Challenge against conviction
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 under Section 301 read with Section 302 of the Indian Penal Code, 1860 (IPC). He was also convicted under Section 307 IPC. For the 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 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 between 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.
Registration of FIR
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.
Final report
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.
Sessions court convicted the appellant
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.
Hon’ble High court confirmed the conviction of appellant
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.
Evidence: appreciation and analysis
Motive for the present incident: In village election informant voted against the accused wife. Also there were case and a case-in-counter going on
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 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 along with PW-2 Man Singh went to Bhognipur Police Station and on the way 9 informed his brother Sunder Lal, the scribe, who wrote the first information which PW-1 carried to the police station.
Appellant shot PW-1 with gun but the first gunshot hit P.W-1’s mother and she died at the spot
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.
In cross-examination PW-1 states when her mother collapsed he cried but did not hugged her mother but gone to his brother who wrote the FIR but did not accompany PW-1 to the police station
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 10 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
Defence taken was PW-1 while examining a country made pistol a bullet was fired accidently
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.
Deposition of Doctor who did the Post mortem
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 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.
Under Section 313 cr.p.c questioning the fight was admitted
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.
Seizure memo
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.
Version of PW-1 unbelievable inasmuch the bullet could have hit the left breast and not behind
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.
Omission to examine the person present when incident occurred is most crucial
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.
PW-5 was hearsay
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.
Weapon not recovered and inconsistencies in the cartridge
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 18 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 tikli. Importantly, the country made pistol was never recovered. Prosecution has not said anything in this regard. That apart, as per the version of PW- 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.
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.
Gurucharan Singh Vs. State of Punjab, AIR 1963 SC 340 (para.41)
Sukhwant Singh Vs. State of Punjab, (1995) 3 SCC 367 (para.21)
Failure to examine the expert opinion affects the creditworthiness of the prosecution case
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.
If there are convincing eyewitnesses then non-examination of expert does not affect the prosecution case
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.
Gulab Vs. State of U.P., (2022) 12 SCC 677.
Pritinder Singh Vs. State of Punjab, (2023) 7 SCC 727
Applying above proposition the eyewitnesses suffer from serious lacunae
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.
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 quashed. Consequently, the appellant is directed to be released from jail forthwith, if not required in any other case.
Appellant acquitted.
Party
RAM SINGH APPELLANT(S) VERSUS THE STATE OF U.P. RESPONDENT(S) – CRIMINAL APPEAL NO. 206 OF 2024 – 21.02.2024 – 2024 INSC 128.
https://main.sci.gov.in/supremecourt/2018/14768/14768_2018_7_1502_50619_Judgement_21-Feb-2024.pdf
Ram singh vs. The state of U.P 14768_2018_7_1502_50619_Judgement_21-Feb-2024
