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Ashok Singh Vs. State of U.P. [2009] INSC 1605 (18 September 2009)



1.     This appeal by way of special leave arises out of the following facts:

2.     At about 7 a.m. on the 11th July 1977 deceased Chhota Singh was on his way from his residential house to the nearby Devi Ji Mandir for the purpose of supervising the repairs of the chabutra of the temple. The four accused, namely Ashok Singh, Shiv Raj, Shyam Saran Singh and Sheo Narayan were hiding near the flour mill, all armed with guns. Shiv Raj and Sheo Narayan gave a lalkara that Chhota Singh be killed and on this call Ashok Singh and Shyam Saran Singh fired at him on which he fell down at a short distance from his residential house and succumbed to his injury. The incident was 2 Criminal Appeal no.640 of 2005 witnessed amongst others by Rameshwar Singh (PW3) son of the deceased and Durjan (PW4). After the assailants left the scene, Chhota Singh was shifted from the place where he lay dead. Rameshwar Singh (PW3) rushed to the Police Station and lodged a report with Police Station Hasan Ganj at 9.30 a.m. whereafter Ram Prakash Shukla Sub-Inspector (PW5) reached the spot at 2.45 p.m. and started with the investigation. He found the dead body lying in front of his residential house and after recording the inquest report dispatched the dead body for the post-mortem. The post- mortem examination was conducted by Dr. A. Akram on 12th October 1977 which revealed two ante mortem external injuries, one being a gunshot wound from which a pellet was also recovered. On the completion of the investigation, the accused was charged for an offence punishable under Section 302/34 of the IPC. The trial court relying on the statements of Rameshwar Singh (PW3) and Durjan (PW4) convicted all the accused and sentenced them to undergo imprisonment for life.

The matter was thereafter taken in appeal before the High Court. The High Court repelled the submissions of the 3 Criminal Appeal no.640 of 2005 appellant's counsel that the FIR had been inordinarily delayed, that the incident had not taken place at the time and place suggested by the prosecution and that the deceased had, in fact, been murdered in the early hours of the morning when he had gone to ease himself. The High Court observed that it was true (as it had been admitted by Rameshwar Singh (PW3) himself) that there were two rival groups in the village and one of the groups was headed by his father whereas some of the accused belonged to the opposite party and that Ashok Singh appellant and he were on inimical terms and, therefore, it appeared that Rameshwar Singh was an interested witness.

The court, however, further opined that Durjan was a completely independent witness whose evidence inspired confidence. The court also observed that though two shots were alleged to have been fired at the deceased, one by Ashok Singh and the other by Shyam Saran Singh the argument of the learned counsel for the appellant, that there was apparent discordance between the ocular and the medical evidence was not sustainable more particularly as both shots had been fired simultaneously, and it would have been impossible for any 4 Criminal Appeal no.640 of 2005 witness to have given a categorical statement as to which of the two shots had hit the deceased. The court, further, opined that though Rameshwar Singh and Durjan had both stated that Shiv Raj and Sheo Narayan had been armed with a gun but it was conceded on all sides that they had not used their weapons and all that they have done was to have shouted to their companions to kill Chhota Singh, and that it appeared from the statement of Rameshwar Singh (PW3) that he had, in fact, not seen these two actually exhorting the other accused to commit the crime. The court accordingly granted the benefit of doubt to Shiv Raj and Sheo Narayan appellants therein while dismissing the appeal of Ashok Singh and Shyam Saran Singh. These two are before us in appeal by way of Special Leave Petition.

3.     We have heard the learned counsel for the parties and gone through the record. We find no reason to disbelieve Rameshwar Singh (PW3) supported fully as he is by the statement of Durjan (PW4) who is a truly independent witness.

An attempt by the defence to show that he was indebted to Chhota Singh for some favour earlier in point of time has not 5 Criminal Appeal no.640 of 2005 been substantiated on record. We also find that the ocular evidence is fully borne out by the medical evidence as Dr. A.

Akram had recovered a pellet from the dead body at the time of the post-mortem examination.

4.     Mr. Luthra, the learned counsel for the appellants has submitted that as only one entry wound had been detected on the dead body from two shots, the prosecution story suffered from a serious flaw. It is true that two shots were alleged to have been fired at the deceased whereas only one wound entry on the head by a fire arm had been detected at the time of post-mortem. We are of the opinion, however, that it would be impossible for any witness in a case of simultaneous firing of two or more shots to give a categorical statement as to which of the two shots had hit the victim. We also see from the evidence of ASI-Ram Prakash Shukla (PW5) that two spent cartridge cases had been picked up from the place of incident meaning thereby that both Ashok Singh and Shyam Saran Singh had fired a shot each at the deceased. We also believe that if two different types of weapons had been used it would have been open to the defence to argue that in the light of the 6 Criminal Appeal no.640 of 2005 fact that a shot gun pellet had been recovered from the dead body, the other weapon had not been used, which factor undoubtedly could cause some speculation about the prosecution's case. Admittedly, this is not the situation before us, as both the appellants had been armed with shot guns.

We, therefore, confirm the judgment of the High court. The appeal is dismissed.

....................................J (Harjit Singh Bedi)



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