2007 Supreme(SC) 1630

2007(8) Supreme 502
Supreme Court of india
P.P. Naolekar & D.K. Jain, JJ.
Vineet Kumar Chauhan — Appellant
versus
State of U.P. — Respondents
Appeal (crl.) 35 of 2006
Decided on : 14-12-07

Important Point
It cannot be laid down as 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 charge only if Ballistic Expert is examined.

Headnote:Indian Penal Code,1860-Section 302 - Prosecution of appellant for causing death of deceased by firing shot from licensed revolver of his father - Acquittal by Trial Court-Appeal - Allowed by High Court convicting Appellant-Appeal-Plea of appellant that since it was a positive case of prosecution that bullet which had hit deceased was fired from seized revolver, omission to send bullet for ballistic examination was a serious infirmity in prosecution case- It cannot be laid down as 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 charge only if Ballistic Expert is examined-In what cases, examination of a Ballistic Expert is essential for proof of prosecution case, must depend upon facts and circumstances of each case-Instantly having regard to ocular evidence adduced by prosecution, no reason to discard prosecution theory that injury as a result whereof deceased suffered complete paralysis of both lower limbs etc. was caused by a bullet fired from a revolver- Nature of injury as proved by P.W.5, Doctor under whose treatment deceased remained at Moradabad and(P.W.7), Doctor who had conducted post-mortem examination was wholly consistent with prosecution version - Bullet recovered at time of post-mortem of victim had traversed to thoracic spine through neck from face near angle of jaw, hitting fifth thoracic vertebra, badly damaging underlying spinal cord - High Court observed that testimonies of P.W.1 and P.W.2, two star witnesses of prosecution was of sterling character with no holes whatsoever - Relying upon evidence of said two witnesses High Court held that it was appellant who had opened fire from revolver from his door, one of which had hit victim, who had come to close main door of her house- Nothing to warrant interference with said finding recorded by High Court- Even though as per post-mortem report deceased died of septicemia and toxemia because of bedsores, basic cause of her death was bullet injury caused to her by appellant-Hence, in context of unimpeachable evidence, it stood proved that appellant had gone to house of deceased; some unsavoury incident took place there; he returned to his house in a huff; took out revolver of his father and fired shots towards house of deceased; one of bullets hit deceased and same proved to be fatal - Absence of Ballistic Experts evidence held not fatal to prosecution case.(Paras 11 to 13)

       Offence of Murder- Non examination of Ballistic Expert-It cannot be laid down as a general proposition that in every case where a firearm is allegedly used by an accused person, the prosecution must lead the evidence of a Ballistic Expert to prove the charge, irrespective of the quality of the direct evidence available on record- Where direct evidence is of such an unimpeachable character, and nature of injuries, disclosed by post-mortem notes is consistent with direct evidence, examination of Ballistic Expert may not be regarded as essential- However, where direct evidence is not available or that there is some doubt as to whether injuries could or could not have been caused by a particular weapon, examination of an expert would be desirable to cure an apparent inconsistency or for the purpose of corroboration of oral evidence. (Para10)

       Indian Penal Code,1860-Sections299,300-Distinction between murder and culpable homicide not amounting to murder-Whenever a Court is confronted with question whether offence is murder or culpable homicide not amounting to murder,on the facts of a case, it will be convenient for it to approach problem in three stages-The question to be considered at first stage would be, whether accused has done an act by doing which he has caused death of another- Proof of such causal connection between act of accused and death, leads to second stage for considering whether that act of accused amounts to culpable homicide as defined in Section 299- If the answer to this question is prima facie found in affirmative, stage for considering operation of Section 300, Penal Code, is reached-This is stage at which court should determine whether facts proved by prosecution bring case within ambit of any of four clauses of definition of murder contained in Section 300- If the answer to this question is in negative offence would be culpable homicide not amounting to murder, punishable under the first or the second part of Section 304, depending, respectively, on whether second or the third clause of Section 299 is applicable- If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under first part of Section 304, Penal Code. (Para15)

       Indian Penal Code,1860-Section 302-Prosecution of appellant for causing death of deceased by firing shot from licensed revolver of his father-It stood proved that there being a direct causal connection between hitting of bullet, fired by appellant, to deceased and her death, death of deceased was caused by appellant- However, having regard to circumstances, particularly manner in which appellant fired shots, appellant could not be attributed mens rea requisite for bringing case under clause (3) of Section 300 IPC - Concededly, there was no enmity between parties and there was no allegation of prosecution that before occurrence, appellant had pre-meditated crime of murder- Having faced some sort of hostile attitude from family of deceased over cable connection, a sudden quarrel took place between appellant and son of deceased, on account of heat of passion, appellant went home; took out his fathers revolver and started firing indiscriminately, and unfortunately one of bullets hit deceased on her chin-At the most, it could be said that he had knowledge that use of revolver was likely to cause death and, as such, case would fall within third clause of Section 299 IPC- Hence held that offence committed by appellant was only culpable homicide not amounting to murder - Conviction of appellant altered from one under Section 302 IPC to one under Section 304 Part II IPC-Appeal partly allowed. (Paras16,17)

       Facts of the case :

       Appellant was prosecuted herein in the instant case for causing death of deceased by firing shot from licensed revolver of his father. Trial Court acquitted appellant. Appeal thereagainst was allowed by High Court convicting Appellant.

       Present Appeal has been filed against said order of High Court. Plea of appellant that since it was a positive case of prosecution that bullet which had hit deceased was fired from seized revolver, omission to send bullet for ballistic examination was a serious infirmity in prosecution case.

       Findings of the Court :

       The Court held that it cannot be laid down as 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 charge only if Ballistic Expert is examined. Instantly having regard to ocular evidence adduced by prosecution, there was no reason to discard prosecution theory that injury as a result whereof deceased suffered complete paralysis of both lower limbs etc. was caused by a bullet fired from a revolver. Nature of injury as proved by P.W.5, Doctor under whose treatment deceased remained at Moradabad and(P.W.7), Doctor who had conducted post-mortem examination was wholly consistent with prosecution version. Bullet recovered at time of post-mortem of victim had traversed to thoracic spine through neck from face near angle of jaw, hitting fifth thoracic vertebra, badly damaging underlying spinal cord. High Court observed that testimonies of P.W.1 and P.W.2, two star witnesses of prosecution were of sterling character with no holes whatsoever. Relying upon evidence of said two witnesses High Court held that it was appellant who had opened fire from revolver from his door, one of which had hit victim, who had come to close main door of her house. There was nothing to warrant interference with said finding recorded by High Court. Even though as per post-mortem report deceased died of septicemia and toxemia because of bedsores, basic cause of her death was bullet injury caused to her by appellant. Hence, in context of unimpeachable evidence, it stood proved that appellant had gone to house of deceased; some unsavoury incident took place there; he returned to his house in a huff; took out revolver of his father and fired shots towards house of deceased; one of bullets hit deceased and same proved to be fatal. Absence of Ballistic Experts evidence held not fatal to prosecution case. Conviction of appellant was however, altered from one under Section 302 IPC to one under Section 304 Part II IPC in facts and circumstances of case.