Supreme Court of India
RAM SINGHversusTHE STATE OF U.P.
- Citation
- 2024 INSC 128
- Decided
- 21 February 2024
- Disposal
- Appeal(s) allowed
- Bench
- ABHAY S OKA
Holding
The conviction cannot be sustained where the prosecution fails to recover the weapon, does not obtain ballistic expertise, and the eyewitness evidence is unreliable, and where identical evidence leads to acquittal of a co‑accused, the benefit of doubt must be given to the appellant.
Summary
The appellant Ram Singh was convicted under Sections 301, 302 and 307 of the Indian Penal Code for the death of his mother-in-law, based on eyewitness testimony that he fired a pistol at the informant but the bullet struck the mother. The prosecution failed to recover the alleged weapon, did not obtain a ballistic report, and did not examine key material witnesses. The Supreme Court examined whether the absence of the weapon and ballistic expert testimony, together with inconsistencies in eyewitness accounts, rendered the prosecution case insufficient to prove guilt beyond reasonable doubt. It also considered the principle that identical evidence against co‑accused cannot justify convicting one while acquitting the other. Finding the eyewitness evidence unreliable, the material witnesses unexamined, and the lack of forensic linkage fatal to the case, the Court gave the appellant the benefit of doubt and set aside the conviction and sentence, ordering his release.
Issues considered
- Whether non‑recovery of the weapon of offence and the absence of a ballistic expert report defeat the prosecution's case in a murder trial.
- Whether the inconsistencies and lack of credibility in eyewitness testimony render the prosecution evidence insufficient to prove guilt beyond reasonable doubt.
- Whether conviction of one accused and acquittal of a co‑accused on the same set of evidence violates the principle of parity.
- Whether the benefit of doubt should be granted to the appellant under the circumstances.
Legislation cited
- Indian Penal Code, 1860s. 301, s. 302, s. 307
Subjects
Non-recovery of weapon of crimeNon-examination of ballistic expertBallistic opinionNon-obtaining of ballistic opinionGunshot injuryNot proved beyond reasonable doubtGlaring inconsistenciesEvidence of eyewitnesses not credibleMaterial witnessesSame set of evidenceBenefit of doubt
Judgment
[2024] 2 S.C.R. 668 : 2024 INSC 128
Ram Singh
v.
The State of U.P.
(Criminal Appeal No. 206 of 2024)
21 February 2024
[Abhay S. Oka and Ujjal Bhuyan,* JJ.]
Issue for Consideration
As per PW-1-informant (son of the deceased), on the fateful evening
when he and his brother were sitting in the open space in front
of the entrance door of his house, his mother was sitting close by
on a cot and some neighbours were also sitting on another cot,
the appellant came along with co-accused on whose instigation
he fired on PW-1 but he slipped below the cot and the bullet hit
his mother who died immediately. While the co-accused was
acquitted on the same set of evidence, whether the conviction of
the appellant u/s.301 r/w 302, u/s.307 IPC and his sentence were
justified when there was no recovery of the weapon of crime, non-
examination of ballistic expert.
Headnotes
Evidence – Non-recovery of the weapon of crime – Non-
obtaining of ballistic opinion and non-examination of ballistic
expert – When fatal:
Held: Non-recovery of the weapon of crime by itself would not be
fatal to the prosecution case – When there is such non-recovery,
there would be no question of linking the empty cartridges and
pellets seized during investigation with the weapon allegedly used
in the crime – Obtaining of ballistic report and examination of the
ballistic expert is not an inflexible rule – When there is direct eye
witness account which is found to be credible, omission to obtain
ballistic report and non-examination of ballistic expert may not be
fatal to the prosecution case but if the evidence tendered including
that of eye witnesses do not inspire confidence or suffer from
glaring inconsistencies coupled with omission to examine material
witnesses, the omission to seek ballistic opinion and examination of
the ballistic expert may be fatal – In the present case, the evidence
of the eyewitnesses suffer from serious lacunae and cannot be said
to be credible – That apart, material witnesses were not examined
* Author
[2024] 2 S.C.R. 669
Ram Singh v. The State of U.P.
– Thus, the evidence tendered on behalf of the prosecution cannot
be said to be full proof so much so that non-recovery of the main
material evidence i.e., weapon of offence, non-obtaining of ballistic
opinion and non-examination of ballistic expert would be immaterial
– Prosecution did not prove the accusation against the appellant
beyond all reasonable doubt – Also, on the same set of evidence,
the trial court gave the benefit of doubt to the co-accused primarily
on the ground that there was a grudge between the accused and
PW-1 – Appellant given benefit of doubt – Conviction and sentence
set aside – Order of the trial Court and the High Court quashed.
[Paras 29, 30, 33 and 34]
Evidence – Same set of evidence – Conviction of one accused
and acquital of the other – Impermissibility:
Held: When there is similar or identical evidence of eyewitnesses
against two accused by ascribing them the same or similar role,
the court cannot convict one accused and acquit the other – Any
lingering doubt about the involvement of an accused in the crime
he is accused of committing, must weigh on the mind of the court
and in such a situation, the benefit of doubt must be given to the
accused – This is more so when the co-accused is acquitted by
the trial court on the same set of evidence. [Paras 32, 33]
Case Law Cited
Javed Shaukat Ali Qureshi Vs. State of Gujarat, [2023]
12 SCR 220 : (2023) 9 SCC 164; Munna Lal Vs. State
of U.P., [2023] 3 SCR 224 : (2023) SCC Online SC 80;
Gurucharan Singh Vs. State of Punjab, [1963] 3 SCR
585 : AIR 1963 SC 340; Sukhwant Singh Vs. State of
Punjab, [1995] 2 SCR 1190 : (1995) 3 SCC 367; State
of Punjab Vs. Jugraj Singh, [2002] 1 SCR 998 : (2002)
3 SCC 234; Gulab Vs. State of U.P., [2021] 9 SCR 678 :
(2022) 12 SCC 677; Pritinder Singh Vs. State of Punjab,
[2023] 10 SCR 1033 : (2023) 7 SCC 727 – relied on.
List of Acts
Penal Code, 1860.
List of Keywords
Non-recovery of weapon of crime; Non-examination of ballistic
expert; Ballistic opinion; Non-obtaining of ballistic opinion;
670 [2024] 2 S.C.R.
Digital Supreme Court Reports
Gunshot injury; Not proved beyond reasonable doubt; Glaring
inconsistencies; Evidence of eyewitnesses not credible; Material
witnesses; Same set of evidence; Benefit of doubt.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 206
of 2024
From the Judgment and Order dated 05.02.2018 of the High Court
of Judicature at Allahabad in CRLA No. 1611 of 1983
Appearances for Parties
Pradeep Kumar Mathur, Chiranjeev Johri, Chandra Nand Jha, M.K.
Tiwari, Sitesh Kumar, Arvind Kumar, Advs. for the Appellant.
Rana Mukherjee, Sr. Adv., Samarth Mohanty, Ankit Goel, Advs. for
the Respondent.
Judgment / Order of the Supreme Court
Judgment
Ujjal Bhuyan, J.
This appeal is directed against the judgment and order dated
05.02.2018 passed by the High Court of Judicature at Allahabad
in Criminal Appeal No. 1611 of 1983, confirming the conviction and
sentence imposed on the appellant by the Additional Sessions Judge,
Non-metropolitan Area, Kanpur in Sessions Trial No. 297 of 1982.
2. In the sessions trial, appellant Ram Singh was convicted under
Section 301 read with Section 302 of the Indian Penal Code, 1860
(IPC). He was also convicted under Section 307 IPC. For the offence
under Section 301/302 IPC, appellant was sentenced to undergo
imprisonment for life and for the offence under Section 307 IPC,
appellant was sentenced to undergo rigorous imprisonment for five
years, both the sentences to run concurrently.
2.1. As noticed above, the appeal filed by the appellant before the
High Court of Judicature at Allahabad (‘High Court’ for short)
was dismissed. Consequently, the conviction and sentence of
the appellant imposed by the Sessions Court was confirmed
by the High Court.
[2024] 2 S.C.R. 671
Ram Singh v. The State of U.P.
Prosecution case
3. PW-1 Shri Radhey Lal lodged a first information before the Bhognipur
Police Station in the District of Kanpur (U.P.) on 19.08.1982 at
midnight stating that he and his brother Desh Raj were sitting in
the open space in front of the entrance door of his house during
the evening hours. His mother Dulli was sitting close by on a cot.
On another cot, neighbours Lala Ram i.e. PW-3 and Man Singh
i.e. PW-2 were sitting. They were chatting under a glowing lantern
hanging on the roof-side of his residence. According to the informant,
at about 08:00 PM, appellant Ram Singh accompanied by one
Lala Ram came to his residence. He stated that both of them were
residents of his village. Ram Singh was holding a country made
pistol in his right hand. As per version in the first information, Lala
Ram had instigated Ram Singh by loudly saying that these people
were creating disturbances; so kill them. Ram Singh fired on the
informant but he slipped below the cot. The bullet hit the left breast
of his mother Dulli who cried aloud saying that she was dead.
According to the informant, they also cried. Ram Singh and Lala
Ram ran away towards the north. Mother died immediately due to
the gunshot wound. Informant stated that the incident was seen
by his brother Desh Raj and by his neighbours Lala Ram and Man
Singh in the light of the lantern. On hearing the firing, many people
living nearby came. They had seen the accused running. The mother
was lying dead on bed. The informant further stated that about one
and a half months back, there was a scuffle betfween his son Baan
Singh and the appellant Ram Singh which matter was duly reported
to the local police station. Lala Ram and Ram Singh belongs to the
same party. Because of this, they came to the door of his residence
when on the instigation of Lala Ram, Ram Singh fired a shot due
to which his mother Dulli died.
3.1. The first information as dictated by the informant, was reduced
to writing by the scribe Sunder Lal, another brother of PW-1.
The said first information was registered as FIR bearing No.
252/1982.
4. Police investigated the crime and on completion of the investigation
submitted chargesheet charging appellant Ram Singh of having
committed offence under Sections 301 and 302 of the IPC as well
as under Section 307/34 IPC. On the other hand, the co-accused
672 [2024] 2 S.C.R.
Digital Supreme Court Reports
Lala Ram was charged of having committed offence under Section
307/34 IPC.
4.1. To prove its case, prosecution examined six witnesses. After
considering the evidence and materials on record, the Sessions
Court convicted the appellant under Section 301 read with
Section 302 IPC and also under Section 307 IPC. However,
the other accused Lala Ram was given the benefit of doubt
and accordingly was acquitted.
4.2. At this stage, we may mention that there are two Lala Ram in
this case. One is Lala Ram, son of Prahalad Singh who is PW-3
and the other is Lala Ram, son of Dhanna Ram Yadav who was
named as accused number 2 and acquitted by the trial court.
5. As noticed above, the trial court convicted the appellant under the
aforesaid provisions of IPC and sentenced him accordingly. The co-
accused Lala Ram, son of Dhanna Ram Yadav, was acquitted. The
appeal filed by the appellant before the High Court was dismissed.
Consequently, his conviction and sentence were confirmed.
Submissions
6. Learned counsel for the appellant submits that there are gross
contradictions in the testimony of the prosecution witnesses. The
so called eyewitnesses were no eyewitnesses at all. Rather, they
were interested witnesses having previous political enmity with the
appellant. It is because of such political rivalry that appellant was
falsely implicated in the case.
6.1. He further submits that not only there are glaring inconsistencies
in the version of the prosecution witnesses; crucial and material
witnesses have not been examined. Even the country made
pistol allegedly used by the appellant was not recovered. The
pellets found at the site and also extricated from the body of the
deceased were not sent for ballistic examination. In the absence
of any ballistic report linking the pellets to the pistol allegedly
used by the appellant, he could not have been convicted.
Both the trial court and the High Court therefore fell in error in
convicting the appellant.
6.2. Learned counsel submits that it is true that on 16.07.2018, this
Court had issued notice only on the question of converting the
[2024] 2 S.C.R. 673
Ram Singh v. The State of U.P.
conviction from under Section 302 IPC to Section 304 IPC
and also on the prayer for grant of bail, nonetheless, he had
submitted before this Court on 31.10.2023 that he would argue
for acquittal as well.
6.3. He further submits that the trial court had committed a
fundamental error in convicting the appellant on the one hand
and acquitting the co-accused Lala Ram on the other hand.
Evidence against both were the same. When on the same
set of evidence the co-accused was acquitted, the trial court
ought to have acquitted the appellant as well. This aspect was
overlooked by the High Court. In support of his submission,
learned counsel has placed reliance on a decision of this Court
in Javed Shaukat Ali Qureshi Vs. State of Gujarat, (2023) 9
SCC 164.
6.4. Contention of learned counsel for the appellant is that there
are no materials on record to conclusively prove the guilt of
the appellant. Rather, it is a case of no evidence. Therefore,
appellant is entitled to be acquitted. Orders of the trial court as
well as of the High Court should be set aside.
7. Per contra, learned counsel for the respondent-State argues that in
view of the incriminating evidence against the appellant, both the
Sessions Court as well as the High Court had rightly convicted the
appellant. The ocular evidence clearly points to the positive act of the
appellant firing the gunshot which killed the mother of PW-1, Dulli.
Considering the gruesome nature of the murder and the testimony
of the prosecution witnesses, conviction of the appellant is fully
justified. High Court had rightly dismissed the criminal appeal of the
appellant. No case for interference is made out.
8. Submissions made by learned counsel for the parties have received
the due consideration of the Court.
Evidence: appreciation and analysis
9. PW-1, who is the first informant and son of the deceased, stated
in his evidence that they are the three brothers: Desh Raj, Sunder
Lal and himself, he being the youngest. He lived with his mother at
his village where his mother had property. In the same village, his
maternal uncle used to reside. Both the accused were residents of
his village and belonged to the same community. He deposed that he
674 [2024] 2 S.C.R.
Digital Supreme Court Reports
had a rivalry with accused Ram Singh in connection with the election
of village Pradhan. In that election, wife of the accused Ram Singh
was one of the candidate. Ram Singh was also related to accused
Lala Ram. PW-1 stated that he had voted for the candidate who
stood against the wife of Ram Singh. In that election, Ram Singh’s
wife lost and in this connection, a fight had broken out between the
son of PW-1 i.e. Baan Singh and accused Ram Singh in respect of
which FIR and cross FIR were lodged. The cases were going on.
Accused Lala Ram was deposing as a witness in Ram Singh’s case.
This incident had happened about a month and a half prior to the
present incident. According to him, it was around 08:00PM in the
evening when he was sitting at his door. His mother Dulli was sitting
on the cot. The place was lit up by the hanging lantern which was
hung on the roof. The two accused came from the north. Accused
Lala Ram challenged PW-1 by saying that the latter was creating a
lot of mischief and, therefore, he should be killed. Ram Singh fired
from his country made pistol which he was carrying. Instead of hitting
PW-1, the bullet hit his mother leading to her death. Thereafter, the
two accused fled away. After this incident, PW-1 alongwith PW-2 Man
Singh went to Bhognipur Police Station and on the way informed his
brother Sunder Lal, the scribe, who wrote the first information which
PW-1 carried to the police station.
9.1. In his cross-examination, he stated that accused Lala Ram
was a witness in the case against his son. He explained that
there was a pile of bricks about 3-4 steps north of the courtyard
where the deceased was sitting. The deceased was sitting on
the northern side of the cot whereas PW-1 and his brother
Desh Raj were sitting at the other end of the cot. He added
that when Ram Singh fired at him, he bent below the cot, so
also his brother. He could not see as to whether PW-2 and
PW-3 had bent or not. As per the version of PW-1, the first
gunshot did not hit him. Second shot was not fired at him or
his brother because his mother had died in the first gunshot
itself. Accused Ram Singh was at a distance of three steps from
his mother’s cot. On hearing their screaming, several villagers
came to the place of occurrence. At this, the two accused ran
away. However, he stated that he could not say as to whether
any villager had seen the accused running away or not as no
villager had told him.
[2024] 2 S.C.R. 675
Ram Singh v. The State of U.P.
9.2. In the cross-examination, it further revealed that deceased Dulli
used to live with the brother of PW-1 i.e. Desh Raj whose house
was behind the house of PW-1. The other brother’s house
was also nearby. On that fateful evening, though dinner had
been taken, the deceased had not eaten food. As they were
conversing in the courtyard, his mother was sitting quiet on the
cot and did not participate. This time, he stated that he and his
brother were sitting on the floor at the time of gunshot. Though
he had bent down when the shot was fired, nobody got under
the cot. On receiving the gunshot, the mother had collapsed
on the cot. He had cried while sitting but had not hugged his
mother. He had gone to his brother Sunder Lal’s hotel where
the first information was written but his brother Sunder Lal did
not accompany him to the police station.
9.3. He denied the suggestion that it was a false case because of
personal enmity; that Desh Raj and others who were sitting on
the cot with the deceased in Desh Raj’s house and that while
examining a country made pistol, a bullet was fired accidentally.
10. PW-2 Man Singh stated that the deceased was sitting on a cot in
the courtyard. Desh Raj and PW-1 were sitting on the floor near
the cot. Accused Lala Ram had instigated accused Ram Singh by
saying that PW-1 was being mischievous and that he should be
killed. At this, accused Ram Singh walked 2-3 steps and fired from
his country made pistol but instead of hitting PW-1, his mother was
hit and she died.
10.1. In his cross-examination, PW-2 stated that the deceased was
sitting on a cot while PW-1 and his brother Desh Raj were
sitting on the floor on the west side of the cot. He saw the
accused in the lantern light. Though Lala Ram had instigated
Ram Singh, he did not get up from the cot and kept sitting.
When shot was fired, Desh Raj and Radhey Lal (PW-1) stood
up. He did not run to see the deceased after being shot. She
was shot from a distance of 2-3 steps.
11. PW-3 Lala Ram, son of Prahalad Singh, stated that at the relevant
time on the date of incident, he and Man Singh PW-2 were sitting
on the same cot. Dulli was sitting on bed. Desh Raj and Radhey
Lal were sitting on the floor at a distance of one and a half hems
away. The two accused came from the northern side. Accused Lala
676 [2024] 2 S.C.R.
Digital Supreme Court Reports
Ram instigated accused Ram Singh to kill PW-1 saying that he was
doing a lot of mischief. Ram Singh instantly fired from his country
made pistol. The bullet did not hit Radhey Lal PW-1 but hit the left
breast of his mother who was killed.
11.1. In his cross-examination, he stated that he had seen accused
Ram Singh before accused Lala Ram started challenging PW-
1. He did not see what Ram Singh was carrying and did not
see any country made pistol in his hand. It would be wrong
to say that he had seen country made pistol in the hands of
Ram Singh. Sub-Inspector of Police had not questioned him.
While he was examined in court, he admitted that there were
party politics between the Pradhan of the village who got
elected and the accused. He also denied the suggestion that
he had not seen any such incident and that no such incident
had happened.
12. PW-4 is the Sub-Inspector of Police, B.D. Verma. He stated that
while preparing the inquest report, one tikli and 12 pellets were
seized from the wound of the deceased. He also seized cans of
normal and blood-stained soil and also blood-stained clothes of the
deceased. The blood-stained clothes and the cans of soil were sent
to the chemical examiner for chemical examination but the report
was not received back. He further stated that during preparation of
inquest report, one tikli and 12 pellets were seized from the wound
of Dulli on the cot. However, in re-examination, he stated that the
pellets taken out by the doctor in the hospital were produced in the
court. The tikli which was taken out from the body of the deceased
in the hospital was with the pellets.
13. PW-5 is Raghu Raj Singh who was the Pradhan of the village. The
inquest report was prepared in his presence and had his signature.
He stated that blood-stained cot strips, empty cartridge, tikli and
pellets were collected from the spot.
13.1. In his cross-examination, he stated that he used to reside at
a distance of 150 steps from the house of Dulli. He came to
know about Dulli’s death on hearing the sound of firing but
he did not come out of his house due to fear. However, he
contradicted himself when he stated that he could not tell
by the sound of firing that Dulli was killed; rather he came to
know about this 10-15 minutes later when one of the villagers
[2024] 2 S.C.R. 677
Ram Singh v. The State of U.P.
Raja Ram, son of Prahalad Yadav told him while running by.
He further compounded the inconsistency by saying that he
did not tell the Sub-Inspector about hearing the sound of firing
because this did not happen.
14. The doctor who had conducted post-mortem examination, Dr. P.S.
Mishra, was examined as PW-6. He stated that the entry wound of
the bullet pellet 4cm × 3cm was on the left side of the left breast.
The edges were inside with blackening. The wound was bone-deep.
Third and fourth ribs on the left side chest were broken. There was
laceration on the left lung. Both the lungs had blood. The heart
was also lacerated. Semi-digested rice and pulse were found in
the stomach of the deceased. He opined that cause of death of
the deceased was due to shock and haemorrhage because of the
above injuries. 55 small pellets were taken out of the body of the
deceased during post-mortem.
15. During his examination under Section 313 of the Code of Criminal
Procedure, 1973 (Cr.P.C.), accused Ram Singh denied the accusation
that he had killed the deceased by shooting her from a country
made pistol. He stated that there was indeed a scuffle between the
son of PW-1 and himself relating to the Pradhan election for which
criminal cases were pending. The witnesses were testifying against
him due to enmity.
16. Before we proceed further, we may mention that in the seizure
memo dated 20.08.1982, which has been placed on record, it was
stated that during preparation of inquest report of the deceased, the
police had seized the tikli of the cartridge stuck on the wound of the
deceased and 12 bore cartridge lying on the cot of strips.
17. From a careful scrutiny of the prosecution evidence, what is seen is
that PW-1 alongwith his brother Desh Raj were chatting with PW-2
and PW-3 in the courtyard in front of the house of PW-1. PW-2 and
PW-3 were sitting on one cot. The deceased was sitting on another
cot. Thereafter the discrepancies in the version of the witnesses
arise. At one point of time, PW-1 said that he was at his door; at
another point he stated that he and his brother Desh Raj were sitting
on the same cot in which his mother was sitting but on the other end
of the cot. Then again he said that the two brothers were sitting on
the floor. It has also come on record that according to the version
of some of the prosecution witnesses, PW-1 and his brother Desh
678 [2024] 2 S.C.R.
Digital Supreme Court Reports
Raj were sitting on the floor. Pausing here for a moment, we can
visually analyse that the mother was sitting on the cot at a distance
from her two sons. She was sitting laterally and not behind her two
sons. According to the witnesses, the two accused came from the
northern side and when they reached the pile of bricks, accused
Lala Ram instigated accused Ram Singh that PW-1 was creating
lot of mischief and, therefore, he should be killed. Ram Singh then
moved 2-3 steps ahead and fired at PW-1. Now PW-1 says that he
had hid himself below the cot; while the other version is that he had
simply bent as he was sitting on the floor. On the other hand, PW-2
had stated in his cross-examination that when the shot was fired,
PW-1 and his brother Desh Raj stood up. It is the prosecution case
that Ram Singh had shot PW-1 but because of the evasive reaction
of PW-1, the bullet fired by Ram Singh from his country made pistol
hit the left breast of the deceased who thereafter died.
18. If this version is to be believed, then Ram Singh had fired at PW-1
from a close range and from a standing position. Therefore, trajectory
of the shot would be from a height downwards. PW-1 was either sitting
on the cot or on the floor and had taken evasive action (though PW-2
says that PW-1 stood up when the shot was fired); the mother was
sitting diagonally on the other end of the cot. It is highly improbable
that the shot fired at from such a close range and from a height
downwards could have hit the left breast of the deceased who was
sitting at a lateral distance and not behind PW-1.
19. Interestingly, neither Desh Raj, brother of PW-1 and son of the
deceased, who was very much present at the place and time of
occurrence was examined by the police nor the other brother Sunder
Lal, the scribe, who had written the first information, was examined
by the police. Omission to examine Desh Raj by the prosecution is
most crucial as according to the prosecution version he was very
much present when the incident occurred. We may also mention
that the behaviour of Sunder Lal is also very unusual. He did not
accompany PW-1 to the police station. There is also no evidence
that he had rushed to the place of occurrence where his mother
was killed. An adverse inference will have to be drawn against the
prosecution for not examining material witnesses. Be that as it
may, it was only PW-1 and PW-2 who had stated that Ram Singh
had fired from a country made pistol at PW-1 but the bullet had hit
mother of PW-1, who died of the bullet wound. On the other hand,
[2024] 2 S.C.R. 679
Ram Singh v. The State of U.P.
PW-3 categorically stated that he did not see accused Ram Singh
carrying any country made pistol. Further, it has come on record
that there was previous enmity between PW-1 and the accused
relating to election of village Pradhan because of which there were
cross cases between them.
20. The village Pradhan who testified as PW-5 stated that he was inside
his house when he heard gunshot. He came to know that Dulli was
killed about 10 to 15 minutes later when one Raja Ram, son of
Prahalad Yadav, told him so while he was running by. Incidentally,
the said Raja Ram was not examined by the police.
21. At this stage, what is noticeable is that the weapon of offence i.e.
the country made pistol used by the accused in the offence, could
not be recovered by the police and therefore not exhibited. Thus,
the main material evidence i.e., the weapon of offence was not
exhibited. In the seizure memo, it was mentioned that a 12 bore
cartridge was lying on the cot and alongwith the tikli of the cartridge
which was stuck on the wound of the deceased, were seized by the
police. On the other hand, in the evidence of the doctor, PW-6 as
well as from the post-mortem report, it has come on record that 55
small pellets were taken out from the body of the deceased during
post-mortem. The bullet wound was bone-deep which clearly reveals
that the deceased was shot at from close range. In his evidence,
PW-4 Sub-Inspector B.D. Verma deposed that during preparation
of the inquest report, one tikli and 12 pellets were seized from the
wound of the deceased. The pellets as well as the tikli of the cartridge
were not sent to any ballistic expert, as a result of which there is no
ballistic report on the basis of which it could be said for sure that the
pellets found outside the body and from within the body could be
traceable to the tikli of the 12 bore cartridge which in turn could be
traced to the country made pistol from which the shot was allegedly
fired by the appellant. There is no explanation of the prosecution
regarding the 55 pellets retrieved from the body of the deceased
during post-mortem; whether those could be linked to the 12 bore
cartridge and the tikli. Importantly, the country made pistol was never
recovered. Prosecution has not said anything in this regard. That
apart, as per the version of PW-4, the blood stained clothes of the
deceased which were seized were sent to the chemical examiner
but the report from the chemical examiner was not received till the
date and time of his deposition.
680 [2024] 2 S.C.R.
Digital Supreme Court Reports
22. From the above, it is evident that there are glaring inconsistencies in
the prosecution version which have been magnified by the absence
of the testimony of the material witnesses and the ballistic report
coupled with the non-recovery of the weapon of crime.
Case law
23. In Munna Lal Vs. State of U.P., (2023) SCC Online SC 80, this Court
opined that since no weapon of offence was seized in that case, no
ballistic report was called for and obtained. This Court took the view
that failure to seize the weapon of offence on the facts and in the
circumstances of the case, had the effect of denting the prosecution
story so much so that the same together with non-examination of
material witnesses constituted a vital circumstance amongst others
for granting the appellants the benefit of doubt.
24. On the aspect of non-examination of ballistic expert and its impact
on the prosecution case, one of the earliest decisions of this Court
was rendered in Gurucharan Singh Vs. State of Punjab, AIR 1963
SC 340. This Court observed that there is no 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 an expert is examined. It is possible to imagine cases
where the direct evidence is of such an unimpeachable character
and the nature of the injuries disclosed by post-mortem notes is so
clearly consistent with the direct evidence that the examination of a
ballistic expert may not be regarded as essential. Where the direct
evidence is not satisfactory or disinterested or where the injuries
are alleged to have been caused by a gun and those prima facie
appeared to have been inflicted by a rifle, undoubtedly the apparent
inconsistency can be cured or the oral evidence can be corroborated
by leading the evidence of a ballistic expert. However, in what cases
the examination of a ballistic expert is essential for the proof of the
prosecution case must naturally depend upon the circumstances of
each case. This Court held as under:
41.... These observations do not purport 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 an expert is examined. It is possible to imagine cases
where the direct evidence is of such an unimpeachable
[2024] 2 S.C.R. 681
Ram Singh v. The State of U.P.
character and the nature of the injuries disclosed by
post-mortem notes is so clearly consistent with the direct
evidence that the examination of a ballistic expert may not
be regarded as essential. Where the direct evidence is
not satisfactory or disinterested or where the injuries are
alleged to have been caused with a gun and they prima
facie appear to have been inflicted by a rifle, undoubtedly
the apparent inconsistency can be cured or the oral
evidence can be corroborated by leading the evidence
of a ballistic expert. In what cases the examination of a
ballistic expert is essential for the proof of the prosecution
case, must naturally depend upon the circumstances of
each case….
25. This issue was again examined by this Court in Sukhwant Singh
Vs. State of Punjab, (1995) 3 SCC 367. In that case, this Court
observed that though the police had recovered an empty cartridge
from the spot and a pistol along with some cartridges were seized
from the possession of the appellant at the time of his arrest, yet
the prosecution did not send the recovered empty cartridges and
the seized pistol to the ballistic expert for examination and expert
opinion. This Court was of the view that if such opinion would
have been called for, comparison could have been made which in
turn could have provided link evidence between the crime and the
accused. It was noted that this again was an omission on the part
of the prosecution for which no explanation was furnished. It was
thereafter that this Court declared as follows:
21.... It hardly needs to be emphasised that in cases
where injuries are caused by firearms, the opinion of the
ballistic expert is of a considerable importance where
both the firearm 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 creditworthiness of
the prosecution case to a great extent.
25.1. Thus, in the aforesaid case, this Court emphasized that in
cases where injuries are caused by firearms, the opinion of the
ballistic expert becomes very important to connect the crime
cartridge recovered during the investigation to the firearm used
by the accused with the crime. Failure to produce expert opinion
682 [2024] 2 S.C.R.
Digital Supreme Court Reports
in such cases affects the creditworthiness of the prosecution
case to a great extent.
26. However, in State of Punjab Vs. Jugraj Singh, (2002) 3 SCC 234,
this Court opined that when there are convincing evidence of
eyewitnesses, non-examination of the expert would not affect the
creditworthiness of the version put forth by the eyewitnesses.
27. This Court considered the issue as to failure of the prosecution to
recover the crime weapon and also non-examination of ballistic expert
in Gulab Vs. State of U.P., (2022) 12 SCC 677. In that case, the
deceased had sustained a gunshot injury with a point of entry and exit.
In that case, prosecution had relied on the eyewitnesses’ accounts
of three eyewitnesses which were found to be credible. Therefore,
non-recovery of the weapon of the offence would not dis-credit the
case of the prosecution. After referring to the previous decisions,
this Court opined that in the facts and evidence of the case, the
failure to produce the report by a ballistic expert who could testify to
the fatal injuries being caused by a particular weapon would not be
sufficient to impeach the credible evidence of the direct witnesses.
28. In Pritinder Singh Vs. State of Punjab, (2023) 7 SCC 727, this Court
in the facts and evidence of that case held that conviction could not
be sustained. That apart, from not collecting any evidence as to
whether the gun used in the crime belonged to the appellant or not,
even the ballistic expert had not been examined to show that the wad
and pellets were fired from the empty cartridges of the appellant. In
that case which was based on circumstantial evidence, it was held
that when there was serious doubt as to credibility of the witnesses,
the failure to examine ballistic expert would be a glaring defect in
the prosecution case.
29. Thus, what can be deduced from the above is that by itself non-
recovery of the weapon of crime would not be fatal to the prosecution
case. When there is such non-recovery, there would be no question
of linking the empty cartridges and pellets seized during investigation
with the weapon allegedly used in the crime. Obtaining of ballistic
report and examination of the ballistic expert is again not an inflexible
rule. It is not that in each and every case where the death of the victim
is due to gunshot injury that opinion of the ballistic expert should
be obtained and the expert be examined. When there is direct eye
witness account which is found to be credible, omission to obtain
[2024] 2 S.C.R. 683
Ram Singh v. The State of U.P.
ballistic report and non-examination of ballistic expert may not be
fatal to the prosecution case but if the evidence tendered including
that of eyewitnesses do not inspire confidence or suffer from glaring
inconsistencies coupled with omission to examine material witnesses,
the omission to seek ballistic opinion and examination of the ballistic
expert may be fatal to the prosecution case.
30. Applying the above proposition to the facts of the present case, we
find that the evidence tendered by the eyewitnesses suffer from
serious lacunae. Thus, their evidence cannot be said to be credible.
That apart, material witnesses have not been examined. On the
whole, the evidence tendered on behalf of the prosecution cannot
be said to be full proof so much so that non-recovery of the weapon
of offence, non-obtaining of ballistic opinion and non-examination of
ballistic expert would be immaterial.
31. In such circumstances, it cannot be said that the prosecution could
prove the accusation against the appellant beyond all reasonable
doubt. As a matter of fact, on the same set of evidence, the trial court
gave the benefit of doubt to the other accused Lala Ram primarily on
the ground that there was a grudge between the accused and PW-1.
32. This Court in the case of Javed Shaukat Ali Qureshi, has held that
when there is similar or identical evidence of eyewitnesses against
two accused by ascribing them the same or similar role, the court
cannot convict one accused and acquit the other. This Court clarified
as under:
15. When there is similar or identical evidence of
eyewitnesses against two accused by ascribing them the
same or similar role, the court cannot convict one accused
and acquit the other. In such a case, the cases of both the
accused will be governed by the principle of parity. This
principle means that the criminal court should decide like
cases alike, and in such cases, the court cannot make a
distinction between the two accused, which will amount
to discrimination.
Conclusion
33. Thus, on a careful analysis of the evidence on record, we are of
the view that the appellant should be given the benefit of doubt as
according to us, the prosecution could not prove his guilt beyond all
684 [2024] 2 S.C.R.
Digital Supreme Court Reports
reasonable doubt. Any lingering doubt about the involvement of an
accused in the crime he is accused of committing, must weigh on
the mind of the court and in such a situation, the benefit of doubt
must be given to the accused. This is more so when the co-accused
is acquitted by the trial court on the same set of evidence.
34. That being the position, we set aside the conviction and sentence
of the accused. The judgment and order of the Additional Sessions
Court dated 28.05.1983 as well as the judgment and order of the
High Court dated 05.02.2018 are hereby set aside and quashed.
Consequently, the appellant is directed to be released from jail
forthwith, if not required in any other case.
35. Appeal is allowed in the above terms.
Headnotes prepared by: Divya Pandey Result of the case:
Appeal allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Non-recovery of weapon of crime"Sign in to search