Ram Singh vs The State Of Uttar Pradesh on 21 February, 2024

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Supreme Court of India

Ram Singh vs The State Of Uttar Pradesh on 21 February, 2024

Author: Abhay S. Oka

Bench: Abhay S. Oka

2024 INSC 128                                                        REPORTABLE
                               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)



                                         JUDGMENT

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.
Signature Not Verified In the sessions trial, appellant Ram Singh was convicted
Digitally signed by
Anita Malhotra
Date: 2024.02.21

under Section 301 read with Section 302 of the Indian Penal Code,
16:36:28 IST
Reason:

1860 (IPC). He was also convicted under Section 307 IPC. For the
2

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
3

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.

4

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.
5

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
6

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,
7

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
8

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
9

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
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.

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
11

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
12

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.
13

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
14

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
15

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
16

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
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-
19

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.

20

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
21

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.

25

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
26

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

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