Ashok Singh vs State Of U.P

house and succumbed to his injury. The incident was 2 Criminal Appeal no.640 of 2005

witnessed amongst others by Rameshwar Singh (PW3) son of

the deceased and Durjan (PW4). After the assailants left the

scene, Chhota Singh was shifted from the place where he lay

dead. Rameshwar Singh (PW3) rushed to the Police Station

and lodged a report with Police Station Hasan Ganj at 9.30

a.m. whereafter Ram Prakash Shukla Sub-Inspector (PW5)

reached the spot at 2.45 p.m. and started with the

investigation. He found the dead body lying in front of his

residential house and after recording the inquest report

dispatched the dead body for the post-mortem. The post-

mortem examination was conducted by Dr. A. Akram on 12th

October 1977 which revealed two ante mortem external

injuries, one being a gun shot wound from which a pellet was

also recovered. On the completion of the investigation, the

accused was charged for an offence punishable under Section

302/34 of the IPC. The trial court relying on the statements of

Rameshwar Singh (PW3) and Durjan (PW4) convicted all the

accused and sentenced them to undergo imprisonment for life.

The matter was thereafter taken in appeal before the High

Court. The High Court repelled the submissions of the 3 Criminal Appeal no.640 of 2005

appellant's counsel that the FIR had been inordinarily delayed,

that the incident had not taken place at the time and place

suggested by the prosecution and that the deceased had, in

fact, been murdered in the early hours of the morning when he

had gone to ease himself. The High Court observed that it was

true (as it had been admitted by Rameshwar Singh (PW3)

himself) that there were two rival groups in the village and one

of the groups was headed by his father whereas some of the

accused belonged to the opposite party and that Ashok Singh

appellant and he were on inimical terms and, therefore, it

appeared that Rameshwar Singh was an interested witness.

The court, however, further opined that Durjan was a

completely independent witness whose evidence inspired

confidence. The court also observed that though two shots

were alleged to have been fired at the deceased, one by Ashok

Singh and the other by Shyam Saran Singh the argument of

the learned counsel for the appellant, that there was apparent

discordance between the ocular and the medical evidence was

not sustainable more particularly as both shots had been fired

simultaneously, and it would have been impossible for any 4 Criminal Appeal no.640 of 2005

witness to have given a categorical statement as to which of

the two shots had hit the deceased. The court, further, opined

that though Rameshwar Singh and Durjan had both stated

that Shiv Raj and Sheo Narayan had been armed with a gun

but it was conceded on all sides that they had not used their

weapons and all that they have done was to have shouted to

their companions to kill Chhota Singh, and that it appeared

from the statement of Rameshwar Singh (PW3) that he had, in

fact, not seen these two actually exhorting the other accused

to commit the crime. The court accordingly granted the

benefit of doubt to Shiv Raj and Sheo Narayan appellants

therein while dismissing the appeal of Ashok Singh and

Shyam Saran Singh. These two are before us in appeal by way

of Special Leave Petition.

3. We have heard the learned counsel for the parties and

gone through the record. We find no reason to disbelieve

Rameshwar Singh (PW3) supported fully as he is by the

statement of Durjan (PW4) who is a truly independent witness.

An attempt by the defence to show that he was indebted to

Chhota Singh for some favour earlier in point of time has not 5 Criminal Appeal no.640 of 2005

been substantiated on record. We also find that the ocular

evidence is fully borne out by the medical evidence as Dr. A.

Akram had recovered a pellet from the dead body at the time

of the post-mortem examination.

4. Mr. Luthra, the learned counsel for the appellants has

submitted that as only one entry wound had been detected on

the dead body from two shots, the prosecution story suffered

from a serious flaw. It is true that two shots were alleged to

have been fired at the deceased whereas only one wound entry

on the head by a fire arm had been detected at the time of

post-mortem. We are of the opinion, however, that it would be

impossible for any witness in a case of simultaneous firing of

two or more shots to give a categorical statement as to which

of the two shots had hit the victim. We also see from the

evidence of ASI-Ram Prakash Shukla (PW5) that two spent

cartridge cases had been picked up from the place of incident

meaning thereby that both Ashok Singh and Shyam Saran

Singh had fired a shot each at the deceased. We also believe

that if two different types of weapons had been used it would

have been open to the defence to argue that in the light of the 6 Criminal Appeal no.640 of 2005

fact that a shot gun pellet had been recovered from the dead

body, the other weapon had not been used, which factor

undoubtedly could cause some speculation about the

prosecution's case. Admittedly, this is not the situation before

us, as both the appellants had been armed with shot guns.

We, therefore, confirm the judgment of the High court. The

appeal is dismissed.

....................................J (Harjit Singh Bedi)

.....................................J. ( J.M. Panchal)

New Delhi, Dated 18th September 2009