1.

Reserved

AFR

Case :- CRIMINAL APPEAL No. - 1813 of 2014

Appellant :- Monu

Respondent :- State of U.P.

Counsel for Appellant :- Vikrant Rana, Gajendra Kumar Gautam,

Pradeep Kumar

Counsel for Respondent :- Govt. Advocate

Hon'ble Manoj Kumar Gupta,J.

Hon'ble Om Prakash Tripathi, J.

(Per Manoj Kumar Gupta, J.)

The accused appellant has filed the instant appeal assailing the

judgment and order dated 7.04.2014 and 11.04.2014, passed by

Additional District & Sessions Judge, Court No.4, Ghaziabad in S.T.

No.1408 of 2006 convicting him under Section 302 IPC and awarding

rigorous imprisonment for life and fine of Rs.50,000/- and in default in

payment thereof, to three years additional simple imprisonment and

under Section 506 IPC to seven years rigorous imprisonment and fine

of Rs.20,000/- and in default in payment thereof, to ten months

additional simple imprisonment and in Sessions Trial No.1409 of 2006

under Section 25 (1) (b) of the Arms Act, to three years rigorous

imprisonment and fine of Rs.10,000/- and in default in payment

thereof, additional simple imprisonment of six months.

According to the prosecution case, on 13.6.2006 at about 10:30

p.m., accused Monu (appellant) and Khalid, neighbours of the victim

Manju Sharma came to her house while she was sitting on a cot

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alongwith her daughter Komal (PW-1) on the open terrace. Her mother

Sheela and brother Yogesh and Nitin were in the courtyard. Monu had

some talk with her. After about five minutes, he took out pistol

(tamancha) from his pocket and fired at the victim from the back side.

While his accomplice co-accused Khalid, who was carrying some

object made of iron, hit her on the head and hand several times. Her

daughter Komal (PW-1/complainant), who had witnessed the incident,

raised alarm and whereupon both of them escaped through the staircase

brandishing the tamancha and threatening Yogesh and Nitin (brothers

of the victim) and Smt. Sheela (mother of the victim) to kill them if

they come in their way. The accused were duly identified in the moon

light and light of lantern, as they live in the neighbourhood and the

complainant (Komal) had known them since her childhood. Her mother

was rushed to Jeevan Hospital by her maternal uncle. The victim was

later shifted to Narendra Mohan Hospital and thereafter to Jang

Bahadur Hospital, Delhi where she succumbed to her injuries and died

on 14.06.2006 at 4:10 p.m. A first information report relating to the

incident was got registered by Komal on 13.06.2006 under Sections

307, 506 IPC as Crime Case No.227 of 2006. Later on offence was

converted to Section 302 IPC. The accused surrendered in court on

26.06.2006. On 04.07.2006, the court allowed police remand of 24

hours. On the same day, the police, on pointing out of the accused,

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recovered a country made pistol (tamancha) of 315 bore, 3 live

cartridges – 315 bore and an iron handle of hand-pump. The Police,

after investigation, submitted charge sheet under Sections 302 and 506

IPC. The Chief Judicial Magistrate by order dated 14.9.2006 committed

the trial to the Court of Sessions and it came to be registered as S.T.

No.409 of 2006. By order dated 3.7.2007, the trial court declared co-

accused Khalid as juvenile and he was tried separately by the Juvenile

court.

During course of investigation of Crime Case No.227 of 2006, a

separate case bearing No.270 of 2006 was registered against the

appellant under Section 25 of the Arms Act on basis of recovery of a

country made pistol of 315 bore and three live cartridges 315 bore on

4.7.2006. The police, after investigation, submitted a charge sheet. The

Chief Judicial Magistrate by order dated 14.9.2006 forwarded the

charge sheet to the Court of Sessions, where it came to be registered as

S.T. No.1408 of 2006. Both the cases were tried together and have been

decided by common judgment impugned herein.

During course of trial, the prosecution examined two witnesses of

facts. The first one is Km. Komal (PW-1), who is daughter of the

victim and also the complainant. She had seen the accused firing and

assaulting her mother. The other is Nitin Sharma (PW-4), who is

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brother of the deceased victim and had seen the accused running away

after committing the offence. The prosecution had examined thirteen

other witnesses: PW-5, Pawan Kumar, Assistant in Jeevan Hospital,

PW-6, Dr. Barkha Gupta, who conducted the postmortem, PW-7 S.I.

Chamu Bhagat, the police officer, who prepared the death report and

got the postmortem done, PW-8 S.I. Krishna Pal, scribe of the first

information report (Ex. Ka.10), PW-9 Inspector Somveer Singh,

Investigating Officer of Crime Case No.227 of 2006, PW-10 S.I. Aftab

Ali, Investigating Officer of Crime Case No.270 of 2006, PW-11,

retired S.I. Ram Saran, witness of seizure memo, PW-12 S.I. Vishesh

Kumar Singh, last Investigating Officer of Crime Case No.227 of 2006,

PW-13 S.I. Parvinder Pal Singh, first Investigating Officer of Crime

Case No.227 of 2006.

The prosecution proved the written complaint (Ex. Ka-1) by

examining PW-1, FIR (Ex. Ka-10) by examining PW-8, the Fard of

ordinary and blood stained earth (Ex. Ka-2) by examining Chokhey Lal

(PW-3), application filed by Nitin Sharma (Ex. Ka-3) by examining

him (PW-4), postmortem report (Ex. Ka-4) by examining Dr. Barkha

Gupta (PW-6), seizure memo of country made pistol, 3 live cartridges

and iron handle of hand-pump (Ex. Ka-12) by examining PW-9, report

of Vidhi Vigyan Prayogshala (Ex. Ka-20) by examining PW-12.

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The accused was confronted with the incriminating material and

evidence under Section 313 Cr.P.C. wherein he denied his involvement

and stated that he was falsely implicated and claimed to be tried.

We have heard counsel for the parties and perused the record and

the impugned judgment and order.

Learned counsel for the appellant submitted that the prosecution

has utterly failed to bring home the charges. The appellant was falsely

implicated. The deceased was a call girl and woman of loose character

and she had been to jail in a double murder. There are inherent

inconsistencies in the statement of PW-1 and PW-4. It is submitted that

while PW-1, in her statement, said that her mother was not doing any

work, PW-4 stated that she was working in a bulb factory in Modi

Nagar. Again PW-1 admitted that her mother remained confined in jail

in connection with murder of one Shashi but PW-4 feigned ignorance

regarding her incarceration. It is further submitted that the medical

evidence does not support the prosecution case; that the prosecution

could not lead any evidence to prove mens rea. It is also urged that the

alleged bullet recovered from the body of the victim was not sent for

forensic examination, therefore, the prosecution had failed to establish

link between the seized weapon and the bullet recovered from the body

of the victim. In other words, the contention is that in the absence of the

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report of ballistic expert to connect the appellant with the bullet

recovered from the body of the victim, the prosecution had failed to

establish its case.

On the other hand, learned A.G.A. for the State submitted that the

prosecution has succeeded in proving its case to the hilt. The eye

version account of PW-1, daughter of the victim, is of unimpeachable

character and so is the statement of her brother Nitin Sharma (PW-4).

The prosecution story stands corroborated by the postmortem report

wherein the injuries were found to tally with the manner in which the

injuries were said to have been inflicted as per the prosecution story. It

is submitted that the doctor PW-6 had fully proved that injury no.2 is a

entry wound of bullet and was sufficient to cause death. The other

injuries, as per her statement, are attributable to blows received from

hard and blunt object and the prosecution had successfully established

that those were inflicted by the iron handle of hand-pump. He further

submitted that there is no material contradiction in the testimony of

PW-1 and PW-4 inasmuch as their consistent version was that the

victim died because of gun shot injury and other blows by a hard

object. It is urged that the prosecution story is fully supported by

medical evidence and consequently, it is wholly immaterial whether the

bullet recovered from the body of the victim was sent for ballistic

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report or not. In support of his contention, he has placed reliance on

judgments of Supreme Court in State of Himachal Pradesh Vs.

Mast Ram, AIR 2004 SC 5056 and Munna alias Surendra

Kumar Vs. State of M.P., AIR 2003 SC 3346.

The first issue for consideration is whether the prosecution has

succeeded in proving the time and place of occurence. The incident, as

per prosecution case, had taken place on 13.6.2006 at 10:30 p.m. on the

open terrace of the house of the victim. The first information report was

got registered on 13.6.2006 i.e. on the same date at 11:20 p.m. The

consistent version of eye witness PW-1, daughter of the victim and PW-

4, brother of the victim, is that the victim received grievous injuries as a

result of assault and was rushed to hospital by her brother. PW-1, who

was stated to be 16 years of age at the time of alleged incident, got the

report scribed by S.P. Samaniya, her neighbour and thereafter informed

the police station. The F.I.R. was thus got registered immediately

without any delay. There was no suggestion to any witness during

cross-examination that the incident had not taken place on the terrace of

the house of the victim, but at some other place. In fact, the accused

appellant during his examination under Section 313 Cr.P.C. did not

deny the time and place of incident but alleged that several other

persons used to visit the house of the victim and thus tried to attribute

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the offence to them. He also claimed to have been falsely implicated.

Pawan Kumar (PW-5), Assistant, Jeewan Hospital stated that the

victim was brought to the hospital on 13.6.2006 in serious condition.

The first aid was given to her by Dr. Upendra Rana (Surgeon).

Thereafter she was referred for further treatment to other hospital. S.I.

Charmu, who prepared the death report of the victim, stated that she

was admitted to the hospital on 13.6.2006 with number of injuries. She

died on 14.6.2006 at 3 p.m. We thus find that time and place of incident

is fully proved.

The next question is whether the prosecution case that the victim

was shot from close range from the back side and also hit on her head

and hand with some iron object, also from back side, is proved or not

and what was the cause of her death? According to post mortem report,

the following ante-mortem injuries were found :-

1.Lacerated wound 5.5 x 0.5 cm bone deep on left occipital

protuberance, obliquely placed, medial end above the lateral end.

2.Firearm entry wound 3.0 x 2.0 cm on Right upper back of chest

2.0 cm outer to right from midline and 4.0 cm below shoulder

top, surrounded by tatooing in a area of 20.0 x 10.0 cm more on

Right side blackening present on Right side of the wound. On

exploration wound was packed with surgical gauge piece. The

track of the wound was going forward, downward and medially

after shattering the vertebra T

1

and T

2

through and through bullet

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was found lodged in left mediastinal tissue surrounded by blood

clots after injuring the mediastinal blood vessels.

3.Reddish bruise 5.0 x 1.0 cm present on outer aspect of right

forearm 8.0 cm below elbow joint.

4.Incised wound 3.6 x 0.6 cm x 0.2 cm horizontally placed on

Right thigh on front aspect 11.0 cm above the knee.

5.Incised wound skin deep 15.0 x 0.5 x 0.2 cm horizontally placed

situated 0.8 cm below shoulder top on right back of the chest.

6.Reddish linear scratch mark 16.0 x 0.1 cm horizontally placed 2.0

cm below shoulder top on right back of chest 1.2 cm below injury

No.5.

7.Linear Reddish abrasion 10.0 x 0.2 cm on Right lower back of

chest horizontally placed 26.0 cm above gluteal cleft and inner

end situated at midline.

According to medical opinion, cause of death is hemorrhagic

shock due to ante mortem injury to mediastinal blood vessel produced

by projectile of fire arm. Injury No.2 is fire arm entry wound on the

back of chest. There is tattooing and blackening in the area of 20 x 10

cms on right side of the wound. The bullet was found lodged in left

mediastinal tissue (between the lungs). This supports the prosecution

case that firing was done from a close distance from the back side. The

bullet recovered from the body measured 3.3 cm in length and 0.8 cm

in diameter. It was opined that injury No.2 was sufficient to cause death

in ordinary course of nature. Dr. Barkha Gupta, who conducted the post

mortem, was examined as PW-6. In her statement she reiterated that

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injury No.2 was sufficient to cause death. She further stated during

cross-examination that death had occurred due to profuse bleeding

from the mediastinal vessel caused by gun shot injury.

PW-6 in her cross-examination clarified that injury No.1 was

outcome of blow from kundala and injury No.5 by a sharp weapon. All

other injuries were on shoulder, back of chest and fore arm. It duly

supports the prosecution case that co-accused Khalid who was carrying

some object made of iron, which during investigation was found to be

iron handle of hand-pump was used in hitting the victim from the back

side. There was no suggestion by the defence during cross-examination

of PW-6 that the injuries found on the body of the victim were not

result of gun shot or blows from iron handle of hand-pump. PW-1, who

is eye witness, in her statement fully supported the prosecution version.

Despite a lengthy cross-examination, the defence could not succeed in

extracting anything which may demolish the prosecution story. The

prosecution has thus succeeded in proving that the victim died because

of gun shot and other injuries sustained during assault.

The most crucial issue is whether the prosecution has succeeded

in proving that the accused-appellant was responsible for the crime in

question or not? PW-1, as noted above, was eye witness of the

occurrence. She is daughter of the victim and was aged about 16 years

at that time. She has unequivocally supported the prosecution case that

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accused Monu and Khalid who are resident of same mohalla, came to

the open terrace of her house where she was sitting on a cot alongwith

the victim. Monu had some talk with the victim and after five minutes

he fired at her from the back followed by several blows by co-accused

Khalid with a hatthi (gRFkh). The victim shouted and PW-1 also

shouted. Her maternal uncle and her Naani, on hearing the shouts came

near the staircase. However, Monu, brandishing the tamancha and

threatening to fire at them, succeeded in running away from the gali

towards field. The accused were identified in moon light and light of

lantern. She further stated that she was able to identify them as they are

her neighbours and she had been seeing them since childhood. She also

stated that her mother was grieviously hurt as a result of assault from

fire arm and iron hatthi. Her maternal uncle rushed her mother to

Narendra Mohan Hospital and in the end to Jang Bahadur Hospital

where she died. In her cross-examination, she clarified that her father

had died when she was nine months of age. Her mother had since been

residing with her Naani. She specifically denied that her mother was

having enmity with other persons and they were instrumental in her

murder. She also denied the suggestion that she had falsely implicated

the appellant-accused as her engagement with him got snapped.

PW-4 Nitin Sharma is the brother of the victim. He stated that he

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was present in the courtyard of the house at the time of occurrence. He

also stated that it was a moonlit night and there was also light of

lantern. The accused came to his house at about 10:30 p.m. on

13.06.2006. At that time the victim and her daughter were sitting on

open terrace. He further stated that the accused told him that they want

to talk to the victim and they were told that she was on terrace.

Thereafter the accused went to the terrace through the staircase. After

5-6 minutes, he heard sound of gun shot and PW-1 was shouting for

help. When he rushed towards the terrace, the accused were coming

down through the staircase. Accused-appellant Monu was having

tamancha and Khalid was having handle of hand-pump in his hand.

Monu asked him to clear his way otherwise he will fire at him. He

thereafter succeeded in running away. When they went on the terrace,

they found victim bleeding profusely. The victim was taken to the

hospital.

The submission of learned counsel for the appellant was that the

statement of PW-1 and PW-4 is contradictory and has therefore to be

discarded. It is true that PW-1 in her cross-examination stated that the

victim was not doing any work, while PW-4 stated that she was

engaged in a company at Noida. Again, PW-1 in her cross-examination

admitted that her mother had been to jail in connection with a case

relating to murder of two persons and was released after three months

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on bail, but denied her illicit relationship with them, or having

murdered them, but PW-4 feigned ignorance regarding these facts.

These small variations in the statement of PW-1 and PW-4 are not

sufficient to doubt the creditworthiness of the witnesses as their

testimony on the other crucial aspects as noted above, is fully

consistent and unambiguous and totally supports the prosecution case.

They are consistent and unambiguous on the point that the accused-

appellant and his accomplice came to their house, went to the terrace,

where the victim was sitting with PW-1. While PW-1 had witnessed the

accused firing and inflicting grievous injuries to the victim, PW-4 who

was in the courtyard had heard the sound of gun shot and seen them

running away. The suggestion that accused-appellant was falsely

implicated because of enmity, was categorically denied. The defense

had made feeble attempt during cross-examination to show that the

victim was having illicit relationship with two persons and was sent to

jail in that connection, but neither it was able to prove the same nor

does it in any manner detract from the merits of the prosecution version

regarding the involvement of the accused-appellant in the crime.

The accused appellant had surrendered before the court on

26.6.2006. On 4.7.2006 the Court allowed police remand for 24 hours.

On the same day, the police on pointing out of the accused recovered a

country made pistol of 315 bore, three live cartridges -315 bore and an

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iron handle of hand-pump from nearby field burried under heap of

grass. As per site plan, the said place was at the distance of 200 paces

from the house of the deceased victim. It corroborates the version of

PW-1 and PW-4 that the accused after committing the crime escaped

through the gali to the adjoining field.

Inspector Somveer Singh PW-9 and Retired S.I. Ram Saran

Sharma PW-11 proved the seizure memo (Ex. Ka-14). They also

identified the accused-appellant and stated that the recovery was made

on the pointing out of the accused. They also stated that only one

seizure memo was prepared in respect of all seized goods. PW-9 who

prepared the site plan relating to seizure (Ex. Ka-15) proved the same.

Learned counsel for the appellant vehemently contended that

since the firearm and cartridges were not sent for examination by

ballistic expert, therefore, according to him, the prosecution had failed

to connect the appellant with the weapon of crime. It is noteworthy that

the trial court directed the prosecution to produce the lead bullet and

the case property of Session Trial No. 1408 of 2006. The prosecution

failed to produce the lead bullet and it transpired during enquiry held

by the trial court that there was no entry relating to lead bullet in the

register maintained at Malkhana. The trial court had found dereliction

of duty and negligence on part of A.S.I. Chamu Bhagat and directed for

enquiry to be held in that regard by the Director General of Police,

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Lucknow and by Police Commissioner, Delhi and for taking action

against him and all other found responsible for the same.

The crucial question for consideration by this Court is whether on

account of negligence on part of the investigating agency in ensuring

safe custody of lead bullet and sending it for opinion of ballistic expert,

the prosecution version comes under doubt and has to be discarded or

conviction of the appellant could be made on basis of other oral and

material evidence on record.

A similar situation arose for consideration before the Supreme

Court in Vineet Kumar Chauhan vs. State of Uttar Pradesh,

(2007) 14 SCC 660. The Supreme Court held that it cannot be laid

down as a general proposition that in every case where there is a

firearm injury, the prosecution must lead evidence of ballistic expert to

prove the charge, irrespective of the quality of the direct evidence

available on record. The Supreme Court went on to observe that where

direct evidence is of unimpeachable character and the nature of injuries

disclosed in the postmortem report is consistent with the direct

evidence, the examination of ballistic expert may not be essential. The

relevant observation in this regard is as follows: -

“11.It cannot be laid down as a general proposition that in every

case where a firearm is allegedly used by an accused person, the

prosecution must lead the evidence of a Ballistic Expert to prove

the charge, irrespective of the quality of the direct evidence

available on record. It needs little emphasis that where direct

16.

evidence is of such an unimpeachable character, and the nature of

injuries, disclosed by post-mortem notes is consistent with the

direct evidence, the examination of Ballistic Expert may not be

regarded as essential. However, where direct evidence is not

available or that there is some doubt as to whether the injuries

could or could not have been caused by a particular weapon,

examination of an expert would be desirable to cure an apparent

inconsistency or for the purpose of corroboration of oral

evidence. (See: Gurcharan Singh Vs. State of Punjab ).”

The Supreme Court in the above judgment has also considered its

earlier judgment in Mohinder Singh vs. The State, AIR 1963

SC 340 and distinguished the same by observing thus: -

“12. In Mohinder Singh's case (supra) on which strong reliance

is placed on behalf of the appellant, this Court has held that

where the prosecution case was that the accused shot the

deceased with a gun but it appeared likely that the injuries on the

deceased were inflicted by a rifle and there was no evidence of a

duly qualified expert to prove that the injuries were caused by a

gun, and the nature of the injuries was also such that the shots

must have been fired by more than one person and not by one

person only, and the prosecution had no evidence to show that

another person also shot, and the oral evidence was of witnesses

who were not disinterested, the failure to examine an expert

would be a serious infirmity in the prosecution case. It is plain

that these observations were made in a case where the

prosecution evidence was suffering from serious infirmities.

Thus, in determining the effect of these observations, the facts in

respect of which these observations came to be made cannot be

lost sight of. The said case therefore, cannot be held to lay down

an inflexible rule that in every case where an accused person is

charged with murder caused by a lethal weapon, the prosecution

case can succeed in proving the charge only if Ballistic Expert is

examined. In what cases, the examination of a Ballistic Expert is

essential for the proof of the prosecution case, must depend upon

the facts and circumstances of each case.”

17.

In Sukhwant Singh vs. State of Punjab, AIR 1995 SC

1380, the Supreme Court found that the evidence of the complainant,

the solitary eye witness, was not reliable, as it stood belied by the

medical evidence. The presence of Gurmeet Singh, elder brother of the

deceased, was also found to be doubtful. In the said background, the

Supreme Court held that where the presence of the accused is doubtful,

the prosecution ought to have sent the recovered empty cartridges and

seized pistol for opinion of ballistic expert to connect the accused with

the crime and omission on part of the prosecution in that regard was

held to have seriously affected the creditworthiness of the prosecution

case. Relevant observations made in this regard in paragraph 21 and 22

are as follows: -

“21. There is yet another infirmity in this case. We find that

whereas an empty had been recovered by PW6, ASI Raghubir

Singh from the spot and a pistol alongwith some cartridges were

seized from the possession of the appellant at the time of his

arrest, yet the prosecution, for reasons best known to it, did not

send the recovered empty and the seized pistol to the ballistic

expert for the examination and expert opinion. Comparison could

have provided link evidence between the crime and the accused.

This again is an omission on the part of the prosecution for which

no explanation has been furnished either in the trial court or

before us. It hardly needs to be emphasised that in cases where

injuries are caused by fire arms, the opinion of the Ballistic

Expert is of a considerable importance where both the fire arm

and the crime cartridge are recovered during the investigation to

connect an accused with the crime. Failure to produce the expert

opinion before the trial court in such cases affects the credit-

worthiness of the prosecution case to a great extent.

18.

22. From a critical analysis of the material on the record, we find

that it would not be safe to rely upon the sole testimony of PW3

Gurmej Singh, the brother of the deceased, without independent

corroboration in view of the infirmities pointed out by us above

which render his testimony as not wholly reliable and since in the

present case no such independent corroboration is available on

the record, it would be unsafe to rely upon the testimony of PW3

only to uphold the conviction of the appellant. The prosecution

has not been able to establish the case against the appellant

beyond a reasonable doubt. The trial court, therefore, fell in error

in convicting and sentencing the appellant. His conviction and

sentence cannot be sustained. This appeal consequently succeeds

and is allowed. The conviction and sentence of the appellant is

set aside. The appellant is on bail. His bail bonds shall stand

discharged.”

The judgement in Sukhwant Singh case was considered by the

Supreme Court in Surendra Paswan vs. State of Jharkhand,

(2003) 12 SCC 360. The Supreme Court once again reiterated that

Sukhwant Singh is not an authority for the proposition that

whenever bullet is not sent for ballistic examination, the prosecution

has to fail. In that case the victim was fired on the left eye. On

receiving bullet injuries the victim fell down and was later declared

dead. The Supreme Court after considering the oral and medical

evidence held that there was only one injury on the body of the

deceased which was fully explained by the doctor in his evidence and

consequently, failure to send the weapon and the bullet for ballistic

examination did not result in denting the prosecution version. The

relevant observations are as follows :-

19.

“10.So far as the effect of the bullet being not sent for ballistic

examination is concerned, it has to be noted that Sukhwant

Singh's case (supra) is not an authority for the proposition as

submitted that whenever a bullet is not sent for ballistic

examination the prosecution has to fail. In that case one of the

factors which weighed with this Court for not finding the accused

guilty was the prosecution's failure to send the weapon and the

bullet for ballistic examination. In the instant case, the weapon

was not seized. That makes a significant factual difference

between Sukhwant Singh's case (supra) and the present case.

11.It has to be noted that there was not even a suggestion to

any of the prosecution witnesses that the injuries were sustained

by the accused-appellant in the manner indicated by him, as

stated for the first time in the statement under Section 313 Cr.P.C.

12.So far as the confusion relating to bullet and pellet is

concerned, the same has been clarified by the doctor's evidence.

In his examination the doctor (PW-3) has categorically stated that

there was only one injury on the body of the deceased and no

other injury was found anywhere on the person of the deceased.

Therefore, the question of the deceased having received any

injury by a pellet stated to have been recovered by the

investigating officer is not established. The investigating officer

has clarified that the embodied bullet was given to the police

officials by the doctor which was initially not produced as it was

in the Malkhana but subsequently the witness was recalled and it

was produced in Court.”

Once again, the Supreme Court in State of Himanchal

Pradesh vs. Mast Ram, AIR 2004 SC 5056 reiterated the legal

proposition that the bullet recovered from the body of the victim need

not be necessarily sent for ballistic examination or in case of failure,

an adverse inference is liable to be drawn. Paragraph 7 of the

judgement, which is relevant, is reproduced below :-

20.

“7. 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.”

In a more recent judgement in Prabhash Kumar Singh vs.

State of Bihar (now Jharkhand), (2019) 9 SCC 262 , the

Supreme Court was dealing with a case where the weapon of assault

and the bullet were not even recovered. The issue was whether on the

basis of eye witness account, the accused can be convicted. The

Supreme Court dealt with the said issue in the concluding paragraph of

the judgement as follows :-

“13................As there is clear eyewitness account of the incident

and none of the two eyewitnesses could be shaken during cross-

examination and they had stuck to the recollection of the facts

relating to the incident, the mere fact that the weapon of assault

or the bullet was not recovered cannot demolish the prosecution

case.”

21.

Thus law on the point whether it is essential for the prosecution to

obtain report of ballistic expert to prove the charge of gun shot injury

against the accused is clear and unambiguous. Where there is direct

evidence of unimpeachable character and nature of injury stands

corroborated by medical evidence, the examination of the ballistic

expert would not be essential. However, where the oral evidence of the

witness is not trustworthy or the injuries sustained do not stand

corroborated by medical evidence, the prosecution may have to take aid

of the ballistic expert to bring home the guilt.

In the instant case, as discussed above, the statement of PW-1

and PW-4 who were eye witnesses is consistent and of unimpeachable

character. They were put to lengthy cross-examination but the defence

could not succeed in extracting anything which may demolish the

prosecution case. The injuries sustained by the victim is fully

corroborated by the medical evidence. Albeit, it would have been better

if the lead bullet was sent for opinion of the ballistic expert but the

same is not sufficient to demolish the prosecution case which otherwise

stands fully proved. We thus find no force in the submission that the

prosecution of the appellant should fail for want of opinion of ballistic

expert.

22.

In view of the foregoing discussions, it is clear that the accused

appellant inflicted injuries with the intention of causing such bodily

injury as he knew to be likely to cause death of the victim. He has

rightly been held guilty of criminal intimidation and murder and

convicted for the offences.

As regards offence under the Arms Act, according to the

prosecution version, a tamancha (an immitation firearm converted into

firearm) and three live cartridges were recovered on the pointing out of

the appellant. Concededly, the appellant was not having any licence in

that behalf, as envisaged under Section 6 of the Act. The seizure memo

was duly proved by PW-9 and PW-11. The contention that in absence

of public witness to the seizure memo, it cannot be relied upon, stands

rightly discarded by the trial court relying on the judgement of the

Supreme Court in Manish Dixit and others vs. State of

Rajasthan, (2001) 1 SCC 596 and judgement of Delhi High Court

in Ashraf Ali vs. State, (1991) 2 Crimes 226. Learned counsel

for the appellant did not make any other submission relating to the

finding of conviction and sentence recorded by the court below in

respect of commission of offence under the Arms Act. We have perused

the statement of PW9 and PW11 and we fully endorse the findings

recorded by the trial court in relation to commission of offence and

under Section 25(1)(b) of the Arms Act.

23.

As regards sentence, since the offence was committed in a

preplanned and ghastly manner inside the house of the victim, we do

not find any reason to take lenient view and interfere with the sentence

imposed by the trial court. Accordingly, we uphold the conviction and

sentence as awarded by the trial court in toto.

Before parting, we clarify that this judgement will in no manner

influence or prejudice the proceedings, if any, pending before any court

of law in respect of co-accused Khalid, who was declared juvenile and

against whom separate trial was held.

The appeal lacks merit and is accordingly dismissed.

Order Date: 22.11.2021

SL

(Om Prakash Tripathi, J.) (Manoj Kumar Gupta, J.)