RAM PAL AND ANR . versus STATE OF U.P.

4. The Trial Court then examined the statement ofTejvir Singh and observed that he too had been closely associated with Brij Pal as he had F been in college with him in Muz.affarnagar and that when Tejvir' s uncle …. Karan Singh had been murdered; Jaswant Singh had been one of the witnesses and that there was no reason whatsoever as to why Tejvir Singh should have been present in that area at the relevant time as he had no field or land in that direction. The court then examined the plausibility of G the prosecution story and held that Birbal Singh who was statedly on his way to Muzafamagar for purposes of shopping for household goods was a story which could not be believed as he had not been wearing shoes f or a cap on his head or a vest under his shirt or an underwear under his dhoti and though there was a tonga service available from the village to Muzaffarnagar he along with the others had still chosen to walk to that RAM PAL v. STATE [HARJIT SINGH BEDI,J.] ""'- place. The Trial Court accordingly concluded that it appeared that the A deceased had been shot while easing himself and the body had thereafter been taken out by the murderer(s) and put on the boundary of the field. The Court also examined the Forensic evidence and opined that there was no explanation for the presence of an empty cartridge at the spot as only one shot had been fired from each of the two weapons and there B was no need for a re-loading of the weapons in that situation. The Trial ':>' Court also observed that the time of recovery of weapon being 26 hours after the incident, the Inspector's note about the smell of the gun powder from the right barrel of the gun could not be believed as the smell could not have been present after such a long time. Having held as above the c Trial Court acquitted the accused.

5. The State thereafter preferred an appeal before the Allahabad High Court. The Division Bench Court reversed the findings and convicted the accused under Sections 302/34 I.P.C and sentenced each of them to imprisonment for life. It is in these circumstances that the present appeal D ~ I is before us by way of special leave.

6. We have heard learned counsel for the parties very carefully. We i are conscious of the oft repeated principle that the High Court should be slow to interfere on a finding of acquittal recorded by the trial court and E if the view taken by that Court is possible on the evidence, the High Court should not set it aside on the premise that it was of a different opinion though it is permissible for it to re-evaluate the entire evidence. It is in this background that we must examine the findings of the High Court in the light of the arguments which have been addressed before us by the learned counsel for the parties.

7. Concededly, the facts of the case show that the parties are very closely related and on account of the dispute relating to the tubewell and the 18 bighas of land which had been left by Lal Singh, the relations between them were extremely strained. The High Court accordingly re- f assessed the ocular evidence and held as under: "However the trial judge has doubted the testimony of all the three eye witnesses on one ground or the other for no substantial reasons. He doubted the testimony of PW 1 Brij Pal Singh mainly on H [2007] 13 (Addi.) S.C.R. t threefold grounds (i) he was involved in an abduction case of a lady and that case was still pending at that time, (ii) he alongwith his father and brothers assaulted Ninnal and that case was also pending against him at the time of the occurrence and (iii) he alongwith his cousin Satvir son of his Tau Jaswant Singh fabricated the agreement of sale regarding 18 bighas land of his grand father Lal Singh debarring his real brothers, cousins and sons of his deceased uncle Hari Singh from that property observing that he 0( was a man of such character and mentality that he could do anything for his self interest. The trial judge also observed that c inspite of the fact that civil suit of perpetual injunction filed by Ram Pal was pending against him in the civil court he used to irrigate his land from the tubewell owned by Ram Pal and his brothers forcibly. We have given our anxious consideration to all these grounds and we are of the view that neither of these grounds aforesaid got any substance so as to render this witness Brij Pal Singh an unreliable person. If a person was involved in an abduction case it can not be said that in fact he was guilty of that offence. 'II There may be so many reasons for involving a person in a case falsely. Further, admittedly Brij Pal Singh alongwith his father and brothers were being prosecuted for assaulting Nirmal but admittedly there was a cross-case also against Nirmal and others initiated at the instance ofBirbal Singh, the deceased against Mahabir, father ofNinnal and others. Regarding the alleged agreement of sale, without being adjudicated upon by a court of law it can not be said that it was fabricated one. Admittedly those proceedings ended in compromise and after the compromise 18 bighas of land owned by Lal Singh was mutated in the names of all his legal representatives. No doubt, Brij Pal Singh and Jaswant Singh mentioned in the alleged compromise that they had not given Rs. 40,000.00 as part payment to Lal Singh; but in the family there are so many matters and on what tenns the compromise was reached between the parties are not known. Hence any adverse inference can not be drawn therefrom as PW 1 Brij Pal Singh stated that whatever he was directed to write in the compromise he got the same mentioned therein for getting the objections RAMPALv. STATE[HARJITSINGHBEDI,J.] rejected. Regarding irrigation of their land by Brij Pal Singh and A his brother from the tubewell, it appears that the field in which the tubewell was situate fell to the share of Ram Pal and his brothers but that tubewell was joint fan1ily property as it was installed in the life time ofHari Singh and Lal Singh before consolidation and partitition in the family and therefore Brij Pal Singh and his father B Birbal clainled their right for irrigation of their land adjoining thereto from that tubewell. Hence for the above, it can not be said that the character of Brij Pal Singh was such that he could not be said to be a responsible person whose sworn testimony could not be relied upon. c The trial judge further mentioned that PW 2 Harvir Singh and PW 3 Tejvir Singh were their own persons as whenever Brij Pal Singh or any member of his family or the family of Jaswant Singh got involved in any case Harvir Singh and Tejvir Singh stood surety for them.

We have considered these facts carefully and cautiously D and we are of the view that there is nothing wrong because if a person gets involved in some criminal proceedings and sureties have to be furnished for his bail the persons acquainted with him only would stand surety for him. It is a matter of common experience and knowledge that in villages generally there are party factions E due to one reason or the other and the persons acquainted with each other share the problems of each other mutually. This is the way rural life goes on. The trial judge also doubted the credibility of PW 2 Harvir Singh F as admittedly he was an eye witness in the murder case of the village pradhan who was murdered in the year 1974 and again he appeared as an eye witness in the instant murder case. It may be just by chance that a person resident of the sanJe village witnesses two murders. As a man of conscience and character he should G appear as a witness in the murder case ifhe witnessed the murder 'jc· or was acquainted with any fact relating thereto.

If a murder case in which he had appeared as a witness ended in acquittal and he appeared as an eye witness after 6-7 years in another murder case it would not be justified to draw a presumption that he is not a [2007] 13 (Addl.) S.C.R. reliable person and his testimony should be disbelieved only for that reason. 1be trial judge disbelieved the testimony of PW 3 Tejvir Singh on the ground that admittedly Satvir Singh son of Jaswant Singh and this witness Tejvir Singh studied together in S.DL College Muzaffar Nagar and they were class fellows in B.A. and Brij Pal Singh also used to study in that very college. He also observed that Karan Singh, uncle ofTejvir Singh (PW 3) had quarrel with one Bhim and Pratap and in that case Jaswant Singh father of Satvir Singh c stood as a witness in favour of Karan Singh and therefore Tejvir Singh appeared as a witness in that case against Ram Pal and Ram Saran prosecuted for the murder of Birbal Singh, brother of Jaswant Singh.

In our view we can not go by these considerations in believing or disbelieving the testimony of a witness. By these facts we conclude only this much that this witness should be treated as a partisan witness whose testimony has to be scrutinized with care and caution. The trial judge also doubted the presence of PW 3 Tejvir Singh at the scene of occurrence as he stated that at that time he was going to the field situate at a short distance from the scene of occurrence for cutting fodder as he had taken that field from Nain Singh on batai whereas DW 1 Nain Singh stated that he had never given that field to Tejvir Singh on batai. However this witness Nain Singh was given a suggestion in his cross-examination that daughter of his cousin brother and real sister of accused Ram Pal got married in one and the same family at village Narsan, District Saharanpur which he could not deny. He only expressed ignorance stating that he did not know if daughter of his cousin brother and real sister of accused Ram Pal were married in one and the same family at village Narsan, District Saharanpur.

It may be noted here that no question regarding this fact was put up by the defence counsel to PW 3 Tejvir Singh in his cross-examination. Hence the testimony ofDWl Nain Singh is no better than a got up witness as he might be denying having given that field to Tejvir Singh on batai under the influence of accused Ram Pal. Moreover, the presence of a ,._ RAMPALv. STATE[HARJITSINGHBEDI,J.] witness at the scene of occurrence can well be tested in his cross- A examination. Ifhe has withstood the test of cross-examination firmly and his credibility has not been impaired in his cross- examination his statement will have corroborative value otherwise not".

8. The findings aforesaid have been chailenged by Mr. Mahabir Singh, the learned senior counsel appearing for the accused/appellants.

9. He has first argued that the eye witnesses' account suffered from serious infirmities. He has pointed out that all the witnesses were either related to the deceased or were members of his group and as such their C evidence had to be accepted with care and caution. He has also urged that the character of the three witnesses did little to enhance their credibility and that the High Court had not really met the reasons given by the trial judge in refusing to accept Harvir Singh's presence at the place of incident. He has in addition submitted that the High Court had found corroboration D from the forensic evidence in the case but the facts which had come on the record, belied this evidence as well. The learned State counsel has however supported the judgment of the High Court.

10. It would be apparent that the fate of the appeal would primarily rest on the statements of the eye witnesses. We first take up the case of E Brij Pal Singh PW-1. Concededly, he is the son of the deceased. It is clear from his testimony that the relations between the parties were acrimonious and that there had been several bouts oflitigation between them. Brij Pal Singh has clearly stated as to the manner in which the incident had happened. His statement finds full support from PW Tejvir F Singh. The trial judge had disbelieved Tejvir Singh on the ground that he was a friend ofBrij Pal Singh and had also been a witness to another murder. We find that the matter has been dealt with by the High Court in extenso and as per the portion quoted above, we find no reason whatsoever to differ from the opinion expressed with regard to the G presence ofBrij Pal Singh and Tejvir Singh.

11. We however do feel that there is some doubt with regard to the presence ofHarvir Singh. Concededly, his statement under 161 of the Code of Criminal Procedure had been recorded by the police about 22 H [2007] 13 (Addi.) S.C.R. A days after the incident. The justification for this delay given by PW 10 SHO Brij Mohan Mishra who stated that Harvir Singh could not be traced earlier is perhaps not believable. Even assmning therefore that there is some doubt as to the presence ofHarvir Singh, we find absolutely no reason to disbelieve the presence of the other two eye witnesses, the more so B as the FIR had been lodged within two hours of the incident in the police station at a distance of six miles from the place of incident.

12. Mr. Mahavir Singh has also seriously challenged the Forensic evidence in this case by arguing that though the spent cartridge case had been picked up from the spot on 20th June, 1981 and the gun recovered C the next day, both these items had been sent to the laboratory only on 17th September, 1981 and as the 22 pellets recovered from the dead body had not been sent to the laboratory there was no justification in holding that the weapon had in fact been used in the murder. In support of his case Mr. Mahabir Singh has relied on Palia v. State of Punjab, D [1997] SCC Cr!. 383, Baldev Singh v. State of Punjab, [1990] 4 SCC 692 and Santa Singh v. State of Punjab, AIR 1956 SC 526. He has also urged that as PW I 0 Brij Mohan Mishra in his oross examination had testified that there were about 7-8 small shots in a .12 bore cartridge, the recovery of22 pellets from the dead body and the note regarding the E smell of gun powder from the barrel of the gun, falsified the prosecution story.

13. We have considered these arguments very carefully. We first note that the fac:ts that the cartridge case had been left by assailants at the spot F and that the shots had been fired from a shotgun and a pistol find mention in the FIR. Interestingly also, there is a suggestion by the defence in the cross-examination as to whether the spent cartridge had been found near the dead body or at some distance therefrom. It is also clear from the statement of Ram Pal recorded under Section 313 Cr.P.C. that the gun G which was licensed to him had been recovered from his house along with 11 cartridges. We have also perused the statement of PW 7 HC Rameshwar Prasad who stated that the weapon and other articles have been sent to the Muz.afarnagar city Malkhana on 2nd July, 1981 but had been returned to the police station as there was no place for storage and H had been returned to the Malkhana on 13th July, 1981 awaiting re- ;y RAMPALv. STATE[HARJITSINGHBEDI,J.] transmission to the laboratory. We also note from the statement of PW 9 A Randhir Singh a retired constable who was at the relevant time the mohanir of the Malkhana at Muzafamagar in the police station that the weapon and cartridge in a sealed condition had been deposited with him on 2nd July, 1981 and had not been tampered with till their dispatch to the Forensic Science Laboratory. We have also gone through the statement B of Om Prakash Tripathi PW 8, the expert in the Forensic Science Laboratory who had examined the KF .12 bore fired cartridge case and DBBL gun No.7902082 and had found that the said cartridge had been fired from the right barrel of the gun.

14. Seizing on the fact that 22 pellets had been recovered from the dead body and that PW 10 SHO Brij Mohan Mishra had deposed that c a .12 bore cartridge contained only seven to eight pellets, Mr. Mahabir Singh has submitted that the prosecution story was on the face of it unacceptable. We find absolutely no merit in this plea. It has come in the D evidence of PW-8 Om Parkash Tripathi that the cartridge used was of KF make (KF stands for Kirkee Factory). It is therefore a cartridge manufactured by the Indian Ordnance Factory, at Kirkee, which has, off and on, been manufacturing cartridges of shot sizes BB to 9 only ( this information has been reconfirmed from the Secretary, National Rifle E Association oflndia, New Delhi). A 12 bore shotgun cartridge carries a shot charge of twenty-five to thirty-five grams in weight and varying number of pellets based on several factors such as the length of the cartridge as would be clear from the following chart taken from Forensic Science in Criminal Investigation and Trials by Dr. B.R.Sharma (4th F Edition) at page 416: Projectile charge of Cartridges Number No.of pellets Pellets diameter Pellet weight Per 28.35 gs. mm. in gs. LG 9.J.4 ·4.54 SG 8.43 3.54 Special SG 7.57 2.58 c [2007] 13 (Addi.) S.C.R. SSG AAA BB Dust 6.83 5.16 4.09 3 .63 ( .16") 3.41 (.15") 3.25 3.05 (.13") 2.79 (.12") 2.59 (.11 ") 2.41 (.1 O") 2.21 (.09") 2.03 (.08") 1.2192 1.89 0.81 0.40 0.28 0.24 0.20 0.17 0.13 0.10 0.08 0.06 0.05 0.0109 N.B. The equivalent in inches of the pellet size shown in brackets in the third column has been taken from Lyons Medical Jurisprudence and Toxicology 11th Edition Page 913 and superimposed in the chart.

15. From the above table it can be concluded that KF manufactured E cartridges can contain between 70 (BB) to 580 (9) pellets per cartridge. The 7-8 pellets that have been referred to by PW Brij Mohan Mishra would be pellets of buck shot such as SG/LG which are not manufactured by the Kirkee Factory. The post-mortem report also shows that there were multiple wounds of entry I/8th of an inch over the whole of the chest F and upper half of abdomen in an area of 14" x 12", which confirms Brij Pal's statement that the two shots had been fired from a distance of about 40 or 50 feet. We are of the opinion that on account of dispersal of the pellets at that range, not all would have struck home. The recovery of22 pellets therefore fits in with the prosecution story. The argument based G on the gun powder smell from the barrel is equally without substance. In Modi's Medical Jurisprudence and Toxicology, 23rd Edition (Page 723) while dealing with the topic as to "the time when the weapon was fired" it has been observed that "it is never possible to ascertain with any scientific accuracy the time when a weapon or cartridge was fired. " 'r' – l RAM PAL v. STATE[HARJITSINGHBEDI,J.] In this situation, the judgments cited, which are based on their special facts, A have no relevance to the facts of the present'case.

16. We are therefore of the opinion that no fault can be found with the judgment of the High Court. We accordingly dismiss the appeal. B.B.B. Appeal dismissed.