Holding

The High Court erred in acquitting the accused; the conviction under IPC 302 stands.

Summary

The State prosecuted Mast Ram for murder under IPC 302, alleging he shot the deceased Uttam Chand with a double‑barrel muzzle‑loaded gun. The trial court, relying on eyewitness accounts, a post‑mortem report, a ballistic expert report and a spot‑inspection that placed the victim within firing range, convicted the accused. The Himachal Pradesh High Court acquitted him, holding that the spot‑inspection used a single‑barrel gun, that the ballistic report was signed by a junior scientific officer not covered by CrPC Sec 293(4), that pellets recovered from the body were not sent for ballistic analysis, and that the eyewitnesses were biased relatives. On appeal, the Supreme Court held that the High Court’s conclusions were unsupported: the firing range of DBML and SBML guns is not materially different, a report by a junior scientific officer is admissible under Sec 293, the pellets’ recovery sufficed to prove gunshot injuries, and the relationship of witnesses does not per se discredit their testimony. Consequently, the conviction was restored. The appeal was allowed, the High Court order set aside and the trial court’s conviction reinstated.

Issues considered

The relevance of the type of gun (DBML vs SBML) to the spot‑inspection finding of firing range.
Whether a ballistic report signed by a junior scientific officer is admissible under CrPC Sec 293(4).
Whether the failure to send recovered pellets for ballistic analysis undermines the prosecution’s case.
The effect of witnesses’ familial relationship on the credibility of their testimony.
The adequacy of a spot‑inspection under CrPC Sec 310 in establishing the accused’s firing range.

Legislation cited

Code of Criminal Procedure, 1973s. 293(1), s. 293(4), s. 310, s. 313
Indian Penal Code, 1860s. 302

Subjects

murderIPC 302ballistic evidenceSection 293 CrPCeyewitness testimonyspot inspectionfiring rangemiscarriage of justice

Judgment

STATE OF HIMACHAL PRADESH A
v.
MAST RAM

SEPTEMBER I 0, 2004

[B.N. AGRAWAL AND H.K. SEMA, JJ.] B

Penal Code, I 860:

Section 302-Conviction by Trial Court on the basis of the ballistic
report, post mortem report and evidence of eye witnesses-High Court C
acquitting the accused-On appeal held, High Court/ell into grave error of
law and/acts leading to miscarriage ofjustice-Hence, order of High Court
set aside and order of Trial Court restored.

Criminal Procedure Code, 1973:
D
Section 293-Document purporting to be report under hand of
Government scientific expert-Court to accept such document issued by
officers enumerated in sub-section(4) without examining the author of the
documents.

According to the prosecution, accused fired at and killed the
E
deceased. Prosecution case was based on testimony of eye-witnesses,
report of medical expert and report of ballistic expert. The Trial Court
conducted a test and found that the place where the deceased was standing
and hit by the gun shot was within firing range. Accordingly, Trial
Court convicted and sentenced the accused. However, High Court F
acquitted him. Hence the present appeal.

Allowing the appeal, the Court

HELD : 1. While it is true that generally, the firing range of the
gun differs from gun to gun, the opinion of High Court that firing range G
of DBML gun and SBML gun differs is based on no expert opinion and
same is based on conjectures and surmises. In the instant case both the
guns are of the same categories except the one used in the commission
of crime is Double Barrel and the one used during the test fire was
Single Barrel. Therefore, it cannot be said that the firing range from H
269
270 SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R.

A DBML gun differed from SBML gun and vice-versa. This finding of
High Court is fallacious and perverse. [272-H; 273-A, BJ

2. The High Court has completely over-looked the provision of Sub-
section (1) of Section 293 and arrived at a fallacious conclusion that a
junior scientific officer is not an officer enumerated under Suh-section (4)
B of Section 293. Sub-section (4) of Section 293 envisages the Court to accept
the documents issued by any of the six officers enumerated therein as
valid evidence without examining author of the documents. [273-G, HJ

3. The finding of the High Court that failure of prosecution to send .
'

C the pellets, recovered from body of deceased, for examination by a
ballistic expert will draw inference against credibility of prosecution
story is utterly perverse. Law does not require that pellets recovered
from the body be sent to ballistic expert to determine as to whether the
pellets were {ired from the exhibited gun or not. On the contrary,
recovery of pellets from the body clearly establishes the prosecution
D case that the deceased died of gun shot injuries. [274-B, q

4. The categorical testimony of eyewitnesses' account has not been
considered and discussed at all by the High Court. Their testimony was
thrown out at the threshold on the ground of animosity and relationship.
E This is not the requirement of law. The only requirement of law is to
examine their testimony with caution. Relationship of witnesses is no -
ground to disbelieve their testimony, if otherwise, it inspires confidence.
The High Court also failed to discuss and consider testimony of
independent eyewitness. [276-D, A; 275-H; 276-EJ

F 5. The consistent ocular ~estimony of eyewitnesses corroborated by
the opinion of Medical Officer, who conducted post-mortem examination
on the body of deceased and -ballistic expert report clearly established
the prosecution case beyond all reasonable doubt. High Court fell into
grave error of law and facts, resulting in grave miscarriage of justice.
G (277-G, HJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 267
of 1999.

From the Judgment and Order dated 8.5.98 of the Himachal Pradesh
H High Court in Cr!. A. No. 195 of 1997.
STATE v. MAST RAM [SEMA, J.] 271

J.S. Attri and L.R. Rath for the Appellant. A
A.V. Palli and Mrs. Rekha Palli for the Respondent.

The Judgment of the Court was delivered by

SEMA, J. : The sole respondent-accused was convicted by the learned B
Additional Sessions Judge (II), Kangra at Dharmshala for an offence under
Section 302 IPC and sentenced to rigorous imprisonment for life and to pay
a fine of Rs.5000 and in default to undergo further rigorous imprisonment
for a period of six months. Aggrieved thereby, the respondent-accused
preferred an appeal before the High Court, which was allowed by the C
impugned judgment and the sentence and conviction recorded by the Trial
Court was set aside. Hence, this appeal by the State.

Briefly stated the facts are as follows:-

The accused and the prosecution witnesses are all from the same village D
Sug Tarkhana, Tehsil Indora, District Kangra. The accused and PW-5 Gian
Chand were at loggerheads over the dispute of abadi and civil litigation
between them was pending. The deceased Uttam Chan.d was employed as
a carpenter at Delhi and had come to village on 5.8.1995 to attend the
performance of first death anniversary of his mother. It is stated that on
14.8.1995 at about 10.00 A.M. Gian Chand - PW-5 had an altercation and E
quarrel with the accused Mast Ram with regard to. the dispute over the abadi
and the deceased Uttam Chand said to have intervened and advised both Gian
Chand ~nd Mast Ram not to quarrel and wait for the decision of the court
in civil litigation. Thereupon, the accused Mast Ram became furious and
threatened the deceased Uttam Cand that he would deal with him first of all F
as he was siding with Gian Chand with whom the accused had the civil
dispute over the abadi. It is further stated that at about 10.30 a.m. on the
same day, when the deceased Uttam Chand along with his.brother Hans Raj
PW-1 and Vijay Kumar PW-3 was proceeding towards the fields to get fodder
for the cattle and was passing through the passage in front of the house of
the accused Mast Ram, the accused with DBML (Double Barrel Muzzle
G
Loaded) gun in his hand challenged Uttam Chand stating that he would be
done to death and then fired at Uttam Chand. The deceased Uttam Chand
received injuries on his arm, chest and shoulder, fell down on the ground,
and became unconsciou~. Thereafter, the accused ran away towards the field
with his gun. In the meantime, PW-4 Tarsem Lal also arrived and PWs 1, H
272 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A 3, and 4 together shifted the deceased Uttam Chand to his nearby house where
he breathed his last after sometime. The matter was reported to the Pradhan
of the village, who advised to lodge a report with the police and the First
Information Report was, accordingly, lodged. The accused was arrested on
18.8.1995 by PW-15 and pursuant to a disclosure statement, the DBML gun
(Ex.P-11) was recovered from underneath the bushes near his house. Ex.P-
B
11 was sent for examination to the Forensic Science Laboratory and it was
found to be in working condition and having been fired. The accused pleaded
ignorance in his statement under Section 313 but he did not lead any defence
evidence. The spot inspection, was, however carried out at the request of the
accused in his examination under Section 313. It appears that the defence of
c the accused in his examination under Section 313 was that from the place
where the accused is alleged to have fired at the deceased and the place where
the deceased was standing and hit by the gun shot was not within the firing
range. This has led to the Trial Court for spot inspection. The inspection was
carried out by the Trial Court on 25 .2.1996 in the presence of the accused,
D his counsel and the Public Prosecutor. The Trial Court conducted a test gun
shot fire from the place where the accused was alleged to have fired at the
deceased and it was observed that the place where the deceased was standing
and hit by the gun shot was within the firing range.

The Trial Court after considering the evidence and eye witnesses
E accounts of PWs 1, 3, 4, and PW-2 - Dr. Sanjay Kumar Mahajan, who
conducted the post-mortem examination and the report of forensic laboratory
has recorded findings that the prosecution has established his case beyond
all reasonable doubts and convicted the respondent as aforesaid.

F The High Court upset the conviction recorded by the Trial Court, firstly
that the DBML gun (Ex.P-11) alleged to have been used in the commission
of offence was not used in a test fire at the time of local inspection cond~cted
by the Trial Court and instead a test fire was carried out with the help of
SBML(Single Barrel Muzzle Loaded) gun belonging to PW-1 Hans Raj. The
High Court held that this has r.iaterially affected the prosecution story.
G According to the High Court, the firing range differs from gun to gun and,
therefore, the firing test not having been conducted from the Exhibit P-11,
the finding of the learned Trial Court Judge that the deceased has been hit
by the gun shot was within the firing range from the verandah of the house
of the deceased could not have been relied upon. This finding, in our opinion,
H is not only fallacious but also perverse. While it is true that generally, the
STATE v MAST RAM [SEMA, J.] 273

firing range of the gun differs from gun to gun, the opinion of the High Court A
that firing range of DBML gun and SBML gun differs is based on no expert
opinion and the same is based on conjectures and surmises. In the instant
case both the guns are of the same categories except the one used in the
commission of crime is Double Barrel and the one used during the test fire
was the Single Barrel. Therefore, it cannot be said that the firing range from
B
DBML gun differed from SBML gun or vice-versa.

That apart, the local inspection envisaged under Section 310 Cr.P.C. is
for the purpose of properly appreciating the evidence already recorded during
the trial. Memorandum of spot inspection recorded by the trial Judge has
to be appreciated in conjunction with the evidence already recorded. Any c
omission and/or commission in the memorandum recorded by the trial Judge
by itself would not constitute material irregularity, which would vitiate the
prosecution case. In our view, it is difficult to accept the reasoning recorded
by the High Court in this regard.

Secondly, the ground on which the High Court has thrown out the D
prosecution story is the report of ballistic expert. The rep_ort of ballistic expert
(Ex. P-X) was signed by one junior scientific officer. According to the High
Court, a junior scientific officer (Ballistic) is not the officer enumerated under
sub-section (4) of Section 293 of the Code of Criminal Procedure and,
therefore, in the absence of his examination such report cannot be read in
E
evidence. This reason of the High Court, in our view, is also fallacious.
Firstly, the Forensic Science Laboratory Report (Ex.
P-X) has been submitted under the signatures of a junior scientific officer
(Ballistic) of the Central Forensic Science Laboratory, Chandigarh. There
is no dispute that the report was submitted under the hand of a Government
scientific expert. Section 293(1) of the Code of Criminal Procedure enjoins F
that any document purporting to be a report under the hand of a Government
scientific expert under the section, upon any matter or thing duly submitted
to him for examination or analysis and report in the course of any proceeding
under the Code, may be used as evidence in any inquiry, trial or other
proceeding under the Code. The High Court has completely over-looked the
provision of sub-section (I) of Section 293 and arrived at a fallacious
G
conclusion that a junior scientific officer is. not an officer enumerated under
sub-section 4 of Section 293. What sub-section 4 of Section 293 envisages
is that the court to accept the documents issued by any of six officers
enumerated therein as valid evidence without examining the author of the
documents. H
274 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A Thirdly, the High Court was of the view that during the course of post-
mortem examination conducted by PW-2 Dr.Sanjay Kumar Mahajan, two
pellets were recovered- one each from the right and left lung of the deceased,
which were handed over to the police. However, the pellets recovered were
never sent for examination to a ballistic expert in order to find out if such
B pellets were fired from the gun (Ex. P-11) or not. According to the High
Court, failure of the prosecution to send the pellets for examination by a
ballistic expert will draw an inference against the credibility of the prosecution
story. This finding, in our view, is utterly perverse. It is not the requirement
of law that pellets recovered from the body be sent to ballistic expert to
determine as to whether the pellets were fired from the exhibited gun or not.
c On the contrary, the recovery of pellets from the body clearly establishes the
prosecution case that the deceased died of gun shot injuries.

The fourth reason assigned by the High . Court in discarding the
prosecution story is with regard to the non-explanation of injury No.2 on the
D body of the deceased. The injury No.2 was described as under:-

"A circular area about 1.5 cm diameter in left axilla towards left
arm.".

PW-2 Dr. Sanjay Kumar Mahajan during the course of cross-examination
E · stated that the aforesaid injury could not have been caused had the injured
Uttam Chand not raised his arm while walking. The High Court was of the
view that PW- I and PW-3 who were accompanying the deceased Uttam
Chand at the relevant time had never stated that deceased Uttam Chand had
at any point of time raised his arm while walking or on being challenged by
the accused. It is the categorical statement of PW-I Hans Raj and PW-3 Vijay
F
Kumar that while they were accompanying the deceased, the accused had
challenged the deceased and thereafter fired at him. It is but quite natural
that the deceased when challenged would have reacted by raising his hands
either in defence or in accepting the challenge and in the process he would
have sustained injury No. 2, as described. The reaction of the deceased in
G raising his hands, in such circumstances, would be in tune and in consonance
with the natural human behaviour in ordinary circumstances. There is no set
of rule that one must react in a particular way. The natural reaction of man
is unpredictable. Every one reacts in his own way. Such natural human
behaviour is difficult to "be proved by credible evidence. It has to be
H appreciate.d in the context of given facts and circumstances of each case.
STATE v. MAST RAM [SEMA, J.] 275

Fifthly, the High Court was also of the view that PW-1 Hans Raj and A
PW-3 Vijay Kumar were accompanying the deceased and the prosecution
story shows that the pellets from the gun shot had scattered and hit even the
tree but the absence of injuries on the person of PW-1 and PW-3 render their
presence at the place of occurrence doubtful. This finding of the High Court,
in our opinion, is also fallacious and perverse. PW-1 and PW-3 had B
categorically stated that the deceased was walking ahead of them. The
accused undisputedly nurtured a grudge against the deceased for alleged
siding with the PW-5 Gian Chand, with whom the accused had civil dispute,
challenged the deceased, the gun was aimed at and fired at him. It is, in
these circumstances, the absence of pellet injuries on the persons of PW-1
and PW-3 will be no ground to render the presence of PW-1 and PW-3 at c
the place of occurrence doubtful.

The last and the most perverse and fallacious finding of the High Court
is with regard to discarding the evidence of eye-witnesses account of PW-
1 Hans Raj and PW-3 Vijay Kumar. The High Court recorded the finding D
as under:-

"PW-1 Hans Raj is the real brother of the deceased, while PW-3,
Vijay Kumar, apart from being a cousin brother of the deceased is
the son of PW-5, Gian Chand, with whom admittedly the accused
had litigation. It is the prosecution own case that the accused was E
nursing a grudge against the deceased and PW-1, since they were
helping and siding with PW-5, Gian Chand. Both PW-I and PW-
3 are, therefore, interested witnesses and in view of the evidence
coming on the record, cannot be safely relied upon."
F
As already noticed PW-1 Hans Raj and PW-3 Vijay Kumar are two
eyewitnesses who accompanied the deceased on the fateful day. Both the
eyewitnesses had stated categorically that they accompanied the deceased
while going to the fields to fetch fodder for the cattle. When they were
passing through the passage in front of the house of the accused, the accused
challenged the deceased and in the meantime fired at him, with the result G
deceased Uttam Chand fell down on the ground after having sustained gun
. shot inj~ries on his person. The two eyewitnesses were subjected to lengthy
cross·-examination but nothing could be elicited to doubt the creditworthiness
of their testimony. No doubt that PW-I and PW-3 are relatives but this will
be nlJ ground to disbelieve their testimony, if otherwise, inspired confidence. H
276 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A The Law on the point is well settled that the testimony of relative witness
cannot be disbelieved on the ground of relationship. The only requirement
is to examine their testimony with caution. In the given facts of the case,
it is but quite natural that the relatives would have accompanied the deceased
to collect the fodder for the cattle from the fi~lds at about I 0.30 a.m. on the
B fateful day. It is also in the prosecution evidence that the incident at 10.30
a.m. is preceded by an alterq1tion and quarrel between the accused Mast Ram
and PW-5 Gian Chand, on th!'! same morning at about 10.00 a.m. with regard
to the disputed abadi and the deceased l1ttam Chand is said to have intervened
in the matter and advised both PW-5 Gian Chand and the accused Mast Ram
not to quarrel and wait for the decision of the civil litigation. It is also in
c the evidence that thereupon the accused Mast Ra_m threatened the deceased
Uttam Chand that he would deal with him first of all as he was siding with
Gian Chand with whom the accused is having pending litigation with regard
to abadi. The categorical testimony of eyewitnesses' account has not been
considered and discussed at all by the High Court. Their testimony was
D thrown out at the threshold on.the ground of animosity and relationship. This
is not the requirement of the Law. That apart, PW-4 Tarsem Lal is an
independent eyewitness. PW-4 also hails from the same village. He is neither
related to the complainant party nor to the accused party. He has stated that
he saw the accused Mast Ra~, in his verandah with a gun in his hand and
also saw him running away from the spot after the gunfire. The High Court
E has not considered and discuss~d the testimony of PW-4 at all.

The testimony of PWs I, 3 and 4 was consistent with the report of
ballistic expert and the evidence of PW-2 Dr.Sanjay Kumar Mahajan who
conducted the post-mortem exami~ation on the body of the deceased and
F found the following injuries:-

I. A circular area about I cm diameter on Antero-lateral surface
• l

of left arm about 9 in~hes from Acromion.

2. A circular area about 1.5 cm diameter in left Axilla tow¥d left
G arm.

3. A circular area about 1 cm diameter on Anterior surface of left
' ·, I

shoulder.

4. An area circular• about
.1
1.2 cm diameter about 3 cm below
H injury No.3.
STATE v. MAST RAM [SEMA, J.] 277

5. A circular area of 1.3 cm diameter on medial wall of left axilla A
which is formed by chest wall. Tract has been formed on
Probing:-3 inches of probe went inside.

6. A circular area of about 1.4 cm diameter in left Infra clavicular
region 7 cm below mid clavicular point.
B
7. A circular area 1.2 cm diameter about 2.3 cm below injury
No.6.

8. An area 2 cm x 1 cm about 2 cm away from left nipple medio-
supiriorly.
c
9. An area of 3.2 cm x 2.3 cm on sternum about 5 cm below
sternal notch.

10. An area of 4.1 cm x 2.3 cm above left costal margin about 5
cm away from Xiphi-Sternum. D
11. A circular area of 1 cm diameter on right side of sternum.

12. An area of 7.2 cm x 2.1 cm on right side of chest in Midline
' about l 0 ems below mid clavicular point, widest in centre,
tapering on periphery. E
13. An area of6.5 cm x 3.1 cm about l3 cm from mediai ~nd of
right clavicle.

14. An area of 15 ems diameter just below right nipple.
F
On probing:- No.13 it came out of injury No.14 though
subcutaneous planer."

PW-2 Dr. Sanjay Kumar Mahajan, opined that all the injuries were ante-
mortem having been sustained by a firearm like gun and such injuries were
sufficient in the ordinary course of nature to cause death. G

In our view, the consistent ocular testimony of PWs I, 3 and 4
corroborated by the opinion of PW-2 Dr. Sanjay Kumar Mahajan and
ballistic expert report clearly established the prosecution case beyond all
reasonable doubts and the High Court fell into grave error of law and facts,
H
278 SUPREME COURT RE'PORTS [2004] SUPP. 4 S.C.R.

A resulting, in ,grave miscarriage of justice.

For the foregoing reasons, the order of the High Court is set aside and
the order of the Trial Court is restored. The appeal is allowed: The bail bond
of the respondent-accused Mast Ram is cancelled. He is directed to be taken
back into custody forthwith. Compliance report within one month from
B
today.

K.G. Appeal allowed.

~, .,