Case: State Of M.P. Through C.B.I Vs. Paltan Mallah

& Science Laboratory, New Delhi. During the post-mortem of the deceased Shankar Guha Niyogi, three pellets were extricated from his body. These pellets were sent to Forensic Laboratory at Sagar and thereafter they were deposited in the court by PW-192 and these pellets were also later on obtained from the court and sent for examination by the CFSL. PW-159, the ballistic expert conducted detailed laboratory test-fires and microscopic examination and he gave Exh.P-398 report wherein he opined that three lead pellets marked P-1 to P-3 must have been fired from a 12 bore country-made pistol. He deposed that he had prepared the report on the basis of the miscroscopic examination and he had also taken photographs of the pellets and Exh.P-398 are the work-sheets of the report prepared by him. 34. The evidence of Pw-159 and his report are seriously challenged by the counsel for the respondent accused. He extensively referred to the text books written by foreign ballistic experts such as Burrad, Hatcher and Taylor. It was argued that in the instant case, the weapon was a country-made pistol and the barrel was not grooved and there was absolutely no question of any identifiable marking coming on the pellets to enable the expert to give any opinion whatsoever. Reliance was placed by him on the observations of this Court in Ram Avtar and Others vs. Ram Dhani and Others (1997) 2 SCC 263 wherein this Court relied on the opinion of J.S. Hatcher in his text book of Fire Arms & Investigation to the effect that unless there were rifling marks in the bullets which were not defaced by the entry in the bodies of the victims, no expert can ordinarily and generally give an opinion. It was also pointed out that in the case of country-made pistol, it was difficult to assume that the ballistic expert could have found identifying marks on the pellets. The evidence given by the ballistic expert was questioned in great detail. He was cross-examined extensively be counsel for all the accused. He deposed in the cross-examination that when these pellets are fired, then they among themselves would press each other inside the barrel [on inside parts] their effect could be on the side of inner side of barrel, they will take special individual mark on them and these marks will be in the form of a line on the pellets and if the barrel is tight then pellets will be more rubbed, and on more parts, lines will come. If barrel is tight then half part of the pellets are pressed and the barrel was nicely tight and the witness himself said that in the test-fire which he did on all of the six pellets good marks of barrel had come. He had also stated that he had taken micro-photograph of only one pellet and had compared all pellets but he had not made any separate comparative record or photograph. 35. It was argued that micro-photographs were not produced and mere observation by the expert - was not sufficient and that he should have produced these photographs. We do not think that there was any such necessity to produce the micro photographs when the expert has given convincing reasons to support his opinion. This Court in Ramanathan vs. State of Tamil Nadu [1978] 3 SCC 86 held that the production of such photographs is not necessary and such a peal was rejected. In paragraph 26, it was held as under: It is true that there has been considerable difference of opinion amongst investigators regarding the use of photographs in a court for the purpose of illustrating the matching of the markings, and while it may be that microscopic photographs, when taken with due care and in the best of conditions, may enable the evidence to be placed on the record in a visible form, it cannot be denied that a court would not be justified in rejecting the opinion of an expert who has examined the markings under the comparison microscope simply for the reason that he has not thought it necessary to take the photographs. It is therefore not possible for us to reject the evidence of Ramiah (PW 23) who has categorically stated that he had compared the land and groove markings on the bullets under a comparison microscope, simply because he did not think it necessary to take the photographs. 36. In the case of the respondent-accused Paltan Mallah, there is overwhelming evidence to prove his complicity in the crime. The recovery of the country-made pistol at his instance, which is proved to have been used for causing the death of Shankar Guha Nihogi; and the evidence of the ballistic expert coupled with two extra-judicial confessions made to PW-105 made PW-124 support the prosecution case fully. There is also prosecution evidence to the effect that the accused had got accessibility to the weapons and that he was staying at the place of occurrence and doing various jobs. It is also established that accused Paltan Mallah is involved in other offences relating to fire-arms. Though there is no direct and convincing evidence against other accused, the case against Paltan Mallah is proved beyond reasonable doubt. He was acquitted by the High Court on fanciful reasons. The evidence of extra-judicial confessions was rejected without any valid reasons. The report of the ballistic expert also was not appreciated in the correct perspective by the High Court. In our view, the Division Bench seriously erred in acquitting the respondent-accused Paltan Mallah. 37. In the result, we reverse the acquittal of the respondent-accused Paltan Mallah. The incident leading to these appeals had taken place as early as 1991. As there is a long of time, we do not think that the sentence of death imposed upon him by the Sessions Court is justified in the circumstances. We set aside the acquittal of respondent-accused Paltan Mallah and find him guilty of the offence punishable under Section 302 IPC and sentence him to undergo imprisonment for life.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]18. Another incriminating circumstance sought to be proved against the accused is the extra-judicial confession alleged to have been made by the ninth accused Paltan Mallah wherein he named A-1, A-2, A-5 and A-6. It is alleged that he made the confession to PW-105 Satyaprakash Nishad and A-9 is alleged to have disclosed to PW-105 that these accused persons had given him money and he murdered Shankar Guha Niyogi for the sake of money. Under Section 30 of the Evidence Act, the extra-judicial confession made by a co-accused could be admitted in evidence only as a corroborative piece of evidence. In the absence of any substantive evidence against these accused persons, the extra-judicial confession allegedly made by the ninth accused loses its significance and there cannot be any conviction based on such extra-judicial confession. The High Court, in our view, has given cogent and satisfying reasons for the acquittal of the accused A-1 to A-8. We do not find any reason to interfere with such a finding, especially when this being an appeal against acquittal and this Court would be slow in reversing such a finding unless the High Court had made a perverse or erroneous appreciation of the evidence resulting in grave miscarriage of justice. The evidence adduced by the prosecution can only throw some serious suspicion against these accused which cannot be used as a substitute for evidence21. The High Court in the impugned judgment stated that there is absolutely no evidence to show that Paltan Mallah could have been at Bhilai during the relevant period. In a murder that took place during night, there would not be any direct evidence to prove the fact, but various circumstances would show that the ninth-accused was a Bhilai during 1991. This accused was staying with PW-51 Reshami Bai. She deposed that accused Paltan Mallah had gone to Bombay and this evidence was erroneously taken into consideration by the High Court. It is common knowledge that the wife of an accused, leave aside the exceptional cases, would always give evidence only to support the husband31. In the instant case, we do not think that the court has violated any such provision merely because the witness was not from the same locality and his evidence cannot be rejected36. In the case of the respondent-accused Paltan Mallah, there is overwhelming evidence to prove his complicity in the crime. The recovery of the country-made pistol at his instance, which is proved to have been used for causing the death of Shankar Guha Nihogi; and the evidence of the ballistic expert coupled with two extra-judicial confessions made to PW-105 made PW-124 support the prosecution case fully. There is also prosecution evidence to the effect that the accused had got accessibility to the weapons and that he was staying at the place of occurrence and doing various jobs. It is also established that accused Paltan Mallah is involved in other offences relating to fire-arms. Though there is no direct and convincing evidence against other accused, the case against Paltan Mallah is proved beyond reasonable doubt. He was acquitted by the High Court on fanciful reasons. The evidence of extra-judicial confessions was rejected without any valid reasons. The report of the ballistic expert also was not appreciated in the correct perspective by the High Court. In our view, the Division Bench seriously erred in acquitting the respondent-accused Paltan Mallah37. In the result, we reverse the acquittal of the respondent-accused Paltan Mallah. The incident leading to these appeals had taken place as early as 1991. As there is a long of time, we do not think that the sentence of death imposed upon him by the Sessions Court is justified in the circumstances. We set aside the acquittal of respondent-accused Paltan Mallah and find him guilty of the offence punishable under Section 302 IPC and sentence him to undergo imprisonment for life.