Full Judgment Text
REPORTABLE
2024 INSC 128
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 206 OF 2024
RAM SINGH APPELLANT(S)
VERSUS
THE STATE OF U.P. RESPONDENT(S)
J U D G M E N T
UJJAL BHUYAN, J.
This appeal is directed against the judgment and order
dated 05.02.2018 passed by the High Court of Judicature at
Allahabad in Criminal Appeal No. 1611 of 1983, confirming the
conviction and sentence imposed on the appellant by the
Additional Sessions Judge, Non-metropolitan Area, Kanpur in
Sessions Trial No. 297 of 1982.
2. In the sessions trial, appellant Ram Singh was convicted
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2024.02.21
16:36:28 IST
Reason:
under Section 301 read with Section 302 of the Indian Penal Code,
1860 (IPC). He was also convicted under Section 307 IPC. For the
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offence under Section 301/302 IPC, appellant was sentenced to
undergo imprisonment for life and for the offence under Section
307 IPC, appellant was sentenced to undergo rigorous
imprisonment for five years, both the sentences to run
concurrently.
2.1. As noticed above, the appeal filed by the appellant
before the High Court of Judicature at Allahabad (‘High Court’ for
short) was dismissed. Consequently, the conviction and sentence
of the appellant imposed by the Sessions Court was confirmed by
the High Court.
Prosecution case
3. PW-1 Shri Radhey Lal lodged a first information before
the Bhognipur Police Station in the District of Kanpur (U.P.) on
19.08.1982 at midnight stating that he and his brother Desh Raj
were sitting in the open space in front of the entrance door of his
house during the evening hours. His mother Dulli was sitting close
by on a cot. On another cot, neighbours Lala Ram i.e. PW-3 and
Man Singh i.e. PW-2 were sitting. They were chatting under a
glowing lantern hanging on the roof-side of his residence.
According to the informant, at about 08:00 PM, appellant Ram
Singh accompanied by one Lala Ram came to his residence. He
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stated that both of them were residents of his village. Ram Singh
was holding a country made pistol in his right hand. As per version
in the first information, Lala Ram had instigated Ram Singh by
loudly saying that these people were creating disturbances; so kill
them. Ram Singh fired on the informant but he slipped below the
cot. The bullet hit the left breast of his mother Dulli who cried aloud
saying that she was dead. According to the informant, they also
cried. Ram Singh and Lala Ram ran away towards the north.
Mother died immediately due to the gunshot wound. Informant
stated that the incident was seen by his brother Desh Raj and by
his neighbours Lala Ram and Man Singh in the light of the lantern.
On hearing the firing, many people living nearby came. They had
seen the accused running. The mother was lying dead on bed. The
informant further stated that about one and a half months back,
there was a scuffle betfween his son Baan Singh and the appellant
Ram Singh which matter was duly reported to the local police
station. Lala Ram and Ram Singh belongs to the same party.
Because of this, they came to the door of his residence when on the
instigation of Lala Ram, Ram Singh fired a shot due to which his
mother Dulli died.
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3.1. The first information as dictated by the informant, was
reduced to writing by the scribe Sunder Lal, another brother of PW-
1. The said first information was registered as FIR bearing No.
252/1982.
4. Police investigated the crime and on completion of the
investigation submitted chargesheet charging appellant Ram Singh
of having committed offence under Sections 301 and 302 of the IPC
as well as under Section 307/34 IPC. On the other hand, the co-
accused Lala Ram was charged of having committed offence under
Section 307/34 IPC.
4.1. To prove its case, prosecution examined six witnesses.
After considering the evidence and materials on record, the
Sessions Court convicted the appellant under Section 301 read
with Section 302 IPC and also under Section 307 IPC. However, the
other accused Lala Ram was given the benefit of doubt and
accordingly was acquitted.
4.2. At this stage, we may mention that there are two Lala
Ram in this case. One is Lala Ram, son of Prahalad Singh who is
PW-3 and the other is Lala Ram, son of Dhanna Ram Yadav who
was named as accused number 2 and acquitted by the trial court.
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5. As noticed above, the trial court convicted the appellant
under the aforesaid provisions of IPC and sentenced him
accordingly. The co-accused Lala Ram, son of Dhanna Ram Yadav,
was acquitted. The appeal filed by the appellant before the High
Court was dismissed. Consequently, his conviction and sentence
were confirmed.
Submissions
6. Learned counsel for the appellant submits that there are
gross contradictions in the testimony of the prosecution witnesses.
The so called eyewitnesses were no eyewitnesses at all. Rather, they
were interested witnesses having previous political enmity with the
appellant. It is because of such political rivalry that appellant was
falsely implicated in the case.
6.1. He further submits that not only there are glaring
inconsistencies in the version of the prosecution witnesses; crucial
and material witnesses have not been examined. Even the country
made pistol allegedly used by the appellant was not recovered. The
pellets found at the site and also extricated from the body of the
deceased were not sent for ballistic examination. In the absence of
any ballistic report linking the pellets to the pistol allegedly used
by the appellant, he could not have been convicted. Both the trial
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court and the High Court therefore fell in error in convicting the
appellant.
6.2. Learned counsel submits that it is true that on
16.07.2018, this Court had issued notice only on the question of
converting the conviction from under Section 302 IPC to Section
304 IPC and also on the prayer for grant of bail, nonetheless, he
had submitted before this Court on 31.10.2023 that he would
argue for acquittal as well.
6.3. He further submits that the trial court had committed a
fundamental error in convicting the appellant on the one hand and
acquitting the co-accused Lala Ram on the other hand. Evidence
against both were the same. When on the same set of evidence the
co-accused was acquitted, the trial court ought to have acquitted
the appellant as well. This aspect was overlooked by the High
Court. In support of his submission, learned counsel has placed
reliance on a decision of this Court in Javed Shaukat Ali Qureshi
Vs. State of Gujarat, (2023) 9 SCC 164.
6.4. Contention of learned counsel for the appellant is that
there are no materials on record to conclusively prove the guilt of
the appellant. Rather, it is a case of no evidence. Therefore,
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appellant is entitled to be acquitted. Orders of the trial court as
well as of the High Court should be set aside.
7. Per contra , learned counsel for the respondent-State
argues that in view of the incriminating evidence against the
appellant, both the Sessions Court as well as the High Court had
rightly convicted the appellant. The ocular evidence clearly points
to the positive act of the appellant firing the gunshot which killed
the mother of PW-1, Dulli. Considering the gruesome nature of the
murder and the testimony of the prosecution witnesses, conviction
of the appellant is fully justified. High Court had rightly dismissed
the criminal appeal of the appellant. No case for interference is
made out.
8. Submissions made by learned counsel for the parties
have received the due consideration of the Court.
Evidence: appreciation and analysis
9. PW-1, who is the first informant and son of the
deceased, stated in his evidence that they are the three brothers:
Desh Raj, Sunder Lal and himself, he being the youngest. He lived
with his mother at his village where his mother had property. In
the same village, his maternal uncle used to reside. Both the
accused were residents of his village and belonged to the same
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community. He deposed that he had a rivalry with accused Ram
Singh in connection with the election of village Pradhan. In that
election, wife of the accused Ram Singh was one of the candidate.
Ram Singh was also related to accused Lala Ram. PW-1 stated that
he had voted for the candidate who stood against the wife of Ram
Singh. In that election, Ram Singh’s wife lost and in this
connection, a fight had broken out between the son of PW-1 i.e.
Baan Singh and accused Ram Singh in respect of which FIR and
cross FIR were lodged. The cases were going on. Accused Lala Ram
was deposing as a witness in Ram Singh’s case. This incident had
happened about a month and a half prior to the present incident.
According to him, it was around 08:00PM in the evening when he
was sitting at his door. His mother Dulli was sitting on the cot. The
place was lit up by the hanging lantern which was hung on the
roof. The two accused came from the north. Accused Lala Ram
challenged PW-1 by saying that the latter was creating a lot of
mischief and, therefore, he should be killed. Ram Singh fired from
his country made pistol which he was carrying. Instead of hitting
PW-1, the bullet hit his mother leading to her death. Thereafter,
the two accused fled away. After this incident, PW-1 alongwith PW-
2 Man Singh went to Bhognipur Police Station and on the way
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informed his brother Sunder Lal, the scribe, who wrote the first
information which PW-1 carried to the police station.
9.1. In his cross-examination, he stated that accused Lala
Ram was a witness in the case against his son. He explained that
there was a pile of bricks about 3-4 steps north of the courtyard
where the deceased was sitting. The deceased was sitting on the
northern side of the cot whereas PW-1 and his brother Desh Raj
were sitting at the other end of the cot. He added that when Ram
Singh fired at him, he bent below the cot, so also his brother. He
could not see as to whether PW-2 and PW-3 had bent or not. As
per the version of PW-1, the first gunshot did not hit him. Second
shot was not fired at him or his brother because his mother had
died in the first gunshot itself. Accused Ram Singh was at a
distance of three steps from his mother’s cot. On hearing their
screaming, several villagers came to the place of occurrence. At
this, the two accused ran away. However, he stated that he could
not say as to whether any villager had seen the accused running
away or not as no villager had told him.
9.2. In the cross-examination, it further revealed that
deceased Dulli used to live with the brother of PW-1 i.e. Desh Raj
whose house was behind the house of PW-1. The other brother’s
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house was also nearby. On that fateful evening, though dinner had
been taken, the deceased had not eaten food. As they were
conversing in the courtyard, his mother was sitting quiet on the cot
and did not participate. This time, he stated that he and his brother
were sitting on the floor at the time of gunshot. Though he had bent
down when the shot was fired, nobody got under the cot. On
receiving the gunshot, the mother had collapsed on the cot. He had
cried while sitting but had not hugged his mother. He had gone to
his brother Sunder Lal’s hotel where the first information was
written but his brother Sunder Lal did not accompany him to the
police station.
9.3. He denied the suggestion that it was a false case because
of personal enmity; that Desh Raj and others who were sitting on
the cot with the deceased in Desh Raj’s house and that while
examining a country made pistol, a bullet was fired accidentally.
10. PW-2 Man Singh stated that the deceased was sitting on
a cot in the courtyard. Desh Raj and PW-1 were sitting on the floor
near the cot. Accused Lala Ram had instigated accused Ram Singh
by saying that PW-1 was being mischievous and that he should be
killed. At this, accused Ram Singh walked 2-3 steps and fired from
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his country made pistol but instead of hitting PW-1, his mother
was hit and she died.
10.1. In his cross-examination, PW-2 stated that the deceased
was sitting on a cot while PW-1 and his brother Desh Raj were
sitting on the floor on the west side of the cot. He saw the accused
in the lantern light. Though Lala Ram had instigated Ram Singh,
he did not get up from the cot and kept sitting. When shot was
fired, Desh Raj and Radhey Lal (PW-1) stood up. He did not run to
see the deceased after being shot. She was shot from a distance of
2-3 steps.
11. PW-3 Lala Ram, son of Prahalad Singh, stated that at
the relevant time on the date of incident, he and Man Singh PW-2
were sitting on the same cot. Dulli was sitting on bed. Desh Raj
and Radhey Lal were sitting on the floor at a distance of one and a
half hems away. The two accused came from the northern side.
Accused Lala Ram instigated accused Ram Singh to kill PW-1
saying that he was doing a lot of mischief. Ram Singh instantly
fired from his country made pistol. The bullet did not hit Radhey
Lal PW-1 but hit the left breast of his mother who was killed.
11.1. In his cross-examination, he stated that he had seen
accused Ram Singh before accused Lala Ram started challenging
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PW-1. He did not see what Ram Singh was carrying and did not see
any country made pistol in his hand. It would be wrong to say that
he had seen country made pistol in the hands of Ram Singh. Sub-
Inspector of Police had not questioned him. While he was examined
in court, he admitted that there were party politics between the
Pradhan of the village who got elected and the accused. He also
denied the suggestion that he had not seen any such incident and
that no such incident had happened.
12. PW-4 is the Sub-Inspector of Police, B.D. Verma. He
stated that while preparing the inquest report, one tikli and 12
pellets were seized from the wound of the deceased. He also seized
cans of normal and blood-stained soil and also blood-stained
clothes of the deceased. The blood-stained clothes and the cans of
soil were sent to the chemical examiner for chemical examination
but the report was not received back. He further stated that during
preparation of inquest report, one tikli and 12 pellets were seized
from the wound of Dulli on the cot. However, in re-examination, he
stated that the pellets taken out by the doctor in the hospital were
produced in the court. The tikli which was taken out from the body
of the deceased in the hospital was with the pellets.
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13. PW-5 is Raghu Raj Singh who was the Pradhan of the
village. The inquest report was prepared in his presence and had
his signature. He stated that blood-stained cot strips, empty
cartridge, tikli and pellets were collected from the spot.
13.1. In his cross-examination, he stated that he used to
reside at a distance of 150 steps from the house of Dulli. He came
to know about Dulli’s death on hearing the sound of firing but he
did not come out of his house due to fear. However, he contradicted
himself when he stated that he could not tell by the sound of firing
that Dulli was killed; rather he came to know about this 10-15
minutes later when one of the villagers Raja Ram, son of Prahalad
Yadav told him while running by. He further compounded the
inconsistency by saying that he did not tell the Sub-Inspector
about hearing the sound of firing because this did not happen.
14. The doctor who had conducted post-mortem
examination, Dr. P.S. Mishra, was examined as PW-6. He stated
that the entry wound of the bullet pellet 4cm × 3cm was on the left
side of the left breast. The edges were inside with blackening. The
wound was bone-deep. Third and fourth ribs on the left side chest
were broken. There was laceration on the left lung. Both the lungs
had blood. The heart was also lacerated. Semi-digested rice and
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pulse were found in the stomach of the deceased. He opined that
cause of death of the deceased was due to shock and haemorrhage
because of the above injuries. 55 small pellets were taken out of
the body of the deceased during post-mortem.
15. During his examination under Section 313 of the Code
of Criminal Procedure, 1973 (Cr.P.C.), accused Ram Singh denied
the accusation that he had killed the deceased by shooting her from
a country made pistol. He stated that there was indeed a scuffle
between the son of PW-1 and himself relating to the Pradhan
election for which criminal cases were pending. The witnesses were
testifying against him due to enmity.
16. Before we proceed further, we may mention that in the
seizure memo dated 20.08.1982, which has been placed on record,
it was stated that during preparation of inquest report of the
deceased, the police had seized the tikli of the cartridge stuck on
the wound of the deceased and 12 bore cartridge lying on the cot
of strips.
17. From a careful scrutiny of the prosecution evidence,
what is seen is that PW-1 alongwith his brother Desh Raj were
chatting with PW-2 and PW-3 in the courtyard in front of the house
of PW-1. PW-2 and PW-3 were sitting on one cot. The deceased was
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sitting on another cot. Thereafter the discrepancies in the version
of the witnesses arise. At one point of time, PW-1 said that he was
at his door; at another point he stated that he and his brother Desh
Raj were sitting on the same cot in which his mother was sitting
but on the other end of the cot. Then again he said that the two
brothers were sitting on the floor. It has also come on record that
according to the version of some of the prosecution witnesses, PW-
1 and his brother Desh Raj were sitting on the floor. Pausing here
for a moment, we can visually analyse that the mother was sitting
on the cot at a distance from her two sons. She was sitting laterally
and not behind her two sons. According to the witnesses, the two
accused came from the northern side and when they reached the
pile of bricks, accused Lala Ram instigated accused Ram Singh
that PW-1 was creating lot of mischief and, therefore, he should be
killed. Ram Singh then moved 2-3 steps ahead and fired at PW-1.
Now PW-1 says that he had hid himself below the cot; while the
other version is that he had simply bent as he was sitting on the
floor. On the other hand, PW-2 had stated in his cross-examination
that when the shot was fired, PW-1 and his brother Desh Raj stood
up. It is the prosecution case that Ram Singh had shot PW-1 but
because of the evasive reaction of PW-1, the bullet fired by Ram
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Singh from his country made pistol hit the left breast of the
deceased who thereafter died.
18. If this version is to be believed, then Ram Singh had fired
at PW-1 from a close range and from a standing position. Therefore,
trajectory of the shot would be from a height downwards. PW-1 was
either sitting on the cot or on the floor and had taken evasive action
(though PW-2 says that PW-1 stood up when the shot was fired);
the mother was sitting diagonally on the other end of the cot. It is
highly improbable that the shot fired at from such a close range
and from a height downwards could have hit the left breast of the
deceased who was sitting at a lateral distance and not behind PW-
1.
19. Interestingly, neither Desh Raj, brother of PW-1 and son
of the deceased, who was very much present at the place and time
of occurrence was examined by the police nor the other brother
Sunder Lal, the scribe, who had written the first information, was
examined by the police. Omission to examine Desh Raj by the
prosecution is most crucial as according to the prosecution version
he was very much present when the incident occurred. We may
also mention that the behaviour of Sunder Lal is also very unusual.
He did not accompany PW-1 to the police station. There is also no
17
evidence that he had rushed to the place of occurrence where his
mother was killed. An adverse inference will have to be drawn
against the prosecution for not examining material witnesses. Be
that as it may, it was only PW-1 and PW-2 who had stated that
Ram Singh had fired from a country made pistol at PW-1 but the
bullet had hit mother of PW-1, who died of the bullet wound. On
the other hand, PW-3 categorically stated that he did not see
accused Ram Singh carrying any country made pistol. Further, it
has come on record that there was previous enmity between PW-1
and the accused relating to election of village Pradhan because of
which there were cross cases between them.
20. The village Pradhan who testified as PW-5 stated that he
was inside his house when he heard gunshot. He came to know
that Dulli was killed about 10 to 15 minutes later when one Raja
Ram, son of Prahalad Yadav, told him so while he was running by.
Incidentally, the said Raja Ram was not examined by the police.
21. At this stage, what is noticeable is that the weapon of
offence i.e. the country made pistol used by the accused in the
offence, could not be recovered by the police and therefore not
exhibited. Thus, the main material evidence i.e., the weapon of
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offence was not exhibited. In the seizure memo, it was mentioned
that a 12 bore cartridge was lying on the cot and alongwith the tikli
of the cartridge which was stuck on the wound of the deceased,
were seized by the police. On the other hand, in the evidence of the
doctor, PW-6 as well as from the post-mortem report, it has come
on record that 55 small pellets were taken out from the body of the
deceased during post-mortem. The bullet wound was bone-deep
which clearly reveals that the deceased was shot at from close
range. In his evidence, PW-4 Sub-Inspector B.D. Verma deposed
that during preparation of the inquest report, one tikli and 12
pellets were seized from the wound of the deceased. The pellets as
well as the tikli of the cartridge were not sent to any ballistic expert,
as a result of which there is no ballistic report on the basis of which
it could be said for sure that the pellets found outside the body and
from within the body could be traceable to the tikli of the 12 bore
cartridge which in turn could be traced to the country made pistol
from which the shot was allegedly fired by the appellant. There is
no explanation of the prosecution regarding the 55 pellets retrieved
from the body of the deceased during post-mortem; whether those
could be linked to the 12 bore cartridge and the Importantly,
tikli.
the country made pistol was never recovered. Prosecution has not
said anything in this regard. That apart, as per the version of PW-
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4, the blood stained clothes of the deceased which were seized were
sent to the chemical examiner but the report from the chemical
examiner was not received till the date and time of his deposition.
22. From the above, it is evident that there are glaring
inconsistencies in the prosecution version which have been
magnified by the absence of the testimony of the material witnesses
and the ballistic report coupled with the non-recovery of the
weapon of crime.
Case law
23. In Munna Lal Vs. State of U.P. , (2023) SCC Online SC 80,
this Court opined that since no weapon of offence was seized in
that case, no ballistic report was called for and obtained. This
Court took the view that failure to seize the weapon of offence on
the facts and in the circumstances of the case, had the effect of
denting the prosecution story so much so that the same together
with non-examination of material witnesses constituted a vital
circumstance amongst others for granting the appellants the
benefit of doubt.
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24. On the aspect of non-examination of ballistic expert and
its impact on the prosecution case, one of the earliest decisions of
this Court was rendered in Gurucharan Singh Vs. State of Punjab ,
AIR 1963 SC 340. This Court observed that there is no inflexible
rule that in every case where an accused person is charged with
murder caused by a lethal weapon, the prosecution case can
succeed in proving the charge only if an expert is examined. It is
possible to imagine cases where the direct evidence is of such an
unimpeachable character and the nature of the injuries disclosed
by post-mortem notes is so clearly consistent with the direct
evidence that the examination of a ballistic expert may not be
regarded as essential. Where the direct evidence is not satisfactory
or disinterested or where the injuries are alleged to have been
caused by a gun and those prima facie appeared to have been
inflicted by a rifle, undoubtedly the apparent inconsistency can be
cured or the oral evidence can be corroborated by leading the
evidence of a ballistic expert. However, in what cases the
examination of a ballistic expert is essential for the proof of the
prosecution case must naturally depend upon the circumstances
of each case. This Court held as under:
41.... These observations do not purport to lay
down an inflexible Rule that in every case where
an accused person is charged with murder
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caused by a lethal weapon, the prosecution case
can succeed in proving the charge only if an
expert is examined. It is possible to imagine cases
where the direct evidence is of such an
unimpeachable character and the nature of the
injuries disclosed by post-mortem notes is so
clearly consistent with the direct evidence that
the examination of a ballistic expert may not be
regarded as essential. Where the direct evidence
is not satisfactory or disinterested or where the
injuries are alleged to have been caused with a
gun and they prima facie appear to have been
inflicted by a rifle, undoubtedly the apparent
inconsistency can be cured or the oral evidence
can be corroborated by leading the evidence of a
ballistic expert. In what cases the examination of
a ballistic expert is essential for the proof of the
prosecution case, must naturally depend upon
the circumstances of each case….
25. This issue was again examined by this Court in
Sukhwant Singh Vs. State of Punjab, (1995) 3 SCC 367. In that
case, this Court observed that though the police had recovered an
empty cartridge from the spot and a pistol along with some
cartridges were seized from the possession of the appellant at the
time of his arrest, yet the prosecution did not send the recovered
empty cartridges and the seized pistol to the ballistic expert for
examination and expert opinion. This Court was of the view that if
such opinion would have been called for, comparison could have
been made which in turn could have provided link evidence
between the crime and the accused. It was noted that this again
22
was an omission on the part of the prosecution for which no
explanation was furnished. It was thereafter that this Court
declared as follows:
21.... It hardly needs to be emphasised that in
cases where injuries are caused by firearms, the
opinion of the ballistic expert is of a considerable
importance where both the firearm and the crime
cartridge are recovered during the investigation
to connect an accused with the crime. Failure to
produce the expert opinion before the trial court
in such cases affects the creditworthiness of the
prosecution case to a great extent.
25.1. Thus, in the aforesaid case, this Court emphasized that
in cases where injuries are caused by firearms, the opinion of the
ballistic expert becomes very important to connect the crime
cartridge recovered during the investigation to the firearm used by
the accused with the crime. Failure to produce expert opinion in
such cases affects the creditworthiness of the prosecution case to
a great extent.
26. However, in State of Punjab Vs. Jugraj Singh, (2002) 3
SCC 234, this Court opined that when there are convincing
evidence of eyewitnesses, non-examination of the expert would not
affect the creditworthiness of the version put forth by the
eyewitnesses.
23
27. This Court considered the issue as to failure of the
prosecution to recover the crime weapon and also non-
examination of ballistic expert in Gulab Vs. State of U.P., (2022) 12
SCC 677. In that case, the deceased had sustained a gunshot
injury with a point of entry and exit. In that case, prosecution had
relied on the eyewitnesses’ accounts of three eyewitnesses which
were found to be credible. Therefore, non-recovery of the weapon
of the offence would not dis-credit the case of the prosecution.
After referring to the previous decisions, this Court opined that in
the facts and evidence of the case, the failure to produce the report
by a ballistic expert who could testify to the fatal injuries being
caused by a particular weapon would not be sufficient to impeach
the credible evidence of the direct witnesses.
28. In Pritinder Singh Vs. State of Punjab, (2023) 7 SCC 727,
this Court in the facts and evidence of that case held that
conviction could not be sustained. That apart, from not collecting
any evidence as to whether the gun used in the crime belonged to
the appellant or not, even the ballistic expert had not been
examined to show that the wad and pellets were fired from the
empty cartridges of the appellant. In that case which was based
on circumstantial evidence, it was held that when there was
24
serious doubt as to credibility of the witnesses, the failure to
examine ballistic expert would be a glaring defect in the
prosecution case.
29. Thus, what can be deduced from the above is that by
itself non-recovery of the weapon of crime would not be fatal to the
prosecution case. When there is such non-recovery, there would
be no question of linking the empty cartridges and pellets seized
during investigation with the weapon allegedly used in the crime.
Obtaining of ballistic report and examination of the ballistic expert
is again not an inflexible rule. It is not that in each and every case
where the death of the victim is due to gunshot injury that opinion
of the ballistic expert should be obtained and the expert be
examined. When there is direct eye witness account which is found
to be credible, omission to obtain ballistic report and non-
examination of ballistic expert may not be fatal to the prosecution
case but if the evidence tendered including that of eyewitnesses do
not inspire confidence or suffer from glaring inconsistencies
coupled with omission to examine material witnesses, the
omission to seek ballistic opinion and examination of the ballistic
expert may be fatal to the prosecution case.
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30. Applying the above proposition to the facts of the present
case, we find that the evidence tendered by the eyewitnesses suffer
from serious lacunae. Thus, their evidence cannot be said to be
credible. That apart, material witnesses have not been examined.
On the whole, the evidence tendered on behalf of the prosecution
cannot be said to be full proof so much so that non-recovery of the
weapon of offence, non-obtaining of ballistic opinion and non-
examination of ballistic expert would be immaterial.
31. In such circumstances, it cannot be said that the
prosecution could prove the accusation against the appellant
beyond all reasonable doubt. As a matter of fact, on the same set
of evidence, the trial court gave the benefit of doubt to the other
accused Lala Ram primarily on the ground that there was a grudge
between the accused and PW-1.
32. This Court in the case of Javed Shaukat Ali Qureshi, has
held that when there is similar or identical evidence of eyewitnesses
against two accused by ascribing them the same or similar role,
the court cannot convict one accused and acquit the other. This
Court clarified as under:
15. When there is similar or identical evidence
of eyewitnesses against two accused by
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ascribing them the same or similar role, the
court cannot convict one accused and acquit
the other. In such a case, the cases of both the
accused will be governed by the principle of
parity. This principle means that the criminal
court should decide like cases alike, and in
such cases, the court cannot make a
distinction between the two accused, which
will amount to discrimination.
Conclusion
33. Thus, on a careful analysis of the evidence on record, we
are of the view that the appellant should be given the benefit of
doubt as according to us, the prosecution could not prove his guilt
beyond all reasonable doubt. Any lingering doubt about the
involvement of an accused in the crime he is accused of
committing, must weigh on the mind of the court and in such a
situation, the benefit of doubt must be given to the accused. This
is more so when the co-accused is acquitted by the trial court on
the same set of evidence.
34. That being the position, we set aside the conviction and
sentence of the accused. The judgment and order of the Additional
Sessions Court dated 28.05.1983 as well as the judgment and
order of the High Court dated 05.02.2018 are hereby set aside and
27
quashed. Consequently, the appellant is directed to be released
from jail forthwith, if not required in any other case.
35. Appeal is allowed in the above terms.
. ………………………………J
[ABHAY S. OKA]
…………………………………J.
[UJJAL BHUYAN]
NEW DELHI;
21.02.2024