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2009(2) Supreme 389
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and Asok Kumar Ganguly, JJ.
State of M.P. — Appellant
versus
Dhara Singh and Anr. — Respondents
Criminal Appeal No. 1390 of 2003
Decided on : 03-03-2009
Facts of the Case :
1.Accused respondents two in number were prosecuted herein in the instant case for causing death of deceased by firing from a Katta. As per prosecution case deceased and his family members were returning back to their village when accused persons armed with a gun and Katta Came in front of their bullock cart and attacked deceased. Trial Court convicted accused persons for said offence. Appeal thereagainst was allowed by High Court acquitting accused respondents on ground that name of PW-3 did not find place in the FIR and that report of the ballistic expert was not placed on record.
2.Present appeal has been filed against said order of High Court.
Findings of the Court :
The conclusion of the High Court that PW-3’s name did not find place in the FIR held not correct. As a matter of fact PW-2 had clarified that in fact the name of PW3 had been indicated in the FIR as ‘Kaptan’. Additionally, it was seen that there was no discussion of evidence of eye witnesses. Held in what cases examination of a ballistic report is essential to further prosecution version depended upon circumstances of each case. No authority in law that whenever a bullet is not sent for ballistic examination the prosecution has to fail. High Court erred in directing acquittal of respondents. Impugned judgment of High Court was set aside and that of trial Court was restored. Appeal allowed.
Result : Appeal allowed.
JUDGMENT
Dr. Arijit Pasayat, J. —
1.Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court, Gwalior Bench, directing acquittal of the respondents. Learned 4th Additional Sessions Judge, Morena, had convicted respondent No.1 for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’) and Sections 25 and 27 of the Arms Act, 1959(in short the ‘Arms Act’). Respondent No.2 was convicted for offence punishable under Section 302 read with Section 34 IPC.
2.Background facts in a nutshell are as follows:
On 3.10.1998 Sohan Lal (hereinafter referred to as the ‘deceased’) his son Ram Het, Dhanvanti, Ramswaroop, Kaptan Singh and Bhagwan Singh came to Morena from Village Rajyekapura for the treatment of Dhanvanti and to purchase fertilizer. They were returning back to their village in a bullock cart at about 3.00 p.m. Said bullock cart was being driven by Bhagwan Singh and the deceased Sohan Lal and Ram Swaroop were behind the bullock cart. Ramhet, Dhanvanti and Kaptan Singh were sitting in the bullock cart.
When the said bullock cart reached near Shivlal-ke-pura Ki Mata, at that juncture accused Prem Das armed with a gun and accused Dhara Singh armed with a katta came in front of the bullock cart. Prem Das asked to stop the bullock cart and thereafter upon his exhortation Dhara Singh fired the Katta, as a result of which Sohanlal died. The bullet hit the chest of the deceased. Thereafter the accused persons fled away. Two brothers of the accused had died 5 to 6 years ago in the hospital with the result that the accused left the village after disposing of their land to Gujiars. Subsequently, deceased had purchased a portion of land from Gujiars. The accused persons were under impression that the deceased got their brothers killed.
The First Information Report (In short the ‘FIR’) was lodged by PW-2 Ramhet and in this manner the criminal law was set in motion. The police thereafter arrived on the spot, prepared the Panchnama, sent the dead body of the deceased to the Hospital for post mortem, seized the wearing apparel of the deceased and recorded the statements of the witnesses.
After investigation, charge sheet was filed. Since accused persons pleaded innocence trial was held.
The trial Judge after considering the evidence on record found the accused persons guilty as noted above. In appeal before the High Court it was primarily submitted that the prosecution version is not acceptable. The evidence of the witnesses did not inspire confidence. The bullet which was found on the body of the deceased was recovered and was sent for examination of the ballistic expert and his report was not placed on record. The High Court found that the name of Bhagwan Singh (PW-3) did not find place in the FIR. The State’s stand was that neither of these two aspects rendered the prosecution version suspect. The High Court however held that the benefit of doubt was to be extended and directed acquittal.
3.Learned counsel for the appellant submitted that the conclusions are very sketchy. There is no discussion of the eye witnesses. Ram Het Singh (PW-2) the son of the deceased and Bhagwan Singh (PW-3) who was the cousin of PW-2. Dhanwanti (PW-4) was the daughter-in-law of the deceased. The FIR was lodged promptly. It is not a fact that the name of PW-3 does not figure in the FIR. It has been clearly stated that the cousin of the informant was an eye witness.
4.The conclusion of the High Court that PW-3’s name did not find place in the FIR is not correct. As a matter of fact PW-2 has clarified that in fact the name of Bhagwan Singh has been indicated in the FIR as ‘Kaptan’. Additionally, it is seen that there is no discussion of the evidence of the eye witnesses. In what cases the examination of a ballistic report is essential to further the prosecution version would depend upon the circumstances of each case. In Chatar Singh and Anr. v. State of Haryana1 (AIR 1976 SC 2474) it was held that in the
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