Supreme Court of India
PURAN SINGHversusSTATE OF UTTARANCHAL
- Citation
- 2008 INSC 35
- Decided
- 10 January 2008
- Disposal
- Case Allowed
- Bench
- C K THAKKER
Holding
The ballistic expert’s opinion that the cartridge was not fired from the accused’s gun creates reasonable doubt, entitling the accused to the benefit of doubt and resulting in acquittal, and the Supreme Court may entertain a new plea under Article 136 when sufficient material is on record.
Summary
Puran Singh was charged with murdering his brother Rajpal Singh by firing a licensed 12‑bore gun. The trial court acquitted him, citing benefit of doubt, but the High Court set aside the acquittal and convicted him under IPC s.302. On appeal to the Supreme Court, the appellant raised a new plea that the cartridge which caused the fatal injury was not fired from the gun recovered from him. Although such a plea had not been raised before the trial or appellate courts, the Court allowed it under Article 136 because ample material was on record. The Forensic Science Laboratory’s ballistic expert testified that the cartridge (E.C.1) was not fired from the accused’s gun, creating reasonable doubt. Consequently, the Supreme Court held that the prosecution failed to prove the weapon used, entitled the accused to the benefit of doubt, set aside the conviction, and ordered his acquittal and release.
Issues considered
- The ballistic evidence showed that the cartridge causing the fatal injury was not fired from the accused's gun; does this create reasonable doubt warranting acquittal?
- Can a new plea not raised before the trial and appellate courts be considered by the Supreme Court under Article 136 of the Constitution?
- Whether the benefit of doubt applies when the prosecution fails to establish that the weapon used belonged to the accused.
Legislation cited
- Arms Act, 1959s. 25, s. 27
- Code of Criminal Procedure, 1973s. 378
- Constitution of Indias. 136
- Indian Penal Code, 1860s. 302, s. 307
Subjects
homicidefirearm injuryballistic evidencebenefit of doubtacquittalArticle 136new pleacriminal appealIPC s.302forensic science
Judgment
[2008] 1 S.C.R. 491
~
.A PURAN SINGH A
v.
STATE OF UTTARANCHAL
(Crl. A. No. 437 of 2006)
JANUARY 10, 2008
B
[C.K. THAKKER AND D.K. JAIN, JJ.]
+ Penal Code, 1860 - s. 302 - Homicidal Death - Due to
fire-arm injury - Recovery of gun and empty cartridge - Held:
As per Ballistic Expert's opinion, cartridge recovered not fired
from gun allegedly used by accused - Therefore, accused c
entitled to benefit of doubt,;_ High Court not justified in setting
aside acquittal recorded by Trial Court.
Constitution of India, 1950 - Art. 136 - New plea in
Supreme Court for the first time Normally not permitted. D
However, in the facts of the case, new plea is considered since
-.\ sufficient material is already on record in support of such plea.
i ,(
According to the prosecution, appellant caused the
homicidal death of his brother by firing gunshots at him.
Appellant allegedly had animosity with deceased in view E
of a property dispute. Trial Court acquitted appellant by
giving him benefit of doubt. High Court set aside the order
of acquittal and convicted accused-appellant under s.302
IPC.
Ir'
The conviction of appellant is challenged before this F
• Court on the ground that the bullet which caused injury
to the deceased was not fired from the gun recovered from
appellant.
Allowing the appeal, the Court G
.... ).- HELD: 1.1 According to the prosecution, the weapon
' used by accused-appellant for commission of crime i.e.
causing death of deceased was recovered along with two
empty cartridges. PWS, Patwari stated in his substantive
491 H
492 SUPREME COURT REPORTS [2008] 1 S.C.R.
)-. .,,.
A evidence, that he went to the house of the accused and
arrested him. He further stated that the accused gave him
his licensed gun of single barrel twelve Bore (Ex.1) and
two Cartridges (Ext.6&7) which were sealed separately.
[Paras 18, 21] [499-A, F]
B 1.2. The Report of Forensic Science Laboratory
states that the Laboratory received a letter from Chief
Judicial Magistrate along with two 12 bore K.F. Special
emptied cartridges marked as E.C.1 & 2 and one piece of
gun 12 bore single barrel No.1319. It was then stated that
c the examiner fired five shots from the gun which were
marked as T.C. 1 to T.C. 5. T.C.1, T.C.2 and T.C.5 misfired
and rest fired successfully. Regarding E.C.1 and E.C.2, it
was stated that there had been signs of firing pin. But on
E.C.2, the signs were not specific. Cap of E.C.1 had sign
D of breach and E.C.2 had minor sign of breach. As per
Ballistic Expert's opinion, cartridge E.C.1 was not fired t
from the single barrel 12 bore No. 1319 said to have been " •
used by the accused. Therefore, appellant is entitled to
benefit of doubt. [Paras 22, 23] [499-G, H; 500-A, E]
E 2. As regards the point raised by the accused·
appellant that the bullet in question was not fired from his
gun, it was neither raised before the Sessions Court (Trial
Court) nor before the High Court (Appellate Court).
Though new plea is not permitted to be raised in this Court
F for the first time in an appeal under Article 136 of the "
Constitution, it has been considered since sufficient
•
material is already on record in support of such plea.
[Paras 14, 15] [497-0, E]
CRIMINAL. APPELLATE JURISDICTION : Criminal
G
Appeal No. 437 of 2006. ~ A·
From the final Judgment and Order dated 25.10.2005 of
the High Court of Uttaranchal at Na in ital in G.A. No. 1006/2001.
Pawan Kumar Bahl, R.S. Rautala and Sudha Gupta for
H
PURAN SINGH v. STATE OF UTTARANCHAL 493
[THAKKER, J.]
....., .;.\
the Appellant. A
Rachana Srivastava and Noorullah for the Respondent.
The Judgment of the Court was delivered by
C.K. THAKKER, J. 1. The present appeal is filed by the
appellant-accused against the order of conviction and sentence B
recorded by the High Court of Uttaranchal on October 25, 2005
in Government Appeal No. 1006 of 2001. By the said order, the
High Court set aside the order of acquittal recorded by Sessions
Judge, Chamoli on February 6, 1981 in Sessions Trial No. 15
of 1979, convicted the accused fo(an offence punishable under c
Section 302, Indian Penal Code (IPC) and ordered him to
undergo imprisonment for life.
-
2. Shortly stated the prosecution case was that one Pushu
had two sons- (i) Bhawan Singh and (ii) Shag Chand. Bhawan D
~
Singh had no issue and he died leaving behind him his widow
~ -i Smt. Rukmani Devi. Shag Chand also died leaving behind him
four sons; (i) Shivraj Singh, (ii) Indra Singh, (iii) Rajpal Singh
(deceased) and (iv) Puran Singh (accused). All the four brothers
(sons of Shag Chand) were residing in a jungle at a distance of
about two kilometers from village Akhori, Patwari Circle Sarab, E
Tehsil Ukhimath, District Chamoli. There were frequent quarrels
between accused Pu ran Singh on the one hand and other three
brothers on the other hand in connection with the property owned
~ and possessed by Rukmani Devi. According to the prosecution,
t Rukmani Devi had gifted her property by a registered gift-deed F
to accused Pu ran Singh depriving other three brothers from her
share. On August 3, 1979 at about 4 p.m., PW5-Smt. Ramdei,
daughter of PW4-Shivraj Singh who had come to her parental
house at village Akhori was grinding paddy with her deaf and
dumb mother Smt. Swanri Dev.i near her house. At that time, G
t accused Puran Singh came towards the cattle shed of Shivraj
Singh and started beating she-buffalo of Shivraj Singh. Smt.
Ramdei and her mother raised an objection. Accused got
enraged and caught the wife of Shivraj Singh by her hair in order
to beat her.· Shivraj Singh happened to reach there and H
494 SUPREME COURT REPORTS [2008] 1 S.C.R.
A cautioned the accused. The accused went inside the room, >-- ......
brought his licensed gun and fired a shot towards Shivraj Singh
who luckily escaped unhurt. On hearing the noise, other two
brothers of Shivraj Singh, PW2-lndra Singh and Rajpal Singh
(deceased}, came out to inquire as to what had happened. The
B accused started showing his anger towards them also. Both of
them, therefore, decided to retreat from there. They were,
however, chased by the accused who was carrying his gun.
PW2-lndra Singh asked Rajpal Singh (deceased) to run fast
so that they may be saved. Rajpal Singh, unfortunately, turned
his face backward to see as to how far away was the accused
c from him. The accused fired and the gun shot hit Rajpal Singh
on his face and head. Rajpal Singh fell down on the ground. In
the meanwhile, PW3-Smt. Bardei, wife of Indra Singh and
PW6-Bimala, minor daughter of Raj pal Singh along with other
children and family members reached near the place of incident.
D
They could thus see the incident. Indra Singh was threatened
f
by the accused and he went inside his house and got himself
saved. Rajpal Singh became unconscious and remained as • ~
such till he was declared dead.
E 3. Initially, a case was registered against the appellant-
accused in the First Information Report (FIR) for an offence
punishable under Section 307,. IPC as also for an offence
punishable under Sections 25 and 27 of the Arms Act, 1959.
_After the death of Raj pal Singh, however, the charge was framed
~
F for committing an offence punishable under Section 302, IPC.
The case was committed to the Court of Sessions, Chamoli. A •
plea of the accused was recorded wherefn he denied to have
committed any offence, and claimed to be tried.
4. In order to establish the case against the accused, the
G prosecution examined eight witnesses. Out of them four
witnesses were eye-witnesses, viz., PW2-lndra Singh, PW3- -i
Smt. Bardei, PW5-Smt. Ramdei and PW6-Kumari Bimala.
It also examined PW1-Pratap Singh- Pradhan of the village,
PW7-Dr. D.C. Awasthi and PW8-Mitra Nand-Patwari.
H
PURAN SINGH v. STATE OF UTTARANCHAL 495
[THAKKER, J.]
5. So far as death of the deceased Rajpal Singh is A
concerned, there is no dispute that he died homicidal death
and it was due to firearm injuries sustained by him. PW7-
Dr:Awasthi, who performed postmortem, found the following
injuries on the body of the deceased;
(1) Fire arm injury 1Yi cm in diameter circular in shape 8
with inverted margins on right side of scalp parietal
region, 5 cm above the top of right ear and 10 cm
from the outer corner of the right eye with tattooing
(impregnated black carbon particles) over an area
of 12 cm X 10 cm over the right side of face, forehead C
and around the wound. It was wound of entry,
(2) Fire arm lacerated injury oval shaped 2Yi cm X 1 cm
with irregular everted margins 2 cm behind injury
No.1. Clotted blood was present around it. It was
0
wound of exit.
(3) Fire arm lacerated wound 1 cm X Yi cm irregular in
shape, 2 cm below and behind injury No.2. It was
wound of exit.
(4) Fire arm lacerated wound 1 cm X % cm irregular in E
shape, 2 cm behind injury No.2. It was wound of exit.
6. It was, therefore, clearly proved by the prosecution that
the death of deceased Rajpal Singh was homicidal in nature
and it was because of the gun ir:ijuries sustained by him. F
7. The trial Court considered the evidence of eye-
witnesses and observed that except minor contradictions, there
was no inherent improbability in their evidence. He, however,
observed that from the evidence of Investigating Officer and the
entries made in the Check Register that FIR and the relevant G
G.D. entries of the registration of the case, were made at a
· subsequent stage on some other date and not on August 3,
1979. There was thus 'every occasion for consultation and
afterthought.' The trial Court also observed that the accused
stated that Rajpal Singh (deceased) was injured by a shot fired H
496 SUPREME COURT REPORTS [2008] 1 S.C.R.
~ <
A from the gun carried by a co-villager (Bachan Singh) when the
deceased had gone for hunting with his brother Indra Singh and
Bachan Singh (co-villager). According to the trial Court, it might
or might not be so but in view of suspicious circumstances, it
could not be said that the prosecution had succeeded in
B establishing the guilt of the accused 'to the hilt and beyond all
reasonable doubts.' In that view of the matter, according to the
trial Court, the accused was entitled to benefit of doubt. ~
Accordingly, the trial Court acquitted the accused.
8. Being aggrieved by the order of acquittal recorded by
c the Sessions Court, the State preferred an appeal under Section
378 of the Code of Criminal Procedure, 1973. It was contended
by the State that once the evidence of prosecution witnesses
was believed by the Court and it observed that there was no
reason to disbelieve the said evidence, the Court ought to have
D convicted the accused. It was urged that when the trial Court
did not find material contradiction or inherent improbability in '
the prosecution evidence, the Court was wholly wrong in • '
acquitting the accused.
9. The High Court reappreciated the evidence of
E witnesses and held that the order of acquittal recorded by the
trial Court was wholly unsustainable and totally unwarranted.
Accordingly, the High Court set aside the order of acquittal and
convicted the accused- appellant herein for an offence
punishable under Section 302, IPC and ordered him to undergo .,,
F rigorous imprisonment for life as observed earlier. ~
10. The accused has challenged the order of conviction
and sentence recorded by the High Court by filing the present
appeal. On April 10, 2006, appeal was admitted and notice was
issued on prayer for bail. On November 24, 2006, when the
G
matter was called out, the Court fixed final hearing of the.appeal
'i
and observed that in view of that order, it was not necessary to
deal with bail application. Appeal is accordingly placed before
us for final hearing.
H 11. We have heard learned counsel for the parties.
PURAN SINGH v. STATE OF UTTARANCHAL 497
[THAKKER, J.]
A.
12. The learned counsel for the appellant raised several A
contentions. In our opinion, however, it is not necessary to deal
with all the contentions in view of the fact that the appeal
deserves to be allowed on a short ground.
13. The learned counsel for the appellant urged that from
the opinion of the Ballistic Expert, it was clear that the bullet B
which caused the injury to the deceased was not fired from the
~
gun said to have been used by the appellant, recovered from
him and was examined by the Forensic Science Laboratory. If
it is so, the prosecution was not successful in bringing home
the guilt of the accused and in establishing that it was the gun of c
the accused which had caused firearm injury to deceased Rajpal
Singh which resulted in his death.
14. The learned counsel for the State, on the other hand,
submitted that the point raised by the learned counsel for the
D
accused in this Court was neither raised before the Sessions
...' Court (Trial Court) nor before the High Court (Appellate Court~.
j'
No such point, hence, can be permitted to be raised in this Court
for the first time in an appeal under Article 136 of the Constitution.
15. We would have indeed considered the submission of E
the learned Government Advocate but for the fact that there is
sufficient evidence on record to show that what is sought to be
contended by the learned counsel for the accused in this Court
has substance and sufficient material is already on record in
+- support of such plea.
~
F
16. We have: been taken by the learned counsel for the
parties to the record of the case .. Exhibit Ka.3 is the Arrest
Panchnama dated August 4, 1979 when the accused was
apprehended at about 8 a.m. in the morning. In the memo of
arrest as also in seizure memo, it was stated that 'no article G
~- was recovered from the body of the accused and nothing was
seized by the police'. The accused had nothing except wearing
clothes. In Daily Diary by Patwari Circle, Barab, Tehsil Okhimath
dated August 4, 1979, it was mentioned that the Patwari started
to the place of occurrence from village Senagadmari at about H
498 SUPREME COURT REPORTS [2008] 1 S.C.R.
A 5.30 a.m. on August 4, 1979. At the place of occurrence, he
found injured Raj pal Singh in the custody of villagers. The injured
was breathing but was unconscious. The patwari tried to inquire
-
about the incident from Rajpal Singh but the latter could not
speak. Though treatment was given to the injured, he died.
B Inquest panchnama was thereafter prepared in presence of
persons who were there. The FIR was registered under Section
307, IPC on the basis of the report dated August 3, 1979 by
Partap Singh, Pradhan, but Rajpal Singh died and the case
was registered under Section 302, IPC. It was stated that "as
c the death of the injured Raj pal Singh was caused due to
intentional gun shot by accused Pu ran Singh S/o Shag Chand,
therefore, the accused Puran Singh is taken into custody and
the weapon used in murder i.e. gun 1319N-1970, Licence No.
697/Mly-74 and two empty cartridge Bore-12 recovered from
the accused and sealed it at the spot in presence of witnesses".
0
17. Seizure Memo was prepared on the same day which
reads thus:
• •
"Today on dated 4.8.79 in presence of (1) Shri Pratap
Singh, Pradhan Village PanchayatAkhori, (2) Shri Bachan
E Singh S/o Ram Singh, (3) Shri Bhopal Singh S/o Tilak
Singh, Village Akhori, Circle-Barab in the case No.4/79
State through Pratap Singh, Pradhan, Gram Panchayat
Akhori versus accused Puran Singh s/o Shag Chand,
village Akhori, U/Sec.302 IPC and 25/27 Arms Act. the
F licensed gun of accused called and ammunition was also
called. Then the accused Puran Singh handed over to
police his single barrel gun, bullet 12 bore No.1319 V-
1970, licence No.697/ML4/34-V, booklet, two empty
cartridges on which KF-12 Special 12 is written made in
G India by ORDINANCE FACTORIES and it was seized by
police. Accused was asked to handover other ammunition.
The availability of which accused denied. When the gun
was open it was not loaded with cartridges. The above
recovered article was put in separate sack/packet and
H sealed. The memo was prepared in presence of witness
PURAN SINGH v. STATE OF UTTARANCHAL 499
[THAKKER, J.]
arid their sign was taken". A
18. It is thus clear that even according to the prosecution,
the weapon used by the accused for commission of crime i.e.
causing death of deceased Rajpal Singh was recovered along
with two empty cartridges. The mudamal gun as also empty
cartridges were then sent to the Forensic Science Laboratory, 8
Lucknow, which were examined by the Laboratory.
19. The prosecution witnesses who were cited as eye-
witnesses and examined on oath have also stated that the gun
used for commission of offence was recovered and the injuries c
were caused to the deceased by the accused from the said
gun. For instance, PW2-lndra Singh was shown gun (Ext.1) and
it was observed by the trial Court that "on seeing the gun Ex.1
the. witness told that this is that gun· from which Puran Singh
fired bullet". Similarly, PW4-Shivraj Singh stated that it was the
0
same gun. In para 6, it is observed; "Witness was shown Ex.Ka-
I 1. He said that from this gun Puran Singh fired".
~
20. So far as medical evidence is concerned, PW7-Dr.
Awasthi had to say this:
"In my opinion, the death was due to coma which was as E
a result of head injury caused by the discharge of some
arm fire, which was sufficient in the ordinary course to
cause death".
,. 21. PW8-Mitra Nanci, Patwari state.d in his substantive F
evidence, that he went to the house of the accused and arrested
him. He further stated that the accused gave him his licensed
gun of single barrel twelve Bore (Ex.1) and two Cartridges
(Ext.6&7) which were sealed separately.
22. The Report of Forensic Science Laboratory dated G
November 28, 1979 is also on record. It states that the
Laboratory received a letter from Chief Judicial Magistrate,
Chamoli (Gopeshwar) along with two 12 bore K.F. Special
emptied cartridges marked as E.C.1 & 2 and one piece of gun
12 bore single barrel No.1319. It was then stated that the H
500 SUPREME COURT REPORTS [2008] 1 S.C.R.
A examiner fired five shots from the gun which were marked as
'-.
T.C. 1 to T.C. 5. T.C.1, T.C.2 and T.C.5 misfired and rest fired
successfully. Regarding E.C.1 and E.C.2, it was stated that there
had been signs of firing pin. But on E.C.2, the signs were not
specific. Cap of E.C.1 had sign of breach and E.C.2 had minor
B sign of breach. On the basis of the examination, a conclusion
was given which is in the form of result which reads as under:
Result: (A) The cartridge in question E. C. 1 was not fired
from the single barrel 12 Boe No. 319 marked 1179 gun.
c (ii) The cartridge in question E. C. 2 has no comparative
feature with shot fired from gun No.1319 12 bore marked
1179.
(B) On the chemical examination of fouling matter from
the gun the nitrate was found from the gun so it is
D concluded that after last shot the gun was not cleaned
but on 318179 whether or not shot was fired from gun
designative scientific opinion is not a possibility
(emphasis supplied)
23. It is thus clear that as per Ballistic Expert's opinion,
E cartridge E.C.1 was not fired from the single barrel 12 bore No.
1319 said to have been used by the accused. In our opinion,
therefore, the appellant accused is entitled to benefit of doubt.
24. For the foregoing reasons, the appeal deserves to be
F allowed and is accordingly allowed. The order of conviction and
sentence recorded by the High Court is set aside and the
appellant is given benefit of doubt and is ordered to be acquitted.
Since the appellant is in jail, he is ordered to be released
forthwith if his presence is not required in any other case.
G 25. The appeal is accordingly allowed.
B.B.B. Appeal allowed.
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