Criminal Aopeal No .898  of 2007                                                                                                                               REPORTABLE 1

 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 898  OF 2007

 HARI SINGH   ..... APPELLANT

VERSUS

STATE OF M.P.   ..... RESPONDENT

O R D E R

1. This appeal by way of special leave is directed  

against  the  concurrent  findings  of  the  Additional  

Sessions Judge and the High Court whereby the appellant  

stands convicted for an offence punishable under Section  

302  of  the  Indian  Penal  Code  and  sentenced  to  

imprisonment  for  life  and  a  fine  of  Rs.500  and  in  

default  thereof  to  undergo  simple  imprisonment  for  a  

period of two months.

2. The prosecution story is as follows:

2.1 The father of P.W. 1 Ramesh Chander, the first  

informant, and the deceased Ashok Kumar, was murdered  

several years earlier by the gang of Makhan Singh Daku

Criminal Aopeal No .898  of 2007                                                                                                                               REPORTABLE 2

and  the  suspicion  was  that  it  had  been  done  at  the  

instance of the family members of Hari Singh Thakur, the  

appellant  herein.   At  about  11:00a.m.  On  22/05/1989,  

P.W. 1 - Ramesh Chander and Ashok Kumar went to the  

village well to draw water and were carrying a rope and  

a  bucket  with  them  for  that  purpose.   At  that  very  

moment, the appellant Hari Singh also reached the well  

carrying his licensed muzzle loading shot gun (Topidar  

shot gun) and after hurling abuses at Ashok and saying  

that as he had often insulted him he would have his  

revenge, fired a shot hitting him in the chest.  Ramesh  

Chander  ran  to  save  his  brother  but  the  appellant  

threatened him with dire consequences on which he ran  

away.  The incident was seen by several other persons  

including Kalawati, the mother of Ramesh Chander and the  

deceased from the house of Captain Patel and in addition  

several other persons as well.  Ramesh Chander, however,  

made his way to police post Kanhar about 7 kms. distant  

and the formal FIR was registered at Police Station,  

Pahargarh  at  about  1:30p.m.   The  police  thereafter  

reached  the  site  of  incident  and  the  necessary  

investigations were made.  The dead body was also sent  

for the post mortem examination.  The accused was taken  

into custody on 16th June, 1989 and his licensed muzzle

Criminal Aopeal No .898  of 2007                                                                                                                               REPORTABLE 3

loading shot gun, the alleged murder weapon, was also  

seized.  During the course of the investigation, it also  

transpired that in addition to the above named witnesses  

Bharat , P.W. 2 son of Ramesh Chander had also witnessed  

the incident from the house of Captain Patel. On the  

completion  of  the  investigation,  the  appellant  was  

charged and brought to trial as already mentioned above.  

The trial court observed that there was absolutely no  

reason to doubt the presence of Ramesh Chander, P.W. as  

his presence was natural in the light of the fact that  

the incident had happened in broad day light when the  

two brothers had gone to the village well to draw water.  

The argument that Bharat P.W. 2 had not been named in  

the FIR creating a doubt as to his presence was also  

repelled by observing that Ramesh Chander had apparently  

not seen him, as the house of Captain Patel was some  

distance away.  The Court also observed that though in  

the FIR it had been mentioned that the injury had been  

inflicted on the right side of the chest but the post  

mortem report showed the injury on the left side,  was  

not a material circumstance as it was impossible for any  

witness to make out as to where a bullet had hit after  

it had been fired.

3. The  trial  court,  accordingly,  convicted  the

Criminal Aopeal No .898  of 2007                                                                                                                               REPORTABLE 4

appellant.  The judgment aforesaid stands maintained by  

the High Court as well.

4. Dr. Sushil Balwada, the learned counsel for the  

appellant has raised several arguments before us today.  

He has pointed out that the uncertainty with regard to  

the site of the injury cast a doubt on the presence of  

Ramesh Chander, P.W.  He has also submitted that P.W. 2  

was the son of P.W. 1 and as his name did not figure in  

the  FIR  his  presence  had  not  been  explained.   In  

addition,  it  has  been  urged  that  as  several  other  

persons though cited as witnesses had not been examined,  

the  very  substratum  of  the  prosecution  story  was  in  

doubt.

5. Mr. Siddharth Dave, the learned counsel for the  

State  of  Madhya  Pradesh  has,  however,  supported  the  

judgments of the courts below.  He has pointed out that  

in case of a single accused false implication was to be  

ruled  out  more  particularly  because  of  the  admitted  

animosity between the parties going back  several years.  

He has also submitted that even assuming that there was  

some uncertainty with regard to site of the injury in  

the ocular evidence, the same had been removed by the  

medical  evidence  as  the  post  mortem  examination  

indicated  the  dispersal  of  pellets  right  across  the

Criminal Aopeal No .898  of 2007                                                                                                                               REPORTABLE 5

chest both to the right and left  side, as both lungs  

had been damaged.

6. We have heard the learned counsel for the parties  

and perused the record.

7. Two courts have accepted the presence of the two  

eye witnesses.  We see no reason to differ with the  

findings recorded.  It is also true that in the case of  

evidence  recorded  after  a  long  period  of  time  some  

discrepancies are bound to occur.  It is significant  

that the present incident happened in May, 1989 and the  

Additional  Sessions  Judge  recorded  the  conviction  in  

July, 1997 meaning thereby that the evidence had gone on  

for eight or nine years.   We also find that the eye  

witness  account  is  fully  corroborated  by  the  medical  

evidence.  It is the case of the prosecution that the  

shot  had  been  fired  from  about  2  metres.   The  post  

mortem  report  indicates  that  this  is  the  correct  

position.  We see that there are several wounds of entry  

spread  across  the  chest  and  left  upper  arm  with  

blackening  and  burning  around  some  of  them.   The  

dispersal  of  pellets  and  the  uneven  blackening  and  

burning over the bullet holes suggests that a primitive  

weapon, (a “topidar” shot gun,  a muzzle loading weapon,  

which is often a primitive weapon, and when used with

Criminal Aopeal No .898  of 2007                                                                                                                               REPORTABLE 6

gun powder and shot of uncertain quality and quantity,  

is likely to give uneven and uncertain pellet patterns)  

could have been used.  The doctor also opined that the  

shot had been fired from about 2 metres from a shot gun.  

This fully corresponds with the injuries on the dead  

body.  We also observe that the very promptitude with  

which the FIR had been registered at the police station  

supports the veracity of the prosecution story.  The  

place of incident was 7 kms away from police station,  

Kanhar.  The FIR had been lodged within 2 ½ hours after  

the incident by the brother of the deceased, and as a  

close relative of the family had been murdered an hour  

or so would have been taken at the place of incident  

before Ramesh Chander had left for the police station.  

We,  therefore,  find  that  the  promptitude  of  the  FIR  

supports the prosecution story.

8. We find no merit in this appeal.  Dismissed.

   ...........................J  [HARJIT SINGH BEDI]

...........................J  [CHANDRAMAULI KR. PRASAD]

Criminal Aopeal No .898  of 2007                                                                                                                               REPORTABLE 7

NEW DELHI AUGUST 03, 2010.