Chattisgarh High Court
Ganpat Chauhan And Ors vs State Of Chhattisgarh on 28 November, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1074 of 2012
Dauwa alias Prakash Rathore, Aged about 46 years, S/o
Harishankar Rathore, R/o Akaltara-road, at
P.O./P.S./Tahsil Janjgir, District Janjgir-Champa,
Chhattisgarh.
---Appellant
Versus
State of Chhattisgarh through Police Station Janjgir,
District Janjgir-Champa, Chhattisgarh.
---Respondent
For Appellant :- Mr. Shashi Bhushan Tiwari, Advocate
For State :- Mr. Ashish Tiwari, G.A.
Criminal Appeal No. 1075 of 2012
1. Ganpat Chauhan, Aged about 24 years, S/o Jagannath
Chauhan, R/o Village Pirda, P.S/P.O/Tahsil Malkharauda,
District Janjgir-Champa, Chhattisgarh.
2. Sujay Bairagi, Aged about 33 years, S/o Shambhunath, R/o
Hajinagar Ward No. 14, B.B. Mukherjee Road, P.S.
Nayeehatti, P.O/Tahsil/District 24-Pargana, Kolkata (W.B.).
3. Anand Prasad, Aged about 26 years, S/o Reshamlal
Suryawanshi, R/o Village Pacheda, P.O/P.S./Tahsil Janjgir,
District Janjgir-Champa, Chhattisgarh.
2
4. Raj Kumar, Aged 24 years, S/o Agar Surywanshi, R/o
Vijyeepara, Putpura, P.S/P.O/Tahsil Janjgir, District
Janjgir-Champa, Chhattisgarh.
5. Suraj Khunte, Aged about 21 years, S/o Chandram Khunte,
R/o Village Pirda, P.O/P.S./Tahsil Malkharoda, District
Janjgir-Champa, Chhattisgarh.
6. Rajendra Kumar, Aged about 21 years, S/o Kartikram
Ratnakar, R/o Village Bagdabri, P.S/P.O/Tahsil Baloda,
District Janjgir-Champa, Chhattisgarh.
---Appellants
Versus
State of Chhattisgarh through Police Station Janjgir,
District Janjgir-Champa, Chhattisgarh.
---Respondent
For Appellants :- Mr. Somnath Verma, Advocate
For State :- Mr. Ashish Tiwari, G.A.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice N.K. Chandravanshi
Judgment on Board
28/11/2022
Sanjay K. Agrawal, J.
1. Since both of these criminal appeals have been filed by the appellants assailing the legality, validity and correctness of impugned judgment dated 21/11/2012 passed by learned Additional Sessions Judge, Janjgir in Sessions Trial No. 3/2012, therefore, these appeals have been clubbed 3 together, heard together and are being decided by this common judgment.
2. Criminal Appeal No. 1074/2012 has been preferred by the sole appellant/accused namely Dauwa alias Prakash Rathore (A-7) against the impugned judgment whereby he has been convicted and sentenced as follows :-
Conviction Sentence U/s 302/149 of IPC Life imprisonment with fine of Rs. 1000/-, in default of payment of fine, R.I. for 6 months U/s 148 of IPC R.I. for 1 year with fine of Rs. 500/-, in default of payment of fine, S.I. for 3 months U/s 25(1-B) r/w S. 3 of Arms R.I. for 1 year with fine of Act, 1959 Rs. 500/-, in default of payment of fine, R.I. for 3 months
3. Criminal Appeal No. 1075/2012 has been preferred by the appellants/accused persons namely Ganpat Chauhan (A-1), Sujay Bairagi (A-2), Anand Prasad (A-3), Raj Kumar (A-4), Suraj Khunte (A-5) and Rajendra Kumar (A-6) against the impugned judgment whereby they have been convicted and sentenced as follows :-
Conviction Sentence U/s 302/149 of IPC Life imprisonment with fine of Rs. 1000/-, in default of payment of fine, R.I. for 6 months U/s 148 of IPC R.I. for 1 year with fine of Rs. 500/-, in default of payment of fine, S.I. for 3 months 4
4. Case of the prosecution, in brief, is that in the intervening night of 9-10/10/2011 at about 12:30 AM in the premises of Hariyali Heritage Bar and Restaurant, Janjgir within the ambit of Police Station Janjgir, all the 7 accused persons constituted an unlawful assembly and in furtherance of their common object, they assaulted Abhishek Singh alias Monu and Laxmi Yadav (P.W.-16) and injured them and thereafter, Dauwa (A-7) inflicted a gunshot upon Abhishek Singh alias Monu and murdered him with an illegally possessed country-made pistol and thereby, committed the aforesaid offences.
5. Further case of the prosecution is that applicant Sanjay Kumar Singh (P.W.-15), manager of Big Palace Hotel and his brother-in-law Abhishek Singh Chandel (deceased) used to stay together. On 09/10/2011, at about 3 PM, he received a phone call from Prem Singh (P.W.-6) who informed him that Abhishek Singh (deceased) and Laxmi Yadav (P.W.-16) had gone to Hotel Hariyali Heritage and since they did not have the money to pay bill, they are not allowing Abhishek Singh to leave and then Prem Singh (P.W.-6) further informed him to go to Hotel Hariyali Heritage alongwith money to pay the bill. Thereafter, Sanjay Kumar Singh (P.W.-15) reached Hotel Hariyali Heritage and when he was paying the bill after taking it from the Manager, he saw that accused Dauwa (A-7) along with two to three other persons standing in the counter were abusing 5 his brother-in-law Abhishek Singh (deceased) very badly and were assaulting him and thereafter, Dauwa (A-7) made an assault on the head of the deceased with a sharp edged weapon due to which blood started oozing out of the head of the deceased. After seeing this, Sanjay Kumar Singh (P.W.-
15) gave information of the incident to Janjgir Police Station. When police reached the spot, they found that Abhishek Singh was lying on the floor in an injured condition and immediately thereafter, he was taken to District Hospital, Janjgir for treatment wherein MLC was conducted by Dr. Ramayan Singh (P.W.-11), who found that he was in an unconscious state and was in a serious condition. He further found that there was a state wound on the head of the deceased admeasuring about 1 inch x 1 inch and it was skull deep.
6. Sanjay Kumar Singh (P.W.-15) lodged first information report (Ex. P/54) against the accused Dauwa (A-7) and his employees for offence punishable under Section 307/34 of IPC and thereafter, the wheels of investigation started running. Test identification parade was conducted by the assistance of Tahsildar Ajay Uraon (P.W.-1) vide Ex. P/1 to P/3. Certain articles like broken spectacles, blood stained floor pieces, hair lying on the floor, a bill of Rs. 1420/-, violet coloured slippers and a Hero Honda motorcycle were seized from the spot vide Ex. P/20 and P/22. Memorandum statement of accused Dauwa (A-7) was recorded vide Ex. 6 P/26 and on that basis, countrymade pistol as well as its cartridge were seized from his possession vide Ex. P/27 and they were sent to the Armorer Shrinivas Rao (P.W.-3) for his report.
7. Meanwhile, Abhishek Singh (deceased) was referred to Apollo Hospital for better treatment wherein the certificate (Ex. P/6) was issued by Dr. Anup Mohan (not examined), and it was certified by Dr. Rajkumar (P.W.-2) that the injury suffered by the deceased was of greivous nature and upon CT scan, it was found that foreign body was present in both frontal lobes as well as in left parietal lobe. Pursuant thereof, he had undergone surgery and four pieces of metal were taken out from his head, which were seized vide Ex. P/39 and they were sent for chemical examination along with the other seized articles and as per the FSL report (Ex. P/83), the said four pieces of metal, which were marked as Ex. EBR1 to EBR4, were pieces of lead projectile which were fired upon the deceased.
8. On 15/10/2011, Abhishek Singh succumbed to death and Dr. Anil Banerjee (P.W.-18) informed about the same to Police Station on the basis of which merg intimation was registered vide Ex. P/56 and after summoning the witnesses vide Ex. P/189, inquest was conducted vide Ex. P/90 and the dead body of the deceased was subjected to postmortem, which was conducted by Dr. Dharmendra 7 Kumar (P.W.-71) in which cause of death is said to be coma due to head injury and the nature of death is said to be homicidal. Pursuant to recording the statements of the witnesses under Section 161 of CrPC and after due investigation, all the appellants/accused persons were charge-sheeted for offences punishable under Sections 147, 148, 149, 302/149 and Section 25(1-B) read with Section 3 of the Arms Act.
9. In order to bring home the offence, prosecution examined as many as 23 witnesses and brought on record 90 documents. The Statements of Appellants/accused persons were taken under Section 313 of CrPC wherein they denied guilt, however, they examined none in their defence.
10. Learned trial Court, after appreciation of oral and documentary evidence on record, convicted the 7 appellants/accused persons for offence punishable under Sections 302/149 and 148 of IPC and also convicted appellant/accused Dauwa (A-7) for offence punishable under Section 25(1-B) r/w S. 3 of Arms Act and sentenced them as aforesaid.
11. Mr. Shashi Bhushan Tiwari, learned counsel for the appellant in Criminal Appeal No. 1074/2012, would make the following submissions :-
i) that, no gunshot injury has been noticed on the body of the deceased either by Dr. Ramayan Singh (P.W.-11) who 8 conducted MLC at District Hospital, Janjgir or by the Doctor (not examined before the Court) who allegedly operated him at Apollo Hospital and took out four pieces of metal from the head of the deceased. Moreover, the FSL report (Ex. P/83) stating that the said four pieces of metal were lead projectiles is of no assistance to the prosecution as prosecution was firstly obliged to examine the Doctor who operated the deceased at Apollo Hospital, and in absence of his testimony, alleged recovery of four metal pieces from the head of the deceased vide Ex. P/39 has not been proved in accordance with law. Even Dr. Dharmendra Kumar (P.W.-21), who conducted postmortem, has also not stated before the Court that the deceased has suffered any sort of gunshot injury, therefore, the case of the prosecution becomes doubtful.
ii) that, seizure and recovery of country made pistol and cartridge from the appellant/accused Dauwa (A-7) has also not been proved in accordance with law as both the seizure witnesses namely Ishwar Singh (P.W.-7) and Shiv Chaman Singh (P.W.-12) have turned hostile and have not supported the case of the prosecution and merely on the basis of the testimony of Investigating Officer Shyamsunder Sharma (P.W.-22), recovery has been found proved by the trial Court, which is liable to be set aside.9
iii) that, no ballistic expert report has been placed on record to establish that the four metal pieces taken out from the head of the deceased while surgery which are said to be lead projectiles as per the FSL report (Ex. P/83) were actually fired from the country made pistol seized from the possession of the appellant/accused Dauwa (A-7) vide Ex.
P/27 pursuant to his memorandum statement vide Ex. P/26. As such, conviction recorded and sentence awarded to the appellant/accused Dauwa (A-7) deserves to be set aside.
12. Mr. Somnath Verma, learned counsel for the appellants/accused persons in Criminal Appeal No. 1075/2012 would submit that in the test identification parade conducted vide Ex. P/1 to P/3, all the witnesses have turned hostile and as such, the appellants/accused persons could not be identified as the authors of the crime in question and merely on the basis of the statements of Ajay Uraon (P.W.-1) and Ramesh Kashyap (P.W.-10), they have been convicted for offence punishable under Section 302 of IPC with the aid of Section 149 of IPC. He would further submit that pursuant to the confessional statement of appellant/accused in Criminal Appeal No. 1074/2012 namely Dauwa (A-7), the appellants/accused persons in this appeal have been convicted with the aid of Section 30 of the Evidence Act which is a very weak piece of evidence and there is no other evidence available on record against the 10 appellants/accused persons (A-1 to A-6), as such, their conviction and sentence is liable to be set aside.
13. Per contra, Mr. Ashish Tiwari, learned Government Advocate appearing for the respondent/State, would submit as under :-
i) so far as appellant/accused Dauwa (A-7) is concerned, recovery of country made pistol as well as cartridge has been made from his possession vide Ex. P/27 on the basis of his memorandum statement (Ex. P/26), which has been proved though not by the two seizure witnesses namely Ishwar Singh (P.W.-7) and Shiv Chaman Singh (P.W.-12), but by the Investigating Officer Shyamsunder Sharma (P.W.-22), which is strictly in accordance with law in light of the decision rendered by the Supreme Court in the matter of Rameshbhai Mohanbhai Koli and others v. State of Gujarat1. He would further submit that learned trial Court has clearly recorded a finding that the deceased died on account of gunshot injury inflicted by appellant/accused Dauwa (A-7) which is a finding of fact based on evidence available on record. Even otherwise, if a gunshot injury is inflicted, then the nature of wound would be lacerated and Dr. Ramayan Singh (P.W.-11), who firstly examined the deceased at District Hospital, Janjgir, has clearly stated before the Court that deceased suffered stab wound of 1 inch X 1 inch which was skull deep and the edges of the 1 (2011) 11 SCC 111 11 wound were torn and were irregular. He has further stated that the FSL report (Ex. P/83) finding the metal pieces recovered from the head of the deceased vide Ex. P/39 to be lead projectiles has been proved by Krishna Kumar Dwivedi (P.W.-13) and furthermore, armorer's report (Ex. P/9 and P/10) has been affirmed by the FSL report (Ex. P/88) and merely because the Doctor who performed surgery upon the deceased in Apollo Hospital and took out bullets from the head of the deceased has not been examined, it is not threatening to the case of the prosecution. As such, Criminal Appeal No. 1074/2012 preferred by the appellant/accused Dauwa (A-7) deserves to be dismissed.
ii) Similarly, so far as the case of rest of the appellants/accused persons (A-1 to A-6) is concerned, on the basis of confessional statement of Dauwa (A-7) as well as on the basis of other evidence available on record, learned trial Court has rightly convicted them for the aforesaid offences, as such, Criminal Appeal No. 1075/2012 is also liable to be dismissed.
14. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. Criminal Appeal No. 1074/2012 :-
15. This appeal has been preferred by the sole appellant/accused Dauwa (A-7). It is the case of the 12 prosecution that appellant/accused Dauwa (A-7) inflicted gunshot injury on the head of the deceased by which he suffered grievous injury and succumbed to death. Prem Singh (P.W.-6), Sanjay Kumar Singh (P.W.-15) and Nikhil Singh (P.W.-17) have been cited as eye-witnesses by the prosecution, but they have not supported the case of the prosecution.
16. The first finding that has been recorded by the trial Court is that deceased Abhishek Singh died on account of gunshot injury and his death was homicidal in nature, which has seriously been challenged on behalf of the appellant/accused Dauwa (A-7) stating that no gunshot injury has been found over the body of the deceased. In paragraph 9 of its judgment, learned trial Court has observed as under :-
"9. ससकक डड धररद कक रसर आ०सस० क० 21 कक उपररक वरररत अभभससकय सक तथस रमतक कक शव परककर पभतवकदन प०पक० 71 रम रमतक कक रमतयक हरनक कस जर तथयसतरक कसरर आयस हह, उन सभक तथयय सक रमतक अभभषकक सससह कक रमतयक सहसससतरक पकम भत सक हरकर असवसभसभवक हतयस कक रप रम हरनस परसभरत हरतस हह, कसरर कक शव परककर कस रकखय उदकशय रमतक कक रमतयक कस कसरर जसननक कक भलयक हरतस हह। उक ससकक कक रकखय परककर रम आयक तथयय कक खसडन रम बचसवपक कक दसरस करई चकननतक नहह ददयस गयस हह। इस कसरर रमतक कक रमतयक सहसससतरक रप सक रमतयक नहह हरनक कक समबनध रम करई भवपरकत तथय नहह हह। शव परककर पभतवकदन प०पक० 71 रम वरररत रमतक कक रसथक पर तकन आपकशन दकयस हआ भछद 1.5 X 1.5 तथस कपसल खरपड़क रकरदसड सर कक आतसररक भसग पर खखन कक थकक पसयस जसनस आगकय अस सक फसयररस ग कक दसरस चरट कसररत दकयस जसनस ससभबत हरतस हह कसरर कक यदद घसतक हभथयसर तलवसर, फरसस, टससगक आदद सक रमतक कर रसरस जसतस तर भछद नहह हरतस, बभलक कटनक कस भनशसन हरतस। अतत रमतक कक रसथक पर तकन आपरक शन दकयस हआ भछद हरनस हक आगकय अस सक रसरनक कस कसयर दकयस गयस हह, और आगकय 13 अस सक सर जरदक रसरररक असग हह और रसरररक असग पर तकन जगह भछद हरनक सक वभक कक रमतयक हर जसतक हह। इस पकसर नयसयसलय कक अभभरत सक उपररक ससरग कसररय सक रमतक अभभषकक सससह कक रमतयक सहसससतरक पकम भत सक हरनस परसभरत हरतस हह।"
17. Immediately after the incident, deceased was taken to the District Hospital, Janjgir wherein he was examined by Dr. Ramayan Singh (P.W.-11) and in his statement before the Court, he has stated that a state wound was present in the head of the deceased which measured 1 inch x 1 inch and it was skull deep and blood was oozing out of the said injury and the edges of the said wound were torn and irregular. The Doctor has further opined that the injury could have been caused by a hard and sharp edged weapon with irregular edges and the deceased was advised to undergo CT Scan and X-ray and he was also referred to Apollo Hospital for better treatment. After the death of the deceased, his body was subjected to postmortem, which was conducted by Dr. Dharmendra Kumar (P.W.-21), and he has stated before the Court that there were three operated wounds present on the head of the deceased measuring 1.5 x 1.5 cm and he has further proved the postmortem report (Ex. P/71) in which cause of death is said to be coma due to head injury and he has further stated the nature of death to be homicidal.
18. In Modi's Textbook of Medical Jurisprudence and Toxicology (24th Edition 2011), firearm wounds have been described as the injuries produced by the projectiles 14 discharged from firearms, which may present the characteristics of lacerated wounds, but their appearances vary according to the nature of the projectile, the velocity at which it was travelling at the moment of impact, the distance of the firearm from the body at the moment of discharge and the angle at which it struck the part of body struck.
19. In the matter of Mohinder Singh v. State2, their Lordships of the Supreme Court have held that in a case where death is due to injuries or wounds caused by a lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was likely to at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It was further held that it was only by the evidence of a duly qualified expert that it could have been ascertained whether the injuries attributed to the accused were caused by a gun or a rifle and such evidence alone could settle the controversy as to whether they could possibly have been caused by a firearm used at such a close range as was suggested in the evidence.
20. In the instant case, the deceased had undergone surgery at Apollo Hospital in which four pieces of metal were taken out from his head and they were seized vide Ex. P/39 and it was sent to Dr. Ramayan Singh (P.W.-11) for query, but the 2 AIR 1953 SC 415 15 Doctor advised to send these articles for FSL. Accordingly, in the FSL report (Ex. P/83), it has clearly been held that the four metal pieces labelled as EBR1 to EBR4 are lead projectiles which were fired from the country made pistol. Furthermore, pursuant to the recovery of country made pistol and cartridge from the possession of the appellant/accused Dauwa (A-7) vide Ex. P/27 pursuant to his memorandum statement (Ex. P/26), it was found in the FSL report (Ex. P/88) that the said pistol was a 12 boar pistol and it was in running condition and it has been used for firing before. Moreover, the cartridge seized as a misfire cartridge which can be fired from the seized country made pistol. As such, it has duly been established by the prosecution that the injury suffered by the deceased in his head can be caused by the country made pistol seized vide Ex. P/27 and we are of the considered opinion that the trial Court is absolutely justified in holding that the death of deceased was homicidal in nature as he died on account of gunshot injury. The said finding recorded by the trial Court is hereby affirmed.
21. Now, what requires consideration is, whether the recovery of country made pistol and cartridge from the possession of the appellant/accused Dauwa (A-7) vide Ex. P/27 pursuant to his memorandum statement (Ex. P/26) has been proved in accordance with law ?
16
22. The trial Court has clearly recorded in paragraph 29 that the country made pistol and cartridge has been seized from the possession of the appellant vide Ex. P/27 pursuant to the disclosure statement made by the appellant/accused Dauwa (A-7) vide Ex. P/26. The said finding recorded by the trial Court has been found proved on the basis of the testimony of Investigating Officer shyamsunder Sharma (P.W.-22) even though the two seizure witnesses namely Ishwar Singh (P.W.-7) and Shiv Chaman Singh (P.W.-12) have not supported the case of the prosecution, which has seriously been questioned on behalf of the appellant/accused.
23. In the matter of Rameshbhai (supra), relying upon its earlier decisions rendered in the matters of State of U.P. v. Krishna Gopal3, Modan Singh v. State of Rajasthan4 and Anter Singh v. State of Rajasthan 5, the Supreme Court has held that merely because the panch witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone and if it is not the case of the defence that the testimony of the investigating officer suffers from any infirmity or doubt. It has been held in paragraph 35 of the report, as under :-
3 (1988) 4 SCC 302 4 (1978) 4 SCC 65 5 (2004) 10 SCC 657 17 "35. This Court has held in a large number of cases that merely because the panch witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the investigating officer alone. In the instant case, it is not the case of defence that the testimony of the investigating officer suffers from any infirmity or doubt. (Vide Modan Singh case, Krishna Gopal case and Anter Singh case.)"
24. Thus, in light of the principle of law laid down by their Lordships of the Supreme Court in Rameshbhai (supra) relying upon its decisions in Krishna Gopal (supra), Modan Singh (supra) and Anter Singh (supra), as noticed herein- above, the recovery of country made pistol and cartridge from the possession of the appellant/accused Dauwa (A-7) vide Ex. P/27 pursuant to his memorandum statement vide Ex. P/26, has duly been proved by the prosecution in accordance with law. Furthermore, pursuant to the armorer's report (Ex. P/9 and P/10) as well as FSL report (Ex. P/88), it was found that the seized country made pistol was a 12 boar pistol and it was in working condition and the cartridge seized was misfire cartridge which can be fired from the seized country made pistol. As such, in our considered opinion, the chain of circumstances is complete and memorandum and seizure has duly been established by the prosecution.
25. At this stage, consideration has to be made of the submission made by learned counsel for the appellant that in absence of ballistic report, prosecution has failed to prove 18 that the bullets taken out from the head of the deceaesd were actually fired from the country made pistol seized from the appellant/accused Dauwa (A-7).
26. It is well-settled law that arm and ammunition should be tested before such a determination can be made and evidence of testing of such weapon is necessary to prove that such a weapon is falling within any of the categories as provided in the Arms Act. (See: Jagjit Singh v. State of Punjab6, Manoj Kumar Acchelal Brahman v. State of Gujarat7 and State of A.P. v. S. Appa Rao and others8)
27. Likewise, in the matter of Buta Singh v. State of Punjab9, the Supreme Court has held that objects seized from the accused must be sent to the expert for opinion either to the ballistic expert or to any armorer. In absence of evidence on record to show that said objects satisfied the definition of 'arm and ammunition' or 'firearm', conviction is not sustainable.
28. Very recently, in the matter of Gulab v. State of Uttar Pradesh10, their Lordships of the Supreme Court relying upon its earlier decision rendered in the matter of Gurucharan Singh v. State of Punjab11 has held that examination of a ballistic expert is not an inflexible rule in 6 (1994) 4 SCC 726 7 (1998) 2 SCC 354 8 (2001) 10 SCC 648 9 1997 SCC (Cri) 1217 10 2021 SCC Online SC 1211 11 1963 (3) SCR 585 19 every case involving use of a lethal weapon and observed in paragraphs 21 and 22 as under :-
"21. However, a three-judge Bench of this Court, in Gurucharan Singh v. State of Punjab, has analyzed the precedents of this Court and held that examination of a ballistic expert is not an inflexible rule in every case involving use of a lethal weapon. Speaking through Justice P B Gajendragadkar (as the learned Chief Justice then was), this Court held :
"41. It has, however, been argued that in every case where an accused person is charged with having committed the offence of murder by a lethal weapon, it is the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which, and in the manner in which, they have been alleged to have been caused; and in support of this proposition, reliance has been placed on the decision of this Court in Mohinder Singh v. State12. In that case, this Court has held that where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the shots must have been fired by more than one person and not by one person only, and there was no evidence to show that another person also shot, and the oral evidence was such which was not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case. It would be noticed that these observations were made in a case where the prosecution evidence suffered from serious infirmities and in determining the effect of these observations, it would not be fair or reasonable to forget the facts in respect of which they came to be made. These observations do not purport to lay down an inflexible Rule that in every case where an accused persons is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed
12 1950 SCC 673 20 by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case. Therefore, we do not think that Mr. Purushottam is right in contending as a general proposition that in every case where a firearm is alleged to have been used by an accused person, in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct evidence may be and though on the record there may be no reason to doubt the said direct evidence.
(emphasis supplied)
22. Similarly, a two-judge Bench of this Court in State of Punjab v. Jugraj Singh13 had noticed that surrounding circumstances in the prosecution case are sufficient to prove a death caused by a lethal weapon, without a ballistic examination of the recovered weapon. The Court, speaking through Justice R P Sethi, had noted :
"18. In the instant case the investigating officer has categorically stated that guns seized were not in a working condition and he, in his discretion, found that no purpose would be served by sending the same to the ballistic expert for his opinion. No further question was put to the investigating officer in cross-examination to find out whether despite the guns being defective the fire pin was in order or not. In the presence of convincing evidence of two eyewitnesses and other attending circumstances we do not find that the non-examination of the expert in this case has, in any way, affected the creditworthiness of the version put forth by the eyewitnesses.""
29. In the instant case, it is evident that the country-made pistol as well as the cartridge seized from the 13 2002 (3) SCC 234 21 appellant/accused Dauwa (A-7) were sent to the armorer Shrinivas Rao (P.W.-3), who has categorically stated in his report (Ex. P/9 and P/10) that the said country-made pistol was in running condition and the smell of gunpowder was coming from inside it which shows that firing has been done from it and upon examination, he further found that it was a 12 bore pistol. Moreover, the said country-made pistol as well as cartridge were also sent for FSL examination wherein it was found vide Ex. P/88 that the seized pistol was a 12 bore country-made pistol which was in running condition and from which firing has already been done and the cartridge seized was a misfire cartridge which can be fired from the seized country-made pistol. Thus, in our considered opinion, non-production of ballistic report of said country-made pistol will neither prejudice the appellant/accused nor will it weaken the case of the prosecution.
30. As a fallout and conclusion of the aforesaid legal analysis, we of the view that prosecution has been able to prove the offences punishable under Sections 302 of IPC and Sections 25(1-B) r/w S. 3 of Arms Act against the appellant/accused Dauwa (A-7) and his conviction and sentenced recorded by the trial Court for the said offences is hereby maintained, being well-merited. However, his conviction for offences punishable under Sections 148 and 149 of IPC will be 22 discussed while considering the case of appellants/accused persons in Criminal Appeal No. 1075/2012 i.e. A-1 to A-6. Criminal Appeal No. 1075 of 2012 :-
31. So far as the conviction of the appellants/accused persons (A-1 to A-6) is concerned, it is the case of the prosecution that these six appellants/accused persons were identified in the test identification parade conducted vide Ex. P/1 to P/3 by Tahsildar, Janjgir namely Ajay Uraon (P.W.-1) before prosecution witnesses Sanjeev Singh (P.W.-9) and Ramesh Kashyap (P.W.-10).
32. In paragraphs 25 and 26 of the impugned judgment, through the trial Court has accepted that identifying prosecution witnesses namely Prem Singh (P.W.-6), Laxmi Yadav (P.W.-16) and Nikhil Singh (P.W.-17) have not supported the case of the prosecution that they have identified the appellants/accused persons (A-1 to A-6) in test identification parade though they have admitted that they participated in the parade, yet the trial Court, relying upon the testimony of Ajay Uraon (P.W.-1) and Ramesh Kashyap (P.W.-10), has held that these six appellants/accused persons were identified and the proceeding of test identification parade has duly been proved by Ajay Uraon (P.W.-1) and Ramesh Kashyap (P.W.-
10).
23
33. Recently, the Supreme Court in the matter of Rajesh alias Sarkari and another v. State of Haryana 14 has held that the purpose of conducting a test identification parade (TIP) is that persons who claim to have seen the offender at the time of occurrence identify them from amongst the other individuals without tutoring or aid from any source and an identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to determine whether any or all of them can be cited as eyewitness to the crime. Their Lordships laid down the law with regard to test identification parade in paragraphs 43.2 to 44, which state as under :-
"43.2. There is no specific provision either in CrPC or the Evidence Act, 1872 ("the Evidence Act") which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP. 43.3. Identification parades are governed in that context by the provision of Section 162 CrPC. 43.4. A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held.
43.5. The identification of the accused in court constitutes substantive evidence.
43.6. Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act.
43.7. A TIP may lend corroboration to the identification of the witnesses in court, if so required.
43.8. As a rule of prudence, the court would, generally speaking, look for corroboration of the 14 (2021) 1 SCC 118 24 witness' identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration.
43.9. Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible. 43.10. The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case. 43.11. Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence.
43.12. The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn against the accused for refusing to participate in a TIP. However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused.
44. These principles have evolved over a period of time and emanate from the following decisions :
1. Matru v. State of U.P.15
2. Santokh Singh v. Izhar Hussain16
3. Malkhansingh v. State of M.P.17
4. Visveswaran v. State18
5. Munshi Singh Gautam v. State of M.P.19
6. Manu Sharma v. State (NCT of Delhi)20
7. Ashwani Kumar v. State of Punjab21
8. Mukesh v. State (NCT of Delhi)22"
34. In the present case, prosecution witnesses Prem Singh (P.W.-6), Laxmi Yadav (P.W.-16) and Nikhil Singh (P.W.-17) 15 (1971) 2 SCC 75 16 (1973) 2 SCC 406 17 (2003) 5 SCC 746 18 (2003) 6 SCC 73 19 (2005) 9 SCC 631 20 (2010) 6 SCC 1 21(2015) 6 SCC 308 22 (2017) 6 SCC 1 25 are the persons who have allegedly seen the incident and they appeared in the test identification parade and identified the appellants/accused persons (A-1 to A-6), but they have clearly deposed that in the test identification parade they did not identify the said appellants/accused persons to be present in the place of the crime and ignoring their testimonies, the trial Court has held that the appellants/accused persons were identified merely on the basis of the testimony of the persons who conducted by the said identification parade namely Ajay Uraon (P.W.-1) and Ramesh Kashyap (P.W.-10). Since the aforesaid prosecution witnesses who have been cited as eye-witnesses by the prosecution, have clearly refused to identify the appellants/accused persons, the trial Court has gravely erred in finding the test identification parade duly proved in accordance with law on the basis of testimony of Ajay Uraon (P.W.-1) and Ramesh Kashyap (P.W.-10).
35. Now it has been faintly argued by learned State counsel that confessional statement of appellant/accused in Criminal Appeal No. 1074/2012 namely Dauwa (A-7) implicates the appellants/accused persons (A-1 to A-6) in this appeal for offence punishable under Section 302 of IPC. However, it appears from the record that though the trial Court has not recorded an express finding in this regard but in order to deal with this submission, it would be appropriate to notice 26 Section 30 of Indian Evidence Act, 1872, which states as under :-
"30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.--When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
Explanation.--"Offence", as used in this section, includes the abetment of, or attempt to commit, the offence."
36. A careful perusal of the aforesaid provision would show that the object of this provision is that where an accused person unreservedly confesses his own guilt, and at the same time implicates another person who is jointly tried with him for the same offence, his confession may be taken into consideration against such other person as well as against himself, because the admission of his own guilt operates as a sort of sanction, which, to some extent, takes the place of the sanction of an oath and so affords some guarantee that the whole statement is a true one. When a person admits his guilt to the fullest extent, and exposes himself to the pains and penalties provided therefore, there is a guarantee for his truth. The Court could use the confession of one accused against another accused only if the following two conditions are fulfilled: -
1. The co-accused should have been charged in the same case along with the confessor.27
2. He should have been tried together with the confessor in the same trial.
37. Section 30 of the Evidence Act came up for consideration before their Lordships of the Supreme Court in Haricharan Kurmi v. State of Bihar23 (Constitution Bench) in which their Lordships have considered the probative value of confession of co-accused and its use how to be made in joint trial. In Haricharan Kurmi (supra), their Lordships clearly held that though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act and observed as under: -
"11. ... The basis on which this provision is founded is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so, S. 30 provides that such a confession may be taken into consideration even against a co-accused who is being tried along with the maker of the confession. There is no doubt that a confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence criminal courts generally require some corroboration to the said confession particularly if it has been retracted. With that aspect of the problem, however, we are not concerned in the present appeals. When S. 30 provides that the confession of a co-accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration is precisely the problem which has been raised in the present appeals. It is clear that the confession 23 AIR 1964 SC 1184 28 mentioned in S. 30 is not evidence under S. 3 of the Act. ...
12. ... It would be noticed that as a result of the provisions contained in S. 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained is S. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh, 1952 SCR 526: (AIR 1952 SC 159) where the decision of the Privy Council in Bhuboni Sahu's case, 76 Ind App 147 (AIR 1949 PC
257) has been cited with approval.
16. ... As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible, from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is 29 entitled to the benefit of doubt. That is precisely what has happened in these appeals."
38. The principle of law laid down in Haricharan Kurmi (supra) has been followed recently by the Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat and another24. It has also been held by their Lordships that confession of an accused person is not evidence, it cannot be made tile foundation of a conviction and can only be used in support of other evidence (see Kashmira Singh v. State of Madhya Pradesh25, Nathu v. State of Uttar Pradesh26 and Govt. of NCT of Delhi v. Jaspal Singh27.)
39. Thus, considering the aforesaid principles of law laid down by their Lordships of the Supreme Court in Haricharan Kurmi (supra) and Dipakbhai Jagdishchandra Patel (supra) and considering the provisions contained in Section 30 of the Evidence Act, it is quite vivid that confessional statement of co-accused is a very weak piece of evidence, unless other circumstantial evidence or ocular evidence is available, conviction cannot be rested only on the confessional statement of the co-accused with the aid of Section 30 of the Evidence Act, as it requires corroboration from other evidence and unless there is other evidence, ocular or circumstantial evidence available on record, merely on the basis of confessional statement of co-accused, 24 AIR 2019 SC 3363 25AIR 1952 SC 159 26AIR 1956 SC 56 27(2003) 10 SCC 586 30 conviction with the aid of Section 30 of the Evidence Act cannot be made by the courts.
40. Reverting finally to the facts of the present case in light of the aforesaid legal analysis, it is quite vivid that test identification parade conducted by the prosecution vide Ex. P/1 to P/3 with the aid and assistance of Tahsildar, Janjgir Ajay Uraon (P.W.-1) and Ramesh Kashyap (P.W.-10) has not been found duly proved in accordance with law as the identifying prosecution witnesses namely Prem Singh (P.W.-
6), Laxmi Yadav (P.W.-16) and Nikhil Singh (P.W.-17) have turned hostile and have not supported the case of the prosecution and from the testimony of Ajay Uraon (P.W.-1) and Ramesh Kashyap (P.W.-10), it could not be proved that they have only conducted the proceeding, therefore, test identification parade, even if it is a weak piece of evidence, has not been proved in accordance with law by the prosecution. Moreover, the confessional statement of co- accused under Section 30 of the Evidence Act is also a weak piece of evidence and conviction cannot be based on the confessional statement of co-accused in absence of any other corroborating evidence. In that view of the matter, we are of the considered opinion that the trial Court is absolutely unjustified in convicting the appellants/accused persons (A-1 to A-6) relying upon either the test identification parade or upon the confessional statement of co-accused Dauwa (A-7). Accordingly, we are unable to 31 uphold the conviction of the appellants/accused persons for offences punishable under Sections 302/149 and 148 of IPC. They are acquitted of the charges levelled against them. Since, they are already on bail, they need not surrender, however, their bail bonds shall remain in force for a period of six months in view of the provision contained under Section 437A of CrPC. Moreover, the conviction and sentence of the appellant/accused Dauwa (A-7) for offence punishable under Section 148 and 149 of IPC are hereby set aside, however, his conviction for offence punishable under Section 302 of IPC and Sections 25(1-B) r/w S. 3 of Arms Act is hereby maintained. Since he is on bail, we hereby direct appellant/accused Dauwa (A-7) to surrender forthwith, failing which he will be apprehended.
41. In conclusion of the aforesaid discussion, Criminal Appeal No. 1074/2012 is allowed in part whereas Criminal Appeal No. 1075/2012 is allowed in toto.
Sd/- Sd/-
(Sanjay K. Agrawal) (N.K. Chandravanshi)
Judge Judge
Harneet