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PETITIONER: GURCHARAN SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 10/08/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS MUDHOLKAR, J.R.

CITATION:  1963 AIR  340            1963 SCR  (1) 236  CITATOR INFO :  RF         1965 SC  83  (7)  E&D        1965 SC  87  (2,9,10)  MV         1982 SC1325  (69)

ACT: Criminal   Trial-Murder-Shooting  with   gun--Acquittal   of possession  of  unlicensed  firearm--Effect  on  trial   for murder--Ballistic  expert-Failure  to  produce-If   vitiates trial--Duty  of  High  Court to consider  Points  raised  in appeal.

HEADNOTE: The  two appellants G and S together with three others B,  D and  A were tried for the muder of four persons by  shooting them with guns.  Two spent cartridges were recovered at  the spot;  G produced a gun on the very day of occurrence and  D produced   a  gun  one  week  after  the  occurrence.    The cartridges  and  guns  were  sent  for  examination  to  the ballistic expert but neither he nor his report was  produced before the Sessions judge.  The Sessions judge convicted the appellants  and  B and D but acquitted A.   The  same  judge tried  G under s.19(f) Arms Act for being in  possession  of the unlicensed gun which G had surrendered but acquitted him of the charge.  On appeal against the conviction for  murder the  High  Court confirmed the conviction and  sentence  of, death  passed against the appellants but acquitted B and  D. The  appellants contended (i) that in view of his  acquittal in the s.19(f) Arms Act case, the allegation of the recovery of the gun from G in the murder case could not be  accepted, (ii)  that the failure to produce the ballistic  expert  and his  report  had  introduced  a  serious  infirmity  in  the prosecution  case, and (iii) that the High Court had  failed to deal with these and other points raised before it. Held, that the conviction of the appellants was not vitiated by any infirmities. The acquittal of G in s. 19(f) Arms Act case did not  affect his  conviction  in  the  murder  case.   If  the  order  of acquittal  under  s.19(f)  had been  pronounced  before  the judgment  in  the murder case, then in the latter  case  the prosecution  could  not  contend  that  G  was  in   illegal possession  of  the firearm.  Though the two  judgment  were

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pronounced  on the same day there was nothing to  show  that the  judgment  in the s.19(f) Arms Act case  was  pronounced earlier.   On the other hand there were indications that  it was pronounced 586 after the judgment in the murder case.  The evidence clearly established that G bad produced the gun. Pritam  Singh  v. State of Punjab, A.I.R. 1956  S.  C.  415, referred to. There is no inflexible rule that in every case when a person is charged with murder caused by a firearm, the  prosecution can succeed only by examining an expert to prove that the in juries  could be caused by the weapon alleged to  have  been used.   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, the apparent  inconsistency  can  be cured  or  the  oral evidence can  be  corroborated  by  the evidence  of a ballistic expert.  In the present case  there was  no necessity to examine an expert.  Admittedly,  G  had fired twice and there was nothing to show that the  injuries could  not  have  been caused by the pun which  was  in  his hands.   D  had  kept the gun with him  for  a  week  before surrendering  it  and it was unlike that D had  not  removed tracks  of its use.  The report of the  ballistic  examiner, which  was sent for by the Supreme Court  did not help  the defence  and  no  inference  could  be  drawn  against   the prosecution from its failure to produce it at the trial. Mohinder  Singh v. The State, [1950] S.C.R. 82  1,  referred to. In  dealing  with confirmation cases the High  Court  should consider  the evidence carefully and record its  conclusions clearly after dealing with all the points urged before it by the defence.  In all criminal appeals before it the  Supreme Court  is reluctant to interfere with-the findings  of  fact recorded by the High Court.  In the present case some of the reasons  given by the High Court were erroneous and some  of the  arguments urged before it were not duly considered  and the Supreme Court had therefore to go into the evidence.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 87  of 1962. Appeal  by special leave from the judgment and  order  dated February  21, 1962, of the Punjab High Court in Cr.  A.  No. 1231 of 1961 and Murder Reference No. 98 of 1961.’ 587 Purushottam Trikamdas, C. L. Sareen and R.   L.  Kohli,  for the appellants. N.S. Bindra and P. D. Menon, for the respondent. 1962.   August 10.  The Judgment of the court was  delivered by GAJENDRAGADRAR,  J .-The two appellants Gurcharan Singh  and Surjit  Singh along with three others, Baland Singh,  Daljit Singh  and  Ajit  singh, were tried  before  the  2nd  Addl. Sessions Judge Ferozepore for offences under Section 148 and s.  302/149 I.P.C. The prosecution case against  these  five persons was that on or about the 18th May, 1961, they formed an  unlawful assembly at the village Jhote with  the  common object  of killing Arjan Singh, Sukhjit Singh Gurdial  Singh and  Piara Singh alias Balo, and that in prosecution of  the said  common object, they committed the offence  of  rioting when  they  were  armed with deadly weapons.   That  is  the

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essence of the charge under s. 148.  It was further  alleged that on the same day and at the same time and place the said members  of the unlawful assembly carried out  its  unlawful object  and  in  so doing,  the  appellant  Gurcharan  Singh murdered   Gurdial  Singh  and  Sukhjit  Singh,  while   the appellant Surjit Singh murdered Arjan singh and Piara Singh. That is how all the five accused persons were charged  under section 302/149 of the Indian Penal Code. The  trial Judge held that the charges against Daljit  Singh had  not  been  proved beyond a  reasonable  doubt  and  so, according to him, the prosecution case under s. 148 had  not been  proved  and  that charge under s.  149  bad  not  been sustained.  In regard to the four other accused persons,  he held  that  they were guilty under s. 302/34  I.P.C.  Having thus  convicted them of the said offence, the learned  Judge sentenced Gurcharan Singh, Baland Singh 588 and Surjit Singh to death and directed that Ajit Sigh should suffer imprisonment for life.  The sentence of death imposed by the learned trial Judge was submitted to the Punjab  High Court for confirmation, while all the four convicted persons preferred  an  appeal  challenging  their  convictions   and sentences  imposed on them.  The High Court considered  both the matters together and has come to the conclusion that the charge  under s. 302/34 had not been proved  against  Baland Singh  and  Ajit Singh.  That is why the  said  two  accused persons  have been acquitted, whereas the conviction of  the appellants  Gurcharan Singh and Surjit Singh as well as  the sentence  of death imposed on them have been confirmed.   It is  against this order that the two appellants have come  to this Court by special leave. The  incident which has given rise to the  present  criminal proceedings  against  the appellants took place on  May  18, 1961, and as a result, four persons have been  murdered-they are  Arjan  Singh, Sukhjit Singh.  Gurdial Singh  and  Piara Singh.   The  prosecution case is that on May 18,  1961,  at about  6.30  A.M., the appellant Gurcharan Singh  was  pro- ceeding  to the house of his friend, Ajit Singh.   GurCharan Singh, Surjit Singh and Daljit Singh are the sons of  Baland Singh.   Whilst Gurcharan Singh was thus proceeding  to  the house of Ajit Singh, he had to pass by the house of Saudagar Singh.  Saudagar Singh objected to Gurcharan Singh paying by his  house  and  that  led  to  an  altercation.   In   this altercation,  Saudagar Singh and his two sow  Kulwant  Singh and Darshan Singh inflicted some injuries on Gurcharan Singh as  well as on Ajit Singh who came on the scene.   Gurcharan Singh and Ajit Singh thereupon ran away.  This is the  first incident which took place on that day. About  half  an hour after this incident,  another  incident took place.  It appears that the five  589 accused  persons  got  together and  wanted  to  avenge  the beating  given by Saudagar Singh and his sons  to  Gurcharan Singh  and  Ajit Singh.  Gurcharan Singh  and  Daljit  Singh armed  themselves with gandasas, Surjit Singh carried a  gun for  which his Gaj brother Daljit Singh had a licence,  Ajit Singh carried a ’dang’, while Baland Singh, the  appellants’ father,  headed the party, but was not armed.   This  partly came across Arjan Singh near the house of Jarnail Singh.  It appears that Arjan Singh was afraid of these men and so,  he used  to  carry with him a licensed gun.  As soon  as  Arjan Singh was sighted, Baland Singh told his sons and Ajit Singh to assault him, and the party began to assault Arjan  Singh. A gandasa blow was given on his forearm as a result of which Arjan  Singh  lost  his grip on the gun and  it  fell  down.

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Immediately thereafter, Gurcharan Singh picked it up.  Arjan Singh  then  implored  his assailants not to  beat  him  and offered  to  go  to the Gurdwara to take an  oath  that  the allegation  against  him was untrue.  It is  suggested  that Baland Singh was satisfied with this offer and so  persuaded his sons and their friend not to harass him any more.   This is  the second incident which took place as a result of  the first incident. It  is  the epilogue of the second incident  which  followed soon  after that led to the murder of the four victims.   It appears in evidence that while Arjan Singh was imploring his assailants  not  to  attack him and soon  after  the  attack stopped,  Gurdev Singh, the son of Arjan Singh, happened  to come,  out  of  the Gurdwara and saw  his  father  facing  a dangerous  crowd.   So, he ran to his house  and  asked  his brothers to come and help him to rescue their father.  While Arjan Singh was returning to his house, on the way.. he  met his sons Gurdev Singh, Gurdial Singh and Gurcharan Singh who had armed themselves, and were. proceeding towards 590 the  spot where he had been encircled by his opponents.   At that time, Rekha Ram also come on the spot and he was  being followed  by  his brother Piara.  Sukhjit Singh  and  Jagjit Singh also came on the scene.  Arjan Singh told them all  to go back and assured them that his offer to take the oath  in the Gurdwara had pacified his opponents and he was no longer in  any difficult situation.  As a result of this  statement of  Arjan Singh, the persons who were going to the  spot  to help him desisted from going any further.  At that time, all the  five accused persons spotted Arjan Singh’s sons  coming to the spot and that infuriated Baland Singh.  He then rene- wed  his  exhortation to his companions and  asked  them  to finish their enemies Soon thereafter, Gurcharan Singh  fired a shot from the gun which hit Gurdial Singh on his  forehead and  in consequence, he fell down dead on the spot.   Surjit Singh  fired two shots in quick succession which  hit  Arjan Singh  and killed him.  Gurcharan Singh fired  another  shot which hit Sukhjit Singh who fell down with serious injuries. Surjit  Singh again fired another shot which hit Piara  and. he fell down dead on the spot.  All the five accused persons then  indulged in lalkaras and abused their  enemies.   This occurrence  was witnessed by Gurdev Singh (P.W. 2),  Sukhdev Singh  (P.W. 3, Gurcharan Singh (P.W. 4), Rakha Ram  (p.w.5) and  Jagjit Singh (P.W. 6). sukhjit Singh who lay  seriously injured was taken to the hospital at Ferozepure for  medical treatment, but not withstanding the treatment, he  succumbed to  his injuries.  I at, in brief, is the  prosecution  case against the appellants. The prosecution attempted to prove its case by examining the eye-witnesses, Gurdev Singh, Sukhdev Singh, Gurcharan  Singh and  Rekha  Ram,  Jagjit  Singh  was  tendered  for   cross- examination.  The defence admitted that Guroharan Singh  and Ajit Singh were present on the scene and,that  591 Gurcharan  Singh  fired twice from a gun, but  that  was  in self-defence.   The remaining three accused  persons  denied their presence on the scene of the offence and alleged  that they had been falsely implicated.  It does appear that there was bitter enmity between the two parties for several  years past.  Criminal proceedings had taken place between them and there is no doubt’ about the existence of hostility  between them.  Sometime before this occurrence, Kulwant Singh  (P.W. 7)  was arrested in an excise case for running a still,  and in   that  case,  the  appellant  Gurcharan  Singh   was   a prosecution witness.  Besides, the appellant Gurcharan Singh

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had  opposed Arjan Singh for the office of Sarpaneh but  had failed.   The  defence,  therefore, was that it  is  out  of enmity and hostility that the three accused persons who were not present had been falsely involved in this case and  that in  respect  of  Gurcharan Singh and  Ajit  Singh  who  were present,  the truth was that they had been attacked  by  the persons   belonging  to  the  party  of  Arjan  Singh,   and Gurcharan,  Singh  had  fired in exercise of  his  right  of private defeence. The  trial Judge examined the evidence adduced  before  him, considered  the arguments raised by the defence and came  to the conclusion that the charge of murder under s. 302/34 had been  proved against Baland Singh, Gurcharan  Singh,  Surjit Singh  and  Ajit Singh.  The High Court, in  substance.  has agreed with the conclusions of the trial Court in respect of the  prosecution case against the two  appellants  Gurcharan Singh  and  Surjit  Singh.  It has, however  held  that  the evidence about the exhortation alleged to have been given by Baland Singh was not proved by satisfactory evidence and the main charge against Baland Singh and Ajit Singh had not been proved beyond a reasonable doubt.  It is on this 592 finding  that the said two accused persons  were  acquitted, whereas  the appellants’ conviction ’and sentence have  been confirmed. Mr. Purushotam for the appellants contends that the judgment of the High Court suffers from some serious infirmities  and so,  he argues that in the interest of justice, we ought  to examine the evidence ourselves.  It is, therefore, necessary to  examine the broad arguments on which the judgment  under appeal has been attacked by Mr. Purushotam.  The first point which  has been urged before us is that the High  court  has not  properly considered the pies of self-defence raised  by Gurcharan Singh, and it is pointed out that in rejecting the said theory, the High Court had relied on a prior  statement of Gurcharan Singh which had been excluded from evidence  by the trial Judge.  It appears that Gurcharan Singh had  filed a  complaint  against  the prosecution  witnesses  and  that complaint  was  admitted  at the trial as  Exbt.   The  said document first describes the injuries inflicted on Gurcharan Singh  and then proceeds to give a detailed account  of  the incident which led to the said injuries.  This document  was proved by Sub-Inspector Udham Singh by the defence in cross- examination.   When this document was tendered, the part  of the  document  which referred to the injuries  on  Gurcharan Singh  was marked and admitted in evidence.   The  remaining portion  of the document was excluded.  When the High  Court considered  the  theory of self-defence urged on  behalf  of Gurcharan Singh, it took the view that the said theory could not  be accepted because it was inconsistent with  Gurcharan Singh’s  version about the incident contained in Exbt.   DE. Mr.  Purushotam objects to this part of the judgment and  we think, rightly.  It is unfortunate that the attention of the High  Court  was not drawn to the fact that the  portion  of document DE on which it was basing its criticism against the defence theory 593 of self-defence had not been admitted in evidence.  That  no doubt  is a serious infirmity in the reasoning and  so,  Mr. Purushotam  is  entitled to say that the conclusion  of  the High  Court  on  this part of the  defence  case  cannot  be accepted without examination of its merits by us. The other contention which Mr. Purushotam has raised  before us  is  that in dealing with the case of  Self-defence,  the High Court has not referred to the injuries on the person of

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Gurcharan  Singh.   The evidence adduced in the  case  shows that  Gurcharan Singh had 13 injuries on his person,  12  of which  were.  contusions  and one was  a  grievous  hurt  as disclosed by X-ray.  It was an injury on the foot and it may be  that  there was a fracture or a  crack.   Whether  these injuries  decisively helped the defence version or not is  a different  matter.   The  argument is  that  these  injuries should  have been considered by the High Court when  it  was called  upon to decide the validity of the defence claim  of the exercise of the right of private defence. There is  some force even in this contention. Since we are satisfied that these two contentions are  well- founded, we have examined the plea of self-defence ourselves and in that connection, we have considered the oral evidence adduced  by the prosecution.  It is true that  Gurdev  Singh and  Gurcharan Singh can be said to be interested  witnesses and in that sense, their evidence is the evidence of  parti- san  witnesses  and has to be carefully  examined.   On  the other band, Sukhdev Singh and Rekha Ram are not shown to  be hostile  to  the  appellants  and  their  evidence   cannot, therefore,  be characterised as partisan.  It is  true  that Rekha  Ram’s brother Piara has been murdered, but Piara  has apparently  died as a result of reckless shooting and it  is not shown that either Piara was the enemy of the  appellants or Rekha Ram is hostile to them.  The attempt made 594 in  the cross examination of Sukhdev Singh to show  that  he was  related to the complainants’ party has failed, and  so, Sukhdev Singh must be held to be   disinterestedwitness.Mr. Purushotam  fairly  conceded that the account given  by  all these witnesses about the occurrence is consistent       and cogent and the only criticism he   had to make against  that evidence  was that it is partisan evidence.  We have  consi- dered the whole of this evidence, and we are satisfied  that the  courts below were right in substantially  accepting  it against the appellants.  If this evidence is believed,  then the sequence of events that took place is clearly  disclosed and  that shows that the plea of self,defence urged  by  the appellant  Gurcharan Singh cannot be accepted.  Injuries  on his  person are of a minor character and they may have  been inflicted while some of the victims may have beaten him with a stick. However that may be, having regard to the  sequence of  events, it is impossible to accede to the argument  that Gurcharan  Singh fired twice from the fire-arm in  order  to save himself. In this connection, it is relevant to recall that the  party of the appellants was armed with deadly weapons.   Gurcharan Singh  had picked up the gun which fell down from the  hands of  Arjan  Singh and Surjit Singh had a gun  for  which  his brother  Daljit Singh had a licence.  The others were  armed with  gandasas and similar deadly weapons.  Therefore,  when the incident took place, the two appellants were armed  with fire-arms and on the evidence which is believed)  aggression proceeded from them and not from Arjan Singh or his friends. That  also shows that the theory of self-defence  cannot  be accepted.    Therefore,  though  the  High  Court  has   not considered this point as well as it should have, and  though a part of the reasoning 595 adopted by the High Court in dealing with this point suffers from the infirmity to which we have referred. in the result, its   conclusion   on  this  point  seems   to   be   right. Incidentally, it may be pointed out, that this plea of self- defence was not seriously pressed before the High Court. That  takes  us  to the next broad  criticism  made  by  Mr.

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Purushotam  against the judgment of the High Court.   It  is urged that the High Court did not take into account the fact that Gurcharan Singh who had been charged under s. 19 (f) of the  Indian Arms Act has been acquitted by the same  learned Sessions  Judge who convicted him for the offence of  murder under  s. 302/149.  It appears that the prosecution case  is that Gurcharan Singh produced the fire-arm when he surrender and  since he had no licence to keep a fire-arm and  indeed, the  fire-arm in question belonged to Arjan Singh, a  charge under  s.  19(f) had been framed against him.   The  learned trial Judge believed the evidence of the two witnesses Puran Singh  and Sohan Singh as well as the evidence of  the  Sub- Inspector Udham Singh, and held that about 6.30 P.M. on  May 18,  1961,  Gurcharan  Singh  produced  the  fire-arm.   The evidence  shows  that Arjan Singh Sarpanch of  Valtoha  took Gurcharan Singh and Ajit Singh to Udham Singh and the two of them  then surrendered.  The document containing  the  memo, about  this surrender has been duly proved  (Ext.P.21).  The trial Judge delivered his judgment in the principal case  on November  18,  1961.  It appears that on the  same  day,  he delivered  his  judgment  in the  companion  case  in  which Gurcharn Singh was charged under s. 19(f) of the Indian Arms Act  and held that the said charge had not been  proved  and so, he acquitted him of that charge. It may be conceded that in this judgment, the same evidence about the production 596 of the weapon by Gurucharan Singh has been dis-believed. On  these facts.  Mr. Purushotam contends that  this  matter was  argued before the High Court and it was urged that  the finding  of the trial Court in the principal case about  the recovery  of the weapon from Gurcharan Singh should  not  be accepted,  and this argument has not been considered by  the High Court.  It would be noticed that this argument is based on the decision of. this Court in Pritam Singh vs.  State of Punjab(1).  There is no doubt that if the order of acquittal under s.19(f) had been pronounced before the judgment in the principal  case was delivered, then in the latter  case  the prosecution  will not be entitled to contend that  Gurcharan Singh  was  in  illegal possession of  the  fire-arm.   This position cannot be and is not disputed. The  question,  however,  still remains as  to  whether  the judgment  in the fire-arm case was pronounced first  or  the judgment  in  the  murder case was  pronounced  first.   Mr. Purushotam  frankly  stated before us that he was not  in  a position  to contend that the judgment on which  he  reliefs was  pronounced in point of fact before the judgment in  the murder  case.   The manner in which this judgment  has  been produced before this Court is very irregular.  The  judgment does  not appear to have been filed in the High Court as  it should have been if it was intended to rely upon it- But the petition  for special leave states that it was utilised  for the  purpose of raising the point in appeal before the  High Court.  This judgment was not filed before this Court  along with the; petition for special leave.  It has been  tendered at  a later stage when the index of papers was  settled  for inclusion in the paper-book in this Court.  In our  opinion, this (1)  A.I.R. (1956) S.C. 415.  597 method  of producing this document is irregular.  But  apart from this, unless it is shown that the judgment on which the defence  relies  was pronounced first, no  argument  can  be raised about the invalidity of the conclusion in the  murder case that Gurcharan Singh surrendered the gun.  Prima facie, the  judgment  in the murder case must have  been  delivered

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fir-at.   It is numbered as 88 and 93 of 1961,  whereas  the arms  case is numbered as 89 and 94 of 1961.  Therefore,  we do  not think it is open to the appellants to  contend  that the acquittal of Gurcharan Singh under a. 19(f) was prior to his  conviction under s-302/149 and so, the finding that  he surrendered the weapon should not be accepted.  It is to  be regretted  that the same learned Judge should have  rendered two   inconsistent  findings  in  two  companion  cases   in judgments  pronounced on the same day.  This is a matter  to which his attention ought to be drawn by the High Court. Though the point sought to be raised on the strength of this judgment  cannot technically arise, we thought it  necessary to  examine the evidence about the production of the  weapon ourselves.  We have accordingly gone through the evidence of Puran  Singh, Sohan Singh and Udham Singh and we have  taken into  account the fact that Gurcharan Singh was produced  by Arjan  Singh  who  is a Sarpanch of  Valtoha.   We  feel  no hesitation in holding that this evidence clearly establishes the  fact  that  Gurcharan Singh  produced  the  weapon,  as disclosed  by  the production memo. (Ext.   P21).   In  this connection,  we may recall the fact that Gurcharan Singh  in fact  admitted  that he had used a fire-arm  and  had  fired twice  in self-defence.  He, did not admit that was the  gun which  was snatched from the hand of Arjan Singh ; but  that is  another  matter.   Therefore,  the  argument  that   the acquittal of Gurcharan Singh in arms case affects 598 the finding as to the surrender of the gun by him cannot  be sustained. The  last argument on which the judgment on the  High  Court was  attacked by Mr. Purushotam arises from the fact that  a ballistic expert has not been examined in this case., It  is urged that this ground was taken before this High Court  and has  not been considered by it.  Petition for special  leave makes  a definite averment to that effect.  As the  argument was presented before us by Mr. Purushotam, it assumed that a report had been received from the ballistic expert, but that report  had not been proved, because it was  apprehended  by the prosecution that it would destroy its case.  There is no doubt that the two fire-arms along with two empty cartridges were  sent to the Scientific Laboratory.,  Chandigarh  (Ext. P.  Z.) on June 28, 1961.  Of the two guns which  were  sent for  examination, one was used by Gurcharan Singh  which  he picked  up  as soon as it fell down from the hand  of  Arjan Singh and the other was used by Surjit Singh which was taken by  him  from Daljit Singh.  It appears  that  Daljit  Singh produced that gun and surrendered it on. May 27, 1961, i.e., nearly a week after the incident took place.  Mr. Purushotam contended  that  since  these  weapons  had  been  sent  for examination  by  a ballistic expert and a  report  had  been received, it was the duty of the prosecution to examine  the ballistic  expert.  We were impressed by this argument,  and so, we adjourned the hearing of the case and called upon Mr. Bindra  to produce that report before us.  Accordingly,  the report has been produced and it shows that according to  the expert  opinion,  out of the two fired cartridges  sent  for expert examination one had been fired from the right  barrel of the gun contained in parcel No. 1 and the other had  been fired from the left barrel of the same gun. in other  words, this reports shows ’that two empties found near the scene of the offence had been fired 599 from  the  same gun.  After this report was received  and  a copy of it was served on Mr. Purushotam, he fairly  conceded that   the  said  report  was  not  inconsistent  with   the

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prosecution   case,  though  he  argued  that  it  did   not corroborate it either.  This report has not been proved  and no  ballistic  expert has been examined in this  case.   But having regard to the fact that the report prima facie is not inconsistent with the prosecution case, we do not see bow it would  be  urged  that the failure  of  the  prosecution  to examine  a ballistic expert is due to the ’fact that it  was apprehended  that  the expert opinion would be  against  the prosecution  case.  That is the. only argument which it  was alleged  had  been urged before the High Court but  had  not been  considered by it.  We are inclined to think that  this argument may not have been pressed before the High Court and in any event, now it is conceded that there is no  substance in  that argument.  That is why we do not think  any  useful purpose would be served by examining the ballistic expert at this stage. Whilst  we  are on this point, we may briefly  indicate  the nature of the prosecution case so far as the use of the guns is  concerned.  The appellant Gurcharan Singh has fired  two shots,  one  of  which killed Sukhjit Singh  and  the  other Gurdial  Singh.  The appellant Surjit Singh had fired  three shots,  two at Arjan Singh and one at Piara.   The  evidence seems, to show that Surjit Singh loaded the gun once in  the presence  of the witnesses and whilst so doing, he  put  two cartridges  in  the  gun and the  spent  cartridges  in  his pocket.   The  two empties which had been  sent  for  expert examination  were found and picked up on a  thoroughfare  in front  of  the  house of  Jarnail  Singh.   Apparently,  the prosecution case is that these two cartridges had been fired by the appellant Gurcharan Singh from Arjan Singh gun picked up  by  him.  In any event, the report shows  that  the  two cartridges had been 600 fired  from the same gun.  That is why the failure to  prove the report cannot be said to have prejudiced the appellants’ case at all. Mr.  Purushotam,  however, argued that  a  ballistic  expert should have been examined in order to ascertain whether  the gun  surrendered by Daljit Singh had been used at all.   But this  argument is obviously untenable for the simple  reason that  this  gun was surrendered more than a week  after  the incident  and  it  takes imagination to  realise  that  when Daljit Singh surrendered the gun, he must have cleaned it so as to remove any evidence about its user on the date of  the incident. It  has,  however, been argued that in every case  where  an accused person is charged with having committed the  offence of  murder  by  a  lethal weapon, it  is  the  duty  of  the prosecution  to prove by expert evidence that it was  likely or  at least possible for the injuries to have  been  caused with the weapon with which, and in the manner in which, they have  been  alleged to have been caused; and in  support  of this  proposition, reliance has been placed on the  decision of  this court in Mohinder Sinqh v. The State (1).  In  that case,  this court has held that where the  prosecution  case was  that the accused shot the deceased with a gun,  but  it appeared  likely  that  the injuries on  the  deceased  were inflicted  by  a rifle and there was no evidence of  a  duly qualified expert to prove that the injuries were caused by a gun,  and the nature of the injuries was also such that  the photo  must have been fired by more than one person and  not by  one person only, and there was no evidence to show  that another  person  also shot, and the oral evidence  was  such which  was  not  disinterested, the failure  to  examine  an expert would be a serious infirmity in the prosecution case.

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It  would be noticed that these observation were made  in  a case where the prosecution (1)  (1950) S.C.R. 821. 601 evidence   suffered   from  serious   infirmities   and   in determining the effect of ’these observations, it would  not be  fair  or reasonable to forget the facts  in  respect  of which  they  came  to be made.  These  observations  do  not purport  to lay down an 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 examind.  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.  Therefore, we do not think that Mr.   Purushotam  is  right  in  contending  as  a   general proposition  that in every case where a fire-arm is  alleged to  have been used by an accused person, in addition to  the direct  evidence,  prosecution must lead the evidence  of  a ballistic  expert, however good the direct evidence  may  be and though on the record there may be no reason to doubt the said direct evidence. In  the  present  case, no useful purpose  could  have  been served  by  examining an expert for the purpose  of  showing that  the gun had been used by Surjit Singh, because, as  we have already pointed out, Daljit Singh took care to keep the gun  with himself for over a week and. then surrendered  it. It would be idle in ouch a case to suggest that it was 602 necessary  for  the prosecution to examine  an  expert  even though  it is extremely unlikely that traces of its use  had not  been removed by Daljit Singh before he surrendered  it. Then,  as to Gurcharan Singh, it is admitted that  he  fired twice  and there is nothing on the record to show  that  the injuries  disclosed by the post mortem notes and deposed  to by the doctor could not have been caused by a gun which,  it was alleged, belonged to Arjun Singh and which was picked up by Gurcharan Singh after it fell down from his hands. Therefore.,  in  the circumstances of this case, we  do  not think  it  would  be possible to accept the  plea  that  the failure of the prosecution to examine a ballistic expert has introduced a serious infirmity in the prosecution case. Even  so, since we were satisfied that the judgment  of  the High  Court  suffered from some infirmities and was  not  as satisfactory  as  it  should have been,  we  have  read  the evidence  with Mr. Purushotam and heard his comments on  it. Having  carefully  considered the said evidence, we  see  no reason  to differ from the conclusion reached by the  Courts below that broadly stated, the incident took place as it has been  deposed  to  by the  prosecution  witnesses  and  that eliminates  the exercise of the right of private defence  by the  appellants and establishes that they used  their  fire- arms  aggressively and thus committed the offence of  murder under section 302/34.

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Before  we  part with this case, however, we would  like  to observe  that in dealing with confirmation cases,  the  High Court should consider the evidence carefully and record  its conclusions clearly after dealing with all the points  urged before  it by the counsel for the defence.  In all  criminal appeals, the findings recorded by the High Court bind the 603 parties  and this Court is generally reluctant to  interfere with  them.   This  principle is usually  followed  even  in confirmation cases, but it is hardly necessary to  emphasise that  in dealing with confirmation cases, judicial  approach both  at  the  trial and in appeal has  to  be  careful  and thorough  and  so,it is of utmost importance  that  no  room should  be left for any legitimate complaint by the  defence that important points were argued before the High Court  and were  not considered by it. In the present appeal,  we  have come to the conclusion that some of the reasons given by the High  Court  are  erroneous  and  apparently,  some  of  the arguments  urged  before it have not been  duly  considered. That is why we had to go through the evidence for ourselves. In the result, the appeal fails and the order of  confiction and sentences passed against the appellants is confirmed. Appeal dismissed. 604