SUPREME COURT ACQUITS APPELLANT-ACCUSED OWING TO LACK OF DIRECT EVIDENCE AND GLARING DISCREPANCIES IN EYE-WITNESS TESTIMONIES

In a recent case of Ram Singh Vs State of U.P. Criminal Appeal No. 206 of 2024, a two Judge Bench of the Supreme Court comprising of Justice Abhay S. Oka and Justice Ujjal Bhuyan passed a Judgment dated 21-02-2024 and observed that the non-recovery of weapon used in an offence and non-examination of a ballistic expert, would not, by itself, be fatal to the prosecution’s case, if any direct, credible and reliable evidence can be produced to prove the accusations against the accused beyond all reasonable doubt.

Facts

i) In the present case, the Informant-Radhey Lal filed a Complaint before the Bhognipur Police Station in Kanpur, Uttar Pradesh, which was registered as an FIR bearing 252/1982 dated 19-08-1982. The Informant stated that when he along with his brother- Desh Raj were sitting in front of the entrance to their house, accompanied by his mother and his neighbours, Lala Ram and Man Singh, the Appellant-Accused-Ram Singh with one, other Lala Ram came into their premises holding a pistol. Upon being instigated by the other, Lala Ram, the Accused-Ram Singh opened fire on the Informant, but the bullet hit his mother, as a result of which she died. The Accused-Ram Singh and the co-Accused- Lala Ram fled the crime scene.

ii) As per the Informant, around one and a half months back, there was a brawl between the Informant’s son- Baan Singh and the Appellant- Ram Singh regarding election of village pradhan, which was reported to the Police. Hence, owing to this enmity, the Appellant opened fire against the Informant.

iii) Based on the Complaint, the Police conducted investigation and submitted Chargesheet against the Appellant-Ram Singh for committing offences under Sections 301 of the Indian Penal Code 1860 (IPC) (Culpable homicide by causing death of person other than person whose death was intended), 302 IPC (Punishment for murder), 307 IPC (Attempt to murder) read with 34 IPC (Acts done by several persons in furtherance of common intention). The Chargesheet was also filed against the co-Accused-Lala Ram for committing offences under Sections 307 read with 34 IPC.

iv) Based on eye-witness testimonies of the Informant and his neighbours Lala Ram and Man Singh, the Ld. Additional Sessions Judge, Non-Metropolitan Area, Kanpur (Trial Court) in Sessions Trial No. 297 of 1982, vide Order dated 28-05-1983, convicted the Appellant-Accused-Ram Singh under Sections 301, 302 and 307 of IPC. The co-Accused was given benefit of doubt and thereby, acquitted.

v) For the offences under Sections 301 and 302 IPC, the Appellant was sentenced to undergo life imprisonment and for the offence under Section 307 IPC, the Appellant was sentenced to undergo rigorous imprisonment for five years. Both the sentences were to run concurrently.

vi) Aggrieved by the Trial Court Order dated 28-05-1983, the Appellant-Accused filed an Appeal in Criminal Appeal No. 1611 of 1983 before the High Court of Judicature at Allahabad. The High Court, vide Order dated 05-02-2018, dismissed the Appeal and upheld the Trial Court’s Order of Conviction and Sentence imposed on the Appellant.

Supreme Court Observations

Aggrieved by the High Court Order dated 05-02-2018, the Appellant-Accused filed Criminal Appeal No. 206 of 2024 before the Hon’ble Supreme Court. The Apex Court, vide Order dated 21-02-2024, made the following observations:

1) That the Informant and the Accused had a rivalry pertaining to election of a village Pradhan. The Accused’s wife was a candidate thereof and the Informant voted for the opposing candidate. Thereafter, the Accused’s wife lost the election and a fight broke out between the Informant’s son and the Accused. Accordingly, FIR was also lodged against the Accused. The case was pending. The co-Accused before the Trial Court, i.e. Lala Ram was deposing as a witness for Accused-Ram Singh in the said case.

2) That on the day of incident, co-Accused-Lala Ram had instigated Accused-Ram Singh that the Informant was creating a lot of mischief and hence, he should be killed. Thereafter, the Accused opened fire from a pistol that he was carrying and the bullet hit the Informant’s mother. The Accused and co-Accused then fled the crime scene.

3) That the eye-witnesses deposed as follows:

a) As per the Informant, when the Accused had fired a bullet, he and his brother bent below the cot and that the bullet his mother. Thereafter, the Accused and the co-Accused ran away.

b) The Informant’s brother also had the same version as that of the Informant. He added that he had written the Complaint, but the same was filed before the Police by the Informant.

c) But as per one of the neighbours- Man Singh, the co-Accused instigated the Accused to fire the pistol and when the bullet was shot, the Informant and his brother had stood up but did not run towards the Deceased.

d) The other neighbour- Lala Ram deposed that there was pre-existing rivalry between the Accused and the Informant and that he did not see the co-Accused instigating the Appellant-Accused and further, he did not see any pistol in the Accused’s hands.

4) That as per the Doctor, who had conducted the post-mortem examination of the Deceased, deposed that her cause of death was due to shock and haemorrhage because of the injuries caused by the bullet.

5) Based on the aforesaid testimonies, the Bench observed as follows:

i) That the Deceased was sitting laterally and not behind her two sons.

ii) As per testimonies of eye-witnesses, the Accused came from northern side and moved 2-3 steps ahead and fired at the Informant, but the bullet hit the left chest of the Deceased, who was sitting on a cot at a lateral distance from her sons.

iii) Further, as per the Post-Mortem Report, the bullet wound was bone-deep, which clearly established that the Deceased was shot at from a close range.

iv) This implied that the trajectory of the shot would be from a height downwards.

v) If that was the case, then it is highly improbable that the bullet would have hit the left chest of the Deceased, who was sitting sideways to her sons and not behind them.

vi) Furthermore, it is strange that the Complaint was written by the Informant’s brother but he did not accompany the Informant to file the same before the Police. Hence, his testimony also did not seem credible.

6) Further, the Police could not recover the pistol, from which the Appellant allegedly shot at the Informant. Hence, the most material evidence could not be exhibited by the Prosecution.

7) The Supreme Court in earlier cases observed as follows regarding the importance of ballistic expert opinion in cases where injuries are caused by firearms / lethal weapon:

7.1) In cases where injuries are caused by firearms, the opinion of the ballistic expert is essential, to connect an accused with the crime. Failing which, it would affect the creditworthiness of the prosecution’s case.

7.2) “Failure to seize the weapon of offence on the facts and in the circumstances of the case, had the effect of denting the prosecution story so much so that the same together with non-examination of material witnesses constituted a vital circumstance amongst others for granting the appellants the benefit of doubt.”

7.3) However, if the direct evidence proves the nature of injuries, the examination of a ballistic expert may not be regarded as essential. For instance, in case of availability of credible and reliable eyewitnesses’ accounts, the non-recovery of weapon of offence would not dis-credit the case of the prosecution.

7.4) But “where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused by a gun and those prima facie appeared 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.”

8) Furthermore, the other neighbour- Lala Ram who was present the crime scene, did not see any pistol in the Accused’s hands.

9) Moreover, the blood-stained clothes of the Deceased that were seized and sent to the chemical examiner, the report thereof from the chemical examiner was not received.

10) Thus, the Bench observed that there were glaring inconsistencies in testimonies of the eye-witnesses and hence, their evidence cannot be said to be credible.

11) Further, in any event the Trial Court had given benefit of doubt to the co-Accused Lala Ram based on the same evidence as was available against the Appellant-Accused. In this regard, the Apex Court held that “when there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the court cannot convict one accused and acquit the other.” Thus, the Appellant-Accused would also be eligible for the benefit of doubt, as the Prosecution could not prove the allegations against the Appellant beyond reasonable doubt.

Conclusion

Thus, based on the aforesaid observations, the Apex Court held that the non-recovery of weapon used in the offence would not, by itself, be fatal to the Prosecution’s version. But in the present case, the Prosecution failed to bring forth credible eye-witnesses and other evidence that would connect the Accused with the crime. Hence, the omission to seek ballistic opinion and examination of the ballistic expert proved fatal to the Prosecution’s case. Therefore, the Supreme Court acquitted the Appellant-Accused and thereby, set aside the Trial Court’s Order of Conviction and Sentence dated 28-05-1983 and the High Court Order dated 05-02-2018 that upheld such conviction and sentence.

 

Harini Daliparthy

Senior Associate

The Indian Lawyer