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PETITIONER: KALUA

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 21/11/1956

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER JAGANNADHADAS, B. MENON, P. GOVINDA

CITATION:  1958 AIR  180            1957 SCR  187

ACT: Criminal  Trial-Murdey-Circumstantial  evidence-Opinion   of fire-arms expert-Whether conclusive.

HEADNOTE: One  Daya Ram had been murdered by shooting with  a  country made   pistol.   The  circumstantial  evidence   established against  the appellant was (1) that he had a motive for  the murder, (2) that three days before the murder the  appellant had  held  out a threat to murder the deceased, (3)  that  a cartridge Ex.  I was found near the cot of the deceased, and (4)  that the appellant produced a country made  pistol  Ex. III  from  his house in circumstances which  clearly  showed that he alone could have known of its existence there.   The fire-arms  expert  examined  the recovered  pistol  and  the cartridge  and  after  making scientific tests  was  of  the definite  opinion that the cartridge Ex.  I had  been  fired from the pistol Ex.  III : Held, that the opinion of the fire-arms expert  conclusively proved  that  the cartridge Ex.  I had been fired  from  the pistol Ex. III. The circumstantial evidence was sufficient to establish  the guilt of the appellant.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 135  of 1956. 188 Appeal  by special leave from the judgment and  order  dated November 25, 1955, of the Allahabad High Court, in  Criminal Appeal  No. 702 of 1955 and Referred No. 77 of 1955  arising out  of  the judgment and order dated May 17, 1955,  of  the Court of Sessions Judge, at Moradavad in Sessions Trial  No. 29 of 1955. P.   S. Safeer, for the appellant. G.   C. Mathur and C. P. Lal, for the respondent. 1956.  November 21.  The Judgment of the Court was delivered by IMAM J.-The appellant was sentenced to death for the  marder

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of Daya Ram by shooting him with a country made pistol.   He was also convicted for being in possession of an  unlicensed firearm  under  the  Arms  Act  for  which  offence  he  was sentenced  to two years rigorous imprisonment.  He  appealed to the High Court of Allahabad, but his appeal was dismissed and  the conviction and sentence was affirmed.  Against  the decision of the Allahabad High Court the appellant  obtained special leave to appeal to this Court. According  to the prosecution, the occurrence took place  at about  midnight of July 4, 1954, when Daya Ram was  sleeping on  a  cot  on a platform.  Near him  were  sleeping  Gokul, Doongar and Jai Singh, while two women Ratto and Bhuri slept in  a  room to the north of the platform and  adjoining  it. The  report  of  the  shot  fired  woke  up  these   people. According  to them, they saw the appellant  running  towards the east.  He was accompanied by three others who were armed with  lathis.  Daya Ram died almost instantaneously  as  the result  of the injuries on his chest and stomach from  where pellets  were  recovered  at the time  of  the  post  mortem examination.   Daya Ram had been shot from a close  distance because  the  skin was charred over the entire area  of  the wound.  Near the cot, on which he slept, a cartridge Ex.  I. was  found which was handed over to the Police Officer  when he  arrived for investigation.  A first  information  report was lodged at the police station five miles away at 8-10  a. m. on July 5, 1954.                             189 The  motive for the murder, as alleged by  the  prosecution, was that on the death of one Bhai Singh the appellant  hoped to  become  guardian  of  Ratto’s  property,  who,  however, appointed  Daya  Ram to take charge of  it.   The  appellant resented  this very much.  Three days before the  murder  of Daya Ram there had been a quarrel between the appellant  and his  wife on the one side and Ratto and Bhuri on the  other. The  quarrel  arose  over an attempt  by  the  appellant  to construct a wall over Ratto’s land.’ The appellant uttered a threat  that  he would soon settle with the person  on  whom Ratto was depending, that is to say, the deceased Daya  Ram. According  to the High Court, the defence did not  seriously challenge  these  allegations  and  the  appellant   himself admitted  that  Ratto  wanted him to be turned  out  of  his house. The  appellant was arrested on the night between July 5  and July  6,  1954, at a village fourteen miles  away  from  the village of "occurrence Dhakeri.  On July 7, he informed  the Sub-Inspector that he was prepared to produce the pistol Ex. III.   The  SubInspector and the appellant went  to  village Dhakeri  and  Kartar Singh, Mahtab Singh  and  Khamani  were invited  to  witness  the  events  that  might  follow.   On reaching  the  appellant’s house, which adjoins  the  resid- ential house of Ratto, the appellant stated that the  pistol Ex.   III had been concealed by him in a corn-bin.   From  a secret  place he took out a key and opened the lock  of  his house  with  it.   He then took  the  SubInspector  and  the witnesses to a mud corn-bin inside his house, which appeared to be freshly plastered at one place.  The appellant removed the  plaster  at  this place and from inside  took  out  the country made 12bore pistol Ex.  III, and three live  12-bore cartridges.  The cartridge Ex.  I, which was found near  the cot of Daya Ram, and the pistol Ex.  III were sent to  Shyam Narain,  a Deputy Superintendent of Police, who is ,a  fire- arms expert of the C. I. D. of Uttar Pradesh Government.  He made  scientific  tests.  He came to the conclusion  as  the result  of the various tests made by him that the  cartridge Ex, I was fired from the pistol Ex.  III and no other  fire-

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arm. 190 While the Sessions Judge believed the testimony of the  eye- witnesses,  the learned Judges of the.  High Court  were  of the opinion that they were unable to accept the assertion of the eye-witnesses that they actually saw the appellant  with a  pistol by the bedside of the deceased.  The  High  Court, however, relied upon the circumstantial evidence in the case in  upholding  the conviction of the appellant.   There  was motive  for the crime and a few days before the killing  of. Daya  Ram the appellant had held out a threat  against  him. The  appellant  was arrested fourteen miles  away  from  his village  which  is the place of occurrence.  He  produced  a pistol Ex.III from his house in circumstances which  clearly showed that he only could have known of its existence there. The opinion of the fire-arms expert clearly established that the  cartridge  Ex. 1, found near the cot of Daya  Ram,  was fired  with the pistol Ex.  III produced -by the  appellant. All  these circumstances, in the opinion of the High  Court, left  no  doubt in the minds of the learned Judges  of  that Court  that the appellant murdered Daya Ram by shooting  him with his pistol. The  learned  Advocate  for the  appellant  urged  that  the appellant could not have placed the pistol in his house  and it  must have been planted there by someone because none  of the  witnesses  stated that they had seen him going  to  his house  after the murder and the appellant was certainly  not found  in  his  house  in the  morning.   According  to  the situation  of  the  house of the  appellant  and  where  the witnesses  were  immediately after the  occurrence,  it  was impossible  for  the  appellant to have  entered  his  house without  being  seen.  It was further  unlikely  that  after having committed the murder, the appellant, after having run away,  would  return to his house.  Both the  Courts  below, however, found no reason to disbelieve the Sub-Inspector and the witnesses that the appellant had produced the pistol Ex. III  from the corn-bin inside his house.  The appellant  had the key of the house which was hidden in a secret place  and the  com-bin  was  itself freshly plastered  at  one  place. These  circumstances  clearly  showed that no  one  but  the appellant could have 191 known of the existence of the pistol in the corn-bin in  his house.  As to whether the appellant could or.could not  have gone  to his house after the occurrence that is a matter  of pure  speculation.  It does not appear that any witness  was asked  anything  about it.  The High Court  found  that  the witnesses might have caught a glimpse of the people who were fast  disappearing from the scene but who had no  reasonable opportunity of marking their features.  In the confusion  of the occurrence the witnesses may not have observed where the culprits had disa speared except that they were seen running towards  the east.  On the record, there is nothing to  show that  to enter the appellant’s house, after the  occurrence, the  appellant had necessarily to go into his  house  within the  view  of  the witnesses.  It is  quite  unnecessary  to examine  this  matter  any  further  because  the   evidence concerning  the  production of the pistol Ex.   III  by  the appellant  from  his  house  is’  clear  and  reliable  and, therefore,  it is certain that the appellant did  enter  his house after the occurrence without being seen by anyone. It  was next urged on behalf of the appellant,  that,it  was impossible for a cartridge to have been near the cot of Daya Ram,  because  after the shot had been fired  the  cartridge would still remain in the barrel of the firearm.  This again

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is  pure speculation.  That the cartridge was  ejected  from the  fire-arm is certain.  Why it was ejected none can  say. It may be that the miscreant reloaded his weapon to meet any emergency.  The evidence of the Sub-Inspector is clear  that on his arrival at the place of occurrence the cartridge  Ex. I  was handed over to him by the witness Khamani who  cannot be  said  to be unfavorable to the  appellant.   The  Courts below  had no reason to disbelieve the evidence in the  case that the cartridge Ex.  I was found near the cot of Daya Ram and we can find no extraordinary circumstance to justify  us saying  that the Courts below took an erroneous view of  the evidence. On  the  facts  found there was a  motive  for  the  murder. Apparently,  for no good reason the appellant was not  found at his house on the morning of July 5, but was 192 in a village fourteen miles away at the time of his  arrest. The appellant produced the pistol Ex.  III in  circumstances clearly showing that he had deliberately kept it  concealed. We  have  no reason to doubt the evidence in  this  respect. The  real  question is, whether it is safe to act  upon  the opinion  of the fire-arms expert that the cartridge  Ex.   I was fired from the pistol Ex.  III produced by the appellant and   none   other,  because  without  that   evidence   the circumstantial evidence in the case would be insufficient to convict  the appellant of the crime of murder.  The  opinion of ’the fire-arms expert, based on the result of his  tests, does -not seem to have been challenged in  cross-examination or  before the High Court.  If there is no reason  to  think that there is any room for error in matters of this kind and it is safe to accept the opinion of the expert, then clearly it is established that the cartridge Ex.  I, found near  the cot of Daya Ram, was fired from the pistol Ex. III  produced by the appellant.  To satisfy ourselves we have looked  into the  works  of some authors dealing with the marks  left  on cartridges  and  shell  cases  by  fire-arms  in  order   to ascertain that there is no error in the opinion of the fire- arms  expert in the present case.  Kirk in his  book  "Crime Investigation" at page 346 states: "Fired   cases  are  less  often  encountered  in   criminal investigation  than  are bullets, but when  found  they  are usually  of  greater significance because  they  receive  at least  as  clear  markings as do  bullets,  have  a  greater variety of such markings, and are not ordinarily damaged  in firing............................................... The questions which may be asked as a result of finding such materials  are  similar to those that require  answers  when only  bullets  are  located.  In the  ordinary  case,  quite definite answers can be given.  This is true both of shotgun shells  and of cartridge cases from pistols, revolvers,  and rifles...........................  ..  In  general,  it   is possible  to  identify a certain firearm as having  fired  a particular  shell  or cartridge.  It is  often  possible  to identify the type or make of gun’ which fired it, though  in many   instances   this  must  be  tentative   or   probable identification only." ‘                       193 After  :dealing with the marks left by breech-block,  firing pin  impressions, marks from extractors and ejectors,  marks due  to  expansion,  magazine marks  and  loading  mechanism marks,he states, "Summarizing,  the cartridge or shell case us. ally  carries markings which are quite distinctive of the gun in which the charge is fired, and can be used for positive identification of the latter.  Those marks arise from a variety of contacts

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with  various  parts  of the gun, an analysis  of  which  is useful  in,  determining  the  type of  weapon  in  case  no suspected gun is available ...................... Thus,  the recovered shell or cartridge case is one of the most  useful types  of physical evidence which can be found  in  shooting cases." Soderman  and  O’Connel  in  their  book  "Modern   Criminal Investigation" also deal with the subject and they refer  to the marks from the fire pin, the extractor, the. ejector and the breech-block.  After referring to comparison being  made of  the  cartridge or shell fired from a  fire-arm  for  the purpose of test, they state at page 200, If they are in the same position in relation to one  another and  their general appearance is the same, one may  conclude that  they have been fired from a pistol of the  same  make. An  absolute  conclusion  about the origin  of  the  shells, however,  can  be  reached only  after  a  photomicrographic examination  of  the markings from the breech-block  on  the rear of the shell............................. Identification, with the aid of the enlargement, should  not prove difficult.  The characteristic scratches can be easily seen.  A photograph of the incriminating shell and one of  a comparison shell should be pasted side by side on cardboard, and  the characteristic marks should be recorded with  lines and ciphers, following the same method as that used in  the’ identification of fingerprints." In  Taylor’s book on Medical Jurisprudence,  Tenth  Edition, Vol. 1, at page 459, it is stated, "  It  is never safe to say that a cartridge  case  was  not fired from a given pistol unless the marks are quite 25 194 different, and a case which bears no marks at all may  quite well  have  been  fired from the same pistol  as  one  which leaves  well-defined marks.  In general, however, though  it is  unlikely  that -all marks will be equally  good,  it  is usually  possible  to obtain definite information  from  the marks  of  the firing-pin, extractor,  ejector,  or  breech- block.  on the base or rim, or from grooves or scratches  on the surface.  In weapons of the same manufacture, the  marks are of the same general nature, but in each weapon there are individual  differences  which  usually  enable  it  to   be definitely identified." The  expert’s evidence in this case shows that he had  fired four  test cartridges from the pistol Ex.  III He found  the individual  characteristics  of  the chamber  to  have  been impressed  upon the test cartridges Exs. 9 and 10  and  that exactly identical markings were present on the paper tube of the  cartridge  Ex. 1. He made microphotographs of  some  of these  individual  marks on Exs. 1 and 10.   In  giving  his reasons  for his opinion, the fire-arms expert  stated  that every fire-arm has individual characteristics on its  breach face  striking pin and chamber.  When a cartridge  is  fired gases.  are  generated  by the  combustion  of  the  powder, creating a pressure of 2 to 20 tons per square inch.   Under the  effect of this pressure the cap and the paper  tube  of the cartridge cling firmly with the breach face striking pin and chamber and being of a softer matter the individualities of these parts are impressed upon them.  By firing a  number of test cartridges from a given fire-arm and comparing  them under  a  microscope  with the evidence  cartridge,  it  can definitely  be stated, if the marks are clear,  whether  the evidence  cartridges had been fired or not from  that  fire- arm.   It  seems to us that the fire-arms  expert  made  the necessary  tests and was careful -in what he did.  There  is

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no  good  reason for distrusting his opinion.   The  learned Judges  of the High Court examined the micro-photographs  in question  and  were satisfied that there was no  ground  for distrusting   the  evidence  of  the  expert.    They   were accordingly  justified in coming to the conclusion that  the cartridge Ex. 1, found nor the cot of Dava Ram, 195 was fired from the pistol Ex.  III produced by the appellant from  his  house.   There can, therefore,  be  no  room  for thinking,  in  the circumstances established in  this  case, that  any one else other than the appellant might have  shot Daya  Ram.   He was, therefore, rightly  convicted  for  the offence of murder. The appeal is accordingly dismissed.