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CASE NO.: Appeal (crl.)  437 of 2006

PETITIONER: PURAN SINGH

RESPONDENT: STATE OF UTTARANCHAL

DATE OF JUDGMENT: 10/01/2008

BENCH: C.K. THAKKER & D.K. JAIN

JUDGMENT: J U D G M E N T

C.K. THAKKER, J.

1.              The present appeal is filed by the  appellant-accused against the order of  conviction and sentence recorded by the High  Court of Uttaranchal on October 25, 2005 in  Government Appeal No. 1006 of 2001. By the said  order, the High Court set aside the order of  acquittal recorded by Sessions Judge, Chamoli  on February 6, 1981 in Sessions Trial No. 15 of  1979, convicted the accused for an offence  punishable under Section 302, Indian Penal Code  (IPC) and ordered him to undergo imprisonment  for life. 2.              Shortly stated the prosecution case  was that one Pushu had two sons\027 (i) Bhawan  Singh and (ii) Bhag Chand. Bhawan Singh had no  issue and he died leaving behind him his widow  Smt. Rukmani Devi. Bhag Chand also died leaving  behind him four sons; (i) Shivraj Singh,      (ii) Indra Singh, (iii) Rajpal Singh (deceased)  and (iv) Puran Singh (accused). All the four  brothers (sons of Bhag Chand) were residing in  a jungle at a distance of about two kilometers  from village Akhori, Patwari Circle Barab,  Tehsil Ukhimath, District Chamoli. There were  frequent quarrels between accused Puran Singh  on the one hand and other three brothers on the  other hand in connection with the property  owned and possessed by Rukmani Devi.  According  to the prosecution, Rukmani Devi had gifted her  property by a registered gift-deed to accused  Puran Singh depriving other three brothers from  her share.  On August 3, 1979 at about 4 p.m.,  PW5\027Smt. Ramdei, daughter of PW4\027Shivraj Singh  who had come to her parental house at village  Akhori was grinding paddy with her deaf and  dumb mother Smt. Swanri Devi near her house. At  that time, accused Puran Singh came towards the  cattle shed of Shivraj Singh and started  beating she-buffalo of Shivraj Singh. Smt.  Ramdei and her mother raised an objection.  Accused got enraged and caught the wife of  Shivraj Singh by her hair in order to beat her.  Shivraj Singh happened to reach there and

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cautioned the accused. The accused went inside  the room, brought his licensed gun and fired a  shot towards Shivraj Singh who luckily escaped  unhurt. On hearing the noise, other two  brothers of Shivraj Singh, PW2\027Indra Singh and  Rajpal Singh (deceased), came out to inquire as  to what had happened. The accused started  showing his anger towards them also. Both of  them, therefore, decided to retreat from there.  They were, however, chased by the accused who  was carrying his gun. PW2\027Indra Singh asked  Rajpal Singh (deceased) to run fast so that  they may be saved. Rajpal Singh, unfortunately,  turned his face backward to see as to how far  away was the accused from him. The accused  fired and the gun shot hit Rajpal Singh on his  face and head. Rajpal Singh fell down on the  ground. In the meanwhile, PW3\027Smt. Bardei, wife  of Indra Singh and PW6\027Bimala, minor daughter  of Rajpal Singh along with other children and  family members reached near the place of  incident. They could thus see the incident.  Indra Singh was threatened by the accused and  he went inside his house and got himself saved.  Rajpal Singh became unconscious and remained as  such till he was declared dead. 3.              Initially, a case was registered  against the appellant-accused in the First  Information Report (FIR) for an offence  punishable under Section 307, IPC as also for  an offence punishable under Sections 25 and 27  of the Arms Act, 1959. After the death of  Rajpal Singh, however, the charge was framed  for committing an offence punishable under  Section 302, IPC.  The case was committed to  the Court of Sessions, Chamoli. A plea of the  accused was recorded wherein he denied to have  committed any offence, and claimed to be tried. 4.              In order to establish the case against  the accused, the prosecution examined eight  witnesses. Out of them four witnesses were eye- witnesses, viz., PW2\027Indra Singh, PW3-Smt.  Bardei, PW5\027Smt. Ramdei and PW6\027Kumari Bimala.  It also examined PW1\027Pratap Singh- Pradhan of  the village, PW7\027Dr. D.C. Awasthi and PW8\027Mitra  Nand-Patwari. 5.              So far as death of the deceased Rajpal  Singh is concerned, there is no dispute that he  died homicidal death and it was due to firearm  injuries sustained by him. PW7\027Dr.Awasthi, who  performed postmortem, found the following  injuries on the body of the deceased; (1)     Fire arm injury 1= cm in diameter  circular in shape with inverted  margins on right side of scalp  parietal region, 5 cm above the  top of right ear and 10 cm from  the outer corner of the right eye  with tattooing (impregnated black  carbon particles) over an area of  12 cm X 10 cm over the right side  of face, forehead and around the  wound. It was wound of entry.

(2)     Fire arm lacerated injury oval

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shaped 2= cm X 1 cm with irregular  everted margins 2 cm behind injury  No.1. Clotted blood was present  around it. It was wound of exit.

(3)     Fire arm lacerated wound 1 cm X =  cm irregular in shape, 2 cm below  and behind injury No.2. It was  wound of exit.

(4)     Fire arm lacerated wound 1 cm X >  cm irregular in shape, 2 cm behind  injury No.2. It was wound of exit.

6.              It was, therefore, clearly proved by  the prosecution that the death of deceased  Rajpal Singh was homicidal in nature and it was  because of the gun injuries sustained by him. 7.              The trial Court considered the  evidence of eye-witnesses and observed that  except minor contradictions, there was no  inherent improbability in their evidence. He,  however, observed that from the evidence of  Investigating Officer and the entries made in  the Check Register that FIR and the relevant  G.D. entries of the registration of the case,  were made at a subsequent stage on some other  date and not on August 3, 1979. There was thus  \021every occasion for consultation and  afterthought.\022 The trial Court also observed  that the accused stated that Rajpal Singh  (deceased) was injured by a shot fired from the  gun carried by a co-villager (Bachan Singh)  when the deceased had gone for hunting with his  brother Indra Singh and Bachan Singh (co- villager). According to the trial Court, it  might or might not be so but in view of  suspicious circumstances, it could not be said  that the prosecution had succeeded in  establishing the guilt of the accused \021to the  hilt and beyond all reasonable doubts.\022 In that  view of the matter, according to the trial  Court, the accused was entitled to benefit of  doubt. Accordingly, the trial Court acquitted  the accused. 8.              Being aggrieved by the order of  acquittal recorded by the Sessions Court, the  State preferred an appeal under Section 378 of  the Code of Criminal Procedure, 1973. It was  contended by the State that once the evidence  of prosecution witnesses was believed by the  Court and it observed that there was no reason  to disbelieve the said evidence, the Court  ought to have convicted the accused.  It was  urged that when the trial Court did not find  material contradiction or inherent  improbability in the prosecution evidence, the  Court was wholly wrong in acquitting the  accused.  9.              The High Court reappreciated the  evidence of witnesses and held that the order  of acquittal recorded by the trial Court was  wholly unsustainable and totally unwarranted.  Accordingly, the High Court set aside the order  of acquittal and convicted the accused-

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appellant herein for an offence punishable  under Section 302, IPC and ordered him to  undergo rigorous imprisonment for life as  observed earlier. 10.             The accused has challenged the order  of conviction and sentence recorded by the High  Court by filing the present appeal. On April  10, 2006, appeal was admitted and notice was  issued on prayer for bail. On November 24,  2006, when the matter was called out, the Court  fixed final hearing of the appeal and observed  that in view of that order, it was not  necessary to deal with bail application. Appeal  is accordingly placed before us for final  hearing. 11.             We have heard learned counsel for the  parties. 12.             The learned counsel for the appellant  raised several contentions. In our opinion,  however, it is not necessary to deal with all  the contentions in view of the fact that the  appeal deserves to be allowed on a short  ground. 13.             The learned counsel for the appellant  urged that from the opinion of the Ballistic  Expert, it was clear that the bullet which  caused the injury to the deceased was not fired  from the gun said to have been used by the  appellant, recovered from him and was examined  by the Forensic Science Laboratory.  If it is  so, the prosecution was not successful in  bringing home the guilt of the accused and in  establishing that it was the gun of the accused  which had caused firearm injury to deceased  Rajpal Singh which resulted in his death. 14.             The learned counsel for the State, on  the other hand, submitted that the point raised  by the learned counsel for the accused in this  Court was neither raised before the Sessions  Court (Trial Court) nor before the High Court  (Appellate Court). No such point, hence, can be  permitted to be raised in this Court for the  first time in an appeal under Article 136 of  the Constitution. 15.             We would have indeed considered the  submission of the learned Government Advocate  but for the fact that there is sufficient  evidence on record to show that what is sought  to be contended by the learned counsel for the  accused in this Court has substance and  sufficient material is already on record in  support of such plea.  16.             We have been taken by the learned  counsel for the parties to the record of the  case. Exhibit Ka.3 is the Arrest Panchnama  dated August 4, 1979 when the accused was  apprehended at about 8 a.m. in the morning. In  the memo of arrest as also in seizure memo, it  was stated that \021no article was recovered from  the body of the accused and nothing was seized  by the police\022. The accused had nothing except  wearing clothes. In Daily Diary by Patwari  Circle, Barab, Tehsil Okhimath dated August 4,  1979, it was mentioned that the Patwari started  to the place of occurrence from village

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Senagadmari at about 5.30 a.m. on August 4,  1979. At the place of occurrence, he found  injured Rajpal Singh in the custody of  villagers. The injured was breathing but was  unconscious. The patwari tried to inquire about  the incident from Rajpal Singh but the latter  could not speak. Though treatment was given to  the injured, he died. Inquest panchnama was  thereafter prepared in presence of persons who  were there. The FIR was registered under  Section 307, IPC on the basis of the report  dated August 3, 1979 by Partap Singh, Pradhan,  but Rajpal Singh died and the case was  registered under Section 302, IPC. It was  stated that \023as the death of the injured Rajpal  Singh was caused due to intentional gun shot by  accused Puran Singh S/o Bhag Chand, therefore,  the accused Puran Singh is taken into custody  and the weapon used in murder i.e. gun 1319/V- 1970, Licence No. 697/Mly-74 and two empty  cartridge Bore-12 recovered from the accused  and sealed it at the spot in presence of  witnesses\024.  17.             Seizure Memo was prepared on the same  day which reads thus: \023Today on dated 4.8.79 in presence of  (1) Shri Pratap Singh, Pradhan Village  Panchayat Akhori, (2) Shri Bachan  Singh S/o Ram Singh, (3) Shri Bhopal  Singh S/o Tilak Singh, Village Akhori,  Circle-Barab in the case No.4/79 State  through Pratap Singh, Pradhan, Gram  Panchayat Akhori versus accused Puran  Singh s/o Bhag Chand, village Akhori,  U/Sec.302 IPC and 25/27 Arms Act, the  licensed gun of accused called and  ammunition was also called. Then the  accused Puran Singh handed over to  police his single barrel gun, bullet  12 bore No.1319 V-1970, licence  No.697/ML4/34-V, booklet, two empty  cartridges on which KF-12 Special 12  is written made in India by ORDINANCE  FACTORIES and it was seized by police.  Accused was asked to handover other  ammunition. The availability of which  accused denied. When the gun was open  it was not loaded with cartridges. The  above recovered article was put in  separate sack/packet and sealed. The  memo was prepared in presence of  witness and their sign was taken\024.

18.             It is thus clear that even according  to the prosecution, the weapon used by the  accused for commission of crime i.e. causing  death of deceased Rajpal Singh was recovered  along with two empty cartridges. The mudamal  gun as also empty cartridges were then sent to  the Forensic Science Laboratory, Lucknow, which  were examined by the Laboratory. 19.             The prosecution witnesses who were  cited as eye-witnesses and examined on oath  have also stated that the gun used for  commission of offence was recovered and the

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injuries were caused to the deceased by the  accused from the said gun. For instance, PW2- Indra Singh was shown gun (Ext.1) and it was  observed by the trial Court that \023on seeing the  gun Ex.1 the witness told that this is that gun  from which Puran Singh fired bullet\024.  Similarly, PW4-Shivraj Singh stated that it was  the same gun. In para 6, it is observed;  \023Witness was shown Ex.Ka-1. He said that from  this gun Puran Singh fired\024.  20.             So far as medical evidence is  concerned, PW7-Dr. Awasthi had to say this: \023In my opinion, the death was due to  coma which was as a result of head  injury caused by the discharge of some  arm fire, which was sufficient in the  ordinary course to cause death\024.

21.             PW8\027Mitra Nand, Patwari stated in his  substantive evidence, that he went to the house  of the accused and arrested him. He further  stated that the accused gave him his licensed  gun of single barrel twelve Bore (Ex.1) and two  Cartridges (Ext.6&7) which were sealed  separately.  22.             The Report of Forensic Science  Laboratory dated November 28, 1979 is also on  record. It states that the Laboratory received  a letter from Chief Judicial Magistrate,  Chamoli (Gopeshwar) along with two 12 bore K.F.  Special emptied cartridges marked as E.C.1 & 2  and one piece of gun 12 bore single barrel  No.1319. It was then stated that the examiner  fired five shots from the gun which were marked  as T.C. 1 to T.C. 5. T.C.1, T.C.2 and T.C.5  misfired and rest fired successfully. Regarding  E.C.1 and E.C.2, it was stated that there had  been signs of firing pin. But on E.C.2, the  signs were not specific. Cap of E.C.1 had sign  of breach and E.C.2 had minor sign of breach.  On the basis of the examination, a conclusion  was given which is in the form of result which  reads as under: Result : (A) The cartridge in question  E.C.1 was not fired from the single  barrel 12 Boe No. 319 marked 1/79 gun.

(ii) The cartridge in question E.C.2  has no comparative feature with shot  fired from gun No.1319 12 bore marked  1/79.

(B) On the chemical examination of  fouling matter from the gun the  nitrate was found from the gun so it  is concluded that after last shot the  gun was not cleaned but on 3/8/79  whether or not shot was fired from gun  designative scientific opinion is not  a possibility.                                   (emphasis supplied)

23.             It is thus clear that as per Ballistic  Expert\022s opinion, cartridge E.C.1 was not fired  from the single barrel 12 bore No. 1319 said to

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have been used by the accused. In our opinion,  therefore, the appellant accused is entitled to  benefit of doubt. 24.             For the foregoing reasons, the appeal  deserves to be allowed and is accordingly  allowed. The order of conviction and sentence  recorded by the High Court is set aside and the  appellant is given benefit of doubt and is  ordered to be acquitted. Since the appellant is  in jail, he is ordered to be released forthwith  if his presence is not required in any other  case. 25.             The appeal is accordingly allowed.