselves, constitute a ground for rejecting otherwise reliable evidence. The A.G.A. argues that the discrepancies relied upon by the defence are not of such magnitude as to render the prosecution version inherently improbable. It was also argued that a site plan is not a substantive evidence and that an error committed by the Investigating Officer in preparing it cannot discredit the testimony of an eyewitness. It was argued that the trial court rightly held that motive was not of decisive significance in a case supported by direct evidence and that the testimony of an eyewitness cannot be discarded merely because the witness is related to the deceased or because he is an interested witness. It was argued that the prompt registration of FIR, lends assurance to the prosecution case. It was therefore, submitted that the appeal deserves to be dismissed.

We have considered the rival submissions and carefully examined the trial court record.

There is no serious challenge before us to the homicidal nature of the death of the deceased. The evidence establishes that the deceased sustained firearm injury and subsequently died. The place of occurrence is also not seriously disputed. The controversy before us principally concerns the reliability of the ocular evidence and, in particular, whether the prosecution proved beyond a reasonable doubt the presence and participation of the appellant no. 2 in the crime in furtherance of a common intention shared with the other accused.

PW-3 did not support the prosecution case and denied having witnessed the occurrence. PW-2, in cross-examination, stated that the firing had taken place before he woke up. His testimony, therefore, does not establish that he witnessed the actual firing. The trial court did not rely on his testimony and we find no reason to disagree.

The principal ocular evidence relied upon by the prosecution is consequently that of PW-1 and PW-4. There is no recovery of the firearm allegedly used in the occurrence, no empty cartridge has been recovered from the place of occurrence, and there is no forensic or ballistic evidence connecting any particular firearm with the injury sustained by the deceased. The question, therefore, is whether the testimony of PW-1 and PW-4, as reproduced above, is sufficient to sustain the conviction.

The occurrence is alleged to have taken place in the sahan in front of the baithak of the deceased and PW-1, with the baithak and sahan of PW-4 situated adjacent thereto. The trial court, therefore, considered the presence of PW-1 and PW-4 at the place of occurrence as natural. But the mere fact that a witness could be naturally present at or near the place of occurrence does not, by itself, establish that he was actually present or witnessed the incident. Whether the witness was in a position to see and correctly perceive the occurrence must be determined upon an assessment of his testimony, the position from which he claims to have witnessed the incident, the physical features and layout of the place of occurrence, the availability and source of light, and other surrounding circumstances.

The testimony of PW-1 and PW-4 also has to be examined in the background of the admitted previous hostility between the prosecution witnesses and the accused. PW-1 admitted that appellant no. 3 had instituted criminal proceedings against him and the other prosecution witnesses, in which appellant no. 1 had appeared as a witness and deposed against them. The witnesses are related to the deceased but the fact that a witness is related to the deceased is not, by itself, a reason either to accept his testimony as truthful or to discard it. The relevant enquiry is whether the witness is simply related to the deceased or is also interested in securing the conviction of the accused and, therefore, has a reason to falsely implicate them. Where previous hostility or enmity exists between the witness and the accused, the evidence requires careful scrutiny because the enmity may provide a motive for exaggeration, embellishment or false implication.

A review of the reported precedents shows that the Supreme Court has consistently held that the testimony of a related witness cannot be disregarded solely on the ground of relationship; rather the Court must additionally examine whether the witness has any interest in securing the conviction of the accused and whether, upon a careful scrutiny of the evidence as a whole, the testimony inspires confidence.

In Dalip Singh v. State of Punjab, AIR 1953 SC 364 (Paragraph 26) the Court clarified that relationship per se does not render a witness unreliable, while recognising that a witness may not remain truly independent where the witness has a cause, such as enmity against the accused, to wish to falsely implicate him. In Raju v. State of T.N., (2012) 12 SCC 701, and lately in Mohd. Jabbar Ali v. State of Assam, (2023) 19 SCC 672, the Supreme Court, after emphasising that the real inquiry is whether the witness has a stake in the result of the case and whether the evidence, upon proper scrutiny, is found to be credible held that a court should 'examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness'. At this stage it would be appropriate to reproduce the relevant observations of the Supreme Court in Raju (supra):-

(emphasis supplied)

Similarly, it was observed by the Supreme Court in Mohd. Jabbar Ali (supra) that:

(emphasis supplied)

PW-1 and PW-4 are not merely related to the deceased; by the prosecution’s own admission across the FIR and cross-examination, prior enmity existed between the parties, which the prosecution also advances as the motive for the crime. The question before this Court is not whether the relationship of PW-1 and PW-4 with the deceased is sufficient to discredit them. It plainly is not. The question is whether, in the background of the admitted hostility, their testimony, examined with care and caution, remains sufficiently reliable to exclude the possibility of exaggeration or false implication and can safely be made the basis of conviction.

The incident allegedly occurred at about midnight. PW-1 stated that he woke up on hearing the barking of dogs and saw the accused standing near the cot of the deceased. The appellant no. 1 fired at the deceased while appellant no. 3 flashed his torch. PW-4 stated that he woke up two minutes before the firing. Significantly, neither witness claims to have seen the accused arriving at or assembling near the cot of the deceased and their account commences from immediately before the firing, although they claim to have been sleeping in close proximity to the deceased.

The evidence regarding the location of PW-4 is riddled with material infirmities, inconsistencies and contradictions, which severely undermines his status as eyewitness. Exhibit Ka-9, the site plan, shows PW-4 as sleeping beneath the arandi tree a position corroborated by the Investigating Officer who stated in his evidence as PW-8 that PW-4 had disclosed this during investigation. PW-1, however, had stated during investigation that PW-4 was sleeping in the room of his baithak. The evidence of the Investigating Officer is itself inconsistent on this point. At one stage, the Investigating Officer stated that PW-1 had informed him that PW-4 was sleeping in his baithak, while at another stage he claimed that PW-1 had stated that PW-4 was sleeping beneath the arandi tree. In his testimony PW-1 at one stage stated that PW-4 was sleeping in the veranda of his baithak. The site plan shows that it would not have been physically possible for PW-4 to witness the occurrence from his veranda or baithak. The contradictions are further compounded by the testimony of PW-4 himself. At one stage, PW-4 stated that, after being awakened by the barking of dogs, he went towards the deceased and found him dead. At another stage, however, he claimed that he saw the accused firing at the deceased while he was proceeding towards his own cot and that he was then approximately one yard from the cot of the deceased. PW-4 denied having told the Investigating Officer that he witnessed the firing while sitting on his cot. He also denied having stated that he and other villagers reached the spot only after the accused had fled and found that the deceased had died from excessive bleeding. PW-4 further stated that the firing took place approximately two minutes after he woke up. These different versions regarding the location and the manner in which PW-4 allegedly witnessed the occurrence are difficult to reconcile and they cast serious doubt upon the prosecution’s version regarding his presence at the particular place from which he claims to have witnessed the firing. The place from which PW-4 claims to have witnessed the firing is material to whether he could actually have seen the occurrence. The inconsistency is therefore not merely peripheral.

The site plan assumes particular significance in this context. The trial court attributed the discrepancies between the site plan and the testimony of the witnesses to the careless and arbitrary manner in which the investigation was conducted and the site plan prepared. We are unable to agree with this approach. In our view, the trial court reversed the proper sequence of enquiry and put the cart before the horse. Instead of first testing the credibility of PW-4 against the physical circumstances recorded during the investigation, the court accepted his oral testimony as gospel truth and then summarily dismissed the resulting contradictions as mere investigative lapses. Such an approach cannot be sustained. While it is settled law that a case should not suffer solely due to a defective investigation, it cannot automatically be presumed that the Investigating Officer incorrectly recorded the physical features of the place only because they cannot be reconciled with a witness's subsequent court version. The site plan was prepared on the instructions of PW-1 and based on information supplied by the witnesses on the spot. Therefore, if the position of PW-4 as shown in the site plan is inconsistent and irreconcilable with his subsequent claims of having witnessed the occurrence, the discrepancy goes to the very root of his credibility. Some independent evidentiary basis is required to discard the site plan. The trial court, however, has recorded no satisfactory reason for reaching such a conclusion.

The contradiction between the position shown in the site plan, the statement attributed to PW-4 under Section 161 Cr.P.C. and his testimony before the Court therefore assumes significance. This is particularly so because PW-4 admittedly had a background of hostility towards the accused. We are conscious that a site plan is not substantive evidence and is essentially a physical representation of the place of occurrence prepared during investigation. Its evidentiary significance in the present case, however, lies in the fact that it records the locations as stated by the informant and other prosecution witnesses during investigation and can therefore be considered while testing the consistency of the oral evidence with the physical circumstances.

At this stage, reference may be made to the judgment of the Supreme Court in Shingara Singh v. State of Haryana, (2003) 12 SCC 758. In that case, the Supreme Court restored the acquittal of an accused after noticing serious defects in the site plan. The prosecution had alleged that the witnesses were seated on cots in the courtyard, that the deceased went to collect a bicycle resting against a wall when he was shot, and that a ladder was present at the place of occurrence. However, the cots, bicycle and ladder were omitted from the site plans. The alleged notation concerning the bicycle was also found to be capable of being treated as an interpolation. The Court refused to dismiss these omissions as routine lapses, in light of the fact that the site plans had been prepared at the instance of the prosecution witnesses. Read in conjunction with the other deficiencies in the prosecution case, the court reached the conclusion that the occurrence must have happened in a manner different from the one deposed to by the alleged eyewitnesses. We do not read Shingara Singh (supra) as laying down the proposition that a site plan is substantive evidence; we view it, rather, as a precedent which recognises that where the prosecution version depends upon particular physical features or positions at the scene, material and unexplained discrepancies between the site plan and the testimony of the prosecution witnesses may bear upon the credibility of that testimony, in cases where notations in the site plan have been made on the instructions of the informant and prosecution witnesses themselves.

The significance of Exhibit Ka-9 in the present case, therefore, does not lie in treating the site plan as substantive evidence of the occurrence. Its relevance arises from the fact that it was prepared on the instructions of the informant and other witnesses, therefore, reflects the locations disclosed during the investigation. The Investigating Officer stated that PW-4 had disclosed during the investigation that he was sleeping beneath the arandi tree, which location was accordingly shown in the site plan. The testimony of PW-4 before the Court regarding his location at the time of occurrence is materially different. The inconsistency is therefore not merely between the site plan and the ocular testimony, but between the version attributed to the witness during the investigation and his subsequent testimony before the Court. While we do not treat the site plan as substantive evidence in itself, nor do we proceed on the assumption that every discrepancy between a site plan and oral testimony must result in rejection of that testimony, its significance in the present case lies in the fact that the discrepancy concerns the very position from which PW-4 claims to have witnessed the firing and it is accompanied by inconsistent versions regarding his location between the investigation and the trial.

Apart from the circumstances and inconsistencies affecting the testimony of PW-4, there is a further distinct circumstance which bears upon the credibility of PW-1. PW-1 asserted that the written report had been dictated at his residence to Rohtash Singh and that he signed it after it was read over to him. Yet, the report contains a recital that the dead body had been placed in the tractor trolley parked outside the police station. The recital raises a fundamental question as to how this fact came to be incorporated in a report which, according to PW-1, had already been completed and signed at his residence. While this circumstance does not, by itself, conclusively establish that the FIR was ante-timed or fabricated, it does, introduce a material inconsistency in PW-1's account regarding the preparation of the written report. Since the trial court itself noticed this anomaly and found that the report appeared to have been prepared at the police station, it cannot simply be ignored while assessing the reliability of PW-1's testimony as a whole.

The uncertainty regarding the source of light is another circumstance requiring consideration. The trial court itself found Exhibit Ka-12 to be doubtful and observed that the lantern had been described therein as a Petromax, apparently with a view to strengthening the prosecution case regarding the availability of sufficient light. The court also found that PW-4 had made an improvement concerning the presence of the Petromax. The distinction assumes significance because the FIR referred only to a lantern, whereas Exhibit Ka-12 described the source of light as a Petromax. Consequently, the prosecution case regarding the ability of the witnesses to recognise the accused at midnight rests, at least in part, upon evidence the reliability of which the trial court itself found questionable.

The Investigating Officer's testimony regarding Exhibit Ka-12 further weakens the prosecution case. His evidence as to the date on which the document was prepared vacillated between 26.09.1986 and 27.09.1986. He initially stated one date, corrected himself and thereafter reverted to his claim that it had in fact been prepared on 27.09.1986. This inconsistency assumes material significance since the document itself is relied upon to establish the availability and nature of the source of light at the place of occurrence.

The A.G.A. has rightly submitted that prompt registration of the FIR is ordinarily a circumstance lending assurance to the prosecution case. Prompt registration, however, cannot cure substantive infirmities in the prosecution evidence. The question is not whether the case was registered promptly, but whether the prosecution version as contained in the FIR and developed through the evidence remains consistent and reconcilable with the surrounding circumstances.

The ocular evidence has also to be examined alongside the medical evidence. The deceased sustained a firearm injury on the thigh, which was not a vital part of the body. PW-5 stated that the injury was not such as would ordinarily cause instantaneous death. He opined that death had occurred within approximately two hours of the injury and specifically stated that death could not have occurred immediately. Conversely, the deceased is stated in the FIR to have died shortly after the firing and the witnesses of fact reiterate this version. We are conscious that the medical opinion does not, by itself, displace otherwise reliable ocular evidence. Its significance, therefore, is not that it contradicts the ocular version in a manner which would render the prosecution case impossible. Its significance is that, when the ocular testimony is already attended by material infirmities, the medical evidence does not provide the additional assurance which might otherwise have strengthened the prosecution case.

The circumstances noticed above have to be assessed collectively. The question is whether, notwithstanding the individual discrepancies and infirmities, the ocular evidence retains the degree of assurance necessary to sustain a conviction.

In our assessment, it does not.

Even assuming that the presence of PW-1 and PW-4 in the vicinity of the occurrence may be regarded as natural, that circumstance cannot lead, without more, to the conclusion that they were actually present and witnessed the firing. The inconsistencies concerning the respective locations of the witnesses, particularly the material contradictions concerning the position of PW-4, the uncertainty as to the source of light, the doubtful nature of Exhibit Ka-12, the circumstances surrounding the preparation of the written report, and the medical evidence relating to the interval between the injury and death assume considerable significance. Several of these circumstances bear directly upon the witnesses' opportunity and ability to see the occurrence. Considered cumulatively, and in the background of the previous hostility between the witnesses and the accused, they deeply affect the reliability of the ocular account.

The prosecution is required to prove the guilt of the accused beyond reasonable doubt. Where the principal ocular evidence itself becomes doubtful on circumstances going to the root of the witnesses presence and ability to see the occurrence, a conviction cannot be sustained merely because the homicidal death and the occurrence of a firearm injury stand established.

There is, however, an additional and independent reason why the conviction of appellant no. 2 cannot be sustained. Even assuming that the prosecution’s version regarding the occurrence is accepted, the evidence must still satisfy the distinct legal requirement for invoking Section 34 IPC against appellant no. 2.

At this stage, it would be apt to examine the judgments of the Supreme Court delineating the contours of Section 34.

In Suresh v. State of U.P., (2001) 3 SCC 673, the Supreme Court identified two indispensable requirements for fastening liability with the aid of Section 34 IPC. First, the criminal act constituting the offence, whether consisting of a single act or a series of acts, must have been committed by more than one person. Secondly, the acts of the individuals, taken cumulatively as constituting the offence, must have been done in furtherance of the common intention of all. The existence of common intention alone does not attract Section 34. The accused sought to be made constructively liable must have participated in the commission of the offence by doing some act having a nexus with it. Such participation need not necessarily consist of an overt act like an actual assault. Conduct such as guarding the scene, preventing rescue, furnishing weapons, exhorting the assailants, issuing directions from a distance, or deliberately omitting to act where there is a duty to act-and such omission is intended to facilitate the offence-may, depending upon the circumstances, constitute participation. The essential consideration is whether the conduct attributed to the accused was in furtherance of the shared criminal design. Conversely, where an accused merely entertains the requisite intention in his mind but does no act in furtherance of the offence, Section 34 cannot, on that basis alone, be invoked against him. Suresh (supra) thus makes participation in the crime in furtherance of the common intention a sine qua non for invoking Section 34.

In Ram Tahal v. State of U.P., (1972) 1 SCC 136, the Supreme Court, while emphasising the requirement of prior concert, held that the common intention should be anterior in time to the commission of the crime, indicating a pre-arranged plan and prior concert. The Court recognised that, although the intention of an individual is difficult to prove in most cases, it has to be inferred from the acts or conduct of the accused and other relevant circumstances of the case. It was observed that the totality of the circumstances must be taken into consideration in determining whether the accused shared a common intention to commit the offence. The Court regarded it as crucial that the plan must precede the act constituting the offence. It was also observed that, before convicting a person under Section 302 or Section 304 read with Section 34 IPC, the Court should arrive at a definite conclusion that such person had entered into a prior concert with one or more persons, whether named or unnamed, for the commission of the offence.

There is a formidable body of authority which indicate that neither participation nor the requisite common intention can be inferred merely from the accused’s presence at the scene, his association with the principal offender, or his subsequent conduct, unless the surrounding circumstances furnish a sufficient basis for such an inference. A careful reading of these authorities reveals that there must be reliable material from which both the existence of a prior or contemporaneous meeting of minds and participation in the criminal act can be inferred.

In Rangaswami v. State of T.N., 1989 Supp (1) SCC 686, the presence of the co-accused with the principal assailants, his friendship with one of them, raising his bill-hook while escaping and his subsequent surrender with the other accused were held insufficient to establish common intention, in the absence of evidence that he knew of the proposed attack, shared its object, had any scores to settle with the victim or assisted in its commission. Here, it would be appropriate to reproduce the relevant observations of the Supreme Court in paragraphs 10 and 11 of the judgment:-

(emphasis supplied)

Likewise, in Ram Lal Singh v. State of Haryana, 1992 Supp (2) SCC 746, the Supreme Court declined to invoke Section 34 in the absence of satisfactory evidence establishing either participation in the murderous assault or a prior concert to commit the offence. A reading of Paragraph 6 of the judgment also shows that the issue regarding the sharing of common intention and the evidence were considered in the background of deep-seated hostility between the parties.

Similarly, in Chhotu v. State of Maharashtra, 1997 SCC (Cri) 1143 the prosecution alleged the involvement of four accused in the fatal assault upon the deceased. As regards A-4, PW-3 and PW-8 stated that he was present at the time of the assault and was standing with a knife. However, PW-3 had not stated before the Investigating Officer that A-4 was carrying a knife, though he had referred to his presence. The deceased had sustained as many as 55 incised injuries, which, according to the Supreme Court, indicated that A-1 to A-3 had repeatedly assaulted him over a period of time. The question before the Supreme Court was whether, in these circumstances, it could safely be concluded that A-4 shared the common intention of A-1 to A-3 to commit murder. The Court declined to draw such an inference. It held that, even assuming that A-4 was present with a knife, the evidence did not justify the firm conclusion that he shared the common intention to commit murder. In assessing his role, the Court considered the nature and extent of the assault and found it significant that, despite allegedly carrying a knife, no assault upon the deceased was attributed to A-4. This circumstance assumed particular significance because the prosecution’s case itself indicated a sustained and repeated assault by A-1 to A-3. The Court, therefore, found that the circumstances did not provide sufficiently convincing evidence of A-4’s participation pursuant to the alleged common intention and extended to him the benefit of reasonable doubt.

The decisions in Rangaswamy (supra), Ram Lal Singh (supra) and Chhotu (supra) illustrate that mere presence at the scene-whether unarmed or even coupled with the alleged possession of a weapon – does not, automatically establish either participation in the offence pursuant to a common intention or the existence of the requisite common intention under Section 34 IPC. The conduct attributed to the accused must be assessed in the context of the occurrence as a whole, and the inference of common intention must rest upon circumstances which reasonably connect that conduct with the commission of the offence. This, however, is not to say that an actual physical assault by each accused is indispensable for the application of Section 34. Section 34 does not require every participant to personally inflict an injury. The significance of the decisions in Rangaswamy (supra), Ram Lal Singh (supra) and Chhotu (supra) lies in the Court’s refusal to accept mere presence, with our without a weapon, as sufficient evidence establishing participation accompanied by the requisite common intention.

In this context, the role of motive in determining the existence of common intention also requires consideration. In the present case, the counsel for the appellant no. 2 has argued that the prosecution failed to establish any motive on the part of appellant no. 2 to murder the deceased, particularly when the alleged previous enmity disclosed by the prosecution evidence was directed exclusively against persons other than the deceased and the hostility claimed by the prosecution was between appellant nos. 1 and 3 on one side and the informant and other prosecution witnesses on the other, with no prior incident involving appellant no. 2, who was implicated only because he happened to be the brother of appellant no. 3. The AGA, on the other hand, has contended that motive was not of decisive significance in a case supported by direct eyewitness testimony and that the failure of the prosecution to establish motive was not fatal to its case.

We are conscious that the absence of motive may ordinarily assume lesser significance where there is reliable direct evidence of the occurrence. However, the situation is different where the Court is required to determine whether a person whose specific participation in the offence is not otherwise established nevertheless shared the common intention attributed to the principal offender. Motive and common intention are both matters concerning the state of mind of the accused. While presence or absence of motive does not detract from the objective facts proved by direct evidence, it does assume material significance in determining whether a shared mental state existed. The absence of motive cannot, alone, be treated as decisive; nevertheless, where the prosecution itself has pleaded a particular motive for the commission of the crime, the presence or absence of that motive in relation to the accused whose participation is in question remains a relevant circumstance in the overall assessment of whether the alleged common intention can safely be inferred.

It is in this context that the judgment of the Supreme Court in Mohan Singh v. State of Punjab, AIR 1963 SC 174, assumes relevance. While determining whether the appellants shared the common intention of the principal assailant, the Supreme Court specifically took into consideration the fact that the appellants shared the motive which had impelled the principal assailant to inflict the fatal blow. Here, it is appropriate to reproduce the relevant observations of the Supreme Court:

The above extract from Mohan Singh (supra) demonstrates that the Supreme Court treated the fact that the appellants shared the motive of the principal assailant as a relevant circumstance in determining whether they shared a common intention. The Court did not treat the existence of a shared motive as sufficient to establish common intention. The shared motive was considered along with the conduct of the appellants before, during and after the occurrence. They were armed, deliberately concealed themselves while waiting for the deceased, rushed upon and chased him when he attempted to flee, surrounded him, and thereafter fled together. The Court regarded that the combined effect of the circumstances demonstrated concerted action and participation, and consequently concluded that the fatal blow inflicted by the main accused was in furtherance of the common intention shared by all the other accused. The reasoning in Mohan Singh (supra) does not equate motive with common intention. Rather, it demonstrates that motive is a relevant circumstance in determining whether an accused shared a common intention with the principal offender. The existence of a shared motive may support the inference of common intention, but the ultimate conclusion must necessarily be drawn from the totality of the circumstances and the conduct of the accused.

The converse situation is different. Even if direct evidence clearly proves that a crime took place, the Court must still decide if a particular accused actually participated in it and shared the principal offender's intention. When that specific participation is in doubt, the absence of a motive connecting that accused to the crime becomes materially relevant to determine whether he truly shared that intent. A lack of motive does not automatically rule out common intention, but when the prosecution's other evidence regarding his active participation or a prior meeting of minds is already weak, it is impossible to ignore the absence of motive. In such cases, the prosecution simply cannot plead a shared criminal design out of thin air, without any credible factual basis to support it. At this juncture, we repeat our reference to the judgments of the Supreme Court in Rangaswamy(supra) and Ram Lal Singh (supra). A reading of paragraph 10 of Rangaswamy (supra), reproduced above shows that the court, while holding that the accused did not share a common intention with the principal offenders, considered-among other circumstances-the fact that the accused had ‘no scores to settle’ with either the victim or the witness. The circumstance – ‘no scores to settle’ – becomes relevant apparently because it was indicative of a complete absence of individual motive on the part of the accused. Similarly, in Ram Lal Singh (supra), the issue regarding common intention was examined in the context of the deep-seated hostility between the parties. Rangaswamy(supra) and Ram Lal Singh (supra) demonstrate that, where common intention is sought to be inferred against an accused whose specific participation is otherwise not established, the existence - or absence - of a motive connecting him to the offence cannot be brushed aside.

This brings us back to Mohan Singh (supra), wherein the Supreme Court reiterated the distinction between common intention and the same or similar intention, as formulated by the Privy Council, and reiterated that an inference of common intention should not be drawn unless it is a necessary inference from the circumstances of the case. This principle is particularly relevant where, as in this case, the court is required to determine whether the circumstances justify attributing to an accused the common intention of the principal offender. The question is not whether the accused may have entertained the same or similar intention, but whether the evidence provides a sufficient basis for concluding that he shared the common intention and participated in furtherance thereof.

The principle emerging from Suresh (supra), Ram Tahal (supra), Rangaswamy (supra), Ram Lal Singh (supra), Chhotu (supra) and Mohan Singh (supra) is that Section 34 IPC fastens constructive liability where a criminal act is done by several persons in furtherance of the common intention of all. The essence of the provision is participation in the criminal act pursuant to a shared intention. Whether an accused shared such common intention and acted in furtherance thereof must be determined upon a combined assessment of the evidence and the surrounding circumstances of the particular case. In making that assessment, the conduct of the accused before, during and after the occurrence, his role and participation in the commission of the offence, and the circumstances bearing upon his connection with the offence may assume relevance. Mere presence at the scene, association with the principal offender, or possession of a weapon would not, taken alone or collectively, suffice to establish either the requisite common intention or participation in furtherance thereof. At the same time, actual physical assault by each accused is not indispensable for the application of Section 34; participation may take a form other than the actual infliction of injury or an overt act. What is necessary, however, is that the conduct attributed to the accused must have a real nexus with the commission of the criminal act and must furnish a sufficient basis for concluding that he acted pursuant to the common intention. It must however, be emphasized that the courts should not infer common intention, unless it is a necessary inference from the evidence and circumstances of the case. Thus, before convicting a person with the aid of Section 34 IPC, the Courts must be satisfied, and such satisfaction should be recorded, that the evidence establishes his prior concert with one or more persons and also his participation in the criminal act in furtherance of the common intention. In this assessment, the absence of a motive connecting the accused with the offence, even though not conclusive of the absence of common intention, may assume significance where the other evidence relied upon to establish his participation and prior concert is itself inadequate. The fact that prosecution has direct evidence of the occurrence does not, therefore, make the question of motive irrelevant when the Court is considering whether the common intention of the principal offender can safely be attributed to another accused whose participation is in issue. We conclude that the argument of the prosecution, encapsulated in a single statement that motive is not of decisive significance in case of direct evidence, does not correctly state the law. It misstates the law, and we do not agree with it.

In light of these principles, we proceed to examine the case of appellant no. 2.

The appellant no. 2 is alleged to have been present at the spot and armed with a country-made pistol. The shot which struck the deceased, however, was attributed exclusively to appellant no. 1, and no overt act is attributed to appellant no. 2. No firearm was recovered from him and there is no ballistic evidence connecting him with the injury. More significantly, the medical evidence shows that the injury was on the thigh and not on a vital part of the body. According to PW-5, the deceased survived for a considerable period after sustaining the injury, yet there is no evidence that appellant no. 2 fired another shot or made any further attempt to cause injury while the deceased lay wounded. There is likewise no allegation that the appellant no. 2 fired at PW-1 or PW-4 to facilitate the escape of the accused. While we do not suggest that the absence of a second shot automatically negatives common intention, its relevance lies in determining the inference that can reasonably be drawn from the totality of the circumstances. The circumstances taken together do not disclose any conduct on the part of appellant no. 2 which provides a sufficient basis for inferring that he shared the common intention attributed to appellant no.1.

The evidence regarding previous enmity further weakens the prosecution case. According to the prosecution’s own witnesses, appellant no. 3 had instituted criminal proceedings against PW-1 to PW-4 alleging that they had cut and removed trees from his grove and appellant no. 1 had deposed as a witness in that case. The alleged hostility was therefore, principally between appellant nos. 1 and 3 on one side and the prosecution witnesses on the other. Appellant no. 2 – who is merely the brother of appellant no. 3 – was never involved in that dispute, nor was the deceased shown to have any connection with the dispute. It is not the case of the prosecution that this was a case of mistaken identity by the accused. It is the specific case of the prosecution that appellant no. 3 flashed the torch while appellant no. 1 fired at the deceased. The prosecution has completely failed to bring on record any specific circumstance showing that appellant no. 2 or the other appellants had a personal motive to cause the death of the deceased.

There is no allegation that the appellants, and particularly the appellant no.2, made any attempt to assault or kill PW-1 or PW-4, even though they were directly involved in the dispute and against whom appellant no. 3 had instituted criminal proceedings. PW-1 also referred to a separate dispute concerning a proposed sale of land between his uncle Brijesh Kumar and Chandrapal, the brother of appellant no. 3. Here again, neither the deceased nor the appellant no. 2 have been shown to have had any involvement in that transaction.

These circumstances assume significance because, if the previous hostility, as alleged by the prosecution from FIR onwards and brought out in the evidence of its witnesses, constituted the motive for the occurrence, the fact that the deceased, rather than any of the persons against whom such hostility was admittedly directed, became the target of the firearm is a circumstance that cannot be ignored, particularly when the persons with whom the hostility existed were themselves in proximity to the accused and could have been easily targeted. The facts in the present case are materially different from those in Mohan Singh (supra), where the accused shared the motive of the principal assailant and their subsequent conduct demonstrated concerted action in pursuance of that motive. The evidence in the present case does not disclose any comparable conduct on the part of appellant no. 2 from which his participation in a common design to murder the deceased can safely be inferred. The facts in the present case are closer to the facts involved in Rangaswamy (supra), where the accused had no scores to settle with the victim or the witness and, consequently, no apparent motive to participate in the crime, and in Chhotu (supra), where the mere presence of the accused at the scene, even though he was armed, was not found sufficient to establish common intention. Similarly, the fact that appellant no. 2 was the brother of appellant no. 3 may explain his association with him, but that relationship cannot, by itself, supply the missing link of common intention.

A consideration of the judgment of the trial court shows that appellant no. 2’s participation and alleged common intention did not receive the separate and independent examination they required. The question before the trial court was not merely whether appellant no. 2 was present with the other accused, but whether the proved circumstances permitted an inference that he shared the common intention to commit the murder attributed to appellant no. 1. The trial court proceeded on the basis that all three accused had participated in the occurrence and, on that basis, invoked Section 34 IPC. There is, however, no separate assessment of what appellant no. 2 actually did, what inference could properly be drawn from his conduct, or whether the evidence established that he shared with appellant no. 1 the common intention to murder the deceased. The finding under Section 34 IPC in the judgment of the trial court does not rest upon any separate determination that appellant no. 2 participated in the criminal act in furtherance of any common intention.

On the evidence available in the present case, we are unable to conclude that appellant no. 2 shared with appellant no. 1 the common intention to commit the murder of the deceased. Even assuming that appellant no. 2 was present at the place of occurrence and was carrying a country-made pistol, there is no further evidence demonstrating his participation in the murder or establishing that he shared with appellant no. 1 the common intention to commit the murder. The prosecution has, therefore, failed to establish the guilt of appellant no. 2 beyond reasonable doubt and the conviction of appellant no. 2 under Section 302 read with Section 34 IPC cannot be sustained.

The appeal, insofar as it concerns appellant nos. 1 and 3, already stands abated. So far as appellant no. 2 is concerned, he is entitled to the benefit of doubt and is acquitted of the charge under Section 302 read with Section 34 IPC.

The judgment and order dated 19.09.1990 passed by the III Additional Sessions Judge, Bijnor in Sessions Trial No. 502 of 1987, arising out of Case Crime No. 250 of 1986, Police Station Noorpur, District Bijnor, insofar as it relates to appellant no. 2, is hereby set aside.

The appeal is accordingly allowed.

Appellant no. 2 is on bail. He need not surrender. His bail bonds are cancelled and the sureties stand discharged.

The record of the trial court shall be remitted forthwith. A certified copy of this judgment shall also be transmitted to the trial court for information and necessary compliance.