{"id":122666,"date":"2004-09-10T00:00:00","date_gmt":"2004-09-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-himachal-pradesh-vs-mast-ram-on-10-september-2004"},"modified":"2016-01-30T06:11:31","modified_gmt":"2016-01-30T00:41:31","slug":"state-of-himachal-pradesh-vs-mast-ram-on-10-september-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-himachal-pradesh-vs-mast-ram-on-10-september-2004","title":{"rendered":"State Of Himachal Pradesh vs Mast Ram on 10 September, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Himachal Pradesh vs Mast Ram on 10 September, 2004<\/div>\n
Author: J Sema<\/div>\n
Bench: B.N. Agrawal, H.K. Sema<\/div>\n
           CASE NO.:\nAppeal (crl.)  267 of 1999\n\nPETITIONER:\nState of Himachal Pradesh\t\t\t\t\t\n\nRESPONDENT:\nMast Ram  \t\t\t\t\t\t\t\t\n\nDATE OF JUDGMENT: 10\/09\/2004\n\nBENCH:\nB.N. AGRAWAL & H.K. SEMA \n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
SEMA,J<\/p>\n
\t\tThe sole respondent-accused was convicted by the
\nlearned Additional Sessions Judge (II), Kangra at Dharmshala for an
\noffence under Section 302 IPC and sentenced to rigorous
\nimprisonment for life and to pay a fine of Rs.5000\/- and in default to
\nundergo further rigorous imprisonment for a period of six months.
\nAggrieved thereby, the respondent-accused preferred an appeal
\nbefore the High Court, which was allowed by the impugned  judgment <\/p>\n
and the sentence and conviction recorded by the Trial Court was set
\naside.   Hence, this appeal by the State.\n<\/p>\n
\t\tBriefly stated the facts are as follows:-\n<\/p>\n
\t\tThe accused and the prosecution witnesses are all from
\nthe same village Sug Tarkhana, Tehsil Indora, District Kangra.  The
\naccused and PW-5 Gian Chand were at loggerheads over the dispute
\nof abadi and civil litigation between them was pending.  The
\ndeceased Uttam Chand was employed as a carpenter at Delhi  and
\nhad come to village on 5.8.1995 to attend the performance of first
\ndeath anniversary of his mother.  It is stated that on 14.8.1995 at
\nabout 10.00 A.M. Gian Chand – PW-5 had an altercation and quarrel
\nwith the accused Mast Ram with regard to the dispute over the abadi
\nand the deceased Uttam Chand said to have intervened and advised
\nboth Gian Chand and Mast Ram not to quarrel and wait for the
\ndecision of the court in civil litigation.  Thereupon, the accused Mast
\nRam became furious and threatened the deceased Uttam Cand that
\nhe would deal with him first of all as he was siding with Gian Chand
\nwith whom the accused had the civil dispute over the abadi.   It is
\nfurther stated that at about 10.30 a.m. on the same day, when the
\ndeceased Uttam Chand along with his brother Hans Raj PW-1 and
\nVijay Kumar PW-3 was proceeding towards the fields to get fodder for
\nthe cattle and was passing through the passage in front of the house
\nof the accused Mast Ram, the accused with DBML (Double Barrel
\nMuzzle Loaded) gun in his hand challenged Uttam Chand stating that
\nhe would be done to death and then fired at Uttam Chand.  The
\ndeceased Uttam Chand received injuries on his arm, chest and
\nshoulder, fell down on the ground, and became unconscious.
\nThereafter, the accused ran away towards the field with his gun.  In
\nthe meantime, PW-4 Tarsem Lal also arrived and PWs 1, 3, and 4
\ntogether shifted the deceased Uttam Chand to his nearby house
\nwhere he breathed his last after sometime.  The matter was reported
\nto the Pradhan of the village, who advised to lodge a report with the
\npolice and the First Information Report was, accordingly, lodged.
\nThe accused was arrested on 18.8.1995 by PW-15 and pursuant to a
\ndisclosure statement, the DBML gun (Ex.P-11) was recovered from
\nunderneath the bushes near his house.  Ex.P-11 was sent for
\nexamination to the Forensic Science Laboratory and it was found to
\nbe in working condition and having been fired.  The accused pleaded
\nignorance in his statement under Section 313 but he did not lead any
\ndefence evidence.  The spot inspection, was, however carried out at
\nthe request of the accused in his examination under Section 313.  It
\nappears that the defence of the accused in his examination under
\nSection 313 was that from the place where the accused is alleged to
\nhave fired at the deceased and the place where the deceased was
\nstanding and hit by the gun shot was not within the firing range.  This
\nhas led to the Trial Court for spot inspection.    The inspection was
\ncarried out by the Trial Court on 25.2.1996 in the presence of the
\naccused, his counsel and the Public Prosecutor.    The Trial Court
\nconducted a test gun shot fire from the place where the accused was
\nalleged to have fired at the deceased and it was observed that the
\nplace where the deceased was standing and hit by the gun shot was
\nwithin the firing range.\n<\/p>\n
\t\tThe Trial Court after considering the evidence and eye
\nwitnesses accounts of PWs 1, 3, 4, and PW-2 – Dr.Sanjay Kumar
\nMahajan,  who conducted the post-mortem examination and the
\nreport of forensic laboratory has recorded findings that the
\nprosecution has established his case beyond all reasonable doubts
\nand convicted the respondent as aforesaid.\n<\/p>\n
\t\tThe High Court upset the conviction recorded by the Trial
\nCourt, firstly that the DBML gun (Ex.P-11) alleged to have been used
\nin the commission of offence was not used in a test fire at the time of
\nlocal inspection conducted by the Trial Court and instead a test fire
\nwas carried out with the help of SBML(Single Barrel Muzzle Loaded)
\ngun belonging to PW-1 Hans Raj.  The High Court held that this has
\nmaterially affected the prosecution story.  According to the High
\nCourt,  the firing range differs from gun to gun and, therefore, the
\nfiring test not having been conducted from the Exhibit P-11, the
\nfinding of the learned Trial Court Judge that the deceased has been
\nhit by the gun shot was within the firing range from the verandah of
\nthe house of the deceased could not have been relied upon.    This
\nfinding, in our opinion, is not only fallacious but also perverse.   While
\nit is true that generally, the firing range of the gun differs from gun to
\ngun, the opinion of the High Court that firing range of DBML gun and
\nSBML gun differs is based on no expert opinion and the same is
\nbased on conjectures and surmises.  In the instant case both the
\nguns are of the same categories except the one used in the
\ncommission of crime is Double Barrel and the one used during the
\ntest fire was the Single Barrel.  Therefore, it cannot be said that the
\nfiring range from DBML gun differed from SBML gun or vice-versa.
\n\t\tThat apart, the local inspection envisaged under Section
\n310 Cr.P.C. is for the purpose of properly appreciating the evidence
\nalready recorded during the trial.  Memorandum of spot inspection
\nrecorded by the trial Judge has to be appreciated in conjunction with
\nthe evidence already recorded.  Any omission and\/or commission in
\nthe memorandum recorded by the trial Judge by itself would not
\nconstitute material irregularity, which would vitiate the prosecution
\ncase.  In our view, it is difficult to accept the reasoning recorded by
\nthe High Court in this regard.\n<\/p>\n
\tSecondly, the ground on which the High Court has thrown
\nout the prosecution story is the report of ballistic expert.  The report of
\nballistic expert (Ex. P-X) was signed by one junior scientific officer.
\nAccording to the High Court, a junior scientific officer (Ballistic) is not
\nthe officer enumerated under sub-section (4) of Section 293 of the
\nCode of Criminal Procedure and, therefore, in the absence of his
\nexamination such report cannot be read in evidence.  This reason of
\nthe High Court, in our view, is also fallacious.  Firstly, the Forensic
\nScience Laboratory Report (Ex. P-X) has been submitted under the
\nsignatures of a junior scientific officer (Ballistic) of the Central
\nForensic Science Laboratory, Chandigarh.   There is no dispute that
\nthe report was submitted under the hand of a Government scientific
\nexpert.  Section 293(1) of the Code of Criminal Procedure enjoins
\nthat any document purporting to be a report under the hand of a
\nGovernment scientific expert under the section, upon  any matter or
\nthing duly submitted to him for examination or analysis and report in
\nthe course of any proceeding under the Code, may be used as
\nevidence in any inquiry,  trial or other proceeding under the Code.
\nThe High Court has completely over-looked the provision of sub-
\nsection (1) of Section 293 and arrived at a fallacious conclusion that a
\njunior scientific officer is not an officer enumerated under sub-section
\n4 of Section 293.  What sub-section 4 of Section 293 envisages is
\nthat the court to accept the documents issued by any of six officers
\nenumerated therein as valid evidence without examining the author of
\nthe documents.\n<\/p>\n
\t\tThirdly, the High Court was  of the view that during the
\ncourse of post-mortem examination conducted by PW-2 Dr.Sanjay
\nKumar Mahajan, two pellets were recovered –  one each from the
\nright and left lung of the deceased, which were handed over to the
\npolice.  However, the pellets recovered were never sent for
\nexamination to a ballistic expert in order to find out if such pellets
\nwere fired from the gun (Ex. P-11) or not.  According to the High
\nCourt, failure of the prosecution to send the pellets for examination by
\na ballistic expert will draw an inference against the credibility of the
\nprosecution story.  This finding, in our view, is utterly perverse.  It is
\nnot the requirement of law that pellets recovered from the body be
\nsent to ballistic expert to determine as to whether the pellets were
\nfired from the exhibited gun or not.  On the contrary, the recovery of
\npellets from the body clearly establishes the prosecution case that the
\ndeceased died of gun shot injuries.\n<\/p>\n
        The fourth reason assigned by the High Court in
\ndiscarding the prosecution story is with regard to the non-explanation
\nof injury No.2 on the body of the deceased.  The injury No.2 was
\ndescribed as under:-\n<\/p>\n
“A circular area about 1.5 cm diameter in left axilla
\ntowards left arm.”\n<\/p>\n
PW-2 Dr.Sanjay Kumar Mahajan during the course of cross-
\nexamination stated that the aforesaid injury could not have been
\ncaused had the injured Uttam Chand not raised his arm while
\nwalking. The High Court was of the view that PW-1 and PW-3 who
\nwere accompanying the deceased Uttam Chand at the relevant time
\nhad never stated that deceased Uttam Chand had at any point of time
\nraised his arm while walking or on being challenged by the accused.
\nIt is the categorical statement of PW-1 Hans Raj and PW-3 Vijay
\nKumar that while they were accompanying the deceased, the
\naccused had challenged the deceased and thereafter fired at him.  It
\nis but quite  natural that the deceased when challenged would have
\nreacted by  raising his hands either in defence or in accepting the
\nchallenge and in the process he would have sustained  injury No. 2,
\nas described.  The reaction of the deceased in raising his hands, in
\nsuch circumstances, would be in tune and in consonance with the
\nnatural human behaviour in ordinary circumstances.  There is no set
\nof rule that one must react in a particular way.  The natural reaction of
\nman is unpredictable.  Every one reacts in his own way.  Such natural
\nhuman behavior is difficult to be proved by credible evidence.   It has
\nto be appreciated in the context of given facts and circumstances of
\neach case.\n<\/p>\n
\t\tFifthly, the High Court was also of the view that PW-1
\nHans Raj and PW-3 Vijay Kumar were accompanying the deceased
\nand the prosecution story shows that the pellets from the gun shot
\nhad scattered and hit even the tree but the absence of injuries on the
\nperson of PW-1 and PW-3 render their presence at the place of
\noccurrence doubtful.  This finding of the High Court, in our opinion, is
\nalso fallacious and perverse.  PW-1 and PW-3 had categorically
\nstated that the deceased was walking ahead of them.  The accused
\nundisputedly nurtured a grudge against the deceased for alleged
\nsiding with the PW-5 Gian Chand, with whom the accused had civil
\ndispute,  challenged the deceased, the  gun was aimed at and fired at
\nhim.  It is, in these circumstances, the absence of pellet injuries on
\nthe persons of PW-1 and PW-3 will be no ground to render the
\npresence of PW-1 and PW-3 at the place of occurrence doubtful.
\n\t\tThe last and the most perverse and fallacious finding of
\nthe High Court is with regard to discarding the evidence of eye-
\nwitnesses account of PW-1 Hans Raj and PW-3 Vijay Kumar.  The
\nHigh Court recorded the finding as under:-\n<\/p>\n
“PW-1 Hans Raj is the real brother of the deceased,
\nwhile PW-3, Vijay Kumar, apart from being a cousin
\nbrother of the deceased is the son of PW-5, Gian
\nChand, with whom admittedly the accused had
\nlitigation.  It is the prosecution own case that the
\naccused was nursing a grudge against the
\ndeceased and PW-1, since they were helping and
\nsiding with PW-5, Gian Chand.  Both PW-1 and
\nPW-3 are, therefore, interested witnesses and in
\nview of the evidence coming on the record, cannot
\nbe safely relied upon.”\n<\/p>\n
\t\tAs already noticed PW-1 Hans Raj and PW-3 Vijay
\nKumar are two eyewitnesses who accompanied the deceased on the
\nfateful day.  Both the eyewitnesses had stated categorically that they
\naccompanied the deceased while going to the fields to fetch fodder
\nfor the cattle.  When they were passing through the passage in front
\nof the house of the accused, the accused challenged the deceased
\nand in the meantime fired at him, with the result deceased Uttam
\nChand fell down on the ground after having sustained gun shot
\ninjuries on his person.  The two eyewitnesses were subjected to
\nlengthy cross-examination but nothing could be elicited to doubt the
\ncreditworthiness of their testimony.   No doubt that PW-1 and PW-3
\nare relatives but this will be no ground to disbelieve their testimony, if
\notherwise, inspired confidence.  The Law on the point is well settled
\nthat the testimony of relative witness cannot be disbelieved on the
\nground of relationship.  The only requirement is to examine their
\ntestimony with caution.  In the given facts of the case, it is but quite
\nnatural that the relatives would have  accompanied the deceased to
\ncollect the fodder for the cattle from the fields at about 10.30 a.m. on
\nthe fateful day.  It is also in the prosecution evidence that the incident
\nat 10.30 a.m. is preceded by an altercation and quarrel between the
\naccused Mast Ram and PW-5 Gian Chand, on the same morning at
\nabout 10.00 a.m. with regard to the disputed abadi and the deceased
\nUttam Chand is said to have intervened in the matter and advised
\nboth PW-5 Gian Chand and the accused Mast Ram not to quarrel
\nand wait for the decision of the civil litigation.   It is also in the
\nevidence that thereupon the accused Mast Ram threatened the
\ndeceased Uttam Chand that he would deal with him first of all as he
\nwas siding with Gian Chand with whom the accused is having
\npending litigation with regard to abadi.     The categorical testimony of
\neyewitnesses’ account has not been considered and discussed at all
\nby the High Court.  Their testimony was thrown out at the threshold
\non the ground of animosity and relationship.  This is not the
\nrequirement of the Law.    That apart, PW-4 Tarsem Lal  is an
\nindependent eyewitness.  PW-4 also hails from the same village.  He
\nis neither related to the complainant party nor to the accused party.
\nHe has stated that he saw the accused Mast Ram in his verandah
\nwith a gun in his hand and also saw him running away from the spot
\nafter the gunfire.  The High Court has not considered and discussed
\nthe testimony of PW-4 at all.\n<\/p>\n
\t\tThe testimony of PWs 1, 3 and 4 was consistent with the
\nreport of ballistic expert and the evidence of PW-2 Dr.Sanjay Kumar
\nMahajan who conducted the post-mortem examination on the body of
\nthe deceased and found the following injuries:-\n<\/p>\n
1.\tA circular area about 1 cm diameter on Antero-
\nlateral surface of left arm about 9 inches from Acromion.\n<\/p>\n
2.\tA circular area about 1.5 cm diameter in left Axilla
\ntoward left arm.\n<\/p>\n
3.\tA circular area about 1 cm diameter on Anterior
\nsurface of left shoulder.\n<\/p>\n
4.\tAn area circular about 1.2 cm diameter about 3 cm
\nbelow injury No.3.\n<\/p>\n
5.\tA circular area of 1.3 cm diameter on medial wall of
\nleft axilla which is formed by chest wall.  Tract has been
\nformed on Probing:-3 inches of probe went inside.\n<\/p>\n
6.\tA circular area of about 1.4 cm diameter in left Infra
\nclavicular region 7 cm below mid clavicular point.\n<\/p>\n
7.\tA circular area 1.2 cm diameter about 2.3 cm below
\ninjury No.6.\n<\/p>\n
8.\tAn area 2 cm x 1 cm about 2 cm away from left
\nnipple medio-supiriorly.\n<\/p>\n
9.\tAn area of 3.2 cm x 2.3 cm on sternum about 5 cm
\nbelow sternal notch.\n<\/p>\n
10.\tAn area of 4.1 cm x 2.3 cm above left costal margin
\nabout 5 cm away from Xiphi-Sternum.\n<\/p>\n
11.\tA circular area of 1 cm diameter on right side of
\nsternum.\n<\/p>\n
12.\tAn area of 7.2 cm x 2.1 cm on right side of chest in
\nMidline about 10 cms below mid clavicular point, widest in
\ncentre, tapering on periphery.\n<\/p>\n
13.\tAn area of 6.5 cm x 3.1 cm about 13cm from medial
\nend of right clavicle.\n<\/p>\n
14.\tAn area of 15 cms diameter just below right nipple.\n<\/p>\n
On probing:- No.13 it came out of injury No.14 though
\nsubcutaneous planer.”\n<\/p>\n
PW-2 Dr. Sanjay Kumar Mahajan, opined that all the injuries were
\nante-mortem having been sustained by a firearm like gun and such
\ninjuries were sufficient in the ordinary course of nature to cause
\ndeath.\n<\/p>\n
\t\tIn our view, the consistent ocular testimony of PWs 1, 3
\nand 4 corroborated by the opinion of  PW-2 Dr.Sanjay Kumar
\nMahajan and ballistic expert report clearly established the
\nprosecution case beyond all reasonable doubts and the High Court
\nfell into grave error of law and facts, resulting in grave miscarriage of
\njustice.\n<\/p>\n
\t\tFor the foregoing reasons, the order of the High Court is
\nset aside and the order of the Trial Court is restored.  The appeal is
\nallowed. The bail bond of the respondent-accused Mast Ram is
\ncancelled.  He is directed to be taken back into custody forthwith.
\nCompliance report within one month from today.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Himachal Pradesh vs Mast Ram on 10 September, 2004 Author: J Sema Bench: B.N. Agrawal, H.K. Sema CASE NO.: Appeal (crl.) 267 of 1999 PETITIONER: State of Himachal Pradesh RESPONDENT: Mast Ram DATE OF JUDGMENT: 10\/09\/2004 BENCH: B.N. AGRAWAL & H.K. SEMA JUDGMENT: J U D G M E […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-122666","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Himachal Pradesh vs Mast Ram on 10 September, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-himachal-pradesh-vs-mast-ram-on-10-september-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Himachal Pradesh vs Mast Ram on 10 September, 2004 - 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