Holding

The conviction under s.376 IPC for rape cannot be sustained, but the murder conviction under s.302 IPC stands, and the death sentence is commuted to life imprisonment.

Summary

The appellant Ujjagar Singh was charged with murdering his niece Mukhtiar Kaur and raping her. Both were found with gunshot wounds; the appellant also sustained a serious injury. The trial and High Courts convicted him under sections 302, 376 and 309 IPC and imposed death penalty. On appeal, the Supreme Court examined the forensic evidence, the presence of semen, the lack of injuries indicating non‑consensual intercourse, and the direction of the bullet, concluding that the rape charge could not be proved beyond reasonable doubt, but the murder charge was established through circumstantial evidence, including the licensed gun and cartridge analysis. Consequently, the Court acquitted the appellant of the rape offence, upheld the murder conviction, and commuted the death sentence to life imprisonment. The appeal was dismissed.

Issues considered

Whether the evidence establishes the commission of rape under s.376 IPC, considering the presence of semen but absence of injuries indicating lack of consent.
Whether the circumstantial evidence, including forensic analysis of the firearm and cartridges, is sufficient to prove that the appellant shot the deceased and then attempted suicide.
Whether the death penalty is warranted in the absence of a rape conviction.
Whether procedural lapses such as delay in sending the weapon to the laboratory and lack of fingerprint evidence affect the conviction.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 302, s. 309, s. 376

Subjects

rapemurdercircumstantial evidencedeath penaltycommutationconsentforensic evidencefirearm injurysuicide attempt

Judgment

UJJAGAR SINGH A
v.
STATE OF PUNJAB

DECEMBER 13, 2007
B
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.]

Penal Code, I 860:
ss.376, 302-Rape and murder-Deceased, niece of appellant C
staying with him after strained relations with in-laws-Found dead
with gun shot injury-Appellant also with gun shot injury lying
unconscious in ac,fjoining room-Trial Court relying on circumstances
convicted appellant under s.302 and awarded death penalty and also
convicted him under s.376 and sentenced to JO years R.1.-High Court D
maintained convictions and sentences-Challenge against-Held:
There were no injuries on person ofdeceased to indicate attempt or
commission ofrape though vaginal swabs and clothes taken from dead
body indicated presence ofsemen-Hence even assuming that sexual
intercourse between the two had taken place it cannot be said that it E
was without consent or against wishes of deceased-Two spent
cartridge recovered were fired from gun belonging to appellant-
Appellant himselfsuffered only minor shot injury, which was firedfrom
below going upwards, which showed that weapon had been fired by
appellant from close range-Hence, story of unkt,awn assailants
causing murder ofdeceased ruled out and prosecution story that it was F
appellant who had first shot deceased and then attempted to commit
suicide, stands proved-Case of rape not made out-Accordingly
appellant acquitted of charge under s.376 but conviction for other
offences maintained-Death sentence commuted to life-Evidence-
Circumstantial evidence. G
Prosecution case was that the deceased was niece of the
appellant-accused. After strained relations with her in-laws, she came
to stay with appellant in his house. On 10.11.2002, she was found
653 ·H
654 SUPREME COURT REPORTS [2007] 13 (Addl.) S

'
A lying dead with a gun shot injury. The appellant also with a gun she.
injury was lying unconscious on the ground in the adjoining room.

Trial Court relying on the circumstances available convicted the
appellant under s.302 IPC and awarded death penalty. In addition,
B he was convicted under s.376 IPC and awarded 10 years rigorous
imprisonment and one year simple imprisonment under s.309 IPC.
High Court maintained the ccnYictions and sentences. Hence the
present appeal.

Dismissing the appeal, the Court
c HELD: 1.1. It was found from the medical evidence and from
the Chemical Examiner's reports that the vaginal swab and clothes
taken from the dead body did indicate the presence of semen.
However even presuming that sexual intercourse had indeed taken
place, there is absolutely no evidence that it had been performed
D without the consent of deceased or against her will. Some suspicions
of rape could perhaps have been raised had some tell tale injuries
been detected on the person of deceased but the two injuries other
than the gun shot wounds do not indicate any attempt to rape or the
commission ofrape. It is also significant that the investigators had
E made no attempt whatsoever to have the appellant medically
examined to ascertain his capacity to perform sexual intercourse.
[Para 8] [662-D-F]

1.2. It was correct to say that an examination could not have
F been carried out immediately but there is no justification in the
omission of the prosecution to have him examined after he had
recovered his health and been discharged from hospital. Even
assuming for a moment that sexual intercourse between the two had
indeed taken place it cannot be said from the evidence that it was
G without the consent or against the wishes of deceased. Therefore,
appellant's conviction under s.376 IPC cannot be sustained.
[Para 8] (662-G, H; 663-A]

2.1. The fact that the alleged murder weapon is the licensed
DBBL gun of appellant is proved on record. The evidence also
H reveals that the appellant was living in the premises along with his
UJJAGARSINGHv. STATE 655

wife, mother and son, and two daughters, who were studying outside A
the village, were frequent visitors, but it is the admitted position that
nobody but the appellant and the deceased were present atthe time
of incident. It is also .clear from the evidence that the two spent
cartridge cases recovered, one from near dead body, and the second
from the right barrel of the.gun lying near the appellant had been B
sent to the Forensic Science Laboratory which opined that one of
the cartridges had been fired from the gun and the other could have
been fired therefrom. [Para 13) [665-F-H]

Balu Sonba Shinde v. State ofMaharashtra, [2002) 7 SCC 543;
Raj Kumar Prasad Tamarkar v. State of Bihar and Anr., (2007) 1 C
SCALE 19; Mahmood v. State of UP., [1976] 1 SCC 542; Sharad
Birdhichand Sarda v. State of Maharashtra; [1984) 4 SCC 116;
Hanumant v. State ofMP., AIR (1952) SC 343, Tu/ail (Alias) Simmi
v. State of UP., [1969] 3 SCC 198 Ramgopal v. State ofMaharashtra,
[1972) 4 SCC 625 and Shivaji Sahabrao Bobade v. State of D
Maharashtra, (1973) 2 SCC 793, referred to.
2.2. No adverse inference can be drawn from the fact that no
reference to the gun or cartridges had been made in the inquest report
and that the weapon and the spent cartridges had been sent to the E
laboratory belatedly. The aforesaid articles had been carried to the
) Laboratory by a Constable who in his affidavit deposed that he had
first taken the articles to the laboratory on 9.12.2002 but they had
been returned by the Director on the ground that the seals affixed
thereon were not of the requisite number and that after removing F
the objections raised by the Director, the articles aforesaid had been
returned to the laboratory on 18.12.2002. The Constable was cross-
examined by the prosecution and but for some inconsequential
questions put to him with regard to the seals, not even a suggestion
was made that the aforesaid articles had in any way been tampered
with. It is true, that in Column 22 of the inquest report which refers G
to the articles found near the dead body, there is no reference to
the spent cartridges or the murder weapon but it is found from a
perusal of the site plan prepared by the investigating officer PW14
on 10.12.2002 that the weapon is shown lying close to the place where
H
656 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A the appellant had been found unconscious and a spent cartridge
recovered from near the dead body. [Para 14) [666-B-E)
Mahmood v. State of UP., [1976) 1 SCC 542; Shankarlal
Gyarasilal Dixit v. State of Maharashtra, [1981] 2 SCC 35; Sharad
Birdhichand Sarda v. State of Maharashtra, [1984) 4 SCC 116;
..
B Omwati (Smt) and Ors. v. Mahendra Singh and Ors., [1998) 9 SCC
81; Sudama Pandey and Ors. v. State ofBihar, [2002) 1SCC679 and
j,
R.R.Khanna Reddy and Anr. v. State of A.P., [2006) 10 SCC 172,
refern:d to.
3. In a case relating to circumstantial evidence motive does
c assume great importance but to say that the absence of motive would
dislodge the entire prosecution story is perhaps giving this one factor
an importance which is not due and (to use the cliche) the motive is
in the mind of the accused and can seldom be fathomed with any
degree of accuracy. There is however a hint in the testimony of PW14
D Inspector that his enquiries had revealed that the accused was having
illicit relations with the deceased and it can thus be assumed that
some thing untoward had happened which could have triggered the
volatile and hostile incident. There could perhaps be some truth in
this suggestion, as it is significant that though the appellant had an
E extended family living with him i.e. mother, wife, son living (in the
village) and two young daughters who were studying outside and
residing in a hostel, but were frequent visitors home, yet none of them
has come forth to depose in his favour. Therefore, this is yet another "'
circumstance inculpating the accused. j'

F [Para 15] (666-G-H; 667-A-B]
4.1. The statement of PW16 who was apparently the first doctor
to have examined the appellant, wherein he testified that the
blackened portion around the firearm injury had been removed by
him falsifies the argument that the shot was fired from some distance.
G The shot had apparently travelled upwards skirting the mandible,
through the flesh of the cheek in an upward direction with minimal ,._
damage to the bone structure and it is indeed providential that the
appellant got away with only an injury, albeit a very serious one. The
fact that the shot was fired from below going upwards is also
H supported by the site plan wherein marks of a shot hitting the roof
•.

UJJAGARSINGHv. STATE ~· : 657

at point 'E' were seen in the room where the appellant was found A
lying. It is therefore apparent that the weapon had indeed been fired
by the appellant from a close range and that the blackened portion
around the wound had been removed by PW-16.
. [Para 17] (667-G-H; 668-A-B]
4.2. It is true that it is generally for the prosecution to prove its B
case beyond doubt but in circumstances such as the present one,
some explanation is also due from an accused in order to absolve
himself from suspicion of the crime. In his statement under s.313
Cr.P.C. his positive stand was that he alone had been in the house
with the deceased when she had been killed and indeed her body C
was found only 5 feet away from the place where the appellant lay
injured. It must be emphasized that but for this self sening statement
made by the appellant, there is nothing on record to support his
positive stance. Even otherwise, had the shot been fired by some
intruder, the direction would have been more or less horizontal and D
parallel to the ground and not from down upwards with the pellets
hitting the jaw, skirting the cheek and hitting the roof.
[Para 19] (669-C-E]
Modi 's Medical Jurisprudence and Toxicology (23rd Edition), E
referred to.
4.3. The story of unknown assailants entering the house and
causing murder of deceased has to be ruled out. The prosecution
story that it was the appellant who had first shot the deceased and
then attempted to commit suicide, stands proved. No part of the F
evidence of the hostile witnesses comes to the aid of the appellant.
It would be seen that both the Sessions Court and the High Court
were appalled by the allegations and findings ofincestuous rape and
murder, but as a case of rape has not been made out, the death
sentence is not called for. Accordingly the appellant is acquitted of G
the charge under s.376 of the IPC but conviction for the other
offences is maintained though the death sentence is commuted to
life. [Paras 21and22] [670-F-H; 671-A]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
l 044 of 2006. H
658 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A From the fina!Judgment and Order dated 19.12.2005 of the High
Court of Punjab and Haryana at Chandigarh in Cr!. Appeal No. 692- •
DB of2005.
D.N. Goburdhan, Pinky Anand and Geeta Luthra for the Appellant.
B Kuldip Singh, R.K. Pandey, Sanjay Katya! and Sanjay Jain for the
Respondent.
The Judgment of the Court was delivered by
HAR.ITT SINGH HEDI, J. l. Ujjagar Singh, the appellant herein,
C a resident of village Bangawali, Tehsil Malerkotla, was tried and convicted
by the Additional Sessions Judge, Sangrur for the murder of his niece
Mukhtiar Kaur and was awarded the death penalty. In addition, he was
convicted for an offence punishable under section 376 of the IPC and
sentenced to undergo rigorous imprisonment for l 0 years and to a fine
D ofRs.5,000/- and in default of payment to undergo further R.I. for one
year and under section 309 of the IPC to a sentence of simple
imprisonment for one year. The aforesaid convictions and sentences have
been maintained by the High Court and the matter is before us in these
proceedings by way of special leave. The facts of the case are as under:-
E 2. At about 2.00 p.m. on l 0th November 2002 a boy whose identity
is not fonhcoming, informed Satnam Singh PW2 tlmt an incident of firing
had taken place in the house ofUjjagar Singh situated in the fields on the
outskirts of the village. Satnam Singh conveyed this information to
Sarpanch Jora Singh PWl who was attending a marriage at that time.
F Jora Singh accompanied by Gurdeep Singh PW3 thereupon rushed to
Ujjagar Singh's house and found Mukhtiar Kaur lying dead with a gun
shot injury and the appellant also with a gun shot injury lying unconscious
on the ground in the adjoining room. Jora Singh and Gurdeep Singh
immediately removed Ujjagar Singh to the Civil Hospital, Dhuri in the jeep
G belonging to Kulwant Singh PW4. Jora Singh also met Inspector
Harjinder Pal Singh PW! 4 at 4.40 p.m. near the hospital, who recorded
his statement at that place and with his endorsement Ex.P.A. sent it to
Police Station, Dhuri where tl1e formal FIR was registered at about 4.45
p.m. with the special report being delivered to the Illaka Magistrate at
H Dhuri itself at 6.20 p.m. the same evening. The facts as narrated were
UJJAGARSINGHv. STATE[HARJITSINGHBEDI,J.] 659

that Arjan Singh of village Bangawali had three sons Puran Singh, Ujjagar A
Singh (appellant) and Ajmer Singh. Puran Singh had died about 20 years
earlier leaving behind his wife, two sons and a daughter Mukhtiar Kaur.
The two sons and the wife also died long before the incident and Mukhtiar
Kaur the sole surviving member of this branch of the family had been
married to Balwinder Singh PW9 about 9 or 10 years earlier. Puran Singh B
had however transferred 30 or 35 bighas of agricultural land falling to his
share after the death of his father in the nan1e of the appellant's sons by
a collusive decree in the year 1994 and the suggestion was that this
transaction had been objected to by Mukhtiar Kaur who was demanding
that the land be returned to her. It appears that Mukhtiar Kaur's relations c
with her in-laws had got strained and she had left her matrimonial home
and come to live with Ujjagar Singh, her uncle, 7 or 8 months earlier and
the suggestion was that Mukhtiar Kaur had been killed by the appellant
with his licensed gun and he had thereafter attempted to commit suicide.
3. Having recorded the aforesaid facts in the FIR, PW! 4 Inspector D
Harjinder Pal Singh reached the place of incident and lifted one spent 12
bore cartridge case (Shaktiman make) from near Mukhtiar Kaur's dead
body and one DBBL gun from the place where Ujjagar Singh appeared
to have been shot and another spent cartridge case was recovered from
the right barrel of the gun. After completion of the investigation at the spot, E
Mukhtiar Kaur's dead body was sent for its post-mortem examination.
The post-mortem examination was also conducted by PW5 Dr. Ishwar
. Singh, Medical Officer, Civil Hospital along with Dr. Harwinder Kaur
PWl 7 and it was found that Mukhtiar Kaur had two gunshot injuries on
her dead body, a wound of entry on the back of right side of chest 2 cm F
x 1 cm with margining (sic) and blackening and a corresponding exit
wound of 5 cm x 3.5 cm to the front of the right side of the chest. Dr.
Harwinder Kaur aforesaid also took swabs from the vagina of the
deceased and as per the chemical examiner's report dated 2.1.2003
semen was found on the swab taken from the vagina and from the G
underwear that Mukhtiar Kaur had been wearing at the time of her death.
The weapon and the recovered cartridge cases had also been sent to the
Forensic Science Laboratory which in its report dated 4.8.2004 opined
that the crime cartridge case CI 'could' have been fired by the right ban·el
of the weapon whereas the crime cartridge case C2 'had been' fired from H
660 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A the right barrel.
4. On the completion of the investigation, a charge-sheet under
sections 302, 376 and 309 of the IPC was filed against the accused and
as he pleaded not guilty he was brought to trial. During the trial Jora Singh
PW!, Satnam Singh PW2, Gurdeep Singh PW3 and Kulwant Singh PW4
B
resiled from their statements given to the police and were declared hostile.
Balwinder Singh PW9, however, supported the prosecution case deposing
that the land had in fact been got transferred from Gurmail Kaur, mother
ofMukhtiar Kaur to Ujjagar Singh by fraud and Mukhtiar Kaur was
therefore entitled to its return. He also deposed that Mukhtiar Kaur had
c told him some time earlier that the accused had been beating her and had
also committed sexual intercourse with her and that at about 11 p.m. on
10.11.2002 Karam Singh PWlO had informed him as to what had
transpired on which he along with his father Hamir Singh PWI 2 and
several others had rushed to Bangawali. PWl 0 Karam Singh aforesaid
D confirmed the story given by Balwinder Singh. The prosecution also relied
on the statements of Dr. Vijay Kumar PW6 oftl1e Civil Hospital, Dhuri
who testified that the appellant had been brought to the hospital at about
2.45 p.m. on 10.11.2002 with a serious gun shot injury, Dr. Ripan Miglani
PW15 of the Dayanand Medical College & Hospital, Ludhiana who
E deposed that he had been admitted to the department ofNeuro surgery
with a serious gun shot injury and Dr. Sanjay Uppal PWl 6, a plastic
surgeon who disclosed that the appellant had been under his treatment
for almost 5 weeks and tile burnt area around the fireaim injury had been
removed by him. The prosecution also placed reliance on the statement 'f
F of ASI Jasbir Singh PWl 1 who had accompanied Inspector Harjinder
Pal Singh PWl 4 to the place of incident and supported the recoveries
made from the spot.
5. The prosecution case was then put to the accused and his
statement recorded under section 313 of the Cr.P.C. In reply to question
G
33 he stated as under:
,.
"I am innocent. I have been implicated falsely in this case. I
was treating Mukl1tiar Kaur as my daughter and loved her as my
daughter. False allegations have been levelled against me. I never
H harassed Mukhtiar Kaur nor ever got her land mutated from her
UJJAGARSINGHv. STATE[HARJITSINGHBEDI,J.] 661

_mother by fraud. I have not killed Mukhtiar Kaur. Mother of A
Mukhtiar Kaur got the land mutated by her own free will and
Mukhtiar Kaur had no dispute about it. Balwinder Singh her
husband was addicted to vices and used to beat her due to which
she used to remain under depression and sick generally, and used
to come to me as my daughter. My house (kothi) is situated on B
the outer skirts of village Bangawali and door (planks) had not been
fixed so far to rooms. Some body suddenly came and fired at me.
I fell down on the ground and became unconscious. Therefore, I
could not see what had happened to Mukhtiar Kaur as she was
in other room. Later on I came to know that some body had fired c
at her and she died. I regained consciousness in hospital. The story
of rape by me with her has been fabricated by her husband as he
" is inimical towards me. Even I do not know who took me to
hospital. I have been implicated in this case falsely."
The trial court and the High Court relying on the circumstances D
available on the evidence convicted and sentenced the appellant, as
already mentioned above.
6. Mr. Goburdhan, the learned counsel for the accused has raised
several arguments in the course of hearing. He has pointed out that there E
was absolutely no evidence to suggest that Mukhtiar Kaur had been
subjected to rape and in this view of the matter the very basis for the
imposition of the death penalty was not made out. He has also pointed
out that there were no eye witnesses to the incident and the 4 witnesses
i.e. Jora Singh and others who had reached the place of incident and F
carried the injured appellant to the hospital had also resiled and as the
prosecution story now rested on circumstantial evidence alone, it was
imperative for the investigating officer to have taken the finger prints from
the weapon and that in any case the recovery of the spent cartridges and
the gun were clearly suspicious as the weapon had been sent to the G
laboratory after an inordinate delay. It has also been submitted that in a
case of attempted suicide a firearm must of necessity be used from a very
close range and the absence of any blackening, charring or burning around
the wound on Ujjagar Singh clearly ruled out the possibility of such an
attempt. It has finally been submitted that the land had been transferred H
662 SUPREME COURT REPORTS [2007) 13 (Addi.) S.C.R.

A in the name ofUjjagar Singh's sons in the year 1994 by Gurmail Kaur,
mother ofMukhtiar Kaur by a collusive decree and there was no evidence
to show that Mukhtiar Kaur had ever displayed any unhappiness or made
any complaint to any person or any authority with regard to the decree
and as such, the very basis of the prosecution story did not exist.
B
7. The learned State counsel has, however, supported the judgment
of the courts below. He has further emphasized that the prosecution's case
stood proved from various factors including the medical evidence, the
reports of the Forensic Science Laboratory, the Chemical Examiner, from
the post-mortem reports and the recovery of the gun and cartridges.
c
8. We have heard the learned counsel for the parties and gone
through the record. We first take up for consideration the question of the
conviction under section 376 of the IPC. We find from the medical
evidence and from the chemical examiner's reports that the vaginal swab
D and clothes taken from the dead body did indicate the presence of semen.
There is however absolutely no evidence to suggest (even assuming that '
the intercourse had been committed by the appellant) that he had done
so without Mukhtiar Kaur' s consent or against her will. Some suspicions
of rape CJuld perhaps have been raised had some tell tale injuries been
E detected on Mukhtiar Kaur's person but we find that the two injuries other
than the gun shot wounds i.e. injury No.3 being on the left pinna and No.
4 an abrasion near the right eye do not indicate any attempt to rape or
the commission of rape. It is also significant that the investigators had made
no attempt whatsoever to have the appellant medically examined to
F ascertain his capacity to perform sexual intercourse. The learned State
counsel relying on the statement of PWl 4 Inspector Harjinder Pal Singh
has however submitted that the examination had not been possible as the
appellant had received a very serious gun shot injury and was hanging
between life and death. We agree with the submission of the learned
counsel that an examination could not have been carried out immediately
G but we see no justification in the omission of the prosecution to have him
examined· after he had recovered his health and been discharged from
l~ospital. We are further of the opinion that even assuming for a moment
that sexual intercourse between the two had indeed taken place it cannot
be said from the evidence before us that it was without the consent or
H
UJJAGARSINGH v. STATE [HARJITSINGHBEDI,J.] 663

against the wishes ofMukhtiar Kaur. We, therefore, find that Ujjagar A
Singh's conviction under section 376 of the IPC cannot be sustained.
9. Mr. Goburdhan has placed great emphasis on the fact that as the
four witnesses who had reached the place of incident i.e. Jora Singh,
Satnam Singh, Gurdeep Singh and Kulwant Singh had resiled from their
B
statements and had disowned their initial stories, the prosecution had of
necessity to rely on circumstantial evidence and if the chain of
4 circumstances remained incomplete or even if one link in the chain was
broken, the prosecution must fail. He has also relied on the judgment of
Balu Sonba Shinde v. State of Maharashtra, [2002] 7 SCC 543 to
contend that it was open to the accused to take advantage (insofar as c
possible) from the statement of a witness though declared hostile and the
four witnesses having disowned the prosecution story and having given a
different version, the appellant was entitled to derive such benefit as
possible in this situation.
D
10. The learned State counsel has, however, emphasized that both
the trial court and the High Court had for good reasons opined that the
circumstances made out a case for conviction and the accused having given
a counter version some obligation lay on him as well to explain the
circumstances against him inasmuch that admittedly he and the victim were E
alone in the house at the time of the incident. Reliance for this argument
has been placed on the decision of Raj Kumar Prasad Tamarkar v. State
of Bihar & Anr., (2007) 1 SCALE 19.
11. We have considered their arguments very carefully. In Mahmood
v. State of UP., [1976] I SCC 542 it has been observed that in a case F
dependent wholly on circumstantial evidence the court must be satisfied-
(a) that the circumstances from which the inference of guilt is to
be drawn, have been fully established by unimpeachable
evidence beyond a shadow of doubt;
G
(b) that the circumstances are of a determinative tendency
., unerringly pointing towards the guilt of the accused; and
-·
(c) that the circumstances, taken collectively, are incapable of
explanation on any reasonable hypothesis save that of the guilt
H
664 SUPREME COURT REPORTS [2007] 13 (Addl.) S.C.R.

A sought to be proved against him.
In this case this Court held that the omission of the prosecution, inter-
alia, to have the finger prints found on the alleged murder weapon was
fatal to 1he prosecution story. In [1984] 4 'lCC 116 Sharad Birdhichand
Sarda v. State of Maharashtra, this Court discussed the ratio of the
B judgments in Hanumant v. State of MP. AIR (1952) SC 343, Tu/ail
(Alias) Simmi v. State of UP. [1969] 3 SCC 198 and Ramgopal v.
State of Maharashtra, [1972] 4 SCC 625 and Shivaji Sahabrao
Bobade v. State ofMaharashtra, [1973] 2 SCC 793 and observed thus:
c "A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can
be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be.
drawn should be fully established.
D
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may be'
established. There is not only a grammatical but a legal distinction
between 'may be proved' and "must be or should be proved" as
E was held by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra where the following observations were made : [SCC
para 19,p.807: sec (cri) p.1047]

Certainly, it is a primary principle that the accused must be and
not merely may be guilty before a court can convict and the mental
F
distance betwe<:n 'may be' is long and divides vague conjectures
from sure conclusions.

(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
G not be explainable on any other hypothesis except that the
accused is guilty,
•
(3) the circumstances should be of a conclusive nature and
tendency,
H
UJJAGARSINGHv. STATE[HARJITSINGHBEDI,J.] 665

(4) they should exclude eve1y possible hypothesis except the one A
to be proved, and
(5) there must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused." B

12. Mr. Goburdhan has also cited Mahmood v. State of UP.,
[1976] 1 SCC 542, Shankarlal Gyarasilal Dixit v. State of
Maharashtra, [1981] 2 SCC 35, Sharad Birdhichand Sarda v. State
of Maharashtra, [1984] 4 SCC 116, Omwati (Smt) and Ors. v. c
Mahendra Singh & Ors., [1998] 9 SCC 81, Sudama Pandey & Ors.
v. State of Bihar, [2002] l SCC 679 and R.R. Khanna Reddy & Anr. v.
State ofA.P., [2006] 10 SCC 172 in support of his plea relating to the
evaluation of circumstantial evidence. These judgments have broadly
followed the principles laid down in the judgments referred to above and D
need not therefore be dealt with us in extenso. It must nonetheless be
emphasized that whether a chain is complete or not would depend on
the facts of each case emanating from the evidence and no universal
yardstick should ever be attempted. It is in this background that we must
examine the circumstances in the present case.
E
13. A few facts stand out from the prosecution story. First, the place
of incident being adjoining rooms in the residential house of the appellant
and the fact that the alleged murder weapon is his licensed DBBL gun is
proved on record. The evidence also reveals that the appellant was living
in the premises along with his wife, mother and son, and two daughters, F
who were studying outside the village, were frequent visitors, but it is the
admitted position that nobody but the appellant and the deceased were
present at the time of incident. It is also clear from the evidence that the
two spent cartridge cases recovered, one from near Mukhtiar Kaur's dead
body, and the second from the right barrel of the gun lying near the G
appellant had been sent to the Forensic Science Laboratory which opined
that one of the cartridges had been fired from the gun and the other could
have been fired therefrom.
14. Mr. Goburdhan has, however, laid great emphasis on the fact
H

.~- '
666 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A that no reference to the gun or cartridges had been made in the inquest
report and that in any case the weapon and the spent cartridges had been
sent to the laboratory belatedly. We are of the opinion, however, that no
adverse inference can be drawn from either of these circumstances. The
aforesaid articles had been carried to the Laboratoty by Constable Gopal
B Singh who in his affidavit dated 17th March 2003 deposed that he had
first taken the articles to the laboratory on 9th December 2002 but they
had been returned by the Director on the ground that the seals affixed
thereon were not of the requisite number and that after removing the
objections raised by the Director, the articles aforesaid had been returned
c to the laboratory on 18th December 2002. Gopal Singh was cross-
examined by the prosecution and but for some inconsequential questions
put to him v.ith regard to the seals, not even a suggestion was made that
the aforesaid articles had in any way been tampered with. It is true, as
contended, that in Column 22 of the inquest report which refers to the
D articles found near the dead body, there is no reference to the spent
cartridges or the murder weapon but we find from a perusal of the site
plan Exh.PJJ prepared by the investigating officer Inspector Harjinder Pal
Singh PW14 on 10th November 2002 that the weapon is shown lying
close to the place where the appellant had been found unconscious and
E a spent cartridge recovered from near the dead body ofMukhtiar Kaur.

15. It has also been submitted by Mr. Goburdhan that there
appeared to be no motive for the incident as the story about Mukhtiar
Kaur's unhappiness about the transfer of land to the sons ofUjjagar Singh
sought to be proved by PW9 Balwinder Singh and PWl 0 Karam Singh
F had been disbelieved by the High Court with the observation that the
statements of these two witnesses could not be relied upon. It is true that
in a case relating to circumstantial evidence motive does assume great
importance but to say that the absence of motive would dislodge the entire
prosecution story is perhaps giving this one factor an importance which
G is not due and (to use the cliche) the motive is in the mind of the accused
and can seldom be fathomed with any degree of accuracy. There is
however a hint in the testimony of PWl 4 Inspector Harjinder Pal Singh
that his enquiries had revealed that the accused was having illicit relations
with Mukhtiar Kaur and we can assume that some thing untoward had
H
UJJAGARSINGHv. STATE[HARJITSINGHBEDl,J.] 667

happened which could have triggered the volatile and hostile incident. A
There could perhaps be some truth in this suggestion, as it is significant
that though the appellant had an extended family living with him i.e. mother,
wife, son living (in the village) and two young daughters who were studying
outside and residing in a hostel, but were frequent visitors home, yet none
of them has come forth to depose in his favour. To our mind, therefore, B
this is yet another circumstance inculpating the accused.
16. Mr. Goburdhan has also laid much stress on the apparent
discordance between the prosecution story and the medical evidence and
has argued that had the accused attempted to commit suicide, the gun
shot must, of necessity, had to be fired from a very close range on which C
the wound would have marks ofbuming or charring and that in any event
a full blooded shot from a very close range would have tom his face apart.
He has in this connection referred us to the statement of Dr. Ripan Miglani
PW15 and the wound found on the appellant at the time of his medical
examination in the Department of Surgery of the Dayanand Medical D
College & Hospital, Ludhiana which was
"About 15 x 8 cm curvilinear wound present on the left half of
face extending upto bone. No blackening or foreign body was
visible. Underlying muscles were exposed and contamination was E
present."
17. He has thus urged that the absence of any blackening underlined
the argument that the shot had been fired from some distance and as such
an attempt at suicide was clearly to be ruled out. He has also drawn our
attention to the cross-examination of the Doctor wherein he reiterated that F
there was no visible blackening and that it was not possible for him to
say whether the injury was suicidal or otherwise. The learned State counsel
has, however, relied on the statement of PW16 Dr. Sanjay Uppal, who
was apparently the first doctor to have examined the appellant, wherein
he clearly testified that the blackened portion around the firearm injury G
had been removed by him. We are therefore of the opinion that this
• statement falsifies Mr. Goburdhan's argument on this aspect. It is also
significant that the shot had apparently travelled upwards skirting the
mandible, through the flesh of the cheek in an upward direction with
minimal damage to the bone structure and it is indeed providential that H
••
668 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A the appellant got away with only an injury, albeit a very serious one. The
fact that the shot was fired from below going upwards is also supported
. ..
\
by the site plan Exh.P JJ wherein marks of a shot hitting the roof were
seen at point E whereas the appellant was found lying at point D in the
same room. It is therefore apparent that the weapon had indeed been
B fired by the appellant from a close range and that the blackened portion
around the wound had been removed by Dr. Sanjay Uppal.
18. The learned State counsel has emphasized that in the light of
the admitted position that the accused and the deceased were the only
ones present at the time of incident and that the accused had projected a
c counter story, some credible explanation was also expected from him.
Reference has been made to Raj Kumar Prasad Tamarkar 's case (supra)
wherein in circumstances suiprisingly akin to the present matter, this Cotut
..
had the following observations to make:

D "The conspectus of the events which had been noticed by the
learned Sessions Judge as also by the High Court categorically go
to show that at the time when the occurrence took place, the
deceased and the respondent only were in the bedroom and the
terrace connecting the same. There was no other person. The cause
of death of the deceased Usha Devi i.e. by a gun shot injury is not
E
disputed. The fact that the terrace and the bedroom are adjoining
each other is not in dispute.
The autopsy report shows that 'a blackening and charring'
existed so far as Injury No.(i) is concerned. The blackening and
F charring keeping in view the nature of the firearm, which is said to
have been used clearly go to show that a shot was fired from a
short distance. Blackening or charring is possible when a shot is
fired from a distance of about 2 feet to 3 feet. It, therefore, cannot
be a case where the death might have been caused by somebody
G by firing a shot at the deceased from a distance of more than 6
feet. The place of injury is also important. The lacerated wound
was found over grabella (middle of forehead). It goes a long way •
to show that the same must have been done by a person who
wanted to kill the deceased from a short distance. There was, thus
H a remote possibility of causation of such type of injury by any other
UJJAGARSINGH v. STATE [HARJITSINGHBEDI,J.] 669

person, who was not in the terrace. Once the prosecution has been A
able to show that at the relevant time, the room and terrace were
in exclusive occupation of the couple, the burden of prooflay upon
the respondent to show under what circumstances death was
caused to his wife. The onus was on him. He failed to discharge
the same." B

19. We have considered the submission of the State counsel very
carefully. It is true that it is generally for the prosecution to prove its case
beyond doubt but in circumstances such as the present one, some
explanation is also due from an accused in order to absolve himself from
suspicion of the crime. In his statement under section 313 of the Cr.P.C. C
his positive stand was that he alone had been in the house with Mukhtiar
Kaur when she had been killed and indeed as per Exhibit P.JJ Mukhtiar
Kaur's body had been found only one Karam (5 feet) away from the
place where the appellant lay injured. It must be emphasized that but for
this self serving statement made by the appellant, there is nothing on D
record to support his positive stance. Even otherwise, we are of the
opinion that had the shot been fired by some intruder, the direction would
have been more or less horizontal and parallel to the ground and not from
down upwards with the pellets hitting the jaw, skirting the cheek and hitting
the roof at point E. In Modi's Medical Jurisprudence and Toxicology (23rd E
Edition) at page 765 while dealing with identification ofhomicidal and
suicidal injuries it has been observed that :
. ' "A suicidal firearm wound is usually a contact wound situated
on the side of the temple, depending on which hand was used to F
shoot himself, in the centre of the forehead, the roof of the mouth,
in the chest or epigastrium in front or the left side and some times
under the chin. The firearm is usual!:,· fired at close range. A small
weapon like a revolver or a pistol is held in the hand, while a rifle
or a shot gun is supported on the ground or against the wall. G
Sometimes, the firing is done by pulling a string tied to the trigger
by the big toe. The skin around the entry wound shows
characteristic blackening, scorching and tattooing. In such cases
the hand used to steady the weapon at the muzzle may be
blackened and scorched and may also be stained with squirting of
H
670 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A the blood from the injured arteries.
In homicidal and accidental shooting, the wound may be on
any part of the body and the path of the bullet may be in any
direction. Homicidal shooting by dacoits is not uncommon in India,
and they are known to make their own firearms. Immediate death
B
following a firearm wound is uncommon and even when vital organs
are injured, a person may be capable of doing extraordinary things.
Sometimes, firearm wounds may look like knife slashes or a bullet l-

hole may resemble a penetrating stab wound, ifthe bullet strikes
1he head of shoulder at an angle or when an unstable bullet registers
c a broadside hit. A Fateh describes a rare homicidal gun shot
wound of the mouth, where the entry wound was in the tongue
and the direction was horizontally backward, while in suicidal
wounds the direction is upwards-entrance would be in the
palate or posterior pharynx. "
D
20. Dr. B.R.Sharma in his Book 'Forensic Science in Criminal
Investigation and Trials' (Fourth Edition), at Page 1160 too has delineated
the circumstances that could indicate suicide and while referring to the
site of the injury has observed:
E "Certain sites are predominantly used by suicides for self-inflicted
injuries. For example, with firearm, temple,forehead,mouth and
chest are the favourite sites. With knife throat and wrist are the
favourite sites. Hesitation injuries are also observed in some suicide
cases." )
F
21. It is, therefore, clear to us that the story of unknown assailants
entering the house and causing Mukhtiar Kaur's murder etcetera has to
be ruled out and that the prosecution story that it was the appellant who
had fir!.t shot Mukhtiar Kaur and then attempted to commit suicide, stands
G proved. We also find that no part of the evidence of the hostife witnesses
comes to the aid of the appellant.
22. The question now arises as to the sentence that should be •
imposed on the appellant. It would be seen that both the Sessions Court
and the High Court were appalled by the allegations and findings of
H incestuous rape and murder. We are however of the opinion, as already
UJJAGARSINGHv. STATE[HARnTSINGHBEDI,J.] 671

noted above, that a case of rape has not been made out. In this A
background the death sentence is not called for. We accordingly acquit
the appellant of the charge under section 376 of the IPC but maintain his
conviction for the other offences but commute his death sentence to life.
23. With this modification, the appeal is dismissed.
B
D.G. Appeal dismissed.