Criminal Appeal no.640 of 2005

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.640 OF 2005

Ashok Singh    …….Appellant

Vs.

State of  U.P.                     ……Respondent

J U D G M  E N T

HARJIT SINGH BEDI, J.

1. This  appeal  by  way  of  special  leave  arises  out  of  the  

following facts:

2. At about 7 a.m. on the 11th July 1977 deceased Chhota  

Singh was on his way from his residential house to the nearby  

Devi Ji Mandir for the purpose of supervising the repairs of the  

chabutra  of  the  temple.   The  four  accused,  namely  Ashok  

Singh, Shiv Raj, Shyam Saran Singh and Sheo Narayan were  

hiding near the flour mill, all armed with guns.  Shiv Raj and  

Sheo Narayan gave a lalkara that Chhota Singh be killed and  

on this call Ashok Singh and Shyam Saran Singh fired at him  

on which he fell down at a short distance from his residential  

house  and  succumbed  to  his  injury.   The  incident  was  

1

Criminal Appeal no.640 of 2005

witnessed amongst others by Rameshwar Singh (PW3) son of  

the deceased and Durjan (PW4).  After the assailants left the  

scene, Chhota Singh was shifted from the place where he lay  

dead.  Rameshwar Singh (PW3) rushed to the Police Station  

and lodged a report with Police Station Hasan Ganj at 9.30  

a.m.  whereafter  Ram  Prakash  Shukla  Sub-Inspector  (PW5)  

reached  the  spot  at  2.45  p.m.  and  started  with  the  

investigation.   He found the dead body lying in front of his  

residential  house  and  after  recording  the  inquest  report  

dispatched  the  dead  body  for  the  post-mortem.   The  post-

mortem examination was conducted by Dr. A. Akram on 12th  

October  1977  which  revealed  two  ante  mortem  external  

injuries, one being a gun shot wound from which a pellet was  

also recovered.  On the completion of  the  investigation,  the  

accused was charged for an offence punishable under Section  

302/34 of the IPC.  The trial court relying on the statements of  

Rameshwar Singh (PW3) and Durjan (PW4) convicted all the  

accused and sentenced them to undergo imprisonment for life.  

The  matter  was  thereafter  taken  in  appeal  before  the  High  

Court.   The  High  Court  repelled  the  submissions  of  the  

2

Criminal Appeal no.640 of 2005

appellant’s counsel that the FIR had been inordinarily delayed,  

that the incident had not taken place at the time and place  

suggested by the prosecution and that the deceased had, in  

fact, been murdered in the early hours of the morning when he  

had gone to ease himself.  The High Court observed that it was  

true  (as  it  had  been  admitted  by  Rameshwar  Singh  (PW3)  

himself) that there were two rival groups in the village and one  

of the groups was headed by his father whereas some of the  

accused belonged to the opposite party and that Ashok Singh  

appellant  and  he  were  on  inimical  terms  and,  therefore,  it  

appeared that Rameshwar Singh was an interested witness.  

The  court,  however,  further  opined  that  Durjan  was  a  

completely  independent  witness  whose  evidence  inspired  

confidence.  The court also observed that though two shots  

were alleged to have been fired at the deceased, one by Ashok  

Singh and the other by Shyam Saran Singh the argument of  

the learned counsel for the appellant, that there was apparent  

discordance between the ocular and the medical evidence was  

not sustainable more particularly as both shots had been fired  

simultaneously,  and it  would  have  been impossible  for  any  

3

Criminal Appeal no.640 of 2005

witness to have given a categorical statement as to which of  

the two shots had hit the deceased.  The court, further, opined  

that though Rameshwar Singh and Durjan had both stated  

that Shiv Raj and Sheo Narayan had been armed with a gun  

but it was conceded on all sides that they had not used their  

weapons and all that they have done was to have shouted to  

their companions to kill Chhota Singh, and that it appeared  

from the statement of Rameshwar Singh (PW3) that he had, in  

fact, not seen these two actually exhorting the other accused  

to  commit  the  crime.   The  court  accordingly  granted  the  

benefit  of  doubt  to  Shiv  Raj  and  Sheo  Narayan  appellants  

therein  while  dismissing  the  appeal  of  Ashok  Singh  and  

Shyam Saran Singh.  These two are before us in appeal by way  

of Special Leave Petition.

3. We have heard the learned counsel for the parties and  

gone  through  the  record.   We  find  no  reason  to  disbelieve  

Rameshwar  Singh  (PW3)  supported  fully  as  he  is  by  the  

statement of Durjan (PW4) who is a truly independent witness.  

An attempt by the defence to show that he was indebted to  

Chhota Singh for some favour earlier in point of time has not  

4

Criminal Appeal no.640 of 2005

been substantiated on record.  We also find that the ocular  

evidence is fully borne out by the medical evidence as Dr. A.  

Akram had recovered a pellet from the dead body at the time  

of the post-mortem examination.  

4. Mr. Luthra, the learned counsel for the appellants has  

submitted that as only one entry wound had been detected on  

the dead body from two shots, the prosecution story suffered  

from a serious flaw.   It is true that two shots were alleged to  

have been fired at the deceased whereas only one wound entry  

on the head by a fire arm had been detected at the time of  

post-mortem.  We are of the opinion, however, that it would be  

impossible for any witness in a case of simultaneous firing of  

two or more shots to give a categorical statement as to which  

of  the two shots had hit  the victim.   We also see from the  

evidence  of  ASI-Ram Prakash Shukla  (PW5)  that  two  spent  

cartridge cases had been picked up from the place of incident  

meaning  thereby  that  both  Ashok  Singh  and Shyam Saran  

Singh had fired a shot each at the deceased.  We also believe  

that if two different types of weapons had been used it would  

have been open to the defence to argue that in the light of the  

5

Criminal Appeal no.640 of 2005

fact that a shot gun pellet had been recovered from the dead  

body,  the  other  weapon  had  not  been  used,  which  factor  

undoubtedly  could  cause  some  speculation  about  the  

prosecution’s case.  Admittedly, this is not the situation before  

us, as both the appellants had been armed with shot guns.  

We, therefore, confirm the judgment of the High court.  The  

appeal is dismissed.

………………………………J (Harjit Singh Bedi)

……………………………….J.     ( J.M. Panchal)

New Delhi, Dated  18th September 2009

6