State of Himachal Pradesh
Vs. Mast Ram  Insc 526 (10 September 2004)
B.N. Agrawal & H.K. Sema
The sole respondent-accused was convicted by the learned Additional
Sessions Judge (II), Kangra at Dharmshala for an offence under Section 302 IPC
and sentenced to rigorous imprisonment for life and to pay a fine of Rs.5000/-
and in default to undergo further rigorous imprisonment for a period of six
Aggrieved thereby, the respondent-accused preferred an appeal before the
High Court, which was allowed by the impugned judgment and the sentence and
conviction recorded by the Trial Court was set aside. Hence, this appeal by the
Briefly stated the facts are as follows:- The accused and the prosecution
witnesses are all from the same village Sug Tarkhana, Tehsil Indora, District
Kangra. The accused and PW-5 Gian Chand were at loggerheads over the dispute of
abadi and civil litigation between them was pending. The deceased Uttam Chand
was employed as a carpenter at Delhi and had come to village on 5.8.1995 to
attend the performance of first death anniversary of his mother. It is stated
that on 14.8.1995 at about 10.00 A.M. Gian Chand - PW-5 had an altercation and
quarrel with the accused Mast Ram with regard to the dispute over the abadi and
the deceased Uttam Chand said to have intervened and advised both Gian Chand
and Mast Ram not to quarrel and wait for the decision of the court in civil
litigation. Thereupon, the accused Mast Ram became furious and threatened the
deceased Uttam Cand that he would deal with him first of all as he was siding
with Gian Chand with whom the accused had the civil dispute over the abadi. It
is further stated that at about 10.30 a.m. on the same day, when the deceased
Uttam Chand along with his brother Hans Raj PW-1 and Vijay Kumar PW-3 was
proceeding towards the fields to get fodder for the cattle and was passing
through the passage in front of the house of the accused Mast Ram, the accused
with DBML (Double Barrel Muzzle Loaded) gun in his hand challenged Uttam Chand
stating that he would be done to death and then fired at Uttam Chand. The
deceased Uttam Chand received injuries on his arm, chest and shoulder, fell
down on the ground, and became unconscious.
Thereafter, the accused ran away towards the field with his gun. In the
meantime, PW-4 Tarsem Lal also arrived and PWs 1, 3, and 4 together shifted the
deceased Uttam Chand to his nearby house where he breathed his last after
sometime. The matter was reported to the Pradhan of the village, who advised to
lodge a report with the police and the First Information Report was,
The accused was arrested on 18.8.1995 by PW-15 and pursuant to a disclosure
statement, the DBML gun (Ex.P-11) was recovered from underneath the bushes near
his house. Ex.P-11 was sent for examination to the Forensic Science Laboratory
and it was found to be in working condition and having been fired. The accused
pleaded ignorance in his statement under Section 313 but he did not lead any
defence evidence. The spot inspection, was, however carried out at the request
of the accused in his examination under Section 313. It appears that the
defence of the accused in his examination under Section 313 was that from the
place where the accused is alleged to have fired at the deceased and the place
where the deceased was standing and hit by the gun shot was not within the
firing range. This has led to the Trial Court for spot inspection. The
inspection was carried out by the Trial Court on 25.2.1996 in the presence of
the accused, his counsel and the Public Prosecutor. The Trial Court conducted a
test gun shot fire from the place where the accused was alleged to have fired
at the deceased and it was observed that the place where the deceased was
standing and hit by the gun shot was within the firing range.
The Trial Court after considering the evidence and eye witnesses accounts of
PWs 1, 3, 4, and PW-2 - Dr.Sanjay Kumar Mahajan, who conducted the post-mortem
examination and the report of forensic laboratory has recorded findings that the
prosecution has established his case beyond all reasonable doubts and convicted
the respondent as aforesaid.
The High Court upset the conviction recorded by the Trial Court, firstly
that the DBML gun (Ex.P-11) alleged to have been used in the commission of
offence was not used in a test fire at the time of local inspection conducted
by the Trial Court and instead a test fire was carried out with the help of
SBML(Single Barrel Muzzle Loaded) gun belonging to PW-1 Hans Raj. The High
Court held that this has materially affected the prosecution story. According
to the High Court, the firing range differs from gun to gun and, therefore, the
firing test not having been conducted from the Exhibit P-11, the finding of the
learned Trial Court Judge that the deceased has been hit by the gun shot was
within the firing range from the verandah of the house of the deceased could
not have been relied upon. This finding, in our opinion, is not only fallacious
but also perverse. While it is true that generally, the firing range of the gun
differs from gun to gun, the opinion of the High Court that firing range of
DBML gun and SBML gun differs is based on no expert opinion and the same is
based on conjectures and surmises. In the instant case both the guns are of the
same categories except the one used in the commission of crime is Double Barrel
and the one used during the test fire was the Single Barrel. Therefore, it
cannot be said that the firing range from DBML gun differed from SBML gun or
That apart, the local inspection envisaged under Section 310 Cr.P.C. is for
the purpose of properly appreciating the evidence already recorded during the
trial. Memorandum of spot inspection recorded by the trial Judge has to be
appreciated in conjunction with the evidence already recorded. Any omission
and/or commission in the memorandum recorded by the trial Judge by itself would
not constitute material irregularity, which would vitiate the prosecution case.
In our view, it is difficult to accept the reasoning recorded by the High Court
in this regard.
Secondly, the ground on which the High Court has thrown out the prosecution
story is the report of ballistic expert. The report of ballistic expert (Ex.
P-X) was signed by one junior scientific officer.
According to the High Court, a junior scientific officer (Ballistic) is not
the officer enumerated under sub-section (4) of Section 293 of the Code of
Criminal Procedure and, therefore, in the absence of his examination such
report cannot be read in evidence. This reason of the High Court, in our view,
is also fallacious. Firstly, the Forensic Science Laboratory Report (Ex. P-X)
has been submitted under the signatures of a junior scientific officer
(Ballistic) of the Central Forensic Science Laboratory, Chandigarh. There is no
dispute that the report was submitted under the hand of a Government scientific
expert. Section 293(1) of the Code of Criminal Procedure enjoins that any
document purporting to be a report under the hand of a Government scientific
expert under the section, upon any matter or thing duly submitted to him for
examination or analysis and report in the course of any proceeding under the
Code, may be used as evidence in any inquiry, trial or other proceeding under
The High Court has completely over-looked the provision of sub- section (1)
of Section 293 and arrived at a fallacious conclusion that a junior scientific
officer is not an officer enumerated under sub-section 4 of Section 293. What
sub-section 4 of Section 293 envisages is that the court to accept the
documents issued by any of six officers enumerated therein as valid evidence
without examining the author of the documents.
Thirdly, the High Court was of the view that during the course of
post-mortem examination conducted by PW-2 Dr.Sanjay Kumar Mahajan, two pellets
were recovered - one each from the right and left lung of the deceased, which
were handed over to the police. However, the pellets recovered were never sent
for examination to a ballistic expert in order to find out if such pellets were
fired from the gun (Ex. P-11) or not. According to the High Court, failure of
the prosecution to send the pellets for examination by a ballistic expert will
draw an inference against the credibility of the prosecution story. This
finding, in our view, is utterly perverse. It is not the requirement of law
that pellets recovered from the body be sent to ballistic expert to determine
as to whether the pellets were fired from the exhibited gun or not. On the
contrary, the recovery of pellets from the body clearly establishes the
prosecution case that the deceased died of gun shot injuries.
The fourth reason assigned by the High Court in discarding the prosecution
story is with regard to the non-explanation of injury No.2 on the body of the
deceased. The injury No.2 was described as under:- "A circular area about
1.5 cm diameter in left axilla towards left arm." PW-2 Dr.Sanjay Kumar
Mahajan during the course of cross- examination stated that the aforesaid
injury could not have been caused had the injured Uttam Chand not raised his
arm while walking. The High Court was of the view that PW-1 and PW-3 who were
accompanying the deceased Uttam Chand at the relevant time had never stated
that deceased Uttam Chand had at any point of time raised his arm while walking
or on being challenged by the accused.
It is the categorical statement of PW-1 Hans Raj and PW-3 Vijay Kumar that
while they were accompanying the deceased, the accused had challenged the
deceased and thereafter fired at him. It is but quite natural that the deceased
when challenged would have reacted by raising his hands either in defence or in
accepting the challenge and in the process he would have sustained injury No.
2, as described. The reaction of the deceased in raising his hands, in such circumstances,
would be in tune and in consonance with the natural human behaviour in ordinary
circumstances. There is no set of rule that one must react in a particular way.
The natural reaction of man is unpredictable. Every one reacts in his own way.
Such natural human behavior is difficult to be proved by credible evidence. It
has to be appreciated in the context of given facts and circumstances of each
Fifthly, the High Court was also of the view that PW-1 Hans Raj and PW-3
Vijay Kumar were accompanying the deceased and the prosecution story shows that
the pellets from the gun shot had scattered and hit even the tree but the
absence of injuries on the person of PW-1 and PW-3 render their presence at the
place of occurrence doubtful. This finding of the High Court, in our opinion,
is also fallacious and perverse. PW-1 and PW-3 had categorically stated that
the deceased was walking ahead of them. The accused undisputedly nurtured a
grudge against the deceased for alleged siding with the PW-5 Gian Chand, with
whom the accused had civil dispute, challenged the deceased, the gun was aimed
at and fired at him. It is, in these circumstances, the absence of pellet
injuries on the persons of PW-1 and PW-3 will be no ground to render the
presence of PW-1 and PW-3 at the place of occurrence doubtful.
The last and the most perverse and fallacious finding of the High Court is
with regard to discarding the evidence of eye- witnesses account of PW-1 Hans
Raj and PW-3 Vijay Kumar. The High Court recorded the finding as under:-
"PW-1 Hans Raj is the real brother of the deceased, while PW-3, Vijay
Kumar, apart from being a cousin brother of the deceased is the son of PW-5,
Gian Chand, with whom admittedly the accused had litigation. It is the
prosecution own case that the accused was nursing a grudge against the deceased
and PW-1, since they were helping and siding with PW-5, Gian Chand. Both PW-1
and PW-3 are, therefore, interested witnesses and in view of the evidence
coming on the record, cannot be safely relied upon." As already noticed
PW-1 Hans Raj and PW-3 Vijay Kumar are two eyewitnesses who accompanied the
deceased on the fateful day. Both the eyewitnesses had stated categorically
that they accompanied the deceased while going to the fields to fetch fodder
for the cattle. When they were passing through the passage in front of the
house of the accused, the accused challenged the deceased and in the meantime
fired at him, with the result deceased Uttam Chand fell down on the ground
after having sustained gun shot injuries on his person. The two eyewitnesses
were subjected to lengthy cross-examination but nothing could be elicited to
doubt the creditworthiness of their testimony. No doubt that PW-1 and PW-3 are
relatives but this will be no ground to disbelieve their testimony, if
otherwise, inspired confidence. The Law on the point is well settled that the
testimony of relative witness cannot be disbelieved on the ground of
relationship. The only requirement is to examine their testimony with caution.
In the given facts of the case, it is but quite natural that the relatives
would have accompanied the deceased to collect the fodder for the cattle from
the fields at about 10.30 a.m. on the fateful day. It is also in the
prosecution evidence that the incident at 10.30 a.m. is preceded by an
altercation and quarrel between the accused Mast Ram and PW-5 Gian Chand, on
the same morning at about 10.00 a.m. with regard to the disputed abadi and the
deceased Uttam Chand is said to have intervened in the matter and advised both
PW-5 Gian Chand and the accused Mast Ram not to quarrel and wait for the
decision of the civil litigation. It is also in the evidence that thereupon the
accused Mast Ram threatened the deceased Uttam Chand that he would deal with
him first of all as he was siding with Gian Chand with whom the accused is
having pending litigation with regard to abadi. The categorical testimony of
eyewitnesses' account has not been considered and discussed at all by the High
Court. Their testimony was thrown out at the threshold on the ground of
animosity and relationship. This is not the requirement of the Law. That apart,
PW-4 Tarsem Lal is an independent eyewitness. PW-4 also hails from the same
village. He is neither related to the complainant party nor to the accused party.
He has stated that he saw the accused Mast Ram in his verandah with a gun in
his hand and also saw him running away from the spot after the gunfire. The
High Court has not considered and discussed the testimony of PW-4 at all.
The testimony of PWs 1, 3 and 4 was consistent with the report of ballistic
expert and the evidence of PW-2 Dr.Sanjay Kumar Mahajan who conducted the
post-mortem examination on the body of the deceased and found the following
1. A circular area about 1 cm diameter on Antero- lateral surface of left
arm about 9 inches from Acromion.
2. A circular area about 1.5 cm diameter in left Axilla toward left arm.
3. A circular area about 1 cm diameter on Anterior surface of left shoulder.
4. An area circular about 1.2 cm diameter about 3 cm below injury No.3.
5. A circular area of 1.3 cm diameter on medial wall of left axilla which is
formed by chest wall. Tract has been formed on Probing:-3 inches of probe went
6. A circular area of about 1.4 cm diameter in left Infra clavicular region
7 cm below mid clavicular point.
7. A circular area 1.2 cm diameter about 2.3 cm below injury No.6.
8. An area 2 cm x 1 cm about 2 cm away from left nipple medio-supiriorly.
9. An area of 3.2 cm x 2.3 cm on sternum about 5 cm below sternal notch.
10. An area of 4.1 cm x 2.3 cm above left costal margin about 5 cm away from
11. A circular area of 1 cm diameter on right side of sternum.
12. An area of 7.2 cm x 2.1 cm on right side of chest in Midline about 10
cms below mid clavicular point, widest in centre, tapering on periphery.
13. An area of 6.5 cm x 3.1 cm about 13cm from medial end of right clavicle.
14. An area of 15 cms diameter just below right nipple.
On probing:- No.13 it came out of injury No.14 though subcutaneous
planer." PW-2 Dr. Sanjay Kumar Mahajan, opined that all the injuries were
ante-mortem having been sustained by a firearm like gun and such injuries were
sufficient in the ordinary course of nature to cause death.
In our view, the consistent ocular testimony of PWs 1, 3 and 4 corroborated
by the opinion of PW-2 Dr.Sanjay Kumar Mahajan and ballistic expert report
clearly established the prosecution case beyond all reasonable doubts and the
High Court fell into grave error of law and facts, resulting in grave
miscarriage of justice.
For the foregoing reasons, the order of the High Court is set aside and the
order of the Trial Court is restored. The appeal is allowed. The bail bond of
the respondent-accused Mast Ram is cancelled. He is directed to be taken back
into custody forthwith.
Compliance report within one month from today.