REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1390  of 2003

State of M.P. …Appellant

Versus

Dhara Singh and Anr. ....Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

1. Challenge in this appeal is to the judgment of a Division Bench of the

Madhya  Pradesh  High  Court,  Gwalior  Bench,  directing  acquittal  of  the

respondents. Learned 4th Additional Sessions Judge, Morena, had  convicted

respondent  No.1  for  offence  punishable  under Section  302 of  the  Indian

Penal Code, 1860 (in short the ‘IPC’) and Sections 25 and 27 of the Arms

Act,  1959(in  short  the  ‘Arms Act’).  Respondent  No.2  was convicted  for

offence punishable under Section 302 read with Section 34 IPC.  

2. Background facts in a nutshell are as follows:

On 3.10.1998 Sohan Lal (hereinafter  referred to  as  the ‘deceased’)

his  son  Ram Het,  Dhanvanti,  Ramswaroop,  Kaptan  Singh  and  Bhagwan

Singh  came  to  Morena  from  Village  Rajyekapura  for  the  treatment  of

Dhanvanti  and  to  purchase  fertilizer.  They  were  returning  back  to  their

village  in  a bullock  cart  at  about  3.00  p.m. Said  bullock cart  was  being

driven by Bhagwan Singh and the deceased Sohan Lal and Ram Swaroop

were behind the bullock cart. Ramhet, Dhanvanti  and Kaptan Singh were

sitting in the bullock cart.

When the said bullock cart reached near Shivlal-ke-pura Ki Mata, at

that juncture accused Prem Das armed with a gun and accused Dhara Singh

armed with a katta came in front of the bullock cart. Prem Das asked to stop

the bullock cart and thereafter upon his exhortation Dhara Singh fired the

Katta, as a result  of which Sohanlal  died. The bullet  hit  the chest  of the

deceased. Thereafter the accused persons fled away.  

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Two brothers of the accused had died 5 to 6 years ago in the hospital

with the result that the accused left the village after disposing of their land

to Gujiars.  Subsequently, deceased had purchased a portion of land from

Gujiars. The accused persons were under impression that the deceased got

their brothers killed.

The First Information Report (In short the ‘FIR’) was lodged by PW-

2 Ramhet and in this manner the criminal law was set in motion. The police

thereafter arrived on the spot, prepared the Panchnama, sent the dead body

of the deceased to the Hospital for post mortem, seized the wearing apparel

of the deceased and recorded the statements of the witnesses.  

After  investigation,  charge sheet  was filed.   Since accused persons

pleaded innocence trial was held.

The trial  Judge after  considering the evidence on record found the

accused persons guilty as noted above. In appeal before the High Court it

was primarily submitted that the prosecution version is not acceptable. The

evidence of the witnesses did not inspire confidence. The bullet which was

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found  on  the  body  of  the  deceased  was  recovered  and  was  sent  for

examination of the ballistic expert and his report was not placed on record.

The High Court found that the name of Bhagwan Singh (PW-3) did not find

place in the FIR. The State’s stand was that neither of these two aspects

rendered the prosecution version suspect. The High Court however held that

the benefit of doubt was to be extended and directed acquittal.  

3. Learned counsel for the appellant submitted that the conclusions are

very sketchy. There is no discussion of the eye witnesses. Ram Het Singh

(PW-2) the son of the deceased and Bhagwan Singh (PW-3) who was the

cousin  of  PW-2.  Dhanwanti  (PW-4)  was  the  daughter-in-law  of  the

deceased. The FIR was lodged promptly. It is not a fact that the name of

PW-3 does not figure in the FIR. It has been clearly stated that the cousin of

the informant was an eye witness.  

4. The  conclusion  of  the  High  Court  that  PW-3’s  name did  not  find

place in the FIR is not correct. As a matter of fact PW-2 has clarified that in

fact the name of Bhagwan Singh has been indicated in the FIR as ‘Kaptan’.

Additionally, it is seen that there is no discussion of the evidence of the eye

witnesses. In what cases the examination of a ballistic report is essential to

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further  the  prosecution  version  would depend  upon  the  circumstances  of

each case.  In  Chatar Singh and Anr. v.  State of Haryana (AIR 1976 SC

2474) it was held that in the circumstances of the case the non obtaining of

the report of the ballistic expert, could not shake the prosecution case in the

least. The view was re-iterated in Lakhbir Singh and Anr. v. State of Punjab

(AIR 1994 SC 1029). In this context  a decision of this Court in  Surendra

Paswan v. State of Jharkhand (2003 (12) SCC 360)  is relevant. In paras 9

and 10 it was held as follows:

“9. So far  as  the non-seizure of blood from the cot  is concerned,  the  investigating  officer  has  stated  that  he found bloodstained earth at the place of occurrence and had  seized  it.  Merely  because  it  was  not  sent  for chemical  examination,  it  may  be  a  defect  in  the investigation but does not corrode the evidentiary value of  the  eyewitnesses.  The  investigating  officer  did  not find presence of blood on the cot. The trial court and the High Court have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over onto the earth.

10. So far as the effect of the bullet being not sent for ballistic examination is concerned, it has to be noted that Sukhwant  Singh  case is  not  an  authority  for  the proposition  as  submitted  that  whenever  a  bullet  is  not sent for ballistic examination the prosecution has to fail. In that case one of the factors which weighed with this Court  for  not  finding  the  accused  guilty  was  the prosecution’s failure to send the weapon and the bullet for ballistic examination. In the instant case, the weapon

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was  not  seized.  That  makes  a  significant  factual difference between Sukhwant Singh case and the present case.”

5. In view of  the aforesaid,  the  High Court  was  in  error  in  directing

acquittal  of the respondents. The judgment of the High Court is set aside

and that of the trial Court is restored.  

6. The appeal is allowed.   

  ...............................................J. (Dr. ARIJIT PASAYAT)

………...................................J. (ASOK KUMAR GANGULY)

New Delhi; March 03, 2009

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