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PETITIONER: SHAMBHOO

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 20/02/1962

BENCH:

ACT: criminal  Trial-Murder-pistol and cartridges recovered  from accused-Failure  to  send  to  ballistic  expert-If  entails rejection of eye witnesses-Appreciation of evidence.

HEADNOTE: The  appellant With some others robbed Dulla and two  others and  during  the robbery the appellant shot  at  and  killed Dulla  with  a  pistol.  After a chase  the    appellant was apprehended   and  the  pistol  and  some  cartridges   were recovered from him.  The pistol and cartridges were not sent for  examination to the ballistic expert.  A number  of  eye witnesses  were produced at the trial.  The  Sessions  judge acquitted  the  appellant  but  on  appeal  the  High  Court convicted  him under ss. 302 and 394 Indian Penal  Code  and sentenced  him to death.  The appellant contended  that  the circumstances  of  the case showed that  the  eye  witnesses could  not  be relied upon and that the failure to  get  the pistol  and cartridges examined by a ballistic expert was  a good ground for rejecting the evidence of the eye witnesses. Held,  that though the prosecution would have done  well  to send  the pistol and cartridges to the ballistic expert  for his  opinion,  the  omission to do so did  not  furnish  any reason to doubt or reject the evidence of the eye witnesses. There  was  no reason to think that the  injuries  of  which Dulla died could not have been caused by the pistol, on  the contrary  the nature of the injuries was  wholly  consistent with the prosecution story that a pistol was used.                             335 Mohinder   Singh   v.   The  State,   [1950]   S.C.R.   821, distingished. Held, further that even if there was no apparent reason in a case to explain why witnesses were telling a lie against  an accused person circumstances brought out by the evidence may show that in fact their evidence could not be safely  relied upon.   But  in the present case there was  no  circumstance that justified any doubt about the truth of the  prosecution case against the appellant.

JUDGMENT: CRIMINAL APPELLATE JURISDICTI0N: Criminal Appeal No. 108  of 1961. Appeal from the judgment and order dated May, 11 1961 of the Allahabad High Courtin Government Appeal No. 1492 of 1960. A.   S. R. Chari and Udai Pratap Singh, for the appellant. G.   C. Mathur and C. P.  Lal, for the respondent. 1962.  February 20.  The Judgment of the Court was delivered

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by DAS  GUPTA,  J.-The appellant, Shambhoo, was  tried  by  the Additional  Sessions  Judge, Moradabad  for  offences  under sections  302 and 394 of the Indian Penal Code and s.  19(f) of the Indian Arms Act.  Two other persons Altaf and Shaukat were  also tried along with Shambhoo on charges under  s.394 of the Indian Penal Code read with s.34 of the Indian  Penal Code. The  prosecution case is that on November 3, 1959 Dulla  and Ghasita, father and son and one Bbassu were on their way  to Tahirpur Bazar for the purchase of bullocks.  They had  been to  Chandarpur Bazar for this purpose but bad not  made  any purchases,-all  the  three were carrying money.   Dulla  had Rs.300/-,  Ghasita  had  Rs.100/- and  Bhassu  had  Rs.1051. Shortly before noon they reached Mauza Bbainsora.  When they were near a tank about two or three furlongs from 336 Bhainsora  these  four persons, Shambhoo, Altaf,  Sibte  and Shaukat,  of whom Sbambhoo and Sibte were armed with  pistol and Shaukat and Altaf were armed with lathis, came out of  a wheat  field nearby.  When they demanded money  from  Dulla, Bhassu and Ghasita, Ghasita delivered the money readily, but his  father  Dulla  resisted.  At this  Shambhoo  fired  his pistol  and  shot Dulla dead.  Shambhoo then  took  out  Rs. 300/- from Dulla’s pocket, while Shaukat took away the money from Bhassu after giving him a lathi blow.  The alarm  which Dulla,  Bhassu and Ghasita raised when the robbers  attacked them, however, brought to the place a number of persons  who were  working in the fields and these succeeded  in  felling Shambhoo and Altaf with their lathis so that they could  not get  away.   The  other two,  Sbaukat  and  Sibte,  however, managed  to escape, even though they were pursued  by  these villagers.   In the course of the, pursuit Sibte  fired  his pistol  causing bullet injuries to Lal Singh,  Mahendra  and Udaibir, who were among the pursuers. Leaving the two persons who had been arrested and the pistol and  twelve live cartridges which were seized from  Shambhoo at  the  place  of occurrence Ghasita  accompanied  by  Kalu Chowkidar  writ  to the Thana which was about 4  miles  off. The  information  of  the occurrence as  given  by  him  was recorded and the Officer-incharge, proceeded to the place of the  occurrence  and after taking Altaf  and  Shambboo  into custody  and  also the live cartridges, the pistol  and  one used  cartridge case, investigated the ease.   Dulla’s  dead body  was  sent  for  post  mortem  examination,   Shamboo’s injuries  as  also the injuries of La] Singh,  Mahendra  and Udaibir were also medically examined. All  the  accused pleaded not guilty.  The  defense  of  the present appellant wag that he had                             337 enmity  with  Talebar  Singh and that  he  was  arrested  by Telebar  and  others on the date of the  occurence  when  he stopped  at  a well for bathing on his way  back  home  from Moradabad.  He examined a defence witness in support of  his story  that he was taking his bath near -a well when he  was arrested. To  prove  its  case the prosecution relied  mainly  on  the testimony of Ghasita and Bhasou and of six persons who  came on  hearing  the  alarm,namely Kalu  Singh   Kalu  Chowkidar Mahendra  Singh Talebar Singh . Lal Singh and Udaibir  Singh These  8 persons have given practically the same account  of the  occurrence  and  there is no doubt  that  if  they  are believed the case would stand proved against all the accused persons. The  learned  Additional Sessions Judge was however  of  the

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opinion that even though apparently there appeared to be  no reason  for discarding the testimoney of  the  eyewitnesses, there  were several circumstances in the  case,  especially, the medical evidence as regards the injuries on Shambboo and on  Mahendra,  Lal  Singh  and  Udaibir  Singh  which   left considerable room for reasonable doubt about the veracity of the prosecution story and that the accused were entitled  to the  benefit  of doubt.  Accordingly, he acquitted  all  the three accused. On  appeal by Government the Allahabad High Court set  aside this  order of acquitial as regards Shambhoo and  Altaf  and has  convicted Shambhoo under ss.302 and 394 of  the  Indian Penal  Code and under s.19(f) of the Arms Act and  sentenced him to death under s.302, Indian Penal Code, to four  years’ rigorous imprisonment under s.394 and to one year’s rigorous imprisonment  under  s. 19(f) of the Arms  Act.   Altaf  was convicted and sentenced to four years’ rigorous imprisonment under s. 394 of the Indian Penal 338 Code.   The  Government  appeal  against  the  acquittal  of Shaukat was dismissed. Shambhoo  has appealed to this Court under Art.134(1)(a)  of the Constitution. The accused was not represented by Counsel and himself  said what  he  wanted  to say before us.   Mr.  Chari,  a  Senior Counsel  of this Court however appeared as an amicus  curiae and  submitted  arguments  in support  of  the  appeal.   As already stated, the direct evidence given by the eight  wit- nesses mentioned earlier, is that this appellant shot  Dulla dead when the latter offered eessistance in making over  the money  which he bad with him on demand by the appellant  and his companions and that than the appellant removed  Rs.300/- from Dulla’s pocket. The question for our consideration is whether the High Court was right in believing this evidence. The suggestion made by the accused that he has been  falsely implicated by the witnesses at the instance of Talebar  does not bear a moment’s scrutiny.  There is, apart from his  own statement  nothing to show that Talebar had any enmity  with him.   Even if Talebar had any enmity there is  nothing.  to indicate  that any of the other witnesses are at  all  under Talebar’s influence.  The suggestion that the appellant  has been wrongly involved in the case at the instance of Talebar was therefore rightly rejected by the learned Sessions Judge as also by the High Court and - has indeed not been  pressed before  us by Mr. Chari.  It is true however as pointed  out by  the  learned  Sessions Judge that even if  there  be  no apparent  reason  in  a case to explain  why  witnesses  are telling  a  lie  against  an  accused  person  circumstances brought  out  by the evidence may show that  in  fact  their evidence cannot be safely relied upon.  339 The  two  main  circumstances to which Mr.  Chari  drew  our attention  and  to  which the learned  Sessions  Judge  also appears  to have attached great weight are : (1) that  while according to the witnesses the appellant was felled by  them with lathies the medical evidence discloses only one  injury on Shambhoo which could have been caused by a lathi and  (2) the  injuries  received by Lal Singh, Mahendra  and  Udaibir Singh  are not such as would be caused by Sibte’s firing  of which the witnesses have spoken. It  is true that the eye-witnesses have spoken generally  of those who arrived on hearing the alarm as having used  their lathies and reading their evidence one would have expected a number  of  lathing injuries on Shambhoo’s  person.   It  is

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equally true that though the medical evidence shows as  many as 15 injuries on Shambhoo, 14 of these are only  abrasions, while  one (Injury No. 7) is a swelling on the outer  aspect of  the  right ankle.  It is clear that Injury No.  7  could have  been  caused  by  a lathi blow,  while  the  other  14 injuries  could  not have been so caused.  We do  not  think however  that  this  gives  any  reason  to  disbelieve  the evidence  of  the  witnesses as -to  what  they  saw.   What appears  to have happened is that one single lathi blow  was sufficient  to bring Shambhoo down and after that  no  lathi blow  was given to him but he was dragged and thus  received the numerous abrasions on his body.  It is not unnatural  in circumstances like these that all those who came on  hearing the  alarm  would  try to take the  credit  of  felling  the robber.   That,  we think, is responsible  for  the  general statement  that  all  of  them  used  their  lathies.   This exaggeration of what they did does not justify any doubt  of their veracity. The  learned Sessions Judge seems to have also thought  that if  these  witnesses saw what they claim to have  seen,  the attack on Shambhoo would 340 have been more ferocious.  With this we are unable to agree. It has to be remembered that these villagers who arrived  on hearing  the  alarm were not related to Dulla.   Indeed,  it would  appear that Dalla and his companions were unknown  to them.   There is nothing unlikely or unnatural in  the  fact that  they were content with securing Shambhoo and  did  not injure him further. According  to these witnesses Sibte fired his pistol at  his pursuers,  amongst  whom  were  Lal  Singh,  Udaibir  Singh, Mahendra and others.  The medical examination shows that  on November 4, 1959-that is, the date after the oocurrence-when the Doctor examined the persons of Mahendra, Udaibir and Lal Singh he found one scabbed abrasion 1/8" x 1/8" on the front of  upper part of’ left leg 12-1/2" above the left  knee  on Mahendra ; (2) One scabbed abrasion 1/6" x 1/8" on the front to  the  right side of the abdoment at 5 O’  clock  position from the right nipple 5" away on the person of Lal Singh and (3)  abrasions on the person of Udaibir  Singh-one  abrasion 1110"  x 1/2" on the inner side of the left leg,  11"  above the  left  knee and the other abrasion 1/2" x  1/6"  to  the front of right leg, 8" below the ’right knee in the  middle. We  can  see  no  reason to  doubt  the  testimony  of’  the witnesses and do not think it at all unlikely that  injuries of this nature were caused by pellets ejected by a  firearm. The   medical   examination  therefore   far   from   being" inconsistent  with  the account given by the  witnesses,  as urged  by Mr. Chari lends support, in our opinion, to  their account. The  next circumstance which in the opinion of the  Sessions Judge  throws  doubt the truth of the prosecution  story  is that the robber should attack at a ’place so close to  where many people, were working.  We are unable however to see any thing  unlikely in robbery being attempted at such a  place. At least two of the miscreants,                             341 according  to the witnesses, were armed with fire  arms  and that  itself  was sufficient to make them bold and  to  hope that  the people working in the field nearby would not  dare come  to  the assistance of Dulla and his  companions.   The learned Judge seems to have thought that there was no  place where  the miscreants could have concealed  themselves.   In thinking  thus  he appears to have overlooked  the  evidence that  sugarcane  high  enough  to  afford  good  place   for

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concealment was growing in several fields nearby. The  learned  Sessions Judge also thought  it  strange  that there was no injury on the person of Ghasita and Bhassu  and said  : "It does not stand to reason that the robbers  would leave these two persons without leaving any injury on them." We  find  it difficult to understand why the  learned  Judge thought so.  Robber armed with pistol do not always use them unnecessarily.   A  pistol was used on Dulla as he  did  not readily  hand over the money with him.  Ghasita  and  Bhassu did  not offer such resistance.  That itself  would  explain why they were not fired upon., It may be mentioned here that according to the evidence, one of the miscreants did use his lathi on Bhassu. After  a careful consideration of evidence we are unable  to discover any circumstance that justifies any doubt about the truth about the ’prosecution story as against the appellant’ Mr.  Chari  however urged that in any cast,  the  fact  that though the pistol which the appellant fired was according to the  evidence,  seized  from  him it was  not  sent  to  the ballistic.  expert  for  examination is a  good  reason  for rejecting the evidence of the eye-witnesses.  The  witnesses already  mentioned have said that when Shambhoo was  secured the pistol from which be had fired the fatal shot was seized from  him  and that one empty cartridge case  was  recovered from inside that pistol and 12 more cartridges were 342 recovered  from the appellant’s person and that  these  were made  over to the Sub-Inspector when he arrived.   The  Sub- Inspector’s evidence is that he received from Kalu Singh the pistol  which  was  marked Ex.  I in the case  and  12  live cartridges.  He took -these, as well as the empty cartridges case into his custody.  It is equally clear that neither the pistol  nor  these  cartridges were sent  to  any  ballistic expert.   While we think the Sub-Inspector would  have  done well  to send the pistol and the ammunition, especially  the empty  cartridges  case,  to  a  ballistic  expert  for  his opinion, we are unable to accept Mr. Chari’s contention that this  omission furnishes any reason to doubt or  reject  the evidence  of the eye-witnesses, Mr. Chari has placed  strong reliance on this Court’s decision in Mohinder Singh, v.  The State()  and  has  drawn  our  attention  to  the  following observations made therein by Fazl Ali J. :-               "In  a case where death is due to injuries  or               wounds  caused  by  a lethal  weapon,  it  has               always  been considered to be 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 are               alleged to have been caused." This  was  a  case  in which  the  prosecution  charged  one Mohinder  Singh  with having caused fatal  injuries  on  one Dalip Singh with a gun.  The gun-P-16 was identified as  the gun  with  which Mohinder Singh fired at Dalip  Singh.   The High  Court was not satisfied about the  identification  and appears to have also been doubtful whether the injures could have  been caused by a gun.  This Court after agreeing  with the  High  Court that it was doubtful whether  the  injuries which were attributed to the appellant were caused by a  gun or by a rifle thought that it was more likely that they were caused (1)  19501 S.C.R. 821.                             343 by a rifle than by a gun and the Court proceeded to  observe :-  It  is only by the evidence of a duly  qualified  expert

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that  it  could have been ascertained whether  the  injuries attributed  to  the appellant were caused by a gun or  by  a rifle  and such evidence alone could settle the  controversy as  to  whether they could possibly have been  caused  by  a firearm being used at such a close range as is suggested  in the evidence." It  has  to  be noticed that in that  case  one  Dr.  Goyle, Director of the C.I.D. Laboratory has stated in his evidence that  the gun cartridges which were seized could  have  been fired  through the gun P-16 though he could not say  whether they were actually fired from that particular gun a  similar gun  or guns." The High Court rejected the evidence  of  Dr. Goyle  and  considered the nature of the  wound  could  have created  a serious difficulty in the case.  It was in  these circumstances  of  that  case  that  this  Court  made   the observations on which reliance has been placed and held that the evidence of the witnesses could not be relied upon. It  has to be noticed that in the present case there is  not only  no  reason to think that the injuries of  which  Dulla died  could  not have been caused by the pistol but  on  the contrary  the nature of the injuries as shown by  Dr.  Nigam who  held the post mortem examination is  wholly  consistent with the prosecution theory that a pistol was used. The external injuries as found on the body were described by the Doctor were as follows :-               "Five gun- shot wounds (entrance) each 1/4"  x               1/8".  Scorching was present on the margins of               these wounds.  Four of these wounds were going               to  the chest cavity and the fifth one on  the               outer  side  was bone deep.  The  five  wounds               were  in  an  area  4-1/2"  x  4-1/2".   These               injuries were on right Bide of chest about 1-1               /4"               344               to  the upper and inner side of  right  chest.               The  outermost injury was about  1-1/2"  below               right  side.   One bullet about 3/4"  was  ex-               tracted from the flesh from the inner side  of               this wound."               He proceed to give the internal examination of               the body in this manner:-               "The second, third and fourth right ribs  were               broken in several pieces in the front and back               side.   Clotted blood was present beneath  the               external injuries and there were four holes in               the cheat Underneath those injuries, each hole               being  1/4"  x 1/8" and all going  inside  the               chest.  Underneath the external injuries  were               four holes 1/4" x 1/8" through and through  in               the right pleura.  There were 4 holes 1/4" x 1               /8"  in the right chest, 3 being  through  and               through  and one being I’ deep.  All  of  them               were in the upper part of right lung.  About 3               pounds  of  blood  was present  in  the  chest               cavity.  One shot was extracted from the right               lung.   Three  shots were extracted  from  the               right  side upper part of back underneath  the               skin.  Abdominal cavity was empty and  normal.               The bladder contained about 2 Oz. of urine." In cross-examination he stated : "I cannot tell whether  the injuries received by the five bullets were caused by I  shot or many." The  very fact that the Doctor used the word  ",bullets"  in this statement in cross-examination shows that he understood the  word  to include pellet.  Once that  becomes  clear  it

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appears to us that the Doctor’s evidence co does not at  all go  against  the  prosecution case that  the  injuries  were caused  by  one  shot from a pistol.   The  absence  of  the ballistic expert’s evidence is therefore no reason to                             345 doubt  the testimony of the eye-witnesses.   Kasimulla,  one witness who was examined by the appellant on his behalf said that it was when the appellant was washing his hand and face at  the Haudia near a well at Jayantipur that  Talebar  came with 7 or 8 persons and arrested him.  In  cross-examination he  stated  that  on  several  occasions  he  had  purchased "Singharas" from Shambhoo at Sedhari Bazar and was so  known to him. On  an examination of the entire evidence on the  record  we have  come to the conclusion that the account given  by  the witnesses  mentioned earlier as regards what  the  appellant did  and  how  he  was arrested is  true  and  this  witness Kasimullah has given false evidence to help Shambhoo. As this appeal is under Art. 134(1) (a) of the  Constitution we have re-appraised the evidence for ourselves and on  such reappraisal have come to the conclusion that the view  taken by the High Court that persons claiming to be  eye-witnesses of  the  occurrence have told the truth and  their  evidence proves beyond reasonable doubt that the appellant  committed the offence of murder punishable under s. 302 of the  Indian Penal  Code by causing the death of Dalla and that  he  also committed an offence under s. 304, Indian Penal Code and  s. 19(f),  Arms Act, is correct.  We. are also of opinion  that the  High Court was right in passing the sentence  of  death under s. 302 of the Indian Penal Code. The  appeal is accordingly dismissed. Appeal dismissed. 346