SARVESH NARAIN SHUKLA v. DAROGA SINGH & ORS

Citation: [2007] 11 S.C.R. 300

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

SARVESH NARAIN SHUKLA v. DAROGA SINGH & ORS.pdf

Judgment text

SARVESH NARAIN SHUKLA V. DAROGA SINGH & ORS. OCTOBER 12, 2007 .. [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] Penal Code, 1860-ss. 302 rlw 149, 147 and 148-Triple murder-Two eye witnesses accompanying the deceased at the time ofincident-One ofthem killed during trial-Other turning hostile- Two more eye-witnesses supporting prosecution case-Testimony of eye-witnesses supported by medical evidence-Trial Court acquitting one and convicting rest ofthe accused-High Courtfurther acquitting four accused and convicting rest of the accused-Appeal against conviction as well as acquittal-Held: Order ofCourts below not liable to be interfered with in thefacts ofthe case-Prosecution case isproved by testimony ofeye-witnesses and medical evidence. Evidence--C'hance witness-Testimony of-Reliability on-Held: Iftestimony ofchance witness found to be creditworthy, the same not to be discarded on mere ground that his presence was by chance. /: Appellants-accused were charged u/ss. 147, 148,302 r/w s.

149IPC for having caused death of three persons. The prosecution case was that when the three deceased were coming in a car alongwith First Informant and PW-4, appellants-accused alongwith other accused, all armed with fire arms, started firing at the carfrom a close range as the carstopped after collusion with a bus. The firing resulted in instant death ofthree, who were sitting on the front seat ofthe car. First Informant and PW-4, sitting on the rear seat, rushed out of the car and in that process received some injuries. One ofthe accused picked up rifle of PW 4 which was kept in the car. They ran away from the spot. First Informant lodged FIR. Statements ofPW4 and First Informant were recorded by the Police. - ~ During trial, First Informant was killed. PWs 1, 4 and 5 were examined as eye-witnesses. PW4 was declared hostile. Trial Cou. rt ~ acquitted oneofthe accused ofall the charges. Howeyer, other accused __,, were convicted u/s. 147, 148, 302 r/w s. 149 IPC.

High Courtfurther acquitted four ofthe accused holdingthat their names had been revealed by PW-1 for the first time in Court and their -f conviction could not be based on the testimony ofPW 5 alone. Hence ......

the present appeals against conviction as well as acquittal• Accused contended that Fmhas come into existenceafter inquest proceedings; that the delay in sending the Special Report to the Magistrate has not been explained; that PWs 1and5 were chance witnesses and have not been able to explain their presence at the spot; that non-examinationofthird person (theownerofthe motorcycle)with whom PWs 1 and 5 had reached the spot, is fatal: that PW 4 turning hostile caused doubt on the prosecution story; that therewas conflictin ~ evidence regarding the dead bodies lyingoutside or inside the car, that there was no evidence to show that the car collided with a bus coming from oppositeside bringing it to a sudden,stop; and thatthe prosecution ·case that Pistols and Carbines had been used for the offence, ~re falsified by medical evidence indicating use ofonly shotgun. Dismissing the appeals, the Court HELD : 1.

The matters have been considered by Trial Court apd High Court in its correct perspective and no interferene is called for. .. ,. ,'>"· (Para20J (319-FJ I 2. Itis true the incident having been taken placeon 4. 4. 1999prima facie makes the receipt ofthe special report by the Magistrate on 8. 4. 99 rather inexplicable more so that a day after the incident, the police had itselfmoved an application under Sections 82 and 83 Cr. P. C. against the accused in the Court ofthe Special Magistrate. There are howeyer -(~ r certain circumstances on record which show that the FIR had in fact been lodged at the time suggested by the prosecution. Therefore, the suspicion that a line ortwo might have squeezed in here or there in some ofthe documents prepared during the initial investigation would not dislodge the huge volume ofdocumentary and ocular evidence on the spontaneity ofthe FIR. [Para 9] [310-B, C, D; 311-C] t 3.

Prima facie it does appear that PWs 1 and 5 were cha~ce witnesses but on a closer look, it is found that they have adequately explained their presence. Ifthe court comes to the conclusion that the testimony ofa chancewitness is credible, the evidence cannot be thrown out merely on the ground that the witness happened to be present by chance. Both these witnesses have specifically revealed the identity of the assailants and the manner ofattack and explained their presence. Desp~te extensive cross-examination, no reasons are forthcoming on record as to why they would become false witnesses in a case oftriple murder. [Para 11] [312-C,D,F,G] 4. Itis also clearfrom the evidence that the Investigating Officer had collected a blood stained seat cover and shoes from inside the car alongwith several otheritems from the placeofincidentwhich go to show that the killings had happened in the car.

The conflict in evidence as to the whether the dead bodies were found lying outside or inside the car would thus beofno tellingeffect more particularlyas a huge and milling crowd runningintothousands had collected afterthe murders completely jeopardizing the security ofthe site and as such no evidence could be available to showas to how the dead bodies had,ifat all, been putoutside the car. [Para 11] [312-G, H; 313-A] 5. PW-4 who had been riding the car with the three deceased and had received injuries in attempting to escape had been medically examined. Though this witness had been declared hostile, an outright rejection ofhis evidence is not called for and both parties are entitled to rely on such part of his evidence which assists their case. The statements made by PWs 1and5 are to an extent supported by him as well. [Para 11] [313-A, B, D] 6.

PW-13 the Investigating Officers,who in his cross-examination stated that he had carefully examined the car at the place ofoccurrence and had found in all about40 bullet marks on the chassis, tank, backside bumper, diggy, backside glass and bonnet. It is significant that the ~ _. , ~ presence of the bullet marks shows that the firing had taken place primarily from the rearside as the driver had attempted to speed away ,, \ and that the coup de grace had apparently been delivered to the deceased after the car had stalled after hitting the bus. It is also significant that the presence ofthe bus and its number had been shown in thesite plan prepared by the said police officerat the placeofincident [Para 12] [313-F, G] . ,... 7. The eye-witness account is fully in consonance with the statements ofthe doctors and the other medical evidence.

It has ~ome in the statement ofthe eye witnesses including PW 4and also offW 8 on specific questions put to them that the shots had been fired riom distance ofa foot or two. The opinion that shots had been fired from a distance of a feet or two is fortified, as the entry wounds without exception show signs ofcharring and tattooing. The dimensions ofthe entry wounds also show that several different types ofweapons have been used. [Paras 13 and 15] [314-C, D; 316-C, D] ..... Awadhesh andAnr. v. State ofMadhya Pradesh, [1988) 2 SCC 557, distinguished. Forensic Science in Criminal Investigation and Trials by Drf B. R. Sharma, Fourth Edition; Modi 's MedicalJurisprudence andToxicology, Twenty-thirdEdition atpage 722, referred to. CRIMINAL APPELLATE JURISDICTION :Criminal Appeal Nos. 752-755of2005. ') y From the Judgment and final Order dated 28. 1. 2005 of the High Court ofJudicature at Allahabad in Crl. A. Nos. 5587, 5589, 2503 and 3072/2004. WITH Crl. A. Nos.

834/2005, 835/2005 & 910-912/2005 ~ -\ Gopal Chaturvedi, Anoop G. Choudhary, Ranjit Kumar, Sushil I Kumar, P. K. Jain, P. K. Goswami, K. K. Misra, Amit P. Singh Rawat, R. S. Chauhan, Prashant Chaudhary, Praveen Swamp, Ashok Kumar Singh, Rana Ranjit Singh, S. P. Singh Parmar, Naresh Kumar Gaur, Sapam 304 SUPREM&COURT REPORTS [2007] 11 S. C. R. S. Meitei, Manish Vashishth, Ajay Singh, Sanjay Singh, Dilip Kumar for the appearing parties. The Judgment ofthe Court was delivered by HARJIT SINGH BEDI, J. 1. This judgment will dispose of Criminal Appeal Nos. 752-755 of. 2005 pertaining to the acquittal offour ofthe accused whereas Criminal Appeal Nos. 834 of2005, 835 of2005 and 910-912 of2005 have been filed by the accused who stand convicted both by the trial Court as well as by the High Court. ·2. The facts have been taken from the record of Criminal Appeal No. 835 of2005. They are as under: 3. On 4. 4.

1999 Rakesh Kumar Pandey along with his brother-inlaw Surya l':'larain @Vakil Shukla ::ilong with three others, Dev,r Shankar Dubey, Prem Shanker Dubey and the car driver Shesh Mani were returning from Aurai to Gopiganj in the latter's car No. WB 26A 7554. As the car reached near the Trimuhani on the middle of the road in Gopiganj, accused Udai Bhan Singh, Akbal Bahadur@Atkoti Singh, Prem Singh, Dhunni Singh, Munni Singh, Daroga Singh, Rajeshwar. Upadhyay, Pintoo Singh and two other persons all armed with modem weapons starting firing at the car. The firing led to the death of Surya Narain @ Vakil Shukla, Devi Shanker Dubey and Shesh Mani at the spot. Rakesh Kumar Pandey and Prem Shanker who were sitting on the rear seat rushed out ofthe car to save themselves and they too received some superficial injuries in that process. The assailants also picked up the licensed rifle of Prem Shanker Dubey which was lying in the car and thereafter ran away from the spot.

The occurrence was also witnessed by Shiv Prasad@ Dangar Tewari, Mukand Lal, Ram Dutt Mishra and several other persons. An FIR was thereafter lodged by Rakesh Kumar Pandey at 3. 45 p. m. in Police Station Gopiganj a kilometer away from the place ofincident, on which S. I. Vidya Prakash Misra reached the place of occurrence and recorded the statement of Rakesh Kumar Pandey whereas SI Rashid Ahmad prepared the inquest reports ofthe deceased on the dictation ofSI Vidya Prakash Misra. On an inspection ofthe site, several pieces of glass, a blood stained piece of rexine, and shoes and some fired cartridges, a rifle and a 9 mm pistol licensed to deceased Surya ), - . ,. _ Narain Shukla were recovered. The bodies were also sent for the post mortem examinations. The post mortem examination on the dead body of Devi Shanker Dubey was conducted by Dr. Radhey Raman on 4. 4. 1999 at about 11. 55 p. m. whereas Dr.

Sanjay Tewari conducted the post mortem examinations on the dead bodies of Shesh Mani at 11. 3°! p. m and that on Surya Narain Shukla 45 minutes later i. e. at 0030 hours. All three dead bodies showed extensive fire arms injuries. Dr. A. K. Pandey --i also medically examined Prem Shanker Dubey at 5. 25 p. m on 4. 4. 1999 ~ and found two lacerated simple injuries on his person whereas the examination ofRakesh Kumar Pandey at 8. 15 p. m. on 4. 4. 1999 by Dr. L. S. Mishra showed five simple injuries; three abrasions and two contusions. The doctors opined that these injuries could have been caused as the two were making a hurried exit from the car. On the completion of the investigation the accused were charged for offences punishable under Sections 147, 148, 302 read with 149 I. P.

C whereas appellant Suresh Singh@Jajjey Singh was in addition charged under Section 379 IPC for having taking away Prem Shankar Dubey's rifle from the car whereas Tehsildar Singh and Suresh Singh were further charged under Section 411 I. P. C. The accused pleaded not guilty and sought trial. 4. Rakesh Kumar Pandey, the first informant and the primary witness to the murders, was himselfmurdered during the course ofthe trial. The prosecution nevertheless relied on the evidence ofPWl Shiv Prasad @ Dangar Tewari who deposed to the circumstances leading to his presence at the spot and the manner ofthe attack and further stated that about 15/ 20 shots had been fired at the car by the accused from a close range as , the car had stalled after having had a collision with a bus as the car driver ~' had attempted to race away. He also stated that he knew most of the accused having dealt with them at one time or another.

The prosecution also relied on the evidence ofPW 4 Prem Shankar Dubey, another eye witness but he did not support the prosecution and was declared hostile having partly disowned the story given by him in his earlier statements. The other eye witness PW 5 Ram Dutt Misra, however, supported the ,.. , f ' prosecution story and justified his presence by deposing that he had gond to Vindhyachal temple for darshan in the morning and while returning there from he had taken a liftalongwith Dangar Tewari PWl on Mukund Lal's -~ -. Bullet motor-cycle to reach his home in Gopiganj. The prosecution also -; relied on the medical evidence (and the various reports tendered) ofPW 6 Dr. A. K. Pandey and PW 7 Dr. L. S. Misra with regard to the injuries on Prem Shankar Dubey and Rakesh Kumar Pandey respectively. The prosecution also examined the police officials involved in the investigation viz. , PW 10 S. I.

Irshad Ali who had recorded the inquest reports on the dictation ofPW 13 Vidya Prakash Misra SHO and also dispatched the ,. _ F dead bodies for their post mortem examinations, PW 11 Constable Prabhu ~ Nath Yadav who deposed that the dead bodies had been handed over l tto Constable Manoj Rai and Devi Shanker Pandey for being taken for the post mortems, PW 13 Vidya Prakash Misra who had made the various ~ recoveries already mentioned above and had also inspected the place of incident and the car and had found about 40 bullet marks thereon, and also several other police officials who had been involved in the peripheral ~ investigation or had arrested some ofthe accused. The prosecution story ' was then put to the accused and they denied their involvement in the incident and pleaded false implication. The trial Court examined the matter _j. _ in extenso and held that there had been no delay in the recording ofthe FIR and the argument that the first information report had come into ;. ,!

::: existence after the inquest proceedings had been completed, was unacceptable. The Court also found that Rakesh Kumar Pandey and Prem Shanker Dubey had both been injured in their attempt to get out from the car and this evidence too, was a significant circumstance pointing to ~ their presence. It also held that PW 1 Shiv Prasad and PW 5 Ram Dutt ' Misra who had supported the prosecution had cogently explained their 1. presence at the crucial moment in as much that both had gone to ~ ... Vindhyachal temple for darshan and while returning had sought a lift back .. • to Gopiganj triple riding with Mukund Lal on his Bullet motor cycle and ,_ that the attempt on the part ofthe defence to get them to explain their movements minute by minute could not be accepted as this could not be ,. • realistic approach in such callous and gruesome multiple murders.

The ' trial Court also found that the medical evidence supported the ocular • version in as much that the injuries found on the dead bodies clearly A; ~-·' revealed that several types ofweapons had been used and that too from ) I very close range causing extensive internal and external injuries on the persons ofthe deceased. It also observed that in a case offiring by several ~ ~ persons at others confined in a vehicle with all three deceased sitting in the front seat, it was well nigh impossible to expect an eye witness sitting on the rear seat to give the exact details as to the position ofthe deceased and the assailants when the firing had taken place. The court nevertheless ,.. held that the motive had not been proved. The court then went into th~ involvement ofeach ofthe accused and observed that nine ofthe accused had been named in the FIR and two others who had not been named -1 also figured in the incident and that some of the accused had been rsubsequently identified by name.

The court held that as there was no motive for false implication, a case against eleven ofthe accused under Sections 147, 148, 302 read with Section 149 IPC had been made out. The Court also held that the charge under Sections 379/411 IPC against accused Suresh Singh and the case against Tehsildar Singh who had not been named in the FIR and had been attributed only a Lalkara by the eye witnesses who were also discrepant as to the manner of his participation, he was entitled to an acquittal in toto.

A The trial Court finally observed that: "On the basis ofthe entire above discussions and conclusion the accused Udhaybhan Singh@ Doctor Singh, Pinto Singh @ Sandeep Singh, Iqbal Bahadur Singh @Atkotic Singh, Prem Singh @ Prem Bahadur Singh, Chunni Singh @Mata Prasad Singh, Daroga Singh @ Sim Krishan Singh, Rajeshwar Upadhaya, Suresh Kumar @ Jajje Singh, Sanjay Singh, Santosh Kumar Singh are found guilty ofthe offence under Sections 147/148/302/149 IPC", )· and ordered that: "The accused are sentenced to life sentence under Section 302/ 149 IPC and fine ofRs. 5000-5000/- each accused and ifthe fine is not paid, one month sentence and under Section 147 Cr. P. C 3 months rigorous imprisonment and fine ofRs. 500-500 each and in the event of not paying the fine 10 days further rigorous ~ ,'\ imprisorunent and under Section 148 Cr. P. C 6 months rigorous imprisonment and fine ofRs. I000-1000 each and in the event of not paying the fine 15 days further rigorous imprisonment is justifiable.

I1 5. Several appeals were subsequently filed before the High Court. The High Court on a reconsideration of the matter allowed the appeals ofPinto Singh@Sandeep Singh, Daroga Singh@Krishan Singh, Chunni Singh @ Mata Prasad Singh and Prem Bahadur Singh holding that their I names had been revealed by Dangar Tewari PW 1 for the first time in ' Court and it was therefore unsafe to maintain their conviction on the basis of the statement of PW 5 Ram Dutt Misra alone. The High Court )accordingly directed as under: s. Crl. Appeal Name of Sessions High Court No. No. Appellant Court Orde1 Order l. 5588/2004 Suresh Kumar @ Sessions Appeal Jaijey Singh Judge Dismissed. conviction and award. 2. 5589/2004 (i) Rajeshwar (i) - DO - (i) Appeal Upadhyay Dismlssed. (ii) Prem Singh@ (ii) - DO - (ii) Appeal Prem Bahadur Allowed/ Singh Acquitted of the charges 3. 2503/2004 (i) Pintoo (i) - DO - (i) Appeal Singh@ Allowed/ Sandeep Acquitted Singh of the (ii) Akbla charges.

Bahadur@ Atkoti Singh (ii) - DO - (ii) Appeal Dismissed 4. 2826/2004 Udai Bhan Singh - Appeal @ Doctor Singh - DO Dismissed 5. 2863/2004 Santosh Kumar - Appeal Singh and Sanjai DO - Dismissed Singh 6. 3072/2004 Chunni Singh - Appeal - DO Allowed/ Acquitted of the charges. ->- SARVESH NARAIN SHUKLAv. DAROGA SINGH . r 6. The present set ofcriminal appeals have been filed against the judgment ofthe High Court. 7. Mr. Sushil Kumar, the learned senior counsel for the appellants has raised several arguments before us during the course ofhearing. He has first emphasized that the incident had happened at 3 P. M. on 4. 4. 1999 and the FIR had statedly been lodged in the police stationwithin 45minutes by Rakesh Kumar Pandey an eye witness, but the special report had been -1 delivered to the Magistrate on 8. 4. 1999 and that there was no explanation -r for the delay and it thus appeared that the FIR had been written much later and then ante timed.

It has accordingly been suggested that the prosecution story had been cooked up involving all the accused who all belonged to one extended family in connivance with the police. It has al59 been pleaded that the delay in the recording ofthe FIR had been utilized by the police in creating three eye witnesses PW 1 Shiv Prasad @Dangar Tewari, PW 4 Prem Shanker Dubey and PW 5 Ram Dutt Misra who had cordial relations with the complainant party but an in depth examination ofthe story projected by them revealed that they had not been present ,_;. and that this argument was fortified as in the inquest report it had been noted that the dead bodies had been found outside the car whereas the eye witnesses had projected the story that the dead bodies had been taken out fro~ the car by the police.

It has also been submitted that had Prem Shanker Dubey PW 4 and Rakesh Kumar Pandey been sitting in the car when the firing had taken place, they would not have escaped llllScatheq more particularly as about 40 shots had been fired at the car with automatic and semi-automatic weapons at the deceased sitting in the front seat. It has also been suggested that the nature of injuries found on the ... , .... dead bodies showed that the medical evidence was completely at variance with the ocular evidence. It has finally argued that the prosecution had not been able to prove any motive for the incident and it had been so found by the trial court itselfand that it appeared from the defence version that the murders had been committed by unknown assailants and that the accused had been involved on account ofthe rancour and ill will ofthe police as about 20 policemen were facing trial arising on a complaint made .

f "" by Tehsildar Singh for the killing ofhis son Hazaria, allegedly in a fake encounter. I '~- \ ~ 8. Mr. Anup Chowdhury, the learned senior counsel has however '""\' supported the judgment of conviction. It has also been pointed out (in the appeal against acquittal) that the acquittal of the four accused was not justified as the evidence against them was identical with that ofthe accused who had failed before the High Court. 9. We now examine the arguments raised by the learned counsel in extenso. It is true that the incident having been taken place at about 3 ~ p. m. on 4. 4. 1999 prima facie makes the receipt of the special report by the Magistrate on 8. 4. 99 rather inexplicable, the more so (as emphasized ~ by Mr. Sushil Kumar) that a day after the incident, the police had itself moved an application under Sections 82 and 83 Cr. P. C. against the accused in the Court ofthe Special Magistrate.

We have, however, very carefully gone through the record on this aspect, as we are aware that the fate of the appeal would hinge substantially on this issue. For the purpose of clarity we reiterate the following facts; the incident had happened on 4. 4. 99 at 3 P. M. , the FIR had been lodged in the police station a kilometer ayyay at 3. 45 p. m. by Rakesh Kumar Pandey and the special report delive~ed after four days on 8. 4. 99. There are however f. certain circumstances on record which show that the FIR had in fact been lodged at the time suggested by the prosecution. It has come in evidence that the inquest on the three dead bodies had started at 5. 45 p. m. and that the dead bodies had been removed to the police head quarters at 6. 30 p. m. and received therein at 7. 45 p. m. It has also come on record that on account ofthe gravity ofthe crime, the District Magistrate had, at 10. 50 p. m.

, authorized the medical staffto conduct the post mortem during night hours and the post mortems were in fact conducted within the next hour or two. Significantly also, we observe from the cross examination ,. ,, """' of PW 2 Head Constable Uma Shanker Pandey (who had registered the formal FIR) that while he admitted that the special report had indeed been received by the CJM on 8. 4. 99 but he clarified that a copy of the FIR had reached the Circle Police Officer on 5. 4. 99. Likewise PW 9 Constable Devi Prasad Pandey deposed that the dead bodies had been sealed and handed over to him between 6. 30 p. m. and 7. 00 p. m. on }-. _ \ .. 4. 4. 99 and that he was in possession ofthe first information report and other related doclUllents which had been handed over by him to the doctor. It bears highlighting that this witness was not even cross-examined on this aspect. This statement is further fortified by a perusal of Ex.

Ka-19 the inquest proceedings relating to deceased Shesh Mani Rai and amongst the enclosures with the inquest report is the nakal chik (which is a copy ofthe FIR) and a report made by the Sub Inspector on this exhibit that the dead bodies had been handed over for post mortem along with the appended documents. It is also significant that Dr. Sanjay Tewari PW 8 who had conducted the post mortem examination on the dead body of Surya Narain deposed that he had received the first information report at the time of the post mortem and that he had read the same before conducting the proceeding. To our mind, therefore, the suspicion that line or two might have squeezed in here or there in some ofthe documents ' prepared during the initial investigation would not dislodge the huge volume · ofdocumentary and ocular evidence on the spontaneity ofthe FIR. 10. Faced with this situation Mr. Sushil Kumar has then argued that the three witnesses produced by the police i. e.

PW 1 Shiv Prasad@ Dangar Tewari, PW 4 Prem Shanker Dubey and PW 5 Ram Dutt Misra, only two that is PW 1and PW 5had supported the prosecution and being chance witnesses had not been able to explain their presence at the spot. It has also been submitted that Mukund Lal, the third person and the owner of the Bullet motor cycle on which PWI & PWS had come from Vidhyachal, had not been examined as a witness which clearly falsified the entire story. Conversely, it has been submitted that the only \\-itness who could possibly have been an eye witness to the incident as he was travelling in the car at the time ofthe incident and whose rifle had been removed from the car after the incident and recovered from the accused i. e. Prem Shanker Dubey had not supported the prosecution, thus causing a clear doubt on the entire prosecution story. 11. The argument noted above would have to be examined in the background ofsome special facts.

It must be remembered that the incident had happened in broad day light on the main road going through a prosperous town amongst groups (both the assailants as well as the victims), who were prominent citizens deeply involved in commerce and politics and several prior incidents involving them in some other criminal matters not necessarily with each other had already taken place. It is therefore obvious that the murders would have created a furore and -? · _.. caused a huge amount ofconsternation and it has in fact come in evidence that thousands ofpersons had collected at the site, soon after the incident. With this introduction we now examine as to whether the eye witnesses had been present at the spot or not. It is to be noted that Rakesh Kumar Pandey, the first informant had signed the inquest report at the place of incident and his statement under Section 161 Cr. P. C had also been recorded by the Investigating Officer PW 13 prior to the preparation of the inquest report.

Unfortunately, Rakesh Kumar Pandey could not be examined as he had in the meanwhile been murdered. The prosecution has accordingly fallen back primarily on the statements ofPW 1 Shiv Prasad, and PW 5 Ram Dutt Sharma PW4 Prem Shankar Dubey having been declared hostile. Primafacie it does appear that these two witnesses were chance witnesses but on a closer look we find that they have adequately explained their presence. We are also ofthe opinion that if the court comes to the conclusion that the testimony ofa chance witness is credible, the evidence cannot be thrown out merely on the ground that the witness happened to be present by chance.

Dangar Tewari stated that when he alongwith Ram I)utt Misra had reached at the tri junction ofthe GT Road Gopiganj on Mukund Lal's Bullet motor-cycle they had heard sounds of firing by weapons and had seen the accused persons armed with shot guns, rifles, carbine and pistols firing at the Ambassador car after it had come to a stop after colliding with a bus coming from the Allahabad side and that the murders had been committed while the deceased were still in the car. The evidence ofRam Dutt Misra is much to the same effect. Both these witnesses have specifically revealed the identity of the assailants and the manner of attack and explained their presence by stating that they had gone for Darshan and were on their way back home. We also find that despite extensive cross-examination, no reasons are forthcoming on record as to why they would become false witnesses in a case of triple murder.

It is also clear from the evidence that the Investigating Officer had collected a blood stained seat cover and shoes from inside the car alongwith several other items from the place of '~ / incident which go to show that the killings had happened in the car. The \ conflict in evidence as to the whether the dead bodies were found lying outside or inside the car would thus be ofno telling effect more particularly ). t -'r as a huge and milling crowd running into thousands had collected after the murders completely jeopardizing the security ofthe site and as such no evidence could be . available to show as to how the dead bodies. had, ifat all, been put outside the car. It is also ofsome importance that Prem Shankar Dubey who had been riding the car with the three deceased. and had received injuries in attempting to escape had been medically examined by PW 6 Dr. AK. Pandey at about 5. 25 p. m. on 4. 4. 1999.

Though this ~ witness had been declared hostile, we are ofthe opinion that an outright ~ rejection ofhis evidence is not called for and both parties are entitled to rely on such part ofhis evidence which assists their case. We now examine his testimony in this background. He admitted that on the day ofoccurrence he had been sitting on the back seat of the Ambassador Car and had been carrying his licensed rifle. He also admitted that on rushing out of the car he had received some injuries but could not remember as. to whether he had been medically examined though the evidence shows that he had been present at the time ofthe lodging ofthe first information report in the Police Station. The statements made by Dangar Tewari and Ram Dutt Misra are thus (to an extent) supported by Prem Shankar Dubey as well. 12. Mr. Sushil Kumar has also laid some emphasis on the fact that despite the fusillade fired at.

the car with an assortment of modem weapons, the car remained largely untouched and that there was thus no evidence to show that it had collided with a bus coming from the opposite side bringing it to a sudden stop, thus facilitating the murders. We have~ however, in this connection the evidence ofPW 13 Vidya Prakash Misra, the Investigating Officer, who in his cross-examination stated that he had .... r carefully examined the car at the place ofoccurrence and had found in all about 40 bullet marks on the chassis, tank, backside bumper, diggy, backside glass and bonnet. It is significant that the presence ofthe bullet marks shows that the firing had taken place primarily from the rear side as the driver had attempted to speed away and that the coup de grace had apparently been delivered to the deceased after the car had stalled ~ ~ after hitting the bus.

It is also significant that the presence ofthe bus and its number had been shown in the site plan prepared by the said police officer at the place ofincident. 13. Mr. Sushil Kumar has also laid great stress on what he perceives ~· r to be an apparent discordance between the ocular and the medical evidence. He has emphasized that the Investigating Officer had picked up three spent cases of a . 12 bore shotgun from the spot and a wad had also had been recovered from one ofthe dead bodies at the time ofthe post mortem examination thus indicating that only shotguns and no pistols or carbines as alleged had been used, which clearly falsified the eye witnesses. He has in this connection cited the judgment in Awadhesh and Anr V. State ofMadhya Pradesh, (1988] 2 sec 557 to submit that where medical opinion was at variance with the ocular account the accused were entitled to the resultant benefit.

Undoubtedly, the medical evidence is extremely relevant in testing the credibility ofan eye witness but we are ofthe opinion that the eye witness account is fully in consonance with the statements ofthe doctors and the other medical evidence. It has come in the statement ofthe eye witnesses including Prem Shankar Dubey and also ofDr. Sanjay Tewari PW 8 on specific questions put to them that the shots had been fired from a distance of a foot or two. We now reproduce the post mortem reports prepared by PW Dr. Sanjay Tewari with respect to Vakil Shukla and Shesh Mani Rai : Vakil Shukla 1. Lacerated wound 2xl Cm. on the mid forehead with charring and tattooing around it. Fontal bone not injured. 2. Abrasion Ix 0. 5 Cm. on the mid forehead with charring and tattooing around it. 3. Wound offirearm entry 6 in number each measuring 0. 8x0. 8 Cm. on the top and back ofthe left shoulder.

Margins ofwound \:'I' inverted with blackening and tattooing all around it with their wound ofexit as follows- (1) 1. 5 x 1. 5 Cm. on the left side chest below the left axilla 5 Cm. below the apex; (2) 3 x 3 Cm. on the left side chest 8 Cm. below and lateral ;\ ~ to the left nipple; ~ /' ~ ), (3) lxl Cm. on the right side chest 6 Cm. below the right nipple. (4) lxl Cm. on the right side chest 4. 5 Cm. above and medial to the right nipple; (5) lxl Cm. on the right side chest 8 Cm. below the right nipple; and ~ (6) lxl Cm. on the right side chest 6. 5 Cm. lateral to the right .... ,, nipple. 4. Firearm wound ofentry 0. 8x0. 8 Cm.. on the lateral surface ofright mid thigh with inverted margins and tattooing all arotmd it with its wound ofexit on the medial swface ofthigh at the same level with averted margins 1x1 Cm. Shesh Mani Rai 1. 5x4 Cm. on the right side neck I cm. below and posterior to the right ear.

Margins ofthe wound were inverted with chairing and tattooing ofskin all around with its wound ofexit ofsize 6x5 Cm. on the left side face/over and lateral to the left eye with averted margins; 2. Wound ofentrance 5. 5x4 Cm. on the right side eye margin of the wound inverted with charring and tattooing of skin all around, with its wound ofexit 6x6 Cm. below the left ear. Margin ofthe wound averted. 3. Wound ofentrance lxl Cm. on the lateral aspect ofleft arm. -yr Margins ofwound inverted with charring and tattooing ofskin all around with its wound ofexit l. Sxl. 5 Cm. on the posterior lateral aspect ofthe left arm. Margins ofwound averted". 14. Dr. Radhey Raman PW 3 recorded the following injuries cm the dead body ofDevi Shankar Dubey: •.. 4, I , 1. Firearm wound ofentry with charring and tattoomg ofsize 2x1 Cm. It. Side ofthe chestjust below the middle part ofLt. Clavicle. Lt. Side clavicle fractw-ed with same wound ofexit. 2.

Firearm wound ofentry with charring and tattooing ofsix 1x1 Cm. on rt. Supra clavicle region 4 Cm. medial to top of rt. Shoulder, margins of wound inverted, with its wound of exit 2. 5x2. 00 Cm. on the It. Side ofchest on its lateral side 5. 00 Cm. lateral andjust below it. Nipple margin ofwound ofexist is averted; and 3. Abraded contusion 2x2 Cm. on rt. Side ofthe forehead". A cork (1. 5 x 1. 2 cm ) was also recovered from the dead body. 15. Relying on the above quoted evidence it has been emphasized that there appeared to be no injuries from a rifle or pistol. We however beg to differ. It bears reiteration that shots had been fired from a distance of feet or two and this opinion is fortified as the entry wounds without exception show signs ofcharring and tattooing. The dimensions ofthe entry wounds also show that several different types of weapons have been used.

It is clear from the post mortem examination ofDevi Shankar Dubey's body (during which a cork had been recovered) that a shotgun had undoubtedly been used in his murder and that the shot had entered en masse as is apparent from the size ofwound of entry (Injury No. 1). 16. We now come to the reports of the other two deceased. Injury No. 3 on the person ofVakil Shukla is clearly not an injury caused by a shotgun and has been caused by a medium calibre automatic or semi'automatic rifle or pistol. Mr. Sushil Kumar has however submitted that this injury had possibly been caused by a shotgun using buckshot SG/LG cartridges as had a high velocity rifle been used from a close range as suggested, the bullet would have had a blasting effect on the body. We, however, find that this argument is not substantiated on the evidence, that is, available to us.

Undoubtedly, this shot too had been fired from a little beyond point blank range and if it had been fired from a shotgun, the shoulder would have been shattered and in any event the entire charge would have entered the body en masse making a rat hole wound ofentry. We are fortified in our view by the observations on page 465 ofthe Fourth Edition ofDr. B. R. Shanna's Forensic Science in Criminal Investigation and Trials: ,. ~ "9. 10. 7. 3 Shotgun injuries: The nature ofthe injuries caused by the shotgun is greatly altered by the range. Contact or near contact wounds look like explosions. Close range shots upto about three meters give rat holes varying in diameter from about 2 to 6 centimetres. From about 2 metres to 10 metres the projectiles may form a rat hole surrounded by ~ individual pellet holes. Beyond 10 metres most ofthe shots form .. ,, separate holes. The buckshots may separate earlier. For example, n L. G.

cartridge may give individual injuries for each shot from range ofabout 2 metres. The area covered by the pellets vary with the range and the choke characteristics ofa gun. Ordinarily, the shotguns projectiles do not form exit holes except when buckshots are used from close ranges". 17. Modi's Medical Jurisprudence and Toxicology, Twenty-third Edition at page 722 is to the same effect. We reproduce the relevant A passage hereunder : 'The effects produced by small shot fired from a shotgun vary according to the distance of the weapon from the body, and choking device. A charge of small shot, fired very close to, or within a few inches, ofthe body enters in one mass like single bullet making a large irregular wound with scorched and contused edges, and is followed by the gases ofthe discharge which greatly lacerate and rupture the deeper tissues.

Particles ofunburnt powder expelled from the weapon behind the missile are driven to some distance through the wound, and some of them are found embedded in tl1e wound and the surrounding skin, which is also singed and blackened by the flame and smoke ofcombustion. The exit wound of a close range shot may show greater damage of tissues than the entrance wound, ilie margins are eve1ted, but there is no evidence of blackening ofsingeing. At a distance ofone to ...... , ...... I , three feet, small shots make a single aperture with irregular and lacerated edges corresponding in size to ilie bore ofthe muzzle of the gun, as the shot enter as one mass, but are scattered after entering the woWld and cause great damage to the internal tissues. The skin surroWlding the wounds is blackened, scorched and tattooed, with Wlbumt grains ofpowder.

On the other hand, at a distance ofsix feet, the central aperture is surroWlded by separate openings in an area of about two inches in diameter made by a few pellets ofthe shot, which spread out before reacl}ing the mark. The skin surrounding the aperture may not be blackened or scorched, but is tattooed to some extent. At a distance of 12 feet, the charge of the shot spreads widely and enters the body as individual pellets producing separate openings in an area offive to eight inches in diameter depending on the choke, but without causing blackening, scorching or tattooing ofthe surroWlding skin". 18. Mr. Sushil Kumar's argument with regard to the use ofa high velocity rifle and its effect on the body when fired from a close range would Wldoubtedly merit serious consideration but in the light ofthe facts on the record, we are Wlable to concur. It is the case ofthe prosecution that carbines and 9mm pistols in addition to shotguns had been used during . ,. _. _ the attack.

A carbine, a high velocity weapon firing automatically or semi automatically, and 9mm bore pistols are prohibited firearms permitted for use only by the police and armed forces which invariably use hard nosed bullets in contradistinction to soft nosed ones used in sporting rifles against soft skinnedgame and which cause immense internal damage on the victim and huge woWlds ofexit, ifany. We find that all six woWlds ofently are of0. 8x0. 8 cm. and with the exception ofone, all exit woWlds are also of almost similar dimensions. We are, therefore, ofthe opinion that injury no. 3 appears to be a woWld of entry from a weapon firing hard nosed --f" bullets which had penetrated the body and exited on the other side. We find support for this view from Modi (Supra) (at pgs. 717-718): "Because ofobvious difference in design and construction, the wounds produced by hunting ammunition are much more devastating than that of the military ammWlition.

In military ammunition, the bullets are full metal jacketed having a core ofsteel or lead inside and are thus prevented from deformation (or expansion) when they hit the target. In contrast, a hWlting bullet is . ~ 7-designed to deform (or expand) in its passage through the body, producing an increase in its presenting area Thus a hunting bullet, which is partially metal jacketed, but with the lead core exposed at its tip, is referred to as soft-point bullet. Hollow point huntingbullets are also partially jacketed but have a cavity at the tip of lead core to facilitate expansion on striking the target. The silvertip hunting-bullet in reality is a soft point bullet whose lead core at its .. , tip is protected by a thin jacket ofaluminium alloy sheath.

-r· Modem steel-jacketed bullets used in anny weapons have the shape ofan elongated cone and owing to their great velocity usually pass straight and direct through the body without any deflection or deviation, and without causing much damage. The wounds of entry and exit are almost circular and similar in appearance without any bruising or laceration ofthe surrounding parts". 19. ·Tue nature ofinjuries found on the dead body ofShesh Mani Rai are equally significant. It appears from injury nos. 1and 2 which are. -1. on the neck and head respectively that the shot had furrowed through the body with a huge exit wound. The very dimension ofthese injuries show the presence ofa rat hole type ofentry with a larger wound ofexit on the other side. Injury No. 3 substantially corresponds with the injuries found on the dead body ofVakil Shukla and reveals that this· injury had not been caused with the weapon which caused the other two injuries.

The judgment cited by the learned counsel is therefore on its peculiar facts and based on the premise that the evidence in the case was doubtful. 20. We have also considered the arguments ofleamed senior counsel on the appeals against acquittal. We are of the opinion that the matter has been considered by the trial court and the,High Court in its correct perspective and no interference is called for. 21. We accordingly dismiss all the appeals. K. K. T. Appeals dismissed. --. , ;""