Shambhoo Vs. State of Uttar Pradesh
 INSC 65 (20 February 1962)
criminal Trial-Murder-pistol and cartridges
recovered from accused-Failure to send to ballistic expert-If entails rejection
of eye witnesses-Appreciation of evidence.
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, 
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.
CRIMINAL APPELLATE JURISDICTI0N: Criminal
Appeal No. 108 of 1961.
Appeal from the judgment and order dated May,
11 1961 of the Allahabad High Court in Government Appeal No. 1492 of 1960.
A. S. R. Chari and Udai Pratap Singh, for the
G. C. Mathur and C. P. Lal, for the
1962. February 20. The Judgment of the Court
was delivered 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
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 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 witnesses mentioned earlier, is that this appellant shot Dulla dead when
the latter offered assistance 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 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 anything 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 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
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 SubInspector'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 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 gunshot 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 extracted 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 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
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.