Judgment Case ID: 452

Judgment:
minal Appeal No. 135 of 1956. 188 Appeal by special leave from the judgment and order dated November 25	 1955	 of the Allahabad High Court	 in Criminal Appeal No. 702 of 1955 and Referred No. 77 of 1955 arising out of the judgment and order dated May 17	 1955	 of the Court of Sessions Judge	 at Moradavad in Sessions Trial No. 29 of 1955. P. section Safeer	 for the appellant. G. C. Mathur and C. P. Lal	 for the respondent. November 21. The Judgment of the Court was delivered by IMAM J. The appellant was sentenced to death for the marder of Daya Ram by shooting him with a country made pistol. He was also convicted for being in possession of an unlicensed firearm under the Arms Act for which offence he was sentenced to two years rigorous imprisonment. He appealed to the High Court of Allahabad	 but his appeal was dismissed and the conviction and sentence was affirmed. Against the decision of the Allahabad High Court the appellant obtained special leave to appeal to this Court. According to the prosecution	 the occurrence took place at about midnight of July 4	 1954	 when Daya Ram was sleeping on a cot on a platform. Near him were sleeping Gokul	 Doongar and Jai Singh	 while two women Ratto and Bhuri slept in a room to the north of the platform and adjoining it. The report of the shot fired woke up these people. According to them	 they saw the appellant running towards the east. He was accompanied by three others who were armed with lathis. Daya Ram died almost instantaneously as the result of the injuries on his chest and stomach from where pellets were recovered at the time of the post mortem examination. Daya Ram had been shot from a close distance because the skin was charred over the entire area of the wound. Near the cot	 on which he slept	 a cartridge exhibit I. was found which was handed over to the Police Officer when he arrived for investigation. A first information report was lodged at the police station five miles away at 8 10 a. m. on July 5	 1954. 189 The motive for the murder	 as alleged by the prosecution	 was that on the death of one Bhai Singh the appellant hoped to become guardian of Ratto 's property	 who	 however	 appointed Daya Ram to take charge of it. The appellant resented this very much. Three days before the murder of Daya Ram there had been a quarrel between the appellant and his wife on the one side and Ratto and Bhuri on the other. The quarrel arose over an attempt by the appellant to construct a wall over Ratto 's land. ' The appellant uttered a threat that he would soon settle with the person on whom Ratto was depending	 that is to say	 the deceased Daya Ram. According to the High Court	 the defence did not seriously challenge these allegations and the appellant himself admitted that Ratto wanted him to be turned out of his house. The appellant was arrested on the night between July 5 and July 6	 1954	 at a village fourteen miles away from the village of "occurrence Dhakeri. On July 7	 he informed the Sub Inspector that he was prepared to produce the pistol exhibit III. The SubInspector and the appellant went to village Dhakeri and Kartar Singh	 Mahtab Singh and Khamani were invited to witness the events that might follow. On reaching the appellant 's house	 which adjoins the resid ential house of Ratto	 the appellant stated that the pistol exhibit III had been concealed by him in a corn bin. From a secret place he took out a key and opened the lock of his house with it. He then took the SubInspector and the witnesses to a mud corn bin inside his house	 which appeared to be freshly plastered at one place. The appellant removed the plaster at this place and from inside took out the country made 12bore pistol exhibit III	 and three live 12 bore cartridges. The cartridge exhibit I	 which was found near the cot of Daya Ram	 and the pistol exhibit III were sent to Shyam Narain	 a Deputy Superintendent of Police	 who is 	a fire arms expert of the C. I. D. of Uttar Pradesh Government. He made scientific tests. He came to the conclusion as the result of the various tests made by him that the cartridge Ex	 I was fired from the pistol exhibit III and no other fire arm. 190 While the Sessions Judge believed the testimony of the eye witnesses	 the learned Judges of the. High Court were of the opinion that they were unable to accept the assertion of the eye witnesses that they actually saw the appellant with a pistol by the bedside of the deceased. The High Court	 however	 relied upon the circumstantial evidence in the case in upholding the conviction of the appellant. There was motive for the crime and a few days before the killing of. Daya Ram the appellant had held out a threat against him. The appellant was arrested fourteen miles away from his village which is the place of occurrence. He produced a pistol exhibit III from his house in circumstances which clearly showed that he only could have known of its existence there. The opinion of the fire arms expert clearly established that the cartridge exhibit 1	 found near the cot of Daya Ram	 was fired with the pistol exhibit III produced by the appellant. All these circumstances	 in the opinion of the High Court	 left no doubt in the minds of the learned Judges of that Court that the appellant murdered Daya Ram by shooting him with his pistol. The learned Advocate for the appellant urged that the appellant could not have placed the pistol in his house and it must have been planted there by someone because none of the witnesses stated that they had seen him going to his house after the murder and the appellant was certainly not found in his house in the morning. According to the situation of the house of the appellant and where the witnesses were immediately after the occurrence	 it was impossible for the appellant to have entered his house without being seen. It was further unlikely that after having committed the murder	 the appellant	 after having run away	 would return to his house. Both the Courts below	 however	 found no reason to disbelieve the Sub Inspector and the witnesses that the appellant had produced the pistol exhibit III from the corn bin inside his house. The appellant had the key of the house which was hidden in a secret place and the com bin was itself freshly plastered at one place. These circumstances clearly showed that no one but the appellant could have 191 known of the existence of the pistol in the corn bin in his house. As to whether the appellant could or.could not have gone to his house after the occurrence that is a matter of pure speculation. It does not appear that any witness was asked anything about it. The High Court found that the witnesses might have caught a glimpse of the people who were fast disappearing from the scene but who had no reasonable opportunity of marking their features. In the confusion of the occurrence the witnesses may not have observed where the culprits had disa speared except that they were seen running towards the east. On the record	 there is nothing to show that to enter the appellant 's house	 after the occurrence	 the appellant had necessarily to go into his house within the view of the witnesses. It is quite unnecessary to examine this matter any further because the evidence concerning the production of the pistol exhibit III by the appellant from his house is ' clear and reliable and	 therefore	 it is certain that the appellant did enter his house after the occurrence without being seen by anyone. It was next urged on behalf of the appellant	 that	it was impossible for a cartridge to have been near the cot of Daya Ram	 because after the shot had been fired the cartridge would still remain in the barrel of the firearm. This again is pure speculation. That the cartridge was ejected from the fire arm is certain. Why it was ejected none can say. It may be that the miscreant reloaded his weapon to meet any emergency. The evidence of the Sub Inspector is clear that on his arrival at the place of occurrence the cartridge exhibit I was handed over to him by the witness Khamani who cannot be said to be unfavorable to the appellant. The Courts below had no reason to disbelieve the evidence in the case that the cartridge exhibit I was found near the cot of Daya Ram and we can find no extraordinary circumstance to justify us saying that the Courts below took an erroneous view of the evidence. On the facts found there was a motive for the murder. Apparently	 for no good reason the appellant was not found at his house on the morning of July 5	 but was 192 in a village fourteen miles away at the time of his arrest. The appellant produced the pistol exhibit III in circumstances clearly showing that he had deliberately kept it concealed. We have no reason to doubt the evidence in this respect. The real question is	 whether it is safe to act upon the opinion of the fire arms expert that the cartridge exhibit I was fired from the pistol exhibit III produced by the appellant and none other	 because without that evidence the circumstantial evidence in the case would be insufficient to convict the appellant of the crime of murder. The opinion of 'the fire arms expert	 based on the result of his tests	 does not seem to have been challenged in cross examination or before the High Court. If there is no reason to think that there is any room for error in matters of this kind and it is safe to accept the opinion of the expert	 then clearly it is established that the cartridge exhibit I	 found near the cot of Daya Ram	 was fired from the pistol exhibit III produced by the appellant. To satisfy ourselves we have looked into the works of some authors dealing with the marks left on cartridges and shell cases by fire arms in order to ascertain that there is no error in the opinion of the fire arms expert in the present case. Kirk in his book "Crime Investigation" at page 346 states: "Fired cases are less often encountered in criminal investigation than are bullets	 but when found they are usually of greater significance because they receive at least as clear markings as do bullets	 have a greater variety of such markings	 and are not ordinarily damaged in firing. . . . . . . . . The questions which may be asked as a result of finding such materials are similar to those that require answers when only bullets are located. In the ordinary case	 quite definite answers can be given. This is true both of shotgun shells and of cartridge cases from pistols	 revolvers	 and rifles. . . . . . In general	 it is possible to identify a certain firearm as having fired a particular shell or cartridge. It is often possible to identify the type or make of gun ' which fired it	 though in many instances this must be tentative or probable identification only." ` 193 After :dealing with the marks left by breech block	 firing pin impressions	 marks from extractors and ejectors	 marks due to expansion	 magazine marks and loading mechanism marks	he states	 "Summarizing	 the cartridge or shell case us. ally carries markings which are quite distinctive of the gun in which the charge is fired	 and can be used for positive identification of the latter. Those marks arise from a variety of contacts with various parts of the gun	 an analysis of which is useful in	 determining the type of weapon in case no suspected gun is available . . . . Thus	 the recovered shell or cartridge case is one of the most useful types of physical evidence which can be found in shooting cases. " Soderman and O 'Connel in their book "Modern Criminal Investigation" also deal with the subject and they refer to the marks from the fire pin	 the extractor	 the. ejector and the breech block. After referring to comparison being made of the cartridge or shell fired from a fire arm for the purpose of test	 they state at page 200	 If they are in the same position in relation to one another and their general appearance is the same	 one may conclude that they have been fired from a pistol of the same make. An absolute conclusion about the origin of the shells	 however	 can be reached only after a photomicrographic examination of the markings from the breech block on the rear of the shell. . . . . . Identification	 with the aid of the enlargement	 should not prove difficult. The characteristic scratches can be easily seen. A photograph of the incriminating shell and one of a comparison shell should be pasted side by side on cardboard	 and the characteristic marks should be recorded with lines and ciphers	 following the same method as that used in the ' identification of fingerprints. " In Taylor 's book on Medical Jurisprudence	 Tenth Edition	 Vol. 1	 at page 459	 it is stated	 " It is never safe to say that a cartridge case was not fired from a given pistol unless the marks are quite 25 194 different	 and a case which bears no marks at all may quite well have been fired from the same pistol as one which leaves well defined marks. In general	 however	 though it is unlikely that all marks will be equally good	 it is usually possible to obtain definite information from the marks of the firing pin	 extractor	 ejector	 or breech block. on the base or rim	 or from grooves or scratches on the surface. In weapons of the same manufacture	 the marks are of the same general nature	 but in each weapon there are individual differences which usually enable it to be definitely identified. " The expert 's evidence in this case shows that he had fired four test cartridges from the pistol exhibit III He found the individual characteristics of the chamber to have been impressed upon the test cartridges Exs. 9 and 10 and that exactly identical markings were present on the paper tube of the cartridge exhibit 1. He made microphotographs of some of these individual marks on Exs. 1 and 10. In giving his reasons for his opinion	 the fire arms expert stated that every fire arm has individual characteristics on its breach face striking pin and chamber. When a cartridge is fired gases. are generated by the combustion of the powder	 creating a pressure of 2 to 20 tons per square inch. Under the effect of this pressure the cap and the paper tube of the cartridge cling firmly with the breach face striking pin and chamber and being of a softer matter the individualities of these parts are impressed upon them. By firing a number of test cartridges from a given fire arm and comparing them under a microscope with the evidence cartridge	 it can definitely be stated	 if the marks are clear	 whether the evidence cartridges had been fired or not from that fire arm. It seems to us that the fire arms expert made the necessary tests and was careful in what he did. There is no good reason for distrusting his opinion. The learned Judges of the High Court examined the micro photographs in question and were satisfied that there was no ground for distrusting the evidence of the expert. They were accordingly justified in coming to the conclusion that the cartridge exhibit 1	 found nor the cot of Dava Ram	 195 was fired from the pistol exhibit III produced by the appellant from his house. There can	 therefore	 be no room for thinking	 in the circumstances established in this case	 that any one else other than the appellant might have shot Daya Ram. He was	 therefore	 rightly convicted for the offence of murder. The appeal is accordingly dismissed.

Summary:
One Daya Ram had been murdered by shooting with a country made pistol. The circumstantial evidence established against the appellant was (1) that he had a motive for the murder	 (2) that three days before the murder the appellant had held out a threat to murder the deceased	 (3) that a cartridge exhibit I was found near the cot of the deceased	 and (4) that the appellant produced a country made pistol exhibit III from his house in circumstances which clearly showed that he alone could have known of its existence there. The fire arms expert examined the recovered pistol and the cartridge and after making scientific tests was of the definite opinion that the cartridge exhibit I had been fired from the pistol exhibit III : Held	 that the opinion of the fire arms expert conclusively proved that the cartridge exhibit I had been fired from the pistol exhibit III. The circumstantial evidence was sufficient to establish the guilt of the appellant.