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CASE NO.:

Appeal (crl.) 752-755 of 2005

PETITIONER:

Sarvesh Narain Shukla

RESPONDENT:

Daroga Singh & Ors

DATE OF JUDGMENT: 12/10/2007

BENCH:

S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT:

J U D G M E N T

With

Crl.A. No.834/2005, 835/2005,

910-912/2005

HARJIT SINGH BEDI, J

1. This judgment will dispose of Criminal Appeal Nos.

752-755 of 2005 pertaining to the acquittal of four of the

accused whereas Criminal Appeal Nos. 834 of 2005, 835 of

2005 and 910-912 of 2005 have been filed by the accused who

stand convicted both by the trial Court as well as by the

High Court.

2. The facts have been taken from the record of Criminal

Appeal No. 835 of 2005. They are as under:

3. On 4.4.1999 Rakesh Kumar Pandey along with his

brother-in-law Surya Narain @ Vakil Shukla along with three

others, Devi Shankar Dubey, Prem Shanker Dubey and the car

driver Shesh Mani were returning from Aurai to Gopiganj in

the latter\022s car No. WB 26A 7554. As the car reached near

the Trimuhani on the middle of the road in Gopiganj,

accused Udai Bhan Singh, Akbal Bahadur @ Atkoti Singh, Prem

Singh, Dhunni Singh, Munni Singh, Daroga Singh, Rajeshwar

Upadhyay, Pintoo Singh and two other persons all armed with

modern weapons starting firing at the car. The firing led

to the death of Surya Narain @ Vakil Shukla, Devi Shanker

Dubey and Shesh Mani at the spot. Rakesh Kumar Pandey and

Prem Shanker who were sitting on the rear seat rushed out

of the car to save themselves and they too received some

superficial injuries in that process. The assailants also

picked up the licensed rifle of Prem Shanker Dubey which

was lying in the car and thereafter ran away from the spot.

The occurrence was also witnessed by Shiv Prasad @ Dangar

Tewari, Mukand Lal, Ram Dutt Mishra and several other

persons. A FIR was thereafter lodged by Rakesh Kumar

Pandey at 3.45 p.m. in Police Station Gopiganj a kilometer

away from the place of incident, on which S.I. Vidya

Prakash Misra reached the place of occurrence and recorded

the statement of Rakesh Kumar Pandey whereas SI Rashid

Ahmad prepared the inquest reports of the deceased on the

dictation of SI Vidya Prakash Misra. On an inspection of

the site, several pieces of glass, a blood stained piece of

rexine, and shoes and some fired cartridges, a rifle and a

9 mm pistol licensed to deceased Surya Narain Shukla were

recovered. The bodies were also sent for the post mortem

examinations. The post mortem examination on the dead body

of Devi Shanker Dubey was conducted by Dr. Radhey Raman on

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4.4.1999 at about 11.55 p.m. whereas Dr. Sanjay Tewari

conducted the post mortem examinations on the dead bodies

of Shesh Mani at 11.30 p.m and that on Surya Narain Shukla

45 minutes later i.e. at 0030 hours. All three dead bodies

showed extensive fire arms injuries. Dr. A.K. Pandey also

medically examined Prem Shanker Dubey at 5.25 p.m on

4.4.1999 and found two lacerated simple injuries on his

person whereas the examination of Rakesh Kumar Pandey at

8.15 p.m. on 4.4.1999 by Dr. L.S. Mishra showed five simple

injuries; three abrasions and two contusions. The doctors

opined that these injuries could have been caused as the

two were making a hurried exit from the car. On the

completion of the investigation the accused were charged

for offences punishable under Sections 147, 148, 302 read

with 149 I.P.C whereas appellant Suresh Singh @ Jajjey

Singh was in addition charged under Section 379 IPC for

having taking away Prem Shankar Dubey\022s rifle from the car

whereas Tehsildar Singh and Suresh Singh were further

charged under Section 411 I.P.C. The accused pleaded not

guilty and sought trial.

4. Rakesh Kumar Pandey, the first informant and the

primary witness to the murders, was himself murdered during

the course of the trial. The prosecution nevertheless

relied on the evidence of PW1 Shiv Prasad @ Dangar Tewari

who deposed to the circumstances leading to his presence at

the spot and the manner of the attack and further stated

that about 15/20 shots had been fired at the car by the

accused from a close range as the car had stalled after

having had a collision with a bus as the car driver had

attempted to race away. He also stated that he knew most of

the accused having dealt with them at one time or another.

The prosecution also relied on the evidence of PW 4 Prem

Shankar Dubey, another eye witness but he did not support

the prosecution and was declared hostile having partly

disowned the story given by him in his earlier statements.

The other eye witness PW 5 Ram Dutt Misra, however,

supported the prosecution story and justified his presence

by deposing that he had gone to Vidhyachal temple for

darshan in the morning and while returning there from he

had taken a lift alongwith Dangar Tewari PW1 on Mukund

Lal\022s Bullet motor-cycle to reach his home in Gopiganj.

The prosecution also relied on the medical evidence (and

the various reports tendered) of PW 6 Dr. A.K. Pandey and

PW 7 Dr. L.S. Misra with regard to the injuries on Prem

Shankar Dubey and Rakesh Kumar Pandey respectively. The

prosecution also examined the police officials involved in

the investigation viz., PW 10 S.I. Irshad Ali who had

recorded the inquest reports on the dictation of PW 13

Vidya Prakash Misra SHO and also dispatched the dead bodies

for their post mortem examinations, PW 11 Constable Prabhu

Nath Yadav who deposed that the dead bodies had been handed

over to Constable Manoj Rai and Devi Shanker Pandey for

being taken for the post mortems, PW 13 Vidya Prakash Misra

who had made the various recoveries already mentioned above

and had also inspected the place of incident and the car

and had found about 40 bullet marks thereon, and also

several other police officials who had been involved in the

peripheral investigation or had arrested some of the

accused. The prosecution story was then put to the accused

and they denied their involvement in the incident and

pleaded false implication. The trial Court examined the

matter in extenso and held that there had been no delay in

the recording of the FIR and the argument that the first

information report had come into existence after the

inquest proceedings had been completed, was unacceptable.

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The Court also found that Rakesh Kumar Pandey and Prem

Shanker Dubey had both been injured in their attempt to get

out from the car and this evidence to, was a significant

circumstance pointing to their presence. It also held

that PW 1 Shiv Prasad and PW 5 Ram Dutt Misra who had

supported the prosecution had cogently explained their

presence at the crucial moment in as much that both had

gone to Vindhyachal temple for darshan and while returning

had sought a lift back to Gopiganj triple riding with

Mukund Lal on his Bullet motor cycle and that the attempt

on the part of the defence to get them to explain their

movements minute by minute could not be accepted as this

could not be a realistic approach in such callous and

gruesome multiple murders. The trial Court also found that

the medical evidence supported the ocular version in as

much that the injuries found on the dead bodies clearly

revealed that several types of weapons had been used and

that too from a very close range causing extensive internal

and external injuries on the persons of the deceased. It

also observed that in a case of firing by several persons

at others confined in a vehicle with all three deceased

sitting in the front seat, it was well nigh impossible to

expect an eye witness sitting on the rear seat to give the

exact details as to the position of the deceased and the

assailants when the firing had taken place. The court

nevertheless held that the motive had not been proved. The

court then went into the involvement of each of the accused

and observed that nine of the accused had been named in the

FIR and two others who had not been named also figured in

the incident and that some of the accused had been

subsequently identified by name. The court held that as

there was no motive for false implication, a case against

eleven of the accused under Sections 147, 148, 302 read

with Section 149 IPC had been made out. The Court also

held that the charge under Sections 379/411 IPC against

accused Suresh Singh and the case against Tehsildar Singh

who had not been named in the FIR and had been attributed

only a Lalkara by the eye witnesses who were also

discrepant as to the manner of his participation, he was

entitled to an acquittal in toto.

The trial Court finally observed that:

\023On the basis of the entire above

discussions and conclusion the accused

Udhaybhan Singh @ Doctor Singh, Pinto

Singh @ Sandeep Singh, Iqbal Bahadur

Singh @ Atkotic Singh, Prem Singh @

Prem Bahadur Singh, Chunni

Singh @ Mata Prasad Singh, Daroga Singh

@ Shri Krishan Singh, Rajeshwar

Upadhaya, Suresh Kumar @ Jajje Singh,

Sanjay Singh, Santosh Kumar Singh are

found guilty of the offence under

Sections 147/148/302/149 IPC\024,

and ordered that:

\023The accused are sentenced to life

sentence under Section 302/149 IPC and

fine of Rs.5000-5000/- each accused and if

the fine is not paid, one month sentence

and under Section 147 Cr.P.C 3 months

rigorous imprisonment and fine of Rs.500-

500 each and in the event of not paying

the fine 10 days further rigorous

imprisonment and under Section 148 Cr.P.C

6 months rigorous imprisonment and fine of

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Rs.1000-1000 each and in the event of not

paying the fine 15 days further rigorous

imprisonment is justifiable.

5. Several appeals were subsequently filed before the

High Court. The High Court on a reconsideration of the

matter allowed the appeals of Pinto Singh @ Sandeep Singh,

Daroga Singh @ Krishan Singh, Chunni Singh @ Mata Prasad

Singh and Prem Bahadur Singh holding that their names had

been revealed by Dangar Tewari PW 1 for the first time in

Court and it was therefore unsafe to maintain their on

the basis of the statement of PW 5 Ram Dutt Misra alone.

The High Court accordingly directed as under:

S.No.

Crl.Appeal

No.

Name of

Appellant

Sessions

Court Order

High Court

Order

1.

5588/2004

Suresh Kumar @

Jajjey Singh

Sessions

Judge

conviction

and award.

Appeal

Dismissed.

2.

5589/2004

(i) Rajeshwar

Upadhyay

(ii) Prem

Singh@

Prem

Bahadur

Singh

(i) - DO

-

(ii) - DO

-

(i) Appeal

Dismissed.

(ii)Appeal

Allowed/

Acquitted

of the

charges

3.

2503/2004

(i) Pintoo

Singh @

Sandeep

Singh

(ii) Akbla

Bahadur@

Atkoti

Singh

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(i) - DO

-

(ii) -

DO -

(i) Appeal

Allowed/

Acquitted

of the

charges.

(ii)Appeal

Dismissed

4.

2826/2004

Udai Bhan Singh

@ Doctor Singh

-

DO -

Appeal

Dismissed

5.

2863/2004

Santosh Kumar

Singh and Sanjai

Singh

-

DO -

Appeal

Dismissed

6.

3072/2004

Chunni Singh

-

DO -

Appeal

Allowed/

Acquitted

of the

charges.

6. The present set of criminal appeals have been filed

against the judgment of the High Court.

7. Mr. Sushil Kumar, the learned senior counsel for the

appellants has raised several arguments before us during

the course of hearing. He has first emphasized that the

incident had happened at 3 P.M. on 4.4.1999 and the FIR had

statedly been lodged in the police station within 45

minutes by Rakesh Kumar Pandey an eye witness, but the

special report had been delivered to the Magistrate on

8.4.1999 and that there was no explanation for the delay

and it thus appeared that the FIR had been written much

later and then ante timed. It has accordingly been

suggested that the prosecution story had been cooked up

involving all the accused who all belonged to one extended

family in connivance with the police. It has also been

pleaded that the delay in the recording of the FIR had been

utilized by the police in creating three eye witnesses PW 1

Shiv Prasad @ Dangar Tewari, PW 4 Prem Shanker Dubey and PW

5 Ram Dutt Misra who had cordial relations with the

complainant party but an in depth examination of the story

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projected by them revealed that they had not been present

and that this argument was fortified as in the inquest

report it had been noted that the dead bodies had been

found outside the car whereas the eye witnesses had

projected the story that the dead bodies had been taken out

from the car by the police. It has also been submitted

that had Prem Shanker Dubey PW 4 and Rakesh Kumar Pandey

been sitting in the car when the firing had taken place,

they would not have escaped unscathed more particularly as

about 40 shots had been fired at the car with automatic and

semi-automatic weapons at the deceased sitting in the front

seat. It has also been suggested that the nature of

injuries found on the dead bodies showed that the medical

evidence was completely at variance with the ocular

evidence. It has finally argued that the prosecution had

not been able to prove any motive for the incident and it

had been so found by the trial court itself and that it

appeared from the defence version that the murders had been

committed by unknown assailants and that the accused had

been involved on account of the rancour and ill will of

the police as about 20 policemen were facing trial arising

on a complaint made by Tehsildar Singh for the killing of

his son Hazaria, allegedly in a fake encounter.

8. Mr. Anup Chowdhury, the learned senior counsel has

however supported the judgment of conviction. It has also

been pointed out (in the appeal against acquittal) that the

acquittal of the four accused was not justified as the

evidence against them was identical with that of the

accused who had failed before the High Court.

9. We now examine the arguments raised by the learned

counsel in extenso. It is true that the incident having

been taken place at about 3 p.m. on 4.4.1999 prima facie

makes the receipt of the special report by the Magistrate

on 8.4.99 rather inexplicable, the more so (as emphasized

by Mr. Sushil Kumar) that a day after the incident, the

police had itself moved an application under Sections 82

and 83 Cr.P.C. against the accused in the Court of the

Special Magistrate. We have, however, very carefully gone

through the record on this aspect, as we are aware that the

fate of the appeal would hinge substantially on this issue.

For the purpose of clarity we reiterate the following

facts; the incident had happened on 4.4.99 at 3 P.M., the

FIR had been lodged in the police station a kilometer away

at 3.45 p.m. by Rakesh Kumar Pandey and the special report

delivered after four days on 8.4.99. There are however

certain circumstances on record which show that the FIR had

in fact been lodged at the time suggested by the

prosecution. It has come in evidence that the inquest on

the three dead bodies had started at 5.45 p.m. and that the

dead bodies had been removed to the police head quarters at

6.30 p.m. and received therein at 7.45 p.m. It has also

come on record that on account of the gravity of the crime,

the District Magistrate had, at 10.50 p.m., authorized the

medical staff to conduct the post mortem during night hours

and the post mortems were in fact conducted within the next

hour or two. Significantly also, we observe from the

cross examination of PW 2 Head Constable Uma Shanker Pandey

(who had registered the formal FIR) that while he admitted

that the special report had indeed been received by the CJM

on 8.4.99 but he clarified that a copy of the FIR had

reached the Circle Police Officer on 5.4.99. Likewise PW 9

Constable Devi Prasad Pandey deposed that the dead bodies

had been sealed and handed over to him between 6.30 p.m.

and 7.00p.m. on 4.4.99 and that he was in possession of the

first information report and other related documents which

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had been handed over by him to the doctor. It bears

highlighting that this witness was not even cross-examined

on this aspect. This statement is further fortified by a

perusal of Ex.Ka-19 the inquest proceedings relating to

deceased Shesh Mani Rai and amongst the enclosures with the

inquest report is the nakal chik (which is a copy of the

FIR) and a report made by the Sub Inspector on this exhibit

that the dead bodies had been handed over for post mortem

along with the appended documents. It is also significant

that Dr. Sanjay Tewari PW 8 who had conducted the post

mortem examination on the dead body of Surya Narain deposed

that he had received the first information report at the

time of the post mortem and that he had read the same

before conducting the proceeding. To our mind, therefore,

the suspicion that a line or two might have squeezed in

here or there in some of the documents prepared during the

initial investigation would not dislodge the huge volume of

documentary and ocular evidence on the spontaneity of the

FIR.

10. Faced with this situation Mr. Sushil Kumar has then

argued that the three witnesses produced by the police i.e.

PW 1 Shiv Prasad @ Dangar Tewari, PW 4 Prem Shanker Dubey

and PW 5 Ram Dutt Misra, only two that is PW 1 and PW 5 had

supported the prosecution and being chance witnesses had

not been able to explain their presence at the spot. It

has also been submitted that Mukund Lal, the third person

and the owner of the Bullet motor cycle on which PW1 & PW5

had come from Vidhyachal, had not been examined as a

witness which clearly falsified the entire story.

Conversely, it has been submitted that the only witness who

could possibly have been an eye witness to the incident as

he was travelling in the car at the time of the incident

and whose rifle had been removed from the car after the

incident and recovered from the accused i.e. Prem Shanker

Dubey had not supported the prosecution, thus causing a

clear doubt on the entire prosecution story.

11. The argument noted above would have to be examined in

the background of some special facts. It must be

remembered that the incident had happened in broad day

light on the main road going through a prosperous town

amongst groups (both the assailants as well as the

victims), who were prominent citizens deeply involved in

commerce and politics and several prior incidents involving

them in some other criminal matters not necessarily with

each other had already taken place. It is therefore

obvious that the murders would have created a furore and

caused a huge amount of consternation and it has in fact

come in evidence that thousands of persons had collected at

the site, soon after the incident. With this introduction

we now examine as to whether the eye witnesses had been

present at the spot or not. It is to be noted that Rakesh

Kumar Pandey, the first informant had signed the inquest

report at the place of incident and his statement under

Section 161 Cr.P.C had also been recorded by the

Investigating Officer PW 13 prior to the preparation of the

inquest report. Unfortunately, Rakesh Kumar Pandey could

not be examined as he had in the meanwhile been murdered.

The prosecution has accordingly fallen back primarily on

the statements of PW 1 Shiv Prasad, and PW 5 Ram Dutt

Sharma PW Prem Shankar Dubey having been declared hostile.

Prima facie it does appear that these two witnesses were

chance witnesses but on a closer look we find that they

have adequately explained their presence. We are also of

the opinion that if the court comes to the conclusion that

the testimony of a chance witness is credible, the evidence

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cannot be thrown out merely on the ground that the witness

happened to be present by chance. Dangar Tewari stated

that when he alongwith Ram Dutt Misra had reached at the

tri junction of the GT Road Gopiganj on Mukund Lal\022s Bullet

motor-cycle they had heard sounds of firing by weapons and

had seen the accused persons armed with shot guns, rifles,

carbine and pistols firing at the Ambassador car after it

had come to a stop after colliding with a bus coming from

the Allahabad side and that the murders had been committed

while the deceased were still in the car. The evidence of

Ram Dutt Misra is much to the same effect. Both these

witnesses have specifically revealed the identity of the

assailants and the manner of attack and explained their

presence by stating that they had gone for Darshan and were

on their way back home. We also find that despite

extensive cross-examination, no reasons are forthcoming on

record as to why they would become false witnesses in a

case of triple murder. It is also clear from the evidence

that the Investigating Officer had collected a blood

stained seat cover and shoes from inside the car alongwith

several other items from the place of incident which go to

show that the killings had happened in the car. The

conflict in evidence as to the whether the dead bodies were

found lying outside or inside the car would thus be of no

telling effect more particularly as a huge and milling

crowd running into thousands had collected after the

murders completely jeopardizing the security of the site

and as such no evidence could be available to show as to

how the dead bodies had, if at all, been put outside the

car. It is also of some importance that Prem Shankar Dubey

who had been riding the car with the three deceased and had

received injuries in attempting to escape had been

medically examined by PW 6 Dr. A.K. Pandey at about 5.25

p.m. on 4.4.1999. Though this witness had been declared

hostile, we are of the opinion that an outright rejection

of his evidence is not called for and both parties are

entitled to rely on such part of his evidence which assists

their case. We now examine his testimony in this

background. He admitted that on the day of occurrence he

had been sitting on the back seat of the Ambassador Car and

had been carrying his licensed rifle. He also admitted

that on rushing out of the car he had received some

injuries but could not remember as to whether he had been

medically examined though the evidence shows that he had

been present at the time of the lodging of the first

information report in the Police Station. The statements

made by Dangar Tewari and Ram Dutt Misra are thus (to an

extent) supported by Prem Shankar Dubey as well.

12. Mr. Sushil Kumar has also laid some emphasis on the

fact that despite the fusillade fired at the car with an

assortment of modern weapons, the car remained largely

untouched and that there was thus no evidence to show that

it had collided with a bus coming from the opposite side

bringing it to a sudden stop, thus facilitating the

murders. We have, however, in this connection the evidence

of PW 13 Vidya Prakash Misra, the Investigating Officer,

who in his cross-examination stated that he had carefully

examined the car at the place of occurrence and had found

in all about 40 bullet marks on the chassis, tank, backside

bumper, diggy, backside glass and bonnet. It is

significant that the presence of the bullet marks shows

that the firing had taken place primarily from the rear

side as the driver had attempted to speed away and that

the coup de grace had apparently been delivered to the

deceased after the car had stalled after hitting the bus.

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It is also significant that the presence of the bus and its

number had been shown in the site plan prepared by the said

police officer at the place of incident.

13. Mr. Sushil Kumar has also laid great stress on what he

perceives to be an apparent discordance between the ocular

and the medical evidence. He has emphasized that the

Investigating Officer had picked up three spent cases of a

.12 bore shotgun from the spot and a wad had also had been

recovered from one of the dead bodies at the time of the

post mortem examination thus indicating that only shotguns

and no pistols or carbines as alleged had been used, which

clearly falsified the eye witnesses. He has in this

connection cited the judgment in Awadhesh and Another vs.

State of Madhya Pradesh (1988) 2 SCC 557 to submit that

where medical opinion was at variance with the ocular

account the accused were entitled to the resultant benefit.

Undoubtedly, the medical evidence is extremely relevant in

testing the credibility of an eye witness but we are of the

opinion that the eye witness account is fully in consonance

with the statements of the doctors and the other medical

evidence. It has come in the statement of the eye

witnesses including Prem Shankar Dubey and also of Dr.

Sanjay Tewari PW 8 on specific questions put to them that

the shots had been fired from a distance of a foot or two.

We now reproduce the post mortem reports prepared by PW Dr.

Sanjay Tewari with respect to Vakil Shukla and Shesh Mani

Rai :

Vakil Shukla

1. Lacerated wound 2x1 Cm. on the mid

forehead with charring and tattooing

around it. Fontal bone not injured.

2. Abrasion 1x 0.5 Cm. on the mid forehead

with charring and tattooing around it.

3. Wound of firearm entry 6 in number each

measuring 0.8x0.8 Cm. on the top and back

of the left shoulder. Margins of wound

inverted with blackening and tattooing

all around it with their wound of exit as

follows-

(1) 1.5 x 1.5 Cm. on the left side

chest below the left axilla 5 Cm.

below the apex;

(2) 3 x 3 Cm. on the left side chest 8

Cm. below and lateral to the left

nipple;

(3) 1x1 Cm. on the right side chest 6

Cm. below the right nipple.

(4) 1x1 Cm. on the right side chest

4.5 Cm. above and medial to the

right nipple;

(5) 1x1 Cm. on the right side chest 8

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Cm. below the right nipple; and

(6) 1x1 Cm. on the right side chest

6.5 Cm. lateral to the right

nipple.

4. Firearm wound of entry 0.8x0.8 Cm.. on

the lateral surface of right mid thigh

with inverted margins and tattooing all

around it with its wound of exit on the

medial surface of thigh at the same level

with averted margins 1x1 Cm.

Shesh Mani Rai

1. 5x4 Cm. on the right side neck 1 cm.

below and posterior to the right ear.

Margins of the wound were inverted with

charring and tattooing of skin all around

with its wound of exit of size 6x5 Cm. on

the left side face/over and lateral to

the left eye with averted margins;

2. Wound of entrance 5.5x4 Cm. on the right

side eye margin of the wound inverted

with charring and tattooing of skin all

around, with its wound of exit 6x6 Cm.

below the left ear. Margin of the wound

averted.

3. Wound of entrance 1x1 Cm. on the lateral

aspect of left arm. Margins of wound

inverted with charring and tattooing of

skin all around with its wound of exit

1.5x1.5 Cm. on the posterior lateral

aspect of the left arm. Margins of wound

averted\024.

14. Dr. Radhey Raman PW 3 recorded the following injuries

on the dead body of Devi Shankar Dubey:

1. Firearm wound of entry with

charring and tattooing of size 2x1 Cm.

It. Side of the chest just below the

middle part of Lt. Clavicle. Lt. Side

clavicle fractured with same wound of

exit.

2. Firearm wound of entry with

charring and tattooing of six 1x1 Cm.

on rt. Supra clavicle region 4 Cm.

medial to top of rt. Shoulder, margins

of wound inverted, with its wound of

exit 2.5x2.00 Cm. on the lt. Side of

chest on its lateral side 5.00 Cm.

lateral and just below it. Nipple

margin of wound of exist is averted;

and

3. Abraded contusion 2x2 Cm. on rt.

Side of the forehead\024.

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A cork (1.5 x 1.2 cm ) was also

recovered from the dead body.

15. Relying on the above quoted evidence it has been

emphasized that there appeared to be no injuries from a

rifle or pistol. We however beg to differ. It bears

reiteration that shots had been fired from a distance of a

feet or two and this opinion is fortified as the entry

wounds without exception show signs of charring and

tattooing. The dimensions of the entry wounds also show

that several different types of weapons have been used. It

is clear from the post mortem examination of Devi Shankar

Dubey\022s body (during which a cork had been recovered) that

a shotgun had undoubtedly been used in his murder and that

the shot had entered en masse as is apparent from the size

of wound of entry (Injury No. 1).

16. We now come to the reports of the other two deceased.

Injury No. 3 on the person of Vakil Shukla is clearly not

an injury caused by a shotgun and has been caused by a

medium calibre automatic or semi-automatic rifle or pistol.

Mr. Sushil Kumar has however submitted that this injury had

possibly been caused by a shotgun using buckshot SG/LG

cartridges as had a high velocity rifle been used from a

close range as suggested, the bullet would have had a

blasting effect on the body. We, however, find that this

argument is not substantiated on the evidence, that is,

available to us. Undoubtedly, this shot too had been fired

from a little beyond point blank range and if it had been

fired from a shotgun, the shoulder would have been

shattered and in any event the entire charge would have

entered the body en masse making a rat hole wound of

entry. We are fortified in our view by the observations on

page 465 of the Fourth Edition of Dr. B.R. Sharma\022s

Forensic Science in Criminal Investigation and Trials:

\023 9.10.7.3 Shotgun injuries:

The nature of the injuries caused

by the shotgun is greatly altered by

the range. Contact or near contact

wounds look like explosions. Close

range shots upto about three meters

give rat holes varying in diameter from

about 2 to 6 centimetres. From about 2

metres to 10 metres the projectiles may

form a rat hole surrounded by

individual pellet holes. Beyond 10

metres most of the shots form separate

holes. The buckshots may separate

earlier. For example, n L.G. cartridge

may give individual injuries for each

shot from a range of about 2 metres.

The area covered by the pellets vary

with the range and the choke

characteristics of a gun.

Ordinarily, the shotguns

projectiles do not form exit holes

except when buckshots are used from

close ranges\024.

17. Modi\022s Medical Jurisprudence and Toxicology, Twenty-

third Edition at page 722 is to the same effect. We

reproduce the relevant passage hereunder :

\023The effects produced by small shot fired

from a shotgun vary according to the

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distance of the weapon from the body, and

choking device. A charge of small shot,

fired very close to, or within a few

inches, of the body enters in one mass

like a single bullet making a large

irregular wound with scorched and

contused edges, and is followed by the

gases of the discharge which greatly

lacerate and rupture the deeper tissues.

Particles of unburnt powder expelled from

the weapon behind the missile are driven

to some distance through the wound, and

some of them are found embedded in the

wound and the surrounding skin, which is

also singed and blackened by the flame

and smoke of combustion. The exit wound

of a close range shot may show greater

damage of tissues than the entrance

wound, the margins are everted, but there

is no evidence of blackening of singeing.

At a distance of one to three feet, small

shots make a single aperture with

irregular and lacerated edges

corresponding in size to the bore of the

muzzle of the gun, as the shot enter as

one mass, but are scattered after

entering the wound and cause great damage

to the internal tissues. The skin

surrounding the wounds is blackened,

scorched and tattooed, with unburnt

grains of powder. On the other hand, at

a distance of six feet, the central

aperture is surrounded by separate

openings in an area of about two inches

in diameter made by a few pellets of the

shot, which spread out before reaching

the mark. The skin surrounding the

aperture may not be blackened or

scorched, but is tattooed to some extent.

At a distance of 12 feet, the charge of

the shot spreads widely and enters the

body as individual pellets producing

separate openings in an area of five to

eight inches in diameter depending on the

choke, but without causing blackening,

scorching or tattooing of the surrounding

skin\024.

18. Mr. Sushil Kumar\022s argument with regard to the use of

a high velocity rifle and its effect on the body when fired

from a close range would undoubtedly merit serious

consideration but in the light of the facts on the record,

we are unable to concur. It is the case of the prosecution

that carbines and 9mm pistols in addition to shotguns had

been used during the attack. A carbine, a high velocity

weapon firing automatically or semi automatically, and 9mm

bore pistols are prohibited firearms permitted for use only

by the police and armed forces which invariably use hard

nosed bullets in contradistinction to soft nosed ones used

in sporting rifles against soft skinned game and which

cause immense internal damage on the victim and huge wounds

of exit, if any. We find that all six wounds of entry

are of 0.8x0.8 cm. and with the exception of one, all exit

wounds are also of almost similar dimensions. We are,

therefore, of the opinion that injury no. 3 appears to be

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a wound of entry from a weapon firing hard nosed bullets

which had penetrated the body and exited on the other side.

We find support for this view from Modi (Supra) (at

pgs.717-718):

\023Because of obvious difference in

design and construction, the wounds

produced by hunting ammunition are much

more devastating than that of the

military ammunition. In military

ammunition, the bullets are full metal

jacketed having a core of steel or lead

inside and are thus prevented from

deformation (or expansion) when they

hit the target. In contrast, a hunting

bullet is designed to deform (or

expand) in its passage through the

body, producing an increase in its

presenting area. Thus a hunting

bullet, which is partially metal

jacketed, but with the lead core

exposed at its tip, is referred to as

soft-point bullet. Hollow point

hunting-bullets are also partially

jacketed but have a cavity at the tip

of lead core to facilitate expansion on

striking the target. The silvertip

hunting-bullet in reality is a soft

point bullet whose lead core at its tip

is protected by a thin jacket of

aluminium alloy sheath.

Modern steel-jacketed bullets used

in army weapons have the shape of an

elongated cone and owing to their great

velocity usually pass straight and

direct through the body without any

deflection or deviation, and without

causing much damage. The wounds of

entry and exit are almost circular and

similar in appearance without any

bruising or laceration of the

surrounding parts\024.

19. The nature of injuries found on the dead body of Shesh

Mani Rai are equally significant. It appears from injury

nos. 1 and 2 which are on the neck and head respectively

that the shot had furrowed through the body with a huge

exit wound. The very dimension of these injuries show the

presence of a rat hole type of entry with a larger wound of

exit on the other side. Injury No. 3 substantially

corresponds with the injuries found on the dead body of

Vakil Shukla and reveals that this injury had not been

caused with the weapon which caused the other two injuries.

The judgment cited by the learned counsel is therefore on

its peculiar facts and based on the premise that the

evidence in the case was doubtful.

20. We have also considered the arguments of learned

senior counsel on the appeals against acquittal. We are of

the opinion that the matter has been considered by the

trial court and the High Court in its correct perspective

and no interference is called for.

21. We accordingly dismiss all the appeals.