Gurdial Singh vs State Of Punjab on 21 August, 1995

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Supreme Court of India
Gurdial Singh vs State Of Punjab on 21 August, 1995
Equivalent citations: 1995 AIR 2468, 1995 SCC Supl. (3) 451
Author: M M.K.
Bench: Mukherjee M.K. (J)





 1995 AIR 2468		  1995 SCC  Supl.  (3) 451
 JT 1995 (6)   140	  1995 SCALE  (4)837




Darshan Singh, Mukhtiar Singh and Gurdial Singh, the
appellant herein, were tried by the Judge, Special Court,
Ferozepore for committing the murder of one Ram pal with
fire-arms in furtherance of their common intention. The
learned Judge acquitted Darshan Singh and Mukhtiar Singh but
convicted the appellant under Section 302 I.P.C. and 25 Arms
Act. and sentenced him to suffer imprisonment for life for
the first conviction and rigorous imprisonment for 1.1/2
years for the other, with a direction that the sentences
would run concurrently. Hence this appeal.

According to the prosecution case the deceased and his
father Amrit Lal (P.W.3) used to run a kirana shop in
village Machhi Bugra. On June 2, 1984, at or about 6.30 P.M.
when Ram pal had come out of the shop to down its shutters
the three accused came there on a scooter driven by Darshan
Singh. The appellant and Mukhtiar Singh then got down from
the scooter and shot at Ram Pal with the fire-arms, each of
them was carrying, resulting in his instantaneous death.
Thereafter all of them ran away on the scooter. Finding his
son dead, Amrit lal rushed to the police station to lodge a

S.I. Joginder Singh (P.W.4) recorded the F.I.R. and
after making arrangements to send the special report to the
Ilaka Magistrate left for the spot accompanied by Amrit Lal.
Reaching there he held inquest upon the dead body of Ram Pal
which was lying in the lane in front of the shop and sent it
for postmortem examination. He then inspected the spot and
collected some blood stained earth, six empties of two
different bores and made separate sealed parcels for the
same. After completing the investigation at the spot. p.w.4
went in search of the accused persons and succeeded in
apprehending the appellant on that very night. From his
possession he seized a 12 bore gun and 25 cartridges and
sealed them. He sent all the seized articles to the experts
for their opinions and on receipt of their reports and
completion of investigation submitted charge-sheet.

The accused persons pleaded not guilty to the charges
levelled against them and contended that they were falsely
implicated. To prove its case the prosecution relied upon
the ocular version of the incident as given out by P.W.3 and
other evidence adduced in support thereof. No witness was
however examined on behalf of the accused persons.

In recording the impugned order of conviction and
sentence against the appellant the learned Judge found that
the evidence of P.W.3 stood amply corroborated by the
recovery of two empty cartridges from the spot and the
report of the Ballistic Expert which showed that those two
cartridges had been fired from the gun which was with the
appellant at the time of his arrest and was seized. As no
such corroborative evidence was available in respect of the
other two accused the learned Judge did not feel inclined to
rely solely upon the evidence of P.W.3 to convict them.
Accordingly he gave them the benefit of reasonable doubt.

Having carefully gone through the evidence of P.W.3 in
the light of other evidence appearing on record it appears
to us that the finding of the learned Judge that the
appellant shot at the deceased with a gun causing injuries
on his person is unassailable. Considering the fact that the
incident took place in front of the shop of P.W.3 he was the
most natural and likely witness. His evidence, which was not
in any way shaken in cross-examination, gets ample support
from the evidence of Dr. Jaspal Singh (P.W.1) who held
postmortem examination on the dead body and found, besides
other injuries, two lacerted punctured wounds corresponding
with each other which according to him could be caused by
gun. if fired from a close range. The next piece of evidence
which corroborates PW 3 is the FIR which was lodged with
promptitude, we next get, from the evidence of P.W.4. that
in that very night, at or about 2.30 A.M. the appellant was
arrested and a 12 bore gun and 25 cartridges were recovered
from him. The report of the Director of Forensic Science
Laboratory (Ex.P.17) proves that the empties recovered from
the spot by pw 4 had been fired from his gun. The other
piece of circumstantial evidence, which also to some extent
corroborates the case of the prosecution, is furnished by
the fact that the earth that was seized by PW 4 from the
spot was found by the Chemical Examiner to contain human

The next question that falls for our determination is
whether on the above findings the trial Judge was justified
in convicting the appellant under Section 302 IPC
simpliciter, after having acquitted the other two accused
who along with the appellant were being tried under Section
302 IPC with the aid of Section 34 IPC. This aspect of the
matter assumes importance for PW 1 found four injuries on
the person of the deceased which according to him were
caused by two types of fire-arms and were collectively
sufficient in the ordinary course of nature to cause death.
He, however, did not state that the two injuries caused by
the gun which are atributable to the appellant’s firing were
sufficient to cause death in the ordinary course of nature.
In other words, in view of the opinion of the doctor it can
not be conclusively inferred that the death of Ram Pal was
caused by the injuries inflicted by the appellant alone so
as to make him liable under Section 302 IPC simpliciter.

The above finding of ours, necessarily, begs also the
question whether the appellant can be convicted under
Section 302 IPC with the aid of Section 34 IPC,
notwithstanding the acquittal of the other two accused.

In Maina Singh vs. State of Rajasthan (1976) 2 SCC 827
a question arose as to whether an accused who faced trial
with four others on charges under Section 302 IPC read with
Section 149 IPC could be convicted under Section 302 IPC
read with Section 34 IPC if the other four were acquitted.
In deciding the question this Court considered earlier cases
which dealt with similar question and held:-

“As has been stated, the charge in the
present case related to the commission
of the offence of unlawful assembly by
the appellant along with the other named
four coaccused, and with no other
person. The trial in fact went on that
basis throughout. There was also no
direct or circumstantial evidence to
show that the offence was committed by
the appellant along with any other
unnamed person. So when the other four
coaccused have been given the benefit of
doubt and have been acquitted, it would
not be permissible to take the view that
there must have been some other person
along with the appellant Maina Singh in
causing the injuries to the deceased. It
was as such not permissible to invoke
Section 149 or Section 34 IPC. Maina
Singh would accordingly be responsible
for the offence, if any, which could be
shown to have been committed by him
without regard to the participation of

In Harshad Singh vs. State of Gujarat 1977 Criminal Law
Journal 352, a three Judge Bench of this Court observed, in
negativing a submission of the appellant therein that since
three out of the four accused had secured acquittal the
invocation of Section 34 IPC was impermissible, as under:-

“The flaw in this submission is obvious.
The Courts have given the benefit of
doubt of identity but have not held that
there was only one assailant in the
criminal attack. The proposition is
plain that even if some out of several
accused are acquitted but the
participation presence of a plurality of
assailants is proved, the conjoint
culpability for the crime is
inescapable. Not that the story of more
than one person having attacked the
victim is false, but that the identity
of the absolved accused is not firmly
fixed as criminal participants.
Therefore, it follows that such of them,
even if the number dwindled to one, as
are shown by sure evidence to have
knifed the deceased, deserve to be
convicted for the principal offence read
with the constructive provision.”

(emphasis supplied)
When a similar question again came up consideration in
Piara Singh vs. State of Punjab (1980) 2 SCC 401 this Court,
quoted with approval Maina Singh’s case (supra) and applying
the principle laid down therein in the facts of the case
presented before it observed as under:-

The position as it stands on the face of
the prosecution case as disclosed in
the Court is that only five named and
known persons including Piara Singh
participated in the murderous assault on
the deceased of which four have been
acquitted which would lead to the
natural presumption that the other four
accused persons were not there. In these
circumstances, therefore, the conclusion
is inescapable that Piara Singh alone
cannot be convicted under Section 302
with the aid of Section 34. The
appellant, Piara Singh would only be
liable for the individual act which he
may have committed in respect of the
assault on the deceased.”

Judged in the context of the principles of law laid
down in the cases referred to above the conclusion is
inevitable that the appellant before us cannot be convicted
under Section 302 IPC, even with the aid of Section 34 IPC,
as the prosecution laid evidence to prove that only the
three arraigned persons, were responsible for the murder and
the acquittal is not based on the ground of mistaken
identity. The appellant would therefore be liable for his
individual act only. which unmistakably makes out, in view
of the weapon used by him and the nature of injuries caused
an offence under Section 326 IPC. Since the gun used by the
appellant was an unlicensed one his conviction under Section
25 of the Arms Act has got to be upheld also.

For the foregoing discussion we set aside the
conviction of the appellant under Section 302 IPC and
convict him under Section 326 IPC. Considering the fact that
since the offence as committed more than 11 years have
elapsed, we sentence him to suffer rigorous imprisonment for
seven years for the above conviction. The conviction and
sentence imposed upon him under Section 25 of the Arms Act
are maintained. Both the sentences will run concurrently,
The appellant, who is on bail will, now surrender to his
bail bond to serve out the sentence now imposed upon him.

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