Kalua Vs. The State of Uttar Pradesh
[1956] INSC 73 (21 November 1956)
IMAM, SYED JAFFER JAGANNADHADAS, B.
MENON, P. GOVINDA
CITATION: 1958 AIR 180 1957 SCR 187
ACT:
Criminal Trial-Murdey Circumstantial
evidence-Opinion of fire-arms expert-Whether conclusive.
HEADNOTE:
One Daya Ram had been murdered by shooting
with a country made pistol. The circumstantial evidence established against the
appellant was (1) that he had a motive for the murder, (2) that three days
before the murder the appellant had held out a threat to murder the deceased,
(3) that a cartridge Ex. I was found near the cot of the deceased, and (4) that
the appellant produced a country made pistol Ex. III from his house in
circumstances which clearly showed that he alone could have known of its
existence there. The fire-arms expert examined the recovered pistol and the
cartridge and after making scientific tests was of the definite opinion that
the cartridge Ex. I had been fired from the pistol Ex. III :
Held, that the opinion of the fire-arms
expert conclusively proved that the cartridge Ex. I had been fired from the
pistol Ex. III.
The circumstantial evidence was sufficient to
establish the guilt of the appellant.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 135 of 1956.
188 Appeal by special leave from the judgment
and order dated November 25, 1955, of the Allahabad High Court, in Criminal
Appeal No. 702 of 1955 and Referred No. 77 of 1955 arising out of the judgment
and order dated May 17, 1955, of the Court of Sessions Judge, at Moradavad in
Sessions Trial No. 29 of 1955.
P. S. Safeer, for the appellant.
G. C. Mathur and C. P. Lal, for the
respondent.
1956. November 21. The Judgment of the Court
was delivered by IMAM J.-The appellant was sentenced to death for the marder of
Daya Ram by shooting him with a country made pistol. He was also convicted for
being in possession of an unlicensed firearm under the Arms Act for which
offence he was sentenced to two years rigorous imprisonment. He appealed to the
High Court of Allahabad, but his appeal was dismissed and the conviction and
sentence was affirmed. Against the decision of the Allahabad High Court the
appellant obtained special leave to appeal to this Court.
According to the prosecution, the occurrence
took place at about midnight of July 4, 1954, when Daya Ram was sleeping on a
cot on a platform. Near him were sleeping Gokul, Doongar and Jai Singh, while
two women Ratto and Bhuri slept in a room to the north of the platform and
adjoining it.
The report of the shot fired woke up these
people.
According to them, they saw the appellant
running towards the east. He was accompanied by three others who were armed
with lathis. Daya Ram died almost instantaneously as the result of the injuries
on his chest and stomach from where pellets were recovered at the time of the
post mortem examination. Daya Ram had been shot from a close distance because
the skin was charred over the entire area of the wound. Near the cot, on which
he slept, a cartridge Ex. I. was found which was handed over to the Police
Officer when he arrived for investigation. A first information report was
lodged at the police station five miles away at 8-10 a. m. on July 5, 1954.
189 The motive for the murder, as alleged by
the prosecution, was that on the death of one Bhai Singh the appellant hoped to
become guardian of Ratto's property, who, however, appointed Daya Ram to take
charge of it. The appellant resented this very much. Three days before the
murder of Daya Ram there had been a quarrel between the appellant and his wife
on the one side and Ratto and Bhuri on the other.
The quarrel arose over an attempt by the
appellant to construct a wall over Ratto's land.' The appellant uttered a
threat that he would soon settle with the person on whom Ratto was depending,
that is to say, the deceased Daya Ram.
According to the High Court, the defence did
not seriously challenge these allegations and the appellant himself admitted
that Ratto wanted him to be turned out of his house.
The appellant was arrested on the night
between July 5 and July 6, 1954, at a village fourteen miles away from the
village of "occurrence Dhakeri. On July 7, he informed the Sub-Inspector
that he was prepared to produce the pistol Ex. III. The SubInspector and the
appellant went to village Dhakeri and Kartar Singh, Mahtab Singh and Khamani
were invited to witness the events that might follow. On reaching the
appellant's house, which adjoins the resid- ential house of Ratto, the
appellant stated that the pistol Ex. III had been concealed by him in a
corn-bin. From a secret place he took out a key and opened the lock of his
house with it. He then took the SubInspector and the witnesses to a mud
corn-bin inside his house, which appeared to be freshly plastered at one place.
The appellant removed the plaster at this place and from inside took out the
country made 12bore pistol Ex. III, and three live 12-bore cartridges. The
cartridge Ex. I, which was found near the cot of Daya Ram, and the pistol Ex.
III were sent to Shyam Narain, a Deputy Superintendent of Police, who is ,a
fire- arms expert of the C. I. D. of Uttar Pradesh Government. He made
scientific tests. He came to the conclusion as the result of the various tests
made by him that the cartridge Ex, I was fired from the pistol Ex. III and no
other fire- arm.
190 While the Sessions Judge believed the
testimony of the eye- witnesses, the learned Judges of the. High Court were of
the opinion that they were unable to accept the assertion of the eye-witnesses
that they actually saw the appellant with a pistol by the bedside of the
deceased. The High Court, however, relied upon the circumstantial evidence in
the case in upholding the conviction of the appellant. There was motive for the
crime and a few days before the killing of.
Daya Ram the appellant had held out a threat
against him.
The appellant was arrested fourteen miles
away from his village which is the place of occurrence. He produced a pistol
Ex.III from his house in circumstances which clearly showed that he only could
have known of its existence there.
The opinion of the fire-arms expert clearly
established that the cartridge Ex. 1, found near the cot of Daya Ram, was fired
with the pistol Ex. III produced -by the appellant.
All these circumstances, in the opinion of
the High Court, left no doubt in the minds of the learned Judges of that Court
that the appellant murdered Daya Ram by shooting him with his pistol.
The learned Advocate for the appellant urged
that the appellant could not have placed the pistol in his house and it must
have been planted there by someone because none of the witnesses stated that
they had seen him going to his house after the murder and the appellant was
certainly not found in his house in the morning. According to the situation of
the house of the appellant and where the witnesses were immediately after the
occurrence, it was impossible for the appellant to have entered his house
without being seen. It was further unlikely that after having committed the
murder, the appellant, after having run away, would return to his house. Both
the Courts below, however, found no reason to disbelieve the Sub-Inspector and
the witnesses that the appellant had produced the pistol Ex. III from the
corn-bin inside his house. The appellant had the key of the house which was
hidden in a secret place and the com-bin was itself freshly plastered at one
place.
These circumstances clearly showed that no
one but the appellant could have 191 known of the existence of the pistol in
the corn-bin in his house. As to whether the appellant could or could not have
gone to his house after the occurrence that is a matter of pure speculation. It
does not appear that any witness was asked anything about it. The High Court
found that the witnesses might have caught a glimpse of the people who were
fast disappearing from the scene but who had no reasonable opportunity of
marking their features. In the confusion of the occurrence the witnesses may
not have observed where the culprits had dis a speared except that they were
seen running towards the east. On the record, there is nothing to show that to
enter the appellant's house, after the occurrence, the appellant had
necessarily to go into his house within the view of the witnesses. It is quite
unnecessary to examine this matter any further because the evidence concerning
the production of the pistol Ex. III by the appellant from his house is' clear
and reliable and, therefore, it is certain that the appellant did enter his
house after the occurrence without being seen by anyone.
It was next urged on behalf of the appellant,
that, it was impossible for a cartridge to have been near the cot of Daya Ram,
because after the shot had been fired the cartridge would still remain in the
barrel of the firearm. This again is pure speculation. That the cartridge was
ejected from the fire-arm is certain. Why it was ejected none can say.
It may be that the miscreant reloaded his
weapon to meet any emergency. The evidence of the Sub-Inspector is clear that
on his arrival at the place of occurrence the cartridge Ex. I was handed over
to him by the witness Khamani who cannot be said to be unfavorable to the
appellant. The Courts below had no reason to disbelieve the evidence in the
case that the cartridge Ex. I was found near the cot of Daya Ram and we can
find no extraordinary circumstance to justify us saying that the Courts below
took an erroneous view of the evidence.
On the facts found there was a motive for the
murder.
Apparently, for no good reason the appellant
was not found at his house on the morning of July 5, but was 192 in a village
fourteen miles away at the time of his arrest.
The appellant produced the pistol Ex. III in
circumstances clearly showing that he had deliberately kept it concealed.
We have no reason to doubt the evidence in
this respect.
The real question is, whether it is safe to
act upon the opinion of the fire-arms expert that the cartridge Ex. I was fired
from the pistol Ex. III produced by the appellant and none other, because
without that evidence the circumstantial evidence in the case would be
insufficient to convict the appellant of the crime of murder. The opinion of
'the fire-arms expert, based on the result of his tests, does -not seem to have
been challenged in cross-examination or before the High Court. If there is no
reason to think that there is any room for error in matters of this kind and it
is safe to accept the opinion of the expert, then clearly it is established
that the cartridge Ex. I, found near the cot of Daya Ram, was fired from the
pistol Ex. III produced by the appellant. To satisfy ourselves we have looked
into the works of some authors dealing with the marks left on cartridges and
shell cases by fire-arms in order to ascertain that there is no error in the
opinion of the fire- arms expert in the present case. Kirk in his book
"Crime Investigation" at page 346 states:
"Fired cases are less often encountered
in criminal investigation than are bullets, but when found they are usually of
greater significance because they receive at least as clear markings as do
bullets, have a greater variety of such markings, and are not ordinarily
damaged in firing...............................................
The questions which may be asked as a result
of finding such materials are similar to those that require answers when only
bullets are located. In the ordinary case, quite definite answers can be given.
This is true both of shotgun shells and of cartridge cases from pistols,
revolvers, and rifles........................... .. In general, it is possible
to identify a certain firearm as having fired a particular shell or cartridge.
It is often possible to identify the type or make of gun' which fired it,
though in many instances this must be tentative or probable identification
only." ` 193 After :dealing with the marks left by breech-block, firing
pin impressions, marks from extractors and ejectors, marks due to expansion,
magazine marks and loading mechanism marks he states, "Summarizing, the
cartridge or shell case us. ally carries markings which are quite distinctive
of the gun in which the charge is fired, and can be used for positive
identification of the latter. Those marks arise from a variety of contacts with
various parts of the gun, an analysis of which is useful in, determining the type
of weapon in case no suspected gun is available ...................... Thus,
the recovered shell or cartridge case is one of the most useful types of
physical evidence which can be found in shooting cases." Soderman and
O'Connel in their book "Modern Criminal Investigation" also deal with
the subject and they refer to the marks from the fire pin, the extractor, the.
ejector and the breech-block. After referring to comparison being made of the
cartridge or shell fired from a fire-arm for the purpose of test, they state at
page 200, If they are in the same position in relation to one another and their
general appearance is the same, one may conclude that they have been fired from
a pistol of the same make.
An absolute conclusion about the origin of
the shells, however, can be reached only after a photomicro graphic examination
of the markings from the breech-block on the rear of the
shell.............................
Identification, with the aid of the
enlargement, should not prove difficult. The characteristic scratches can be
easily seen. A photograph of the incriminating shell and one of a comparison
shell should be pasted side by side on cardboard, and the characteristic marks
should be recorded with lines and ciphers, following the same method as that
used in the' identification of fingerprints." In Taylor's book on Medical
Jurisprudence, Tenth Edition, Vol. 1, at page 459, it is stated, " It is
never safe to say that a cartridge case was not fired from a given pistol
unless the marks are quite 25 194 different, and a case which bears no marks at
all may quite well have been fired from the same pistol as one which leaves
well-defined marks. In general, however, though it is unlikely that -all marks
will be equally good, it is usually possible to obtain definite information
from the marks of the firing-pin, extractor, ejector, or breech- block. on the
base or rim, or from grooves or scratches on the surface. In weapons of the
same manufacture, the marks are of the same general nature, but in each weapon
there are individual differences which usually enable it to be definitely
identified." The expert's evidence in this case shows that he had fired
four test cartridges from the pistol Ex. III He found the individual
characteristics of the chamber to have been impressed upon the test cartridges
Exs. 9 and 10 and that exactly identical markings were present on the paper
tube of the cartridge Ex. 1. He made microphotographs of some of these
individual marks on Exs. 1 and 10. In giving his reasons for his opinion, the
fire-arms expert stated that every fire-arm has individual characteristics on
its breach face striking pin and chamber. When a cartridge is fired gases. are
generated by the combustion of the powder, creating a pressure of 2 to 20 tons
per square inch. Under the effect of this pressure the cap and the paper tube
of the cartridge cling firmly with the breach face striking pin and chamber and
being of a softer matter the individualities of these parts are impressed upon
them. By firing a number of test cartridges from a given fire-arm and comparing
them under a microscope with the evidence cartridge, it can definitely be
stated, if the marks are clear, whether the evidence cartridges had been fired
or not from that fire- arm. It seems to us that the fire-arms expert made the
necessary tests and was careful -in what he did. There is no good reason for
distrusting his opinion. The learned Judges of the High Court examined the
micro-photographs in question and were satisfied that there was no ground for
distrusting the evidence of the expert. They were accordingly justified in
coming to the conclusion that the cartridge Ex. 1, found nor the cot of Dava
Ram, 195 was fired from the pistol Ex. III produced by the appellant from his
house. There can, therefore, be no room for thinking, in the circumstances
established in this case, that any one else other than the appellant might have
shot Daya Ram. He was, therefore, rightly convicted for the offence of murder.
The appeal is accordingly dismissed.
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