Shambhoo v. State of Uttar Pradesh

Judgment

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 108of1961. Appeal from the judgment and order dated May, 11 1961 of the Allahabad High Court in Government Appeal No. 1492 of 1960. A. S. R. Chari and Udai Pratap Singh, for the appellant. G. C. Mathur and G.P. Lal, for the respondent. 1962. February 20. The Judgment of the Court was delivered by DAs GUPTA, J.-The appellant, Shambhoo, was tried by the Additional Sessions Judge, Moradabad for offences under sections 302 and 394 of the Indian Penal Code ands. 19(f} of the Indian Arms Act. Two other persons Altaf and Shaukat were also tried along with Shambhoo on charges under s.394 of the Indian Penal Code read with s.34 of the Indian Penal Code. The prosecution case is that on November 3, 1959 Dulla and Ghasita, father and son and one Bhassu were on their way to Tahirpur Bazar for the purchase of bullocks. They had been to Cbandarpur Bazar for this purpose but had not made any purchases,-all the three were carrying money.

Dulla had Rs.300/-, Ghasita had Rs.100/- and Bhassu had Rs.1051. Shortly before noon they reached Mauza Bhainsora. When they were near a tank about two or three furlongs from ShamblUJo Stott. r>f Uttar Pradesh· Das J. Shambhoo State of Utt4r Pradesh Das J, Rhainsora theRc four persons, Shambhoo, Altaf, Sibt.e and Shaukat, of whom Shamhhoo ancl :-;ibte were armed with pistol and Shaukat and Altaf were armed wit.h lat.bis, c:\me out. of a wheat fi.,Jd nearby. 'Vben they demanded money frnrn Dulin, 13hassu and Gb1\Rita, Ghasita dcli\·crc·cl the money readily, but his father Dulla reRiste<l. At this Sham bhoo fired his pistol and shot Du Ila <it-ad. Shambhou then took out Its. :!00/- from Dulla's poekd, while Shauk>tt took away the money from .Bhit~RH aft,.,r giving him a lathi blow.

The alarm whi"h Dulla, BhMsu arnl Ghasit.·1 raised when the robberH att:u·ked t.hem, hrJ1rnv1>r, brought to the plar<.' a number of person• who wore working in th<' fit.>ld.< and tbeR<• snece<'ded in felling Sbambhoo and Albf "'ith th<•ir lathiH so that they could not rrot awa.v. Thf.• other two, Shaui<at and Sibte, however, mauaged lo escape, even though they w<>re pursued by the&" villager,;. fn the course of the pursuit Sibte fired his pistol causing bulkt injU1·ies to Lal Singh. :IIahcndra and Udaibir, \\•ho \Vt:re ~tmc11g the puri:;uers. Leaving thc two pPt sons who had been 1trres\.<'d and the pi"tol and twolve live cartridgeH which were sl'izcd from Shambhoo at the place of nc<:urrc11ce Ghasita accompanied by Kain Chowkidar wc 011t to the Thana which was about 4 mil<'S off.

Th" information uf the occurren•'e as given b,v him was recorded and the Officer-in· Ch1trgo, proeee<lc<I to the pl1we of the occurrence and after taking Altaf an<l Shambhoo into custody and also the livt' cartridg,.s, the pistol and onn used cartridge case, investigated \.}10 C.'\se. Dulla'H dead body wns sent for post mortem examination, Shambhoo's injuries as also the injuries of Lal Singh, :11".hendra and Uda.ibir were also medically examined. All the accnscd pleaded not guilty. The defence of the present ap['l<Jllant was that he had 3 s.c.R. enmity with Talebar Singh and that he was arrested by Telebar and others on the d:i.te of the oecurreuce when he stopped at a well for bathin~ on his way back home from Moradabad. He examined a defence witness in support of his story that he was taking his bath near a well when he was arrested.

To prove its case the prosecution rdied mainly on the testimony of Ghasita and Bhassu and of six persons who came on hearing the alarm, namely, Kain Singh, Kain Chowkidar, Mahendra Singh, Talebar Singh, Lal Singh and Udaihir Singh. These 8 persons have given practically the same account of the occurrence and there is no doubt that if they are believed the case would stand proved against ail the accused persons. The learned Additional Sessions Judge was however of the opinion that even though apparently there appeared to be no reason for discarding the testimony of the eye-witnesses, there were several circumstances in the case, especially, the medical evidence as regards the injuries on Shambhoo and on Mahendra, Lal Singh and Udaibir Singh which left considerable room for reasonable· doubt about the veracity of the prosecution story and that the accused were entitled to the benefit of doubt. Accordingly, he acquitted all the three accused.

On ~ppeal by Government the Allahabad High Court set aside this order of acquitial as regards S~ambhoo and Altaf and has convicted Shambhoo under ss.302 and 394 of the Indian Penal Code and under s.19(f)' of the Arms Act · and sentenced him to death under s.302, Indian Penal Code, to four years' rigorous imprisonment under s.394 and to one year's rigorous imprisonment under s. l 9(f) of the Arms Act. Altaf was convicted an:l sentenced to four years' rigorous imprisonment under s. 39-l of the Indian Penal Shambhoo State of Uttst PraaaA DasJ. Shambhco Stale of Utt"' Pradesh DasJ. Code. The Government appeal against the acquittal of Shaukat was dismissed. Shambhoo has appealed to this Court under Art.134( I )(a) of the Constitution. The accused was not represented by Counsel and himself said what he wanted to say before us. Mr. Chari, a Senior Counsel of this Court however appeared as an amicus curiae and &ubmitted arguments in support of the appeal.

As already stated, the direct evidence given by the eight witnesses mentioned earlier, is that this appellant shot Du Ila dead when the latter offered resi~tance in making over the money which he had with him on demand by the appellant and hib companion8 and that than the appellant removed H.s.300/· from . Dulla's pocket. The question for our consideration is whether the High Court· was right in believing this evidence. The suggostion made by the accused that he has been falsely implicated by the witnesses at tho instance of Talebar does not bear a moment's scrutiny. There is, apart from his own statement nothing to show that Talebar had any enmity with him. Even if Talebar had any enmity there is vothing, to indicate that any of the other witneB11ee are at all under Talebar's influence.

The suggestion that the appellant has been wrongly involved in the case at the instance of Talebar was therefore rightly rejected by the learned Sessions Judge a.11 also by the High Court and bas 1 indeed not been pressed before us by Mr. Chari. It is true however as pointed out by the learned Sessions Judge that oven if there be no apparent reason in a case to explain why witnoHses arc telling a lie against an accused person circumstances brought out by the evidence may show that in fact their evidence cannot be safely relied upon. 33!) The two main circumstances to which Mr. Chari drew our attention and to which the learned Sessions Judge also appears to have atta<lhed great weight are :

(1) that while according to. the 1 witnesses the appellant was felled by them with lathies the medical evidence discloses only one injury on Shambhoo which could have been caused by a. lathi and (2) the injuries received by Lal Singh, Mahendra and Udaibir Singh are not such as would be caused by Sibt13's firing of which the witnesses have spoken. It is true that the eye.witnesses have spoken generally of those who arrived on hearing the alarm as having used their lathies and reading their evidence one would have expected a number of lathies injuries on Shambhoo's person. It is equally . true that though the medical evidence shows as many as 15 injuries on Shambhoo, 14 of these are only abrasions, while one (Injury No. 7) is a swell· ing on the outer aspect of the right ankle. . It is clear that Injury No. 7 .could have been cause(! by a lathi blow, while the other 14 injuries could not have been so caused. ·We do not think however that this gives any reason to disbelieve 'the evidence of the witnesses as to what they saw.

What appears to 'have happened is that one single lathi. blow was sufficient to bring Shambhoo down a.nd after that no lathi blow was given to him but he was dragged and thus received the numerous abrasions on his body. It is not unnatural in circumstances like these that all those who canie on hearing the alarm would try to take. the credit of felling the robber. That, we think, is responsible for the general statement that all of· them used their lathies. This exaggeration of what they did does not justify any doubt of their veracity. The learned Sessions Judge seems, to h~ve also thought that if these witnesses saw what they claim to have seen, the attack on Shambh.oo w()uld . .1962 , $lulrn6hoo S~Ot~ o.i Uttar . , ,Prad<sh DosJ. ~'liambliro DtzsJ. i SUPRE:\TE COURT REPORTS [1962] SUPP. have been more ferocious. With this we are unablo to agree. It has to be rcmernhPred that these villagers who arrived on hoaring the alarm were not related to Dulla.

Indt'ed, it would appear that Dull a and his companions wore unknown to them. There is nothing unlikely or unnatural in the fact that they were ~ontent with securing Shambhoo and did not injure him further. According to theeo witnesses Sibte fired his pistol at his pursuers, amongst whom were Lal Singh, Cde.ibir Singh, Mahendra and others. The medical examination showd that on November 4, 1 !J5!J-tha.t is, tho date after the occurrence-when tho Doctor examined the persons of Ma.hendra, Udaibir anrl Lal Singh he found one scabbed abrasion l /8" x I /8'' on the front of upper part of left leg 12-1/2" above the left knee on l\Iahen<lra; (2)

One scabbed abrasion 1/6" x 1/8" on the front to tho right side of the ahdoment at 5 O' clock position from the right nipple 5" away on the person of Lal Singh and (3) - abrasions on the person of Udaibir Singh-one abrasion l/10" x 1/2" on the inner side of the left leg, 11" above the left knee and the other abrasion 1/2" x 1/6" to the front of right leg, 8" below the right knee in the middle. We can soe no reason to doubt the testimony of the witnesses and do not think it at all unlikely that injuries of this nature were ea.used by pellets ejected by a firearm. The medical examination therefore far from being inconsistent with the account given by the witnesses, as urged by Mr. Chari lends support, in our opinion, to their account. The next circumstance which in the opinion of the Sessions Judge throws doubt the truth of the prosecution story is that tho robber ·should attack at a place so close to where many people were working.

We a.re uuable however to see any. thing unlikely in robbery being attempted at such a place. At least two of the miscreants, according to the witnesses, were armed with fire arms and that itself was sufficient to make them bold and to hope· that the people working in the field nearby would not dare come to the assistance of Dulla and his companione. The learned Judge seems to have thought that there was no place where the miscreants could have concealed themselves. In thinking thus he appears to have overlooked the evidence that sugarcane high enough to afford good· place for concealment was growing in several fields nearby. The learned Sessions Judge also thought it strange that there was no injury on the person of Ghasita and Bhassu and said : "It does not stand to reason that the robbers would leave these two persons without leaving any injury on them." We· find it difficult to understand why the learned Judge thought so.

Robber armed with pistol do not always use them unnecessarily. A pistol was used on Dulla as he did not readily hand over the money with him.. Ghasita and Bhassu did not offer such resistance, That itself. would explain why they were not fired upon. It ma.y be mentioned here that according to the eviden3e, one of the miscreants did use his lathi on Bhassu. After a careful consideration of evidence we are unable to discover any circumstance tha't justifies any doubt about the truth :tbout the prosecution story as against the appellant. Mr. Chari however urged that in any caso the fact that though the pistol which the appellant fired was according 1to the evidence, seized from him it was not sent to the ballistb expert for examination is a good reason for rejecting the evidenPe of the eye-witnesses.

The . witnesses already mentioned have said that when Shambhoo was secured thp pistol from which he had fired the fatal shot was seized from him and that one empty cartridge case was recovered from inside· that pistol and 12 !Dore cartrid?es wer~ Shambhuo y Stnte of l1Uo.r Pradesh DasJ. s,,.,,,u ... St.11 •J U1tar Pr a duh 342 SUPREME OOURT REPORTS [1962] SUPP. recovered from the appellant's person and that theso were made over to tho Sub-Inspector when he arrived. The Suh-I11spector's evidence is that he received from Kalu Singh tho pistol which was marked Ex. I in the case and 12 live cartridges. He took these, as well as tho empty cartridges case into his custody. It is equally clear that neither the pistol nor these cartridll'es wero s<'nt to any ballistic expert. While we think tho Sub·Insp<'ctor would have done well to send the pistol and the ammunition, especially the empty cartridges case, to a bal!i~tic expert for his opinion, we are unable to accopt '.\Ir.

Chari's contention that this omission furnishes any reason to doubt or rcjrct the evidence of the eye-witnesses. Mr. Chari has phwed st.ronll' reliancn on this Court's dedsion in Mohinder Singh, v. The State(1) and has drawn our attention to the following observations ma.de therein by Faz! Ali J. :- "In a cas<l where death is due to injuries or wounds l'aused by a lethal weapon, it has always beer considered to b" the duty of tho prosecution to prove by export evidence that it was likely or nt lea.~t possible for the injuries to have Leen caused with the weapon with which and in the manner in which they · are alleged to ha\'e been l~'lused." This was a case in which the pro8ecution charged ono i\iohinder Singh wit!{ haviug caused fatal in· juries on one Dalip Singh with a g11n. The ~un·P-16 was identified aA the gun with which i\fohinder Singh fired at Dalip Siugh.

The Hi11h Court was not satisfier! about the identification a.nd ~ppears to hav'e also been doubtful whether the injuries could have been causod by a gun. This Court after agreeing with the High Court that it wa.., doubtful whether the injuries which were attributed to the appellant were caused by a gun or by a rifle tho· ught t~a~ it was more likely that they wer(i caused 1950] S.C.JL 821. by a rifle than by a gun and the Court proceeded to observe :-. "It is only by the evidence of a duly qualified expert that it could have been ascertained whether the injuries attributed to the appellant were caused by a gun or by a rifle and such evide. nee alone could settle the control'ersy as to whether they could possibly have been caused by a firearm being used at such a close range as is suggested in the evidence." It has to be noticed that in that case one Dr. Goy le, Director of the C.I.D. Laboratory has stated in his evidence that the gun cartridges which were seized could have been fired through the gun P-16 though he could not s ty whether they were actually fired from that particular gun a similar gun or guns."

The High Court rejected the evidence of Dr. Goyle and considered the nature of the wound could have created a serious difficulty in the case. It was in these circumstances of that case that this Court ruade the observations on which reliance has been placed and held that the evidence of the witnesses could nut be relied upon. It has to be noticed that in the present case there is not only no reason to think that the injuries of which DuJ.la died could not have been caused by the pistol but on the contrary the nature of the injuries as shown by Dr. Nigam who held the post mortem examination is wholly consistent with the prosecution theory that a pistol was used. The external injuries as found on the body were described by the Doctor were as follows :- "Five gun-shot wounds (entrance) each 1/4" x 1/8". Scorching was present on the margins of these wounds. Four of these wounds were going to the chest cavity and the fifth one on the outer side was bone deep.

The five wounds were in an area 4-1/2" x 4-1/2". These . injuries were on right side of chest about 1-1/4" Shami boo Stal1 of Uttar Pradesh Das J. SliomiAoo State of Ull•r Pr.J~"h to the upper and inner side of right chest. The outermost injury was about l-1/2" below right side. One bullet al out :!/4" wa.s extracted from the fle8h from the inner side of · this wound." He proceed to give the int€rnal examination of the bocly in this manncr:- "The second, third and fourth right ribs were broken in several pieces in the front and back side. Clotted blood was present beneath the external injuries and there were four holes in the chest underneath those injuries/each hole being 1/4" x 1/8" and all going inside the chest. Undnrneath the external injuries were four holes I /4" x I /8" through and through in the right pleura. There were 4 holes l/4"xl/8" in the right chest, 3 being through and through and ono being I" deep. All of them were in the upper part of right lung.

About 3 pounds of blood wrui prC'sent in the chest cavity. One shot was extracted from tho right lung. Three shots were extracted from the right side upper part of back underneath the skin. Abdominal cavity was empty and normal. The bladder contained about 2 Oz. of urine. In cross-examination he stated : "I cannot tell whether the injuries received by the five bullets were caused by I shot or many." The very fact that tho Doctor used the word "bullets" in this stat€mcnt in cross-examination shows that he understood tho word to include pellet. Once that becomes .clear it <•ppears to us that the Doctor's evidence does not at all go against the prosecution case that the injuries wore caused by ono shot from a pistol. The absence of the ballistic expert's evidence is therefore no reason to doubt the testimony of the eye-witnesses.

Kasimulla, one witness who was examined by the appellant on his behalf said that it was when the appellant was washing his haud and face at the Haudia near a well at Jayantipur that Talebar came with 7 or 8 persons and arrested him. In cross-examination he stated that on several occa· sions he bad purchased "Singharas" from Shambhoo at Sedhari Bazar and was so known to him. On an examination of the entire evidence on the record we have come to the conclusion that the account given by the witnesses mentioned earlier as regards what the appellant did and how he was arrestPd is true and this witness Kasimullah has given false evidence to help Shambhoo. As this appeal is under Art. 134(1)

(a) of the Constitution we have re-appraised the evidence for ourselves and on such reappraisal have come to the conclusion that the view taken by the High Court that persons claiming to be eye-witnesses of the occurrence have told the truth and their evidence proves beyond reasonable doubt that the appellant committed the offence of murder puni· shable under s. 302 of the Indian. Penal Code by causing the death of Dulla and that he also committed an offence under s. 304, Indian Penal Code ands. l9(f), Arms Act, is correct. We are also of opinion that the High Court was right in passing the sentence of death under s. 302 of the Indian Penal Code. The appeal is accordingly dismissed. Appeal dismissed. J96Z Sh'ambhoo State of Uttar Prade1h DasJ,