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Non-reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1189 of 2008

State of  U.P.      …. Appellant

Versus

Raghunandan @ Bade Mali & Ors.          … Respondents

And

CRIMINAL APPEAL NO.1204 of 2008

Shiv Singh and Another ….Appellants

Versus

State of U.P. ….Respondent.

J U D G M E N T

Uday Umesh Lalit, J.

1. These  appeals  by special  leave  arise  from the  judgment  and order  dated  

23.08.2006 passed by the High Court of Judicature at Allahabad in Criminal  

Appeal No.5747 of 2003. The Trial Court had convicted six accused persons  

namely Raghunandan @ Bade Mali,  Mahesh,  Shiv Singh, Brij  Raj,  Ram  

Niwas  and  Raju  under  Sections  148,  404,  302  read  with  149  IPC  and

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sentenced  them  to  life  imprisonment  and  other  sentences.  The  accused  

challenged their conviction and sentence by filing Criminal Appeal No.5747  

of 2003 in the High Court. By its judgment under appeal, the High Court  

affirmed the conviction and sentence of Shiv Singh and Ram Niwas while it  

acquitted  other  four  accused.  The  acquittal  of  those  four  accused  is  

challenged  by  the  State  in  Criminal  Appeal  No.1189  of  2008  while  the  

conviction and sentence of Shiv Singh and Ram Niwas is under challenge in  

Criminal Appeal No.1204 of 2008. Both these appeals are being disposed of  

by this common judgment.

2. PW1  Brij  Raj  Singh  submitted  a  written  report  on  01.01.2001  in  P.S.  

Aliganj, District Etah to the effect that on that day he along with his nephew  

PW2 Shiv Ratan  Singh and one Nahar  Singh had gone to  the bazaar  to  

purchase vegetables. While returning from the bazaar on foot, the brother of  

PW1  named  Raghunandan  Singh,  who  had  also  gone  to  the  market  to  

purchase vegetables on a cycle, overtook them. When they arrived at the  

triangular crossing at Kila Road said Raghunandan Singh was about 50 steps  

ahead of them. Raghunandan Singh was carrying his Rifle on his shoulder.  

At this triangular crossing all the aforementioned six accused persons who  

had been waiting,  started firing upon Raghunandan Singh, on account of  

which  he  died  at  the  spot.  The  occurrence  created  a  scramble  and

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shopkeepers closed down their shops and started fleeing. According to PW1,  

the accused had taken away the licensed rifle of the deceased Raghunandan  

Singh and made good their escape.  PW1 further stated in his report that  

accused Raghunandan @ Bade Mali was armed with licensed double barrel  

gun while the other accused were also armed with fire arms. The incident  

occurred at 4:30 p.m. and the aforesaid report scribed by one Ram Babu  

Singh was submitted at 5:30 p.m., pursuant to which Crime No.2 of 2001  

was registered in P.S. Aliganj.

3. As  part  of  investigation,  PW6  Sub  Inspector  Surender  Singh  Chauhan  

arrived at the place of occurrence but could not conduct the inquest upon the  

body of the deceased because of darkness. The inquest panchnama Ext. Ka  

-16 was prepared at 8 o’clock on the next day i.e. on 02.01.2001.    At the  

spot,  three empty cartridges were found, two of .315 bore and one of 12  

bore. The body of the deceased was then sent for post mortem examination  

which was conducted on the same day at 2:30 p.m. by PW3 Dr. Hariom  

Gupta,  Medical  Officer,  Distt.  Hospital  Etah  and following ante  mortem  

injuries were found:  

1) Firearm wound of entry 4 x 1 cm on left side of hip.

2) Firearm wound of entry 1cm × 1cm side of back of chest,  blackening present.

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3) Firearm wound of exit 2cm × 1cm on right side of chest.  

4) Firearm wound of entry 1.5cm × 1cm on right side of back of  chest.

5) Firearm wound of  entry 3cm × 1cm on left  side of  chest.  Blackening present.  

6) Lacerated wound 3cm × 1cm × muscle deep on top of skull.  

On internal examination, both the lungs and pericardium were found  

lacerated. The cause of death was shock and hemorrhage as a result of the  

aforementioned ante mortem injuries.  

4. All six accused persons were arrested and rifle of .315 bore bearing No.78  

AB 0226 belonging to deceased Raghunandan Singh was recovered from the  

heap of straw in the house allegedly belonging to accused Raghunandan @  

Bade Mali.  A country made pistol of 12 bore was recovered from accused  

Ram Niwas along with two live cartridges of 12 bore while on the same day  

a country made pistol of .315 bore and live cartridges of same bore were  

recovered  from accused  Shiv  Singh.  According  to  the  Ballistic  Expert’s  

opinion which was marked Ext.  Ka(I)  in the High Court  at  the appellate  

stage, out of three empties found at the site, empty cartridge marked  EC 1  

was  found  to  have  been  fired  from country  made  pistol  recovered  from  

accused Ram Niwas, while the other cartridge marked as EC 2 was found to

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have been fired from the country made pistol recovered from the accused  

Shiv Singh. The characteristics of empty cartridge EC 3 were however not  

found sufficient for comparison.

5. The prosecution examined PW1 Brij Raj Singh and PW2 Shiv Ratan as eye  

witnesses to the occurrence. There were some elements of inconsistency in  

their statements, the principal being the assertion by PW2 Shiv Ratan that  

the dead body of deceased Raghunandan Singh was brought to the police  

station and that the body was in the police station during the night. The eye  

witness account about the incident however consistently disclosed that all  

the six accused had encircled deceased Raghunandan Singh whose body was  

found to be having five injuries by fire arms out of which four were entry  

wounds and the fifth was the exit wound. The location of the entry wounds  

in the front as well as in the back of the body of the deceased was consistent  

with the eye witness account. The sixth injury, a lacerated wound on the  

skull was also in keeping with the eye witness account that after taking the  

rifle from the deceased, accused Shiv Singh had hit the deceased with the  

butt of the rifle.

6. The Trial Court by its judgment and order dated 21.10.2003 found all six  

accused guilty of the charges levelled against them. It found the eye witness

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account unfolded through the testimony of PW1 Brij Raj Singh and PW 2  

Shiv Ratan to be trustworthy. The Trial Court found all the accused persons  

guilty under Sections 143, 120-B, 404, 302 read with Section 149 of IPC and  

sentenced each of  them to undergo rigorous imprisonment  for  two years  

under Section 148 IPC, rigorous imprisonment for  two years and fine of  

Rs.1000/- for the offence under Section 404 IPC, rigorous imprisonment for  

life  and  fine  of  Rs.5000/-  for  the  offence  under  Section  302  read  with  

Section 149 IPC and rigorous imprisonment for life and fine of Rs.5000/- for  

the offence under Section 302 read with Section 120-B IPC.  

7. The convicted accused being aggrieved, filed Criminal Appeal No.5747 of  

2003 in the High Court of Judicature at Allahabad. It was submitted on their  

behalf that the scribe was not examined, that the F.I.R was ante-timed and  

lodged after deliberation and consultation, that there was motive on the part  

of  the  prosecution  to  implicate  the  accused  falsely,  that  there  were  

contradictions in the version of two eye witnesses and that the possibility of  

false  implication of  some of  the accused was very much present.  At  the  

appellate  stage  the  genuineness  of  the  report  of  the  Ballistic  Expert  was  

specifically admitted, whereupon said report was marked as High Court Ext.  

Ka (1). The High Court found that the evidence regarding recovery of the  

rifle of the deceased from the heap of straw from the house belonging to the

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accused Raghunandan was not satisfactory. It further found that the licensed  

weapon  which  said  accused  Raghunandan  @  Bade  Mali  was  allegedly  

carrying was not used at all. At the same time the empties recovered from  

the place of occurrence did match with the country made pistols recovered  

from accused Shiv Singh and Ram Niwas. The High Court therefore found  

the case of the prosecution to have been established as against Shiv Singh  

and  Ram  Niwas  but  gave  benefit  of  doubt  to  the  other  accused.  The  

conviction and sentence of Shiv Singh and Ram Niwas as recorded by the  

Trial Court was therefore maintained while the other accused were acquitted  

of all the charges levelled against them.  

8. The acquittal of Raghunandan @ Bade Mali, Mahesh, Brij Raj and Raju is  

under  challenge  in  Criminal  Appeal  No.1189  of  2008  while  convicted  

accused Shiv Singh and Ram Niwas have challenged their conviction and  

sentence in Criminal Appeal No.1204 of 2008.   By order dated 24.01.2011  

the convicted accused were ordered to be released on bail,  which facility  

they have since then been enjoying.    

9. We have heard Shri C.D. Singh and Shri Ranjit Rao, learned Advocates for  

the State in Criminal Appeal Nos.1189 and 1204 of 2008 respectively while  

the  accused  were  represented  by  Mr.  Salman  Khurshid,  learned  Senior

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Advocate in both the matters.  It was submitted on behalf of the State that  

minor inconsistencies apart,  the version given by eye witnesses was well  

supported by medical evidence on record.  Furthermore, the opinion of the  

Ballistic Expert having been admitted at the appellate stage, the issue stood  

completely clinched in favour of the prosecution.  The fact that there were  

four entry wounds, some in the front while the others in the back of the  

deceased, completely supported the eye witness account. The preparedness  

and participation of  all  the accused having been clearly established,  they  

ought to have been convicted and the acquittal of four of the accused persons  

was completely unjustified.   

10. Mr. Khurshid, learned Senior Advocate on the other hand submitted that the  

inconsistencies in the version of the eye witnesses were such that both the  

versions were required to be rejected, that the first information report was  

clearly submitted after due deliberation and consultation, that the scribe of  

the original complaint and Nahar Singh were not examined at all, and that  

the facts on record did not rule out the possibility of over implication on the  

part of the eye witnesses.    Emphasis was laid on the fact that first  five  

accused are real brothers while the sixth accused is the son of accused Ram  

Niwas and that  15 to  20 days before the incident  one Ram Singh, other

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brother of first five accused was murdered in respect of which two sons and  

two nephews of deceased Raghunandan Singh were named as culprits in the  

murder.   

11.   We  have  gone  through  the  entire  record  and  considered  the  rival  

submissions. It is true that there are certain inconsistencies in the versions of  

both eye witnesses.  But such inconsistencies are not pertaining to the basic  

substratum of the case.   The first information report in the instant case was  

lodged soon after the incident and the injuries on the person of the deceased  

also  show  that  more  than  one  fire  arm  must  have  been  used  in  the  

transaction.   Even if the recovery of the licensed weapon of the deceased is  

eschewed, the recovery of the country made pistols from Shiv Singh and  

Ram Niwas stands completely proved.   Furthermore, the empty cartridges  

found at the spot, as opined by the Ballistic Expert, are found to have been  

fired from those country-made pistols recovered from Shiv Singh and Ram  

Niwas.  In the circumstances the involvement of accused Shiv Singh and  

Ram Niwas in the incident in question stands fully established.  At the same  

time, since the recovery of licensed weapon of the deceased from the house  

of the accused Raghunandan @ Bade Mali was not established and so also  

the fact that said Raghunandan @ Bade Mali, though statedly armed with a  

double barrel rifle had not used that weapon at all, the assessment made by

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the High Court that there could be possibility of over implication is quite  

correct.  We find the view taken by the High Court as regards the acquittal of  

four  accused,  to  be  a  possible  view  which  would  not  warrant  any  

interference in this appeal against acquittal.  We, therefore, affirm the view  

taken by the High Court as regards the acquittal of those four accused but at  

the same time find sufficient material on record as regards involvement of  

Shiv  Singh  and  Ram  Niwas.   We  therefore,  affirm  the  conviction  and  

sentence as recorded concurrently against Shiv Singh and Ram Niwas.  

12.    In the result, these appeals are dismissed affirming the view taken by  

the High Court in the judgment and order under appeal. The bail bonds of  

Shiv Singh and Ram Niwas stand cancelled and they be taken in custody  

forthwith to undergo the sentence awarded to them.  

…..…………………………..J. (Pinaki Chandra Ghose)

………………………………J. (Uday Umesh Lalit)

New Delhi,          September 29, 2015