BHAGWAN SINGH TANTEE v. STATE OF M P — 1980 DIGILAW 332 (MP)

JUDGMENT : ( 1. ) THIS is an appeal against the judgment and order of conviction dated 22-2-1979, recorded by the Additional Judge to the Court of Sessions Judge, Gwalior in Sessions Trial No. 92 of 1978, convicting the appellant under section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and also convicting him under section 201, indian Penal Code and sentencing to five years rigorous imprisonment. It is also ordered that both the sentences will run concurrently. ( 2. ) THE facts of the case, shortly stated, are these: On Agra-Bombay road, which goes from Gwalior to Shivpuri, there is a village called Mohna, in between these two cities. Agra-Bombay road branches off at Mohna towards Phori. Village Dher Pohri is at a distance of 2 1/2, furlongs from this road. ( 3. ) ACCORDING to prosecution, deceased Gurudip Singh alias Dalip singh is a resident of Sevla, Agra and he is the owner of truck no. CPH7011. On this truck, Rajendra Singh (P. W. I) was working as a cleaner and accused-appellant Bhagwansingh was the driver. Rajendra singh (P. W. 1) is an approver. On 12-3 1978, the deceased Gurudipsingh, along with Bhagwan Singh and Rajendra Singh (P. W. 1) started from Agra towards Multai and reached Multai. On 15-3-1978, the truck was loaded with oranges and deceased Gurudip Singh cleaner Rajendra Singh and the accused appellant started towards Delhi as the oranges were to reach Delhi. On 16-3-1978 all the three persons along with the truck, reached Biora and stopped there as there was some engine trouble in the truck. After repairing the engine trouble, they started from Biora on 16-3-1978 in the evening. The truck was driven by the accused appellant Bhagwan Singh. On 17-3-1978, at about 4. 00, the truck reached Mohna. At that time, deceased Gurudip singh was sleeping on the front seat and Rajendra Singh (P. W. 1) was sitting by his side. Accused Bhagwan Singh took the truck towards Pohri road and stopped it at some distance. After that, appellant Bhagwan Singh took out a country made pistol (Tamancha Katta) and fired at Gurudip singh who was sleeping. It is the story of the prosecution that there were two fires and because of these two fires, the deceased died on the spot. Accused Bhagwan Singh took the truck towards Pohri road and stopped it at some distance. After that, appellant Bhagwan Singh took out a country made pistol (Tamancha Katta) and fired at Gurudip singh who was sleeping. It is the story of the prosecution that there were two fires and because of these two fires, the deceased died on the spot. Afterwards, the accused appellant Bhagwan Singh and Rajendra Singh (P. W. 1) took out the dead-body of Gurudip Singh from the truck and the accused Bhagwan Singh took Rs. 2,800 which were with the deceased Gurudip singh and also a golden ring which the deceased was having on his finger. After taking the dead-body of Gurudip Singh, they put it in a pit near the road and it was covered with tarpaulin and it was sprinkled with diesel and the dead-body and the tarpaulin were set on fire. The accused-appellant threatened Rajendra Singh (P. W. 1) that he should not tell the story to anyone, otherwise, he will also be done to death. ( 4. ) THEN, the accused-appellant Bhagwan Singh, took the truck on 18-3-1978 to Kota and delivered the oranges to one Chanandas, a fruit commission agent (P. W. 13 ). After deducting the commission from the price, the accused-appellant received Rs. 9,200. After receiving this amount, Bhagwan Singh took the truck to Agra along with Rajendra Singh (P. W. 1) and on 19-3-1978 at about 7. 00 in the morning, accused appellant, bhagwan Singh stopped the truck at Shahganj Octroi Naka, Agra. He informed Rajendra Singh (P. W. 1) that he will be coming back in a short time and till then, Rajendra Singh (P. W. 1) should not leave the truck. But, as prosecution says, the accused never came back. After waiting for some time, Rajendra Singh (P. W. 1) took the truck to the house of the deceased and narrated the story to Ramcharan (P. W. 30) and Prakash kaur (P. W. 16), wife of the deceased. Ramcharan (P. W. 30) along with some other persons took Rajendra Singh (P. W. 1) along with the truck to the Police Station and the first information report was lodged, which is ex. P/l. Rajendra Singh (P. W. 1) was arrested and the truck and the relevant papers which were in the truck were seized by the police. Ramcharan (P. W. 30) along with some other persons took Rajendra Singh (P. W. 1) along with the truck to the Police Station and the first information report was lodged, which is ex. P/l. Rajendra Singh (P. W. 1) was arrested and the truck and the relevant papers which were in the truck were seized by the police. The papers so seized were sent by Constable Ganga Prasad (P. W. 33) to the police Station, Mohana and Kripal Singh (P. W. 19) and Suresh (P. W. 9)were present when seizure Memo (Ex. P. 14) was prepared. ( 5. ) ON 17-3-1978, at about 9-00 A. M. when Ram Singh (P. W. 6) was going to pay the electricity bill, he saw near the road at village Dher Pohri a corpse burning. He immediately informed this matter at Thana Mohna. On the basis of the information received, Kripal Singh, Head Constable (P. W. 19) recorded a report (Ex. P-30) of accidental death and started investigation. Shivkant, Head Constable (P. W. 11) reached the spot and prepared Panchanama of the corpse and also the site map. He also seized the shoes of the deceased and other articles which were lying on the spot where the dead-body of the deceased was burnt. On 13-4-1978, a 12 bore katta was recovered from the mother of accused appellants wifes sisters husband, which is Article 19 and it was sent for chemical examination and to the Ballistics Expert. The empty cartridges which were seized from the spot were also sent for examination and the dead-body of Gurudip Singh was sent for post mortem examination to the J. A. Hospital, Gwalior. The post-mortem examination was done by Medico Legal Officer Dr. D. C. Jain, (P. W. 22 ). ( 6. ) RAJENDRA Singh (P. W. 1) who was an accused formerly was given pardon under section 306 of the Code of Criminal Procedure. Therefore, he was examined as a witness as an approver. After completing the investigation, the charge-sheet was filed on 8-6-1978 before the Judicial Magistrate first Class, Gwalior. Rajendra Singh (P. W. 1) was examined under section 306 (4) of the Code of Criminal Procedure and after examining him, the accused was committed before the Sessions Court to stand his trial. ( 7. ) ACCUSED has denied the guilt. After completing the investigation, the charge-sheet was filed on 8-6-1978 before the Judicial Magistrate first Class, Gwalior. Rajendra Singh (P. W. 1) was examined under section 306 (4) of the Code of Criminal Procedure and after examining him, the accused was committed before the Sessions Court to stand his trial. ( 7. ) ACCUSED has denied the guilt. While deciding the case the learned trial Court has framed the following points : whether Gurudip Singh alias Dilip Singhs death was homicidal. The learned counsel for the appellant did not challenge the finding on this point that the death of Gurudip Singh alias Dalip Singh was homicidal. The trial court has based its finding on the statements of Rajendra Singh (P. W. 1)and Dr. D. C. Jain (P. W. 22) who examined the dead-body and has found that death of Gurudip Singh occurred because of the shots fired at him by some firearm. He has also stated that the lungs of the deceased were torn and the heart was damaged. Therefore, we are also of the opinion that the finding of the learned trial Court that death of Gurudip Singh was homicidal, is correct and we accept the same. ( 8. ) THE second point, the Court framed is whether the appellant can be held responsible beyond reasonable doubt for the murder of Gurudip singh alias Dalip Singh. The learned trial Court has held that accused is responsible for committing the murder of Gurudip Singh alias Dalip Singh. For coming to this conclusion, he has relied on the statement of Rajendra singh (P. W. 1) who is an approver. He has also held that the accused-appellant is responsible for an offence under section 201, Indian Penal Code. For that also the learned trial Court has relied on the statement of the approver, there is no direct evidence regarding commission of the crime. The learned trial Court has rejected the evidence of recovery of the fire-arm at the instance of the appellant from the possession of mother of his wifes sisters husband. We are of the opinion that that evidence was correctly disbelieved by the trial Court. The second evidence which the trial Court has rejected is regarding the alleged recovery of wrist watch which belonged to the deceased. The learned trial Court has rejected the evidence regarding recovery of certain golden ornament from Deokinandan Sonar (P. W. 20 ). We are of the opinion that that evidence was correctly disbelieved by the trial Court. The second evidence which the trial Court has rejected is regarding the alleged recovery of wrist watch which belonged to the deceased. The learned trial Court has rejected the evidence regarding recovery of certain golden ornament from Deokinandan Sonar (P. W. 20 ). The story of the prosecution was that the accused took the golden ring which the deceased was having on his finger and after giving that gold to deokinandan (P. W. 20), Deokinandan (P. W. 20) converted it into some other ornament and it was given back to the accused. For rejecting this evidence, the learned trial Court has stated that the weight of the golden ring which is alleged to have been taken from the body of the deceased does not tally with the ornament which is recovered from Deokinandan (P. W. 20 ). We are of the opinion that the learned trial Court has correctly rejected the same. One more evidence the trial Court has rejected and that is the purchase of some ornament by the accused and his wife from the shop of pravin Chand Jain (P. W. 24 ). But, on the cash-memo, which is Ex. P/38, it does not show the name or signature of any purchaser. We are of the opinion that this evidence also was correctly rejected by the trial Court. The trial Court has believed the statement of the approver and has held that he is a truthful witness and also has come to the conclusion that enough corroboration can be had from the other evidence to show that the accused is responsible for committing the crime. The trial Court, in para 34 of its judgment, has enumerated about eight points by which it has held that the evidence of the approver is sufficiently corroborated on material particulars to hold that the accused is guilty of the offence charged. ( 9. ) THE learned counsel for the appellant has seriously attacked all these findings and has submitted that the trial Court was in error in holding that his statement is corroborated by the points mentioned in para 34 of his judgment and as such, the conviction recorded by the learned trial Court should not stand. ( 10. ( 9. ) THE learned counsel for the appellant has seriously attacked all these findings and has submitted that the trial Court was in error in holding that his statement is corroborated by the points mentioned in para 34 of his judgment and as such, the conviction recorded by the learned trial Court should not stand. ( 10. ) THE first point we have to decide is whether Rajendra Singh (P. W. 1) can be termed as an approver or not. To attract section 133 of the Evidence Act, a person should be an accomplice as laid down in r. K. Dalmia v. Delhi Administration, AIR 1962 SC 1821 . Para 141 of that judgment runs as under:-"an accomplice is a person who. . . . . . participates in the commission of the actual crime charged against an accused. He is to be a participes criminis. There are two cases, however, in which a person has been held to be an accomplice even if he is not a participes criminis. Receivers of stolen property are taken to be accomplices of the thieves from whom they receive goods, on a trial of theft. Accomplices in previous similar offences committed by the accused on trial are deemed to be accomplices in the offence for which the accused is on trial, when evidence of the accused having committed crimes of identical type on other occasions be admissible to prove the system and intent of the accused in committing the offence charged. " Therefore, first of all, we will have to see whether Rajendra Singh (P. W. 1)has taken part in the commission of offence of which the appellant is charged. The appellant was charged under sections 302 and 201 of the indian Penal Code and he has been convicted and sentenced accordingly. From the story of Rajendra Singh (P. W. 1), it is abundantly clear that he has taken part in the offence under section 201, Indian Penal Code. The part he has taken is that he assisted the accused to lift the dead body from the truck and carry it to the road-side. Then he covered the dead-body with tarpaulin and sprinkled diesel on it and set fire to the dead-body. Therefore, the fact that the approver took part in the commission of the offence, of which the accused was charged with, cannot be denied. Then he covered the dead-body with tarpaulin and sprinkled diesel on it and set fire to the dead-body. Therefore, the fact that the approver took part in the commission of the offence, of which the accused was charged with, cannot be denied. We may refer to the statement of Rajendra Singh (P. W. 1) in which he has admitted this fact. The story of the incident which took place when Rajendra Singh (P. W. 1) was with the accused, has been narrated by him in the following manner. First he has stated that truck No. CPH 7011 was owned by the deceased and he was the cleaner on the said truck, while the accused was the driver. On 15-3-1978, be along with the accused and the owner, i. e. , the deceased, after loading the truck at Multai with oranges, started for Delhi. On 16-3-1978, when they reached Biora, due to some mechanical defect, the truck stopped. The defect was removed and on 17-3-1978, at about 4-00, they reached Mohna. When they reached Mohna, he heard a noise of gunfire. But, actually he could not see who fired that shot. But when he came back the gun was fired again on Gurudip Singh who was sleeping. When the accused pointed the gun at him (Rajendra Singh (P. W. 1), he requested the accused not to kill him and he is willing to do whatever the accused wanted him to do. At the request of the accused, he, along with the accused took out the dead-body, from the truck. Then, the accused told him to remove the tarpaulin which covered the truck. Because he was afraid of his own life (P. W. 1) he took out the tarpaulin as asked by the accused and covered the dead-body with it. After sprinkling the dead-body with diesel, they set it on fire. The place where the burning took place was a ditch. The accused then drove the truck to some businessman. The truck was taken to Kota and from Kota, it was taken towards, Agra. He was also with him. After reaching Agra, the accused asked him to wait in the truck and left him alone with the truck, near the Octroi Post at Agra. The accused then drove the truck to some businessman. The truck was taken to Kota and from Kota, it was taken towards, Agra. He was also with him. After reaching Agra, the accused asked him to wait in the truck and left him alone with the truck, near the Octroi Post at Agra. After waiting for some time, as the accused did not come back, he met Ramcharan and Shivcharan who were the friends of the deceased and he took the truck to the Police Thana and reported the matter. The witness was put to a long cross-examination and after reading the cross-examination and his statement, the learned counsel submitted before us that he is not a truthful witness. One more suggestion, he made before us is that he cannot be said to be an approver, because he has committed no offence and even if he has committed any offence, he is protected by section 94 of the Indian Penal code and if he is protected by section 94 of the Indian Penal Code, then he cannot be termed as an approver. We are of the opinion that the suggestion is devoid of any substance. Therefore, we have no doubt that Rajendra singh (P. W. 1) took part in the commission of the offence for which the appellant is charged and is sentenced. Therefore, he can be termed as an approver as laid down in R. K. Dalmias case {supra ). While considering the evidence of an approver and for basing conviction on the evidence of the approver, certain principles have been laid down by the Supreme Court. They are: (i) Whether he was a reliable witness and his version was intrinsically credible and (ii) if so, whether his evidence was corroborated against each accused in material particulars by other evidence direct or circumstantial. These tests are laid down in Piara Singh v. State of Punjab, 1970 S C C (Cri.) 404. ( 11. ) THE necessity of corroboration of such evidence was considered in sheshanna v. State of Maharashtra, AIR 1970 S C 1330. It is laid down in that as under : "the warning of the danger of convicting on uncorroborated evidence is given when the evidence is that of an accomplice. The primary meaning of accomplice is any party to the crime charged and some one who aids and abets the commission of crime. It is laid down in that as under : "the warning of the danger of convicting on uncorroborated evidence is given when the evidence is that of an accomplice. The primary meaning of accomplice is any party to the crime charged and some one who aids and abets the commission of crime. The nature of corroboration is that it is confirmatory evidence and it may consist of the evidence of second witness or of circumstances like the conduct of person against whom it is required. Corroboration must connect or tend to connect the accused with the crime. When it is said that the corroborative evidence must implicate the accused in material particulars it means that it is not enough that a piece of evidence tends to confirm the truth of a part of the testimony to be corroborated. That evidence must confirm that part of testimony which suggests that the crime was committed by the accused. The first test of reliability of approver and accomplice evidence is for the Court to be satisfied that there is nothing inherently impossible in evidence. After that conclusion is reached as to reliability, corroboration is required. " ( 12. ) THE nature and extent of corroboration was considered in Rame-shwar v. State of Rajasthan, AIR 1952 S C 54. and the Supreme Court laid down about four tests. They are: (i) It is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. (ii) The independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. (iii) The corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal. (iv) The corroboration need not be direct evidence that the accused committed the crime. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal. (iv) The corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime. " and in the end, it is said : All that is required is that there must be "some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it". This does not mean that the corroboration as to. . . . . . . . . . . . identity must extend to all the circumstances necessary to identify the accused with the offence. All that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness story that the accused was the one, or among those, who committed the offence. " 12. We will consider the first test regarding the truthfulness of Rajendra singh (P. W. 1 ). The first submission the learned counsel made before us was that there are material contradictions in the statement given by Rajendra singh (P. W. 1) before the Court and the first information report he has lodged. But when he was asked to show us as to what are the material contradictions, he was not in a position to show any. Rajendra singh (P. W. 1) is a cleaner and he has, in detail, given the entire story. Therefore, only to implicate the accused, the cleaner will not be in a position to give such a long and detailed concocted story. The learned trial court has correctly placed reliance on Nidhansingh v. State of Rajasthan, 1970 SC C 432 (Vol. I ). to come to the conclusion that the story put forward by Rajendra Singh (P. W. 1)is reliable one. In the above ruling, it was held as under :-"the story which was narrated by Mastan Singh, approver, is a long one and it is difficult for any one to concoct such a story and put it in the mouth of a person who was not at all concerned with the incident. " ( 13. In the above ruling, it was held as under :-"the story which was narrated by Mastan Singh, approver, is a long one and it is difficult for any one to concoct such a story and put it in the mouth of a person who was not at all concerned with the incident. " ( 13. ) THE next point which gives credibility to his story is that the accused, along with the deceased and the cleaner took the truck loaded by oranges from Multai and they were proceeding to Delhi. From the beginning to the end, the accused was in the company of Rajendra Singh (P. W. 1 ). Not only this thing, but Rajendra Singh (P. W. 1) also helped the accused-appellant in disposing of the dead-body. So also, in removing the blood of the deceased with which the seat and other parts of the truck were smeared. After loading the truck with oranges when they left Multai, the accused and the approver were together. This fact is clearly proved by the evidence of Shankarrao (P. W. 27) and Azim Shah (P. W. 28 ). The oranges were to be delivered to one Premchand Narayansingh of Delhi. The witness identified the accused in the Court and also identified the photograph of the deceased and proved the entry in his delivery book (Art. 20) and the entry of Ex. P /40. Further, the witness has stated that when he has identified the accused in the Court, the accused looked somewhat sick and also somewhat thin. Therefore, the learned Court was correct in coming to the conclusion that all the three persons took the truck from Multai loaded with oranges. We confirm the same finding. ( 14. ) THE second incident took place at a small approach near Talav gaon. The incident is that the truck got stuck because of mud. When the truck got stuck in the mud, the driver was the accused appellant and the approver was also on the truck. Accused was having a yellow colour pant on his body. They tried to take out the truck from the mud, but they failed. Therefore, they called for ten labourers and paid Rs. 50 and with the help of these labourers, they could take out the truck and after taking out the truck, they went towards Kota at about 7. 30 in the evening. They tried to take out the truck from the mud, but they failed. Therefore, they called for ten labourers and paid Rs. 50 and with the help of these labourers, they could take out the truck and after taking out the truck, they went towards Kota at about 7. 30 in the evening. This incident is narrated by Ram Prakash (P. W. 42) and Shyam Babu (P. W. 87 ). From the evidence of these two witnesses, it is clear that in the truck these two witnesses saw that there were oranges and the approver and the accused were sitting in the truck. From the cross-examination of these two witnesses, we cannot say that they are not speaking the truth. ( 15. ) THE third incident is where the oranges were sold. The oranges were sold to one Chanandas (P. W. 13) who is a commission agent for doing the business of fruits. On 18-3-1978, the accused went to Chanandas (P. W. 13) and sold the oranges for Rs. 9,200. The bill regarding the sale is Ex. P/22. The only criticism which was levelled in cross-examination against this witness was that the name of the accused who sold the oranges is not written in the said bill and, therefore, Ex. P/22 is a doubtful document. But, Chanandas (P. W. 13) has explained in his statement that if a purchaser wants a bill, then it is supplied to him after mentioning his name, but, as the accused wanted to suppress his identity, the learned Court has correctly held that accused did not ask for it. Therefore, Ex. P/22 cannot be said to be a doubtful document. He has identified accused Bhagwan singh as the person who sold the oranges through his commission agency and he paid the amount of Rs. 9,200 to the accused. Up to this place, the approver and the accused were together. ( 16. ) CHANANDAS (P. W. 13), in his statement, has proved document ex. P/22 and said that Ex. P/22 bears the signature of the accused-appellant. Ex. P/22 shows that the amount of Rs. 9,200 was paid to the accused after selling the oranges. Chanandas (P. W. 13) is a resident of Kota. The oranges were to be delivered to one Premchand who does the business of fruits at Delhi. He has been examined as P. W. 26. P/22 bears the signature of the accused-appellant. Ex. P/22 shows that the amount of Rs. 9,200 was paid to the accused after selling the oranges. Chanandas (P. W. 13) is a resident of Kota. The oranges were to be delivered to one Premchand who does the business of fruits at Delhi. He has been examined as P. W. 26. Premchand (P. W. 26)has stated in his statement that he has got a shop by name Premchand narayansingh and he deals in fruits. They usually got oranges from Multai. Truck No. CPH 7011 did not come to their shop and the oranges were not delivered to them. He resides in Multai Market and from that place, he usually sends goods to Delhi. Shankarrao Bhujade, Abdul Rasim, Ajim shah told him that they are sending the oranges to Delhi. Next day, Subhash devhare told him that 166, 158 and 76 cartons filled with oranges are sent to the shop he is having at Delhi. When he enquired at Delhi shop whether these cartons were delivered, he came to know that the goods did not reach delhi. From his statement, it is clear that truck No. CPU 7011 was filled with cartons of oranges. The truck was loaded at Multai, but never reached its destination. On the contrary, as mentioned above, the oranges were sold through a commission agent at Kota and when the truck was taken to Kota, bhagwan Singh accused-appellant was driving it. ( 17. ) THE fourth incident which corroborates the story of the approver is regarding taking out of the truck which got stuck near Mohna. We have already said about this incident while discussing the evidence given by the approver Rajendra Singh (P. W. 1 ). It is sufficiently proved by the evidence of the person who engaged the labourers to take the truck out of the mud. At this place, it is alleged by the prosecution, that the accused took out the fire-arm (Art. 19) and the accused fired twice at the deceased, because of which, he died immediately. The learned counsel for the appellant seriously contested this explanation and submitted that from the first information report and the evidence, it can be deduced that the accused fired twice and that too from a very close range, but in post-mortem examination, the doctor could find only one bullet. The learned counsel for the appellant seriously contested this explanation and submitted that from the first information report and the evidence, it can be deduced that the accused fired twice and that too from a very close range, but in post-mortem examination, the doctor could find only one bullet. Therefore, the story of the approver that there were two shots fired by the appellant is completely a lie and if it is held that the story put forward by the approver of two shots being fired is a lie, then that will be a material contradiction and if such a material contradiction is taken into consideration, then it cannot be said that the approver is a truthful witness and that his story gets corroboration from other evidence. There is no doubt that the approver has actually not seen the appellant firing at the deceased. But, he does not say that he actually saw the appellant firing two shots at Gurudip Singh alias Dalip Singh. He only heard the noise of the first shot and when he again came back to his seat, he could see that the appellant has fired a second shot. The opinion of the Ballistics Expert, which is Ex. P/61 is as under :- "the country made 12 bore pistol Ex. A-1 is in working order. Barrel of the pistol showed signs of discharge. It is not possible to estimate with scientific accuracy the time elapsed since the pistol was fired last. The fired empty 12 bore cartridge Ex. EC-1 was compared for firing, pin impression, breach face marks and extractor marks with T- C 1 to tc-7 with positive results under the comparison micro-pistol Ex. A- 1. The fired empty 12 bore cartridge Ex. EC-2 was compared for breach face marks and extractor marks with TC-1 to TC-7 under the comparison microscope with positive results hence EC-2 has been fired through the pistol Ex. A- 1. Ex. W- 1 to W-3 are the wads of 12 bore cartridge and these could be the part of the loads of the fired empty 12 bore cartridges Ex. EC-1 or ec-2. These wads could have been fired through a 12 bore weapon. " This report is proved by Chandra Kishore Solanki (P. W. 45), who is Sub-Inspector of Police, Thana Maharajpura, District Gwalior. EC-1 or ec-2. These wads could have been fired through a 12 bore weapon. " This report is proved by Chandra Kishore Solanki (P. W. 45), who is Sub-Inspector of Police, Thana Maharajpura, District Gwalior. From the last paragraph of the opinion given by the Ballistics Expert, it is clear that the death of the deceased occurred because of the fire-arm, i. e. , the country-made pistol and one bullet was found in the dead body when the post-mortem examination was conducted by Dr. D. C. Jain (P. W. 22 ). Shri A. K. Barua, learned counsel for the appellant, submitted before us that when the eyewitness Rajendra Singh (P. W. 1) says that there were two fires from the country-made pistol, only one bullet is found in the dead-body, therefore, the ocular evidence given by the witness Rajendra Singh- (P. W. 1) is very much shaky and it should not be believed. The whole statement of Rajendra singh (P. W. 1) should be discarded as it contradicts the material evidence regarding the bullets. He has relied on Ram Narain v. State of Punjab, 1975 Cr. LR (SC) 447. in which it is laid down as under: "where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. " We have already discussed this aspect of the case in the previous paragraphs of our Judgment. Therefore, there is no need of discussing it again. Therefore, the submission of the learned counsel, we are not in a position to accept. ( 18. ) THE learned counsel for the appellant has referred to us to Sanatan ghorai v. The State of West Bengal, 1969 C A R 162 (SC) After going through the Judgment, we find that the tests to be applied in appreciating the evidence of the approver have been narrated in the above judgment. But, as we have already made it clear as to what tests are to be applied to the evidence given by the approver and as all these tests have been enunciated in this Ruling, we are of the opinion that this Ruling has not laid down any new test for deciding the present case. ( 19. But, as we have already made it clear as to what tests are to be applied to the evidence given by the approver and as all these tests have been enunciated in this Ruling, we are of the opinion that this Ruling has not laid down any new test for deciding the present case. ( 19. ) ONE more case was referred to us by the learned counsel for the appellant and that Kanana and others v. State of Kerala, 1979 Cr. L R (SC) 601. in which the importance of holding test identification parade was considered and was held that the identification in the Court of the accused by the witness is of little consequence. On this basis of this ruling, the learned counsel for the appellant submitted before us that as no identification parade was held for identifying the accused, the evidence of the persons who have identified the accused in the Court should be discarded. Mostly, he wanted us to discard the evidence of the commission Agent Chanandas (P. W. 23) to whom the oranges were sold and who has produced the bill showing the signature of the accused on it and payment of price of oranges made to the accused. The next witness whose evidence he wants us to discard is that of Ram Prakash (P. W. 42) and Shyam Babu (P. W. 37 ). But, we do not find any substance in this submission also. ( 20. ) THEREFORE, the rulings submitted before us have no application to the present case and even assuming that we discard the evidence of these witnesses, there is sufficient evidence of the approver Rajendra Singh (P. W. 1)which is corroborated in material particulars as stated above, to come to the conclusion that the appellant is responsible for committing the murder of Gurudip Singh alias Dalip Singh. One factor we may mention is that when the accused was examined by the trial Court, he has not given any explanation as to how the deceased Gurudip Singh met with his death. We may further mention here that it is not the case of the appellant that the approver fired the shots which killed the deceased. The defence of the appellant also is falsified by the evidence produced by the prosecution. We may further mention here that it is not the case of the appellant that the approver fired the shots which killed the deceased. The defence of the appellant also is falsified by the evidence produced by the prosecution. From reading the statement of the appellant, we are of the opinion that he has taken the defence of alibi as well as that he was not in the service as a driver on the truck No. CPH 7011. But from the discussion of the evidence, mentioned above, there is no doubt that his defence is absolutely false. The defence taken by the accused is found to be false from the evidence produced by the prosecution. But, only because we have come to the conclusion that the defence taken by the appellant is false, no presumption can be drawn against him regarding the guilt. We have based our finding regarding the commission of the offence by the appellant on the evidence produced by the prosecution, namely, that of Rajendra Singh (P. W. 1), corroborated by other evidence as discussed above. ( 21. ) AS to offence under section 201, Indian Penal Code, there is no doubt that the finding of the trial Court is based on evidence and we confirm the same. The appellant, with the aid of Rajendra Singh (P. W. 1), wanted to do away with the evidence of the crime they committed when they were together. Therefore, the appellant was rightly convicted by the learned trial Court under sections 302 and 201, Indian Penal Code and in our opinion, the sentence imposed by the trial Court also is sufficient to meet the ends of justice. The direction by the trial Court that the sentences will run concurrently also, we confirm. ( 22. ) THE result, therefore, is that the appeal fails and the conviction and sentence passed against the appellant by the trial Court are maintained. Appeal dismissed.