Singh Vs. State of Uttaranchal  Insc 37 (10 January 2008)
Thakker & D.K. Jain C.K. Thakker, J.
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.
Shortly stated the prosecution case was that one Pushu had two sons
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;
Singh (deceased) and
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., PW5Smt.
Ramdei, daughter of PW4Shivraj 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.
got enraged and caught the wife of Shivraj Singh by her hair in order to beat
Singh happened to reach there and 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, PW2Indra 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.
were, however, chased by the accused who was carrying his gun. PW2Indra 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, PW3Smt.
Bardei, wife of Indra Singh and PW6Bimala, 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.
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.
order to establish the case against the accused, the prosecution examined eight
witnesses. Out of them four witnesses were eye- witnesses, viz., PW2Indra
Singh, PW3-Smt. Bardei, PW5Smt. Ramdei and PW6Kumari Bimala. It also examined
PW1Pratap Singh- Pradhan of the village, PW7Dr. D.C. Awasthi and PW8Mitra Nand-Patwari.
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. PW7Dr.Awasthi, who performed postmortem, found the following injuries on
the body of the deceased;
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.
Fire arm lacerated injury oval 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.
Fire arm lacerated wound 1 cm X = cm irregular in shape, 2 cm below and behind
injury No.2. It was wound of exit.
Fire arm lacerated wound 1 cm X > cm irregular in shape, 2 cm behind injury
No.2. It was wound of exit.
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
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 every occasion for consultation and afterthought. 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 to the
hilt and beyond all reasonable doubts. 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.
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.
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.
the High Court set aside the order of acquittal and convicted the accused-
appellant herein for an offence punishable under Section 302, IPC and ordered
him to undergo rigorous imprisonment for life as observed earlier.
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.
have heard learned counsel for the parties.
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.
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.
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.
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
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 no article was recovered from the body of the accused
and nothing was seized by the police. 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 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 as 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
Seizure Memo was prepared on the same day which reads thus:
on dated 4.8.79 in presence of
Pratap Singh, Pradhan Village Panchayat Akhori,
Bachan Singh S/o Ram Singh,
Bhopal Singh S/o Tilak Singh, Village Akhori,
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.
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.
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
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 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 on seeing the gun Ex.1 the witness told that this is that
gun from which Puran Singh fired bullet.
PW4-Shivraj Singh stated that it was the same gun. In para 6, it is observed;
was shown Ex.Ka-1. He said that from this gun Puran Singh fired.
far as medical evidence is concerned, PW7-Dr. Awasthi had to say this:
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.
PW8Mitra 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.
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
basis of the examination, a conclusion was given which is in the form of result
which reads as under:
The cartridge in question E.C.1 was not fired from the single barrel 12 Boe No.
319 marked 1/79 gun.
The cartridge in question E.C.2 has no comparative feature with shot fired from
gun No.1319 12 bore marked 1/79.
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.
is thus clear that as per Ballistic Experts opinion, cartridge E.C.1 was
not fired from the single barrel 12 bore No. 1319 said to have been used by the
accused. In our opinion, therefore, the appellant accused is entitled to
benefit of doubt.
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.
The appeal is accordingly allowed.