ASHOK SINGHversusSTATE OF U.P.

                  [2009) 14 (ADDL.) S.C.R. 810


A                         ASHOK SINGH
                                 v.
                          STATE or= U.P.
                (Criminal Appeal No. 640 of 2005)
                                               .,/
                      SEPTEMBER. 18, 2009/                                    I

B
        [HARJIT SINGH BEDI AND J.M. PANCHAL,., JJ.]
                                              I /

       Penal Code, 1860- s.302 rlw s.34- Murder- Death due          •
  to gun-shot injury - Common intention - PW3's father was
                                                                              ~-
c shot at from short distance which proved fatal - Conviction of
  accused-appellants - Propriety of - Held: Proper.....: Evidence
  of PW3 was corroborated by PW4, an independent witness -
                                                                                  ~
  Ocular evidence was fully borne out by medical evidence -
  Both appellants had been armed with shot guns - Two spent
D cartridge cases picked up from the place of incident indicated    ..,
  that both appellants had fired a shot each at the deceased -
  Conviction of appellants confirmed.                                     ...     I
                                                                                  ,._



       According to the prosecution, due to previous
  enmity, the accused persons fired at PW3's father from
E
  short distance which proved fatal. Placing reliance upon
  the statements of PW-3 and PW-4, the trial court
  convicted all the four accused under Section 302 r/w
  Section 34 IPC and sentenced them to life imprisonment.
  On appeal, the High Court granted benefit of doubt to two
F ,accused and acquitted them but upheld the conviction
                                                                          .....
                                                                          '
                                                                                  '~
  of the other two accused, i.e. the appellants in the present                        I-
  appeal.

        Dismissing the appeal, the Court
G
       HELD: 1.1. There is no reason to disbelieve PW3                ~

  supported fully as he is by the statement of PW4 who is
  a truly independent witness. An attempt by the defence
  to show that PW4 was indebted to deceased for some
  favour earlier in point of time has not been substantiated
H                              810       .
                       ASHOK SINGH v. STATE OF U.P.                  811


            on record. It is also found that the ocular evidence is fully   A
     • borne out by the medical evidence as a pellet was
            recovered from the dead body at the time of the post-
            mortem examination. [Para 3) [813-F-H; 814-A]

                  1.2. It is true that two shots were alleged to have been B
             fired at the deceased whereas only one wound entry on
             the head by a fire arm had been detected at the time of
             post-mortem. However, it would be impossible for any
     .,,     witness in a case of simultaneous firing of two or more
             shots to give a categorical statement as to which of the
             two shots had hit the victim. It is also seen from the
                                                                            c
             evidence of ASI (PW5) that two spent cartridge cases had
             been picked up from the place of incident meaning
             thereby that both the appellants had fired a shot each at
             the deceased. Also if two different types of weapons had
             been used it would have been open to the defence to D
-4           argue that in the light of the fact that a shot gun pellet had
      --    .been recovered from the dead body, the other weapon
             had not been used, which factor undoubtedly could
             cause some speculation about the prosecution's case.
             This is not the situation in the present case, as both the E
             appellants had been armed with shot guns. The judgment
             of the High Court is therefore confirmed. (Para 4) (814-8-
             E)
      •         CRIMINAL APPELLATE JURISDICTION : Criminal                  F
            Appeal No. 640 of 2005.

                 From the Judgment & Order dated 12.1.2004 of the High
            Court of Judicature at Allahabad (Lucknow Bench,) Lucknow
            in Criminal Appeal No. 519 of 1980.
                                                                            G
                Siddhartha Luthra, Jagjit Singh Chhabra, Amreeta Swarup
       ..
            and Arundhati Katju for the Appellant.

                The Judgment of the Court was delivered by

                HARJIT SINGH BEDI, J. 1. This appeal by way of special      H
     812    SUPREME COURT REPORTS [2009) 14 (ADDL.) S.C.R


A leave arises out of the following facts:
           2. At about 7 a.m. on the 11th July 1977 deceased Chhota       •
     Singh was on his way from his residential house to the nearby
      Devi Ji Mandir for the purpose of supervising the repairs of the
     chabutra of the temple. The four accused, namely Ashok Singh,
'B
      Shiv Raj, Shyam Saran Singh and Sheo Narayan were hiding
      near the flour mill, all armed with guns. Shiv Raj and Sheo
      Narayan gave a lalkara that Chhota Singh be killed and on this
     call Ashok Singh and Shyam Saran Singh fired at him on which
      he fell down at a short distance from his residential house and    I,.
c    succumbed to his injury. The incident was witnessed amongst
     others by Ranieshwar Singh (PW3) son of the deceased and
      Durjan (PW4). After the assailants left the scene, Chhota Singh
     was shifted from the place where he lay dead. Rameshwar
     Singh (PW3) rushed to the Police Station and lodged a report
D    with Police Station Hasan Ganj at 9.30 a.m. whereafter Ram
     Prakash Shukla Sub-Inspector (PW5) reached the spot at 2.45         1     \-
     p.m. and started with the investigation. He found the dead body
     lying in front of his residential house and after recording the
     inquest report dispatched the dead body for the post-mortem.
E    The post-mortem examination was conducted by Dr. A. Akram
     on 12th· October 1977 which revealed two ante mortem external
     injuries, one being a gun shot wound from which a pellet
     wasalso recovered. On the completion of the investigation, the
     accused was charged for an offence punishable under Section
F    302/34 of the IPC. The trial court relying on the statements of
     Rameshwar Singh (PW3) and Durjan (PW4) convicted all the
     accused and -sentenced them to undergo imprisonment for life.
     The matter was thereafter taken in appeal before the. High
     Court. The High Court repelled the submissions of the
G    appellant's counsel that the FIR had been inordinately delayed,
     that the incident had not taken place at the time and place
     suggested by the prosecution and that the deceased had, in
     fact, been murdered in the early hours of the morning when he
     had gone to ease himself. The High Court observed that it was
     true (as it had been admitted by Rameshwar Singh (PW3)
H
                ASHOK SINGH v. STATE OF U.P.                     813
                   [HARJIT SINGH BEDI, J.]

     himself) that there were two rival groups in the village and one   A
     of the groups· was headed by his father whereas some of the
     accused belonged to the opposite party and that Ashok Singh
     appellant and he were on inimical terms and, therefore, it
     appeared that Rameshwar Singh was an interested witness.
     The court, however, further opined that Durjan was a completely    B
     independent witness whose evidence inspired confidence. The
     court also observed that though two shots were alleged to have
     been fired at the deceased, one by Ashok Singh and the other
     by Shyam Saran Singh the argument of the learned counsel for
     the appellant, that there was apparent discordance between the     c
     ocular and the medical evidence was not sustainable more
     particularly as both shots had been fired simultaneously, and it
     would have been impossible for any witness to have given a
     categorical statement as to which of the two shots had hit the
     deceased. The court, further, opined that though Rameshwar         b
     Singh and Durjan had both stated that Shiv Raj and Sheo
     Narayan had been armed with a gun but it was conceded on
     all sides that they had not used their weapons and all that they
     have done was to have shouted to their companions to kill
     Chhota Singh, and that it appeared from the statement of
     Rameshwar Singh (PW3) that he had, in fact, not seen these         E
     two actually exhorting the other accused to commit the crime.
     The court accordingly granted the benefit of doubt to Shiv Raj
     and Sheo Narayan appellantstherein while dismissing the
     appeal of Ashok Singh and Shyam Saran Singh. These two are
     before us in appeal by way of Special Leave Petition.              F

          3. We have heard the learned counsel for the parties and
     gone through the record. We find no reason to disbelieve
     Rameshwar Singh (PW3) supported fully as he is by the
     statement of Durjan (PW4) who is a truly independent witness.      G
     An attempt by the defence to show that he was indebted to
     Chhota Singh for some favour earlier in point of time has not
     been substantiated on record. We also find that the ocular
     evidence is fully borne out by the medical evidence as Dr. A.
     Akram had recovered a pellet from the dead body at the time        H



\~
    814 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.


A · of the post-mortem examination.

         4. Mr. Luthra, the learned counsel for the appellants has
    submitted that as only one entr}' wound had been detected on
    the dead body from two shots, the prosecution story suffered
    from a serious flaw. It is true that two shots were alleged to have
8
    been fired at the deceased whereas only one wound entry on
    the head by a fire arm had been detected at the time of post-
  - mortem. We are of the opinion, however, that it would be
    impossible for any witness in a case of simultaneous firing of
    two or more shots to give a categorical statement as to which
C of the two shots had hit the victim. We also see from the
    evidence of ASl-Ram Prakash Shukla (PWS) that two spent
    cartridge cases had been picked up from the place of incident
    meaning thereby that both Ashok Singh and Shyam Saran
    Singh had fired a shot each at the deceased. We also believe.
D that if two different types of weapons had been used it would
    have been open to the defence to argue that in the light_ of the -
    fact that a shot gun pellet had been recovered from the dead
    body, the other weapon had not been used, which factor
    undoubtedly could cause some speculation about the_
E prosecution's case. Admittedly, this is not the situation before
    us, as both the appellants had been armed with shot guns. We,.
    therefore, confirm the judgment of the High court. The appeal '
    is dismissed.                                                      -,

   B.B.B.                                        Appeal dismissed ..-.=