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The last argument on which the judgment on the High Court was attacked by Mr. Purushotam arises from the fact that a ballistic expert has not been examined in this case., It is urged that this ground was taken before this High Court and has not been considered by it. Petition for special leave makes a definite averment to that effect. As the argument was presented before us by Mr. Purushotam, it assumed that a report had been received from the ballistic expert, but that report had not been proved, because it was apprehended by the prosecution that it would destroy its case. There is no doubt that the two fire-arms along with two empty cartridges were sent to the Scientific Laboratory., Chandigarh (Ext. P. Z.) on June 28, 1961. Of the two guns which were sent for examination, one was used by Gurcharan Singh which he picked up as soon as it fell down from the hand of Arjan Singh and the other was used by Surjit Singh which was taken by him from Daljit Singh. It appears that Daljit Singh produced that gun and surrendered it on. May 27, 1961, i.e., nearly a week after the incident took place. Mr. Purushotam contended that since these weapons had been sent for examination by a ballistic expert and a report had been received, it was the duty of the prosecution to examine the ballistic expert. We were impressed by this argument, and so, we adjourned the hearing of the case and called upon Mr. Bindra to produce that report before us. Accordingly, the report has been produced and it shows that according to the expert opinion, out of the two fired cartridges sent for expert examination one had been fired from the right barrel of the gun contained in parcel No. 1 and the other had been fired from the left barrel of the same gun. in other words, this reports shows 'that two empties found near the scene of the offence had been fired from the same gun. After this report was received and a copy of it was served on Mr. Purushotam, he fairly conceded that the said report was not inconsistent with the prosecution case, though he argued that it did not corroborate it either. This report has not been proved and no ballistic expert has been examined in this case. But having regard to the fact that the report prima facie is not inconsistent with the prosecution case, we do not see bow it would be urged that the failure of the prosecution to examine a ballistic expert is due to the 'fact that it was apprehended that the expert opinion would be against the prosecution case. That is the. only argument which it was alleged had been urged before the High Court but had not been considered by it. We are inclined to think that this argument may not have been pressed before the High Court and in any event, now it is conceded that there is no substance in that argument. That is why we do not think any useful purpose would be served by examining the ballistic expert at this stage.

Mr. Purushotam, however, argued that a ballistic expert should have been examined in order to ascertain whether the gun surrendered by Daljit Singh had been used at all. But this argument is obviously untenable for the simple reason that this gun was surrendered more than a week after the incident and it takes imagination to realise that when Daljit Singh surrendered the gun, he must have cleaned it so as to remove any evidence about its user on the date of the incident.

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 Sinqh v. The State (1). 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 photo 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 observation were made in a case where the prosecution (1) (1950) S.C.R. 821.

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 person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examind. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed 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. Purushotam is right in contending as a general proposition that in every case where a fire-arm 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.

In the present case, no useful purpose could have been served by examining an expert for the purpose of showing that the gun had been used by Surjit Singh, because, as we have already pointed out, Daljit Singh took care to keep the gun with himself for over a week and. then surrendered it. It would be idle in ouch a case to suggest that it was necessary for the prosecution to examine an expert even though it is extremely unlikely that traces of its use had not been removed by Daljit Singh before he surrendered it. Then, as to Gurcharan Singh, it is admitted that he fired twice and there is nothing on the record to show that the injuries disclosed by the post mortem notes and deposed to by the doctor could not have been caused by a gun which, it was alleged, belonged to Arjun Singh and which was picked up by Gurcharan Singh after it fell down from his hands. Therefore., in the circumstances of this case, we do not think it would be possible to accept the plea that the failure of the prosecution to examine a ballistic expert has introduced a serious infirmity in the prosecution case. Even so, since we were satisfied that the judgment of the High Court suffered from some infirmities and was not as satisfactory as it should have been, we have read the evidence with Mr. Purushotam and heard his comments on it. Having carefully considered the said evidence, we see no reason to differ from the conclusion reached by the Courts below that broadly stated, the incident took place as it has been deposed to by the prosecution witnesses and that eliminates the exercise of the right of private defence by the appellants and establishes that they used their fire- arms aggressively and thus committed the offence of murder under section 302/34.