BASO PRASAD AND ORS. versus STATE OF BIHAR

Citation: [2006] SUPP. 9 S.C.R. 431 · Decided: 24-11-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Disposed off

Judgment (excerpt)

.. 
BASO PRASAD AND ORS. 
A 
v. 
STA TE OF BIHAR 
NOVEMBER 24, 2006 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
B 
Penal Code, I 860-Section 302 read with Section 34-Prosecution 
for-Murder of one person-By single gun shot injury-5 accused-All the 
eye-witnesses stating one accused responsible for the injury caused to the C 
deceased-Firing by other accused not proved-Courts below convicting all 
the accused under Section 302 read with Section 34 !PC-Plea that medical 
evidence was inconsistent with ocular evidence-On appeal, held-Charge 
of murder of deceased proved-Accused responsible for causing death of 
deceased held guilty-Other accused did not share common intention-
Hence acquitted extending benefit of doubt-Medical evidence was not D 
inconsistent with ocular evidence-Arms Act, 1959-Section 27. 
Evidence-Medical evidence and ocular evidence-Inconsistency 
between-Effect of-Held: Though the Court should take expert opinion into 
consideration, but appreciation of evidence is Court's job-Reference of 
ocular evidence over medical evidence or vice versa is to be decided by the E 
Court-Jn case of such inconsistency defence should seek explanation from 
the doctor. 
· 
Appellants-accused 5 in number were prosecuted for having caused death 
of one person. Prosecution case was that while the family members of the 
deceased were on the roof (first floor) of their house, the accused; who have F 
their joint residential house at some distance, came on their roof (second floor) 
armed with rifles. They started brickbatting and abusing the deceased. When 
deceased went to the roof of his house, accused started firing. One of the 
bullets hit the deceased and he died on the spot. PWs 4 to 8 were the eye-
witnesses to the incident. Informant-PW-7 lodged FIR stating therein that G 
two accused including accused 'B' attributed to the act of firing. 
During trial, PW-4 attributed the act of firing to accused 'B' alone. 
Other eye-witnesses though attributed firing by other accused, but stated that 
accused 'B' was responsible for the injury caused to the deceased. Presence 
431 
I-I 
432 
SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R. 
A of blood at the spot and seizure, thereof was categorically stated by PW-2 
(independent witness) and PWs 4 to 8. Trial Court on the basis of the evidence 
adduced by prosecution held the accused guilty of commission of an offence 
under Section 302/34 IPC. They were also found guilty under Section 27 of 
0 
Arms Act, 1959. The appeal against the conviction was dismissed by High 
B 
Court. 
In appeal to this Court, appellants-accused contended that there were 
discrepancies between medical evidence and ocular evidence and thus the time 
of death is doubtful in view of presence of rigor mortis in the four limbs and 
that in view of nature of injuries caused to the deceased, firing must have 
c taken place from a close distance; that investigation was perfunctory as no 
blood was found at the spot, no gun was recovered and no sign of firing was 
noticed; and that even if the occurrence had taken place, only accused 'B' 
was responsible and participation of other accused having common intention 
.. 
to commit the offence was not proved. 
D 
Dismissing the appeal filed by accused 'B' and allowing the appeal filed 
by other accused, the Court 
HELD: 1.1. Whereas 'B' alone fired a shot which had hit the deceased,_ 
there is no evidence brought on record to show that any other accused did so. 
No gun shot injury was suffered by any person. The deceased has also suffered 
E only one gun shot injury. No sign of firing was found on the walls or any 
other part of the building. No cartridge was recovered. Even no other person 
had suffered any injury by reason of hurling of brick bats. Having regard to 
the materials brought on records, in this case although the prosecution has 
proved the charge of committing the murder of the deceased, it has failed to 
F establish that the accused had any common intention in relation thereto. 'B' 
alone was, thus, responsible therefor. Had the other accused shared common 
intention they would have also fired. No such evidence having been brought 
on record, benefit of doubt must be extended to the other accused persons. 
(449-C-G) 
1.2. Although the investigation was conducted in a slipshod manner, but 
G the presence of blood at the spot of occurrence as also seizure thereof had 
categorically been stated by PW-4, PW-5, PW-6, PW-7, PW-8 and PW-2. It 
is, thus, not corre

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