# Monu v. State of U.P

- **Citation:** (2021) 11 ILRA 529
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-21
- **Case number:** Criminal Appeal No. 1813 of 2014
- **Bench:** Manoj Kumar Gupta, Om Prakash Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/monu-v-state-of-u-p-46602
- **Pages:** 11

## Headnote

(A) Criminal Law - The Indian Penal Code,
1860 - Section 302, 506 - The Arms Act, 1959 -
Section 25 (1) (b) - The Code of criminal
procedure, 1973 - Section 313 - Appeal against
conviction - Where there is direct evidence of
unimpeachable character and nature of injury
stands corroborated by medical evidence, the
examination of the ballistic expert would not
be essential - where the oral evidence of the
witness is not trustworthy or the injuries
sustained do not stand corroborated by medical
evidence, the prosecution may have to take aid
of the ballistic expert to bring home the guilt.
(Para - 22,28 )

Victim was shot from close range from the back side -
hit on her head and hand with some iron object -
negligence on part of investigating agency - alleged
bullet recovered from the body of the victim was not
sent for forensic examination - absence of the report
of ballistic expert - PW-1 and PW-4 are eye witnesses
- statement is consistent and of unimpeachable
character - injuries sustained by the victim is fully
corroborated by the medical evidence.

HELD:- Accused appellant inflicted injuries with the
intention of causing such bodily injury as he knew to
be likely to cause death of the victim. Rightly been
held guilty of criminal intimidation and murder and
convicted for the offences. Offence committed in a
preplanned and ghastly manner inside the house of
the victim. No reason to take lenient view and
interfere with the sentence imposed by the trial court.
Conviction and sentence upheld as awarded by the
trial court in toto.(Para - 30,32)

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

## Text

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11 All. Monu Vs. State of U.P.
529
(2021)11ILR A529
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.11.2021

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE OM PRAKASH TRIPATHI, J.

Criminal Appeal No. 1813 of 2014

Monu ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Vikrant Rana, Sri Gajendra Kumar Gautam,
Sri Pradeep Kumar, Sri R.V. Pandey, Sri Praveen
Kumar

Counsel for the Respondents:

(A) Criminal Law - The Indian Penal Code,
1860 - Section 302, 506 - The Arms Act, 1959 -
Section 25 (1) (b) - The Code of criminal
procedure, 1973 - Section 313 - Appeal against
conviction - Where there is direct evidence of
unimpeachable character and nature of injury
stands corroborated by medical evidence, the
examination of the ballistic expert would not
be essential - where the oral evidence of the
witness is not trustworthy or the injuries
sustained do not stand corroborated by medical
evidence, the prosecution may have to take aid
of the ballistic expert to bring home the guilt.
(Para - 22,28 )

Victim was shot from close range from the back side -
hit on her head and hand with some iron object -
negligence on part of investigating agency - alleged
bullet recovered from the body of the victim was not
sent for forensic examination - absence of the report
of ballistic expert - PW-1 and PW-4 are eye witnesses
- statement is consistent and of unimpeachable
character - injuries sustained by the victim is fully
corroborated by the medical evidence.

HELD:- Accused appellant inflicted injuries with the
intention of causing such bodily injury as he knew to
be likely to cause death of the victim. Rightly been
held guilty of criminal intimidation and murder and
convicted for the offences. Offence committed in a
preplanned and ghastly manner inside the house of
the victim. No reason to take lenient view and
interfere with the sentence imposed by the trial court.
Conviction and sentence upheld as awarded by the
trial court in toto.(Para - 30,32)

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

1. Himachal Pradesh Vs Mast Ram, AIR 2004 SC 5056

2. Munna alias Surendra Kumar Vs St. of M.P., AIR
2003 SC 3346

3. Vineet Kumar Chauhan Vs St. of U.P., (2007) 14
SCC 660

4. Mohinder Singh Vs The St., AIR 1963 SC 340

5. Sukhwant Singh Vs St. of Punj., AIR 1995 SC 1380

6. Surendra Paswan Vs St. of Jharkhand, (2003) 12
SCC 360

7. St. of H.P. Vs Mast Ram, AIR 2004 SC 5056

8. Prabhash Kumar Singh Vs St. of Bihar (now
Jharkhand), (2019) 9 SCC 262

9. Manish Dixit & ors. Vs St. of Raj., (2001) 1 SCC 596

10. Ashraf Ali Vs St., (1991) 2 Crimes 226

(Delivered by Hon'ble Manoj Kumar Gupta, J.)

1. The accused appellant has filed the
instant appeal assailing the judgment and order
dated 7.04.2014 and 11.04.2014, passed by
Additional District & Sessions Judge, Court
No.4, Ghaziabad in S.T. No.1408 of 2006
convicting him under Section 302 IPC and
awarding rigorous imprisonment for life and fine
of Rs.50,000/- and in default in payment thereof,
to three years additional simple imprisonment
and under Section 506 IPC to seven years
rigorous imprisonment and fine of Rs.20,000/-
530 INDIAN LAW REPORTS ALLAHABAD SERIES
and in default in payment thereof, to ten months
additional simple imprisonment and in Sessions
Trial No.1409 of 2006 under Section 25 (1) (b)
of the Arms Act, to three years rigorous
imprisonment and fine of Rs.10,000/- and in
default in payment thereof, additional simple
imprisonment of six months.

2. According to the prosecution case, on
13.6.2006 at about 10:30 p.m., accused Monu
(appellant) and Khalid, neighbours of the victim
Manju Sharma came to her house while she was
sitting on a cot alongwith her daughter Komal
(PW-1) on the open terrace. Her mother Sheela
and brother Yogesh and Nitin were in the
courtyard. Monu had some talk with her. After
about five minutes, he took out pistol
(tamancha) from his pocket and fired at the
victim from the back side. While his accomplice
co-accused Khalid, who was carrying some
object made of iron, hit her on the head and hand
several times. Her daughter Komal (PW1/complainant), who had witnessed the incident,
raised alarm and whereupon both of them
escaped through the staircase brandishing the
tamancha and threatening Yogesh and Nitin
(brothers of the victim) and Smt. Sheela (mother
of the victim) to kill them if they come in their
way. The accused were duly identified in the
moon light and light of lantern, as they live in
the neighbourhood and the complainant (Komal)
had known them since her childhood. Her
mother was rushed to Jeevan Hospital by her
maternal uncle. The victim was later shifted to
Narendra Mohan Hospital and thereafter to Jang
Bahadur Hospital, Delhi where she succumbed
to her injuries and died on 14.06.2006 at 4:10
p.m. A first information report relating to the
incident was got registered by Komal on
13.06.2006 under Sections 307, 506 IPC as
Crime Case No.227 of 2006. Later on offence
was converted to Section 302 IPC. The accused
surrendered in court on 26.06.2006. On
04.07.2006, the court allowed police remand of
24 hours. On the same day, the police, on
pointing out of the accused, recovered a country
made pistol (tamancha) of 315 bore, 3 live
cartridges - 315 bore and an iron handle of handpump. The Police, after investigation, submitted
charge sheet under Sections 302 and 506 IPC.
The Chief Judicial Magistrate by order dated
14.9.2006 committed the trial to the Court of
Sessions and it came to be registered as S.T.
No.409 of 2006. By order dated 3.7.2007, the
trial court declared co-accused Khalid as
juvenile and he was tried separately by the
Juvenile court.

3. During course of investigation of Crime
Case No.227 of 2006, a separate case bearing
No.270 of 2006 was registered against the
appellant under Section 25 of the Arms Act on
basis of recovery of a country made pistol of 315
bore and three live cartridges 315 bore on
4.7.2006.
The
police,
after
investigation,
submitted a charge sheet. The Chief Judicial
Magistrate by order dated 14.9.2006 forwarded
the charge sheet to the Court of Sessions, where
it came to be registered as S.T. No.1408 of 2006.
Both the cases were tried together and have been
decided by common judgment impugned herein.

4. During course of trial, the prosecution
examined two witnesses of facts. The first one is
Km. Komal (PW-1), who is daughter of the
victim and also the complainant. She had seen
the accused firing and assaulting her mother.
The other is Nitin Sharma (PW-4), who is
brother of the deceased victim and had seen the
accused running away after committing the
offence. The prosecution had examined thirteen
other witnesses: PW-5, Pawan Kumar, Assistant
in Jeevan Hospital, PW-6, Dr. Barkha Gupta,
who conducted the postmortem, PW-7 S.I.
Chamu Bhagat, the police officer, who prepared
the death report and got the postmortem done,
PW-8 S.I. Krishna Pal, scribe of the first
information report (Ex. Ka.10), PW-9 Inspector
Somveer Singh, Investigating Officer of Crime
Case No.227 of 2006, PW-10 S.I. Aftab Ali,
11 All. Monu Vs. State of U.P.
531
Investigating Officer of Crime Case No.270 of
2006, PW-11, retired S.I. Ram Saran, witness of
seizure memo, PW-12 S.I. Vishesh Kumar
Singh, last Investigating Officer of Crime Case
No.227 of 2006, PW-13 S.I. Parvinder Pal
Singh, first Investigating Officer of Crime Case
No.227 of 2006.

5. The prosecution proved the written
complaint (Ex. Ka-1) by examining PW-1, FIR
(Ex. Ka-10) by examining PW-8, the Fard of
ordinary and blood stained earth (Ex. Ka-2) by
examining Chokhey Lal (PW-3), application
filed by Nitin Sharma (Ex. Ka-3) by examining
him (PW-4), postmortem report (Ex. Ka-4) by
examining Dr. Barkha Gupta (PW-6), seizure
memo of country made pistol, 3 live cartridges
and iron handle of hand-pump (Ex. Ka-12) by
examining PW-9, report of Vidhi Vigyan
Prayogshala (Ex. Ka-20) by examining PW-12.

6. The accused was confronted with the
incriminating material and evidence under
Section 313 Cr.P.C. wherein he denied his
involvement and stated that he was falsely
implicated and claimed to be tried.

7. We have heard counsel for the parties
and perused the record and the impugned
judgment and order.

8. Learned counsel for the appellant
submitted that the prosecution has utterly failed
to bring home the charges. The appellant was
falsely implicated. The deceased was a call girl
and woman of loose character and she had been
to jail in a double murder. There are inherent
inconsistencies in the statement of PW-1 and
PW-4. It is submitted that while PW-1, in her
statement, said that her mother was not doing
any work, PW-4 stated that she was working in a
bulb factory in Modi Nagar. Again PW-1
admitted that her mother remained confined in
jail in connection with murder of one Shashi but
PW-4
feigned
ignorance
regarding
her
incarceration. It is further submitted that the
medical
evidence
does
not
support
the
prosecution case; that the prosecution could not
lead any evidence to prove mens rea. It is also
urged that the alleged bullet recovered from the
body of the victim was not sent for forensic
examination, therefore, the prosecution had
failed to establish link between the seized
weapon and the bullet recovered from the body
of the victim. In other words, the contention is
that in the absence of the report of ballistic
expert to connect the appellant with the bullet
recovered from the body of the victim, the
prosecution had failed to establish its case.

9. On the other hand, learned A.G.A. for
the State submitted that the prosecution has
succeeded in proving its case to the hilt. The eye
version account of PW-1, daughter of the victim,
is of unimpeachable character and so is the
statement of her brother Nitin Sharma (PW-4).
The prosecution story stands corroborated by the
postmortem report wherein the injuries were
found to tally with the manner in which the
injuries were said to have been inflicted as per
the prosecution story. It is submitted that the
doctor PW-6 had fully proved that injury no.2 is
a entry wound of bullet and was sufficient to
cause death. The other injuries, as per her
statement, are attributable to blows received
from hard and blunt object and the prosecution
had successfully established that those were
inflicted by the iron handle of hand-pump. He
further submitted that there is no material
contradiction in the testimony of PW-1 and PW4 inasmuch as their consistent version was that
the victim died because of gun shot injury and
other blows by a hard object. It is urged that the
prosecution story is fully supported by medical
evidence and consequently, it is wholly
immaterial whether the bullet recovered from
the body of the victim was sent for ballistic
report or not. In support of his contention, he has
placed reliance on judgments of Supreme Court
in State of Himachal Pradesh Vs. Mast Ram,
532 INDIAN LAW REPORTS ALLAHABAD SERIES
AIR 2004 SC 5056 and Munna alias Surendra
Kumar Vs. State of M.P., AIR 2003 SC 3346.

10. The first issue for consideration is
whether the prosecution has succeeded in
proving the time and place of occurence. The
incident, as per prosecution case, had taken
place on 13.6.2006 at 10:30 p.m. on the open
terrace of the house of the victim. The first
information report was got registered on
13.6.2006 i.e. on the same date at 11:20 p.m.
The consistent version of eye witness PW-1,
daughter of the victim and PW-4, brother of the
victim, is that the victim received grievous
injuries as a result of assault and was rushed to
hospital by her brother. PW-1, who was stated to
be 16 years of age at the time of alleged
incident, got the report scribed by S.P.
Samaniya,
her
neighbour
and
thereafter
informed the police station. The F.I.R. was thus
got registered immediately without any delay.
There was no suggestion to any witness during
cross-examination that the incident had not
taken place on the terrace of the house of the
victim, but at some other place. In fact, the
accused appellant during his examination under
Section 313 Cr.P.C. did not deny the time and
place of incident but alleged that several other
persons used to visit the house of the victim and
thus tried to attribute the offence to them. He
also claimed to have been falsely implicated.

11. Pawan Kumar (PW-5), Assistant,
Jeewan Hospital stated that the victim was
brought to the hospital on 13.6.2006 in serious
condition. The first aid was given to her by Dr.
Upendra Rana (Surgeon). Thereafter she was
referred for further treatment to other hospital.
S.I. Charmu, who prepared the death report of
the victim, stated that she was admitted to the
hospital on 13.6.2006 with number of injuries.
She died on 14.6.2006 at 3 p.m. We thus find
that time and place of incident is fully proved.

12. The next question is whether the
prosecution case that the victim was shot from
close range from the back side and also hit on
her head and hand with some iron object, also
from back side, is proved or not and what was
the cause of her death? According to post
mortem report, the following ante-mortem
injuries were found :-

1. Lacerated wound 5.5 x 0.5 cm bone
deep on left occipital protuberance, obliquely
placed, medial end above the lateral end.

2. Firearm entry wound 3.0 x 2.0 cm
on Right upper back of chest 2.0 cm outer to
right from midline and 4.0 cm below shoulder
top, surrounded by tatooing in a area of 20.0 x
10.0 cm more on Right side blackening present
on Right side of the wound. On exploration
wound was packed with surgical gauge piece.
The track of the wound was going forward,
downward and medially after shattering the
vertebra T1 and T2 through and through bullet
was found lodged in left mediastinal tissue
surrounded by blood clots after injuring the
mediastinal blood vessels.

3. Reddish bruise 5.0 x 1.0 cm present
on outer aspect of right forearm 8.0 cm below
elbow joint.

4. Incised wound 3.6 x 0.6 cm x 0.2
cm horizontally placed on Right thigh on front
aspect 11.0 cm above the knee.

5. Incised wound skin deep 15.0 x 0.5
x 0.2 cm horizontally placed situated 0.8 cm
below shoulder top on right back of the chest.

6. Reddish linear scratch mark 16.0 x
0.1 cm horizontally placed 2.0 cm below
shoulder top on right back of chest 1.2 cm below
injury No.5.
11 All. Monu Vs. State of U.P.
533

7. Linear Reddish abrasion 10.0 x 0.2
cm on Right lower back of chest horizontally
placed 26.0 cm above gluteal cleft and inner end
situated at midline.

13. According to medical opinion, cause of
death is hemorrhagic shock due to ante mortem
injury to mediastinal blood vessel produced by
projectile of fire arm. Injury No.2 is fire arm
entry wound on the back of chest. There is
tattooing and blackening in the area of 20 x 10
cms on right side of the wound. The bullet was
found lodged in left mediastinal tissue (between
the lungs). This supports the prosecution case
that firing was done from a close distance from
the back side. The bullet recovered from the
body measured 3.3 cm in length and 0.8 cm in
diameter. It was opined that injury No.2 was
sufficient to cause death in ordinary course of
nature. Dr. Barkha Gupta, who conducted the
post mortem, was examined as PW-6. In her
statement she reiterated that injury No.2 was
sufficient to cause death. She further stated
during
cross-examination
that
death
had
occurred due to profuse bleeding from the
mediastinal vessel caused by gun shot injury.

14. PW-6 in her cross-examination
clarified that injury No.1 was outcome of blow
from kundala and injury No.5 by a sharp
weapon. All other injuries were on shoulder,
back of chest and fore arm. It duly supports the
prosecution case that co-accused Khalid who
was carrying some object made of iron, which
during investigation was found to be iron handle
of hand-pump was used in hitting the victim
from the back side. There was no suggestion by
the defence during cross-examination of PW-6
that the injuries found on the body of the victim
were not result of gun shot or blows from iron
handle of hand-pump. PW-1, who is eye
witness, in her statement fully supported the
prosecution version. Despite a lengthy crossexamination, the defence could not succeed in
extracting anything which may demolish the
prosecution story. The prosecution has thus
succeeded in proving that the victim died
because of gun shot and other injuries sustained
during assault.

15. The most crucial issue is whether the
prosecution has succeeded in proving that the
accused-appellant was responsible for the crime
in question or not? PW-1, as noted above, was
eye witness of the occurrence. She is daughter of
the victim and was aged about 16 years at that
time. She has unequivocally supported the
prosecution case that accused Monu and Khalid
who are resident of same mohalla, came to the
open terrace of her house where she was sitting
on a cot alongwith the victim. Monu had some
talk with the victim and after five minutes he
fired at her from the back followed by several
blows by co-accused Khalid with a hatthi (gRFkh).
The victim shouted and PW-1 also shouted. Her
maternal uncle and her Naani, on hearing the
shouts came near the staircase. However, Monu,
brandishing the tamancha and threatening to fire
at them, succeeded in running away from the
gali towards field. The accused were identified
in moon light and light of lantern. She further
stated that she was able to identify them as they
are her neighbours and she had been seeing them
since childhood. She also stated that her mother
was grieviously hurt as a result of assault from
fire arm and iron hatthi. Her maternal uncle
rushed her mother to Narendra Mohan Hospital
and in the end to Jang Bahadur Hospital where
she died. In her cross-examination, she clarified
that her father had died when she was nine
months of age. Her mother had since been
residing with her Naani. She specifically denied
that her mother was having enmity with other
persons and they were instrumental in her
murder. She also denied the suggestion that she
had falsely implicated the appellant-accused as
her engagement with him got snapped.

16. PW-4 Nitin Sharma is the brother of
the victim. He stated that he was present in the
534 INDIAN LAW REPORTS ALLAHABAD SERIES
courtyard of the house at the time of occurrence.
He also stated that it was a moonlit night and
there was also light of lantern. The accused
came to his house at about 10:30 p.m. on
13.06.2006. At that time the victim and her
daughter were sitting on open terrace. He further
stated that the accused told him that they want to
talk to the victim and they were told that she was
on terrace. Thereafter the accused went to the
terrace through the staircase. After 5-6 minutes,
he heard sound of gun shot and PW-1 was
shouting for help. When he rushed towards the
terrace, the accused were coming down through
the staircase. Accused-appellant Monu was
having tamancha and Khalid was having handle
of hand-pump in his hand. Monu asked him to
clear his way otherwise he will fire at him. He
thereafter succeeded in running away. When
they went on the terrace, they found victim
bleeding profusely. The victim was taken to the
hospital.

17. The submission of learned counsel for
the appellant was that the statement of PW-1 and
PW-4 is contradictory and has therefore to be
discarded. It is true that PW-1 in her crossexamination stated that the victim was not doing
any work, while PW-4 stated that she was
engaged in a company at Noida. Again, PW-1 in
her cross-examination admitted that her mother
had been to jail in connection with a case
relating to murder of two persons and was
released after three months on bail, but denied
her illicit relationship with them, or having
murdered them, but PW-4 feigned ignorance
regarding these facts. These small variations in
the statement of PW-1 and PW-4 are not
sufficient to doubt the creditworthiness of the
witnesses as their testimony on the other crucial
aspects as noted above, is fully consistent and
unambiguous
and
totally
supports
the
prosecution case. They are consistent and
unambiguous on the point that the accusedappellant and his accomplice came to their
house, went to the terrace, where the victim was
sitting with PW-1. While PW-1 had witnessed
the accused firing and inflicting grievous
injuries to the victim, PW-4 who was in the
courtyard had heard the sound of gun shot and
seen them running away. The suggestion that
accused-appellant
was
falsely
implicated
because of enmity, was categorically denied.
The defense had made feeble attempt during
cross-examination to show that the victim was
having illicit relationship with two persons and
was sent to jail in that connection, but neither it
was able to prove the same nor does it in any
manner detract from the merits of the
prosecution version regarding the involvement
of the accused-appellant in the crime.

18. The accused appellant had surrendered
before the court on 26.6.2006. On 4.7.2006 the
Court allowed police remand for 24 hours. On
the same day, the police on pointing out of the
accused recovered a country made pistol of 315
bore, three live cartridges -315 bore and an iron
handle of hand-pump from nearby field burried
under heap of grass. As per site plan, the said
place was at the distance of 200 paces from the
house of the deceased victim. It corroborates the
version of PW-1 and PW-4 that the accused after
committing the crime escaped through the gali to
the adjoining field.

19. Inspector Somveer Singh PW-9 and
Retired S.I. Ram Saran Sharma PW-11 proved
the seizure memo (Ex. Ka-14). They also
identified the accused-appellant and stated that
the recovery was made on the pointing out of the
accused. They also stated that only one seizure
memo was prepared in respect of all seized
goods. PW-9 who prepared the site plan relating
to seizure (Ex. Ka-15) proved the same.

20. Learned counsel for the appellant
vehemently contended that since the firearm and
cartridges were not sent for examination by
ballistic expert, therefore, according to him, the
prosecution had failed to connect the appellant
11 All. Monu Vs. State of U.P.
535
with the weapon of crime. It is noteworthy that
the trial court directed the prosecution to
produce the lead bullet and the case property of
Session Trial No. 1408 of 2006. The prosecution
failed to produce the lead bullet and it transpired
during enquiry held by the trial court that there
was no entry relating to lead bullet in the register
maintained at Malkhana. The trial court had
found dereliction of duty and negligence on part
of A.S.I. Chamu Bhagat and directed for enquiry
to be held in that regard by the Director General
of
Police,
Lucknow
and
by
Police
Commissioner, Delhi and for taking action
against him and all other found responsible for
the same.

21. The crucial question for consideration
by this Court is whether on account of
negligence on part of the investigating agency in
ensuring safe custody of lead bullet and sending
it for opinion of ballistic expert, the prosecution
version comes under doubt and has to be
discarded or conviction of the appellant could be
made on basis of other oral and material
evidence on record.

22.

A
similar
situation
arose
for
consideration before the Supreme Court in Vineet
Kumar Chauhan vs. State of Uttar Pradesh,
(2007) 14 SCC 660. The Supreme Court held that
it cannot be laid down as a general proposition that
in every case where there is a firearm injury, the
prosecution must lead evidence of ballistic expert
to prove the charge, irrespective of the quality of
the direct evidence available on record. The
Supreme Court went on to observe that where
direct evidence is of unimpeachable character and
the nature of injuries disclosed in the postmortem
report is consistent with the direct evidence, the
examination of ballistic expert may not be
essential. The relevant observation in this regard is
as follows: -

"11. It cannot be laid down as a
general proposition that in every case where a
firearm is allegedly used by an accused person,
the prosecution must lead the evidence of a
Ballistic Expert to prove the charge, irrespective
of the quality of the direct evidence available on
record. It needs little emphasis that where direct
evidence is of such an unimpeachable character,
and the nature of injuries, disclosed by postmortem notes is consistent with the direct
evidence, the examination of Ballistic Expert
may not be regarded as essential. However,
where direct evidence is not available or that
there is some doubt as to whether the injuries
could or could not have been caused by a
particular weapon, examination of an expert
would be desirable to cure an apparent
inconsistency
or
for
the
purpose
of
corroboration of oral evidence. (See: Gurcharan
Singh Vs. State of Punjab )."

23. The Supreme Court in the above
judgment has also considered its earlier
judgment in Mohinder Singh vs. The State,
AIR 1963 SC 340 and distinguished the same
by observing thus: -

"12. In Mohinder Singh's case (supra)
on which strong reliance is placed on behalf of
the appellant, this Court has held that where the
prosecution case was that the accused shot the
deceased with a gun but it appeared likely that
the injuries on the deceased were inflicted by a
rifle and there was no evidence of a duly
qualified expert to prove that the injuries were
caused by a gun, and the nature of the injuries
was also such that the shots must have been
fired by more than one person and not by one
person only, and the prosecution had no
evidence to show that another person also shot,
and the oral evidence was of witnesses who were
not disinterested, the failure to examine an
expert would be a serious infirmity in the
prosecution case. It is plain that these
observations were made in a case where the
prosecution evidence was suffering from serious
infirmities. Thus, in determining the effect of
536 INDIAN LAW REPORTS ALLAHABAD SERIES
these observations, the facts in respect of which
these observations came to be made cannot be
lost sight of. The said case therefore, cannot be
held to lay down an inflexible rule that in every
case where an accused person is charged with
murder caused by a lethal weapon, the
prosecution case can succeed in proving the
charge only if Ballistic Expert is examined. In
what cases, the examination of a Ballistic Expert
is essential for the proof of the prosecution case,
must depend upon the facts and circumstances of
each case."

24. In Sukhwant Singh vs. State of
Punjab, AIR 1995 SC 1380, the Supreme Court
found that the evidence of the complainant, the
solitary eye witness, was not reliable, as it stood
belied by the medical evidence. The presence of
Gurmeet Singh, elder brother of the deceased,
was also found to be doubtful. In the said
background, the Supreme Court held that where
the presence of the accused is doubtful, the
prosecution ought to have sent the recovered
empty cartridges and seized pistol for opinion of
ballistic expert to connect the accused with the
crime and omission on part of the prosecution in
that regard was held to have seriously affected
the creditworthiness of the prosecution case.
Relevant observations made in this regard in
paragraph 21 and 22 are as follows: -

"21. There is yet another infirmity in
this case. We find that whereas an empty had
been recovered by PW6, ASI Raghubir Singh
from the spot and a pistol alongwith some
cartridges were seized from the possession of
the appellant at the time of his arrest, yet the
prosecution, for reasons best known to it, did not
send the recovered empty and the seized pistol to
the ballistic expert for the examination and
expert
opinion.
Comparison
could
have
provided link evidence between the crime and
the accused. This again is an omission on the
part of the prosecution for which no explanation
has been furnished either in the trial court or
before us. It hardly needs to be emphasised that
in cases where injuries are caused by fire arms,
the opinion of the Ballistic Expert is of a
considerable importance where both the fire
arm and the crime cartridge are recovered
during the investigation to connect an accused
with the crime. Failure to produce the expert
opinion before the trial court in such cases
affects the credit-worthiness of the prosecution
case to a great extent.

22. From a critical analysis of the
material on the record, we find that it would not
be safe to rely upon the sole testimony of PW3
Gurmej Singh, the brother of the deceased,
without independent corroboration in view of
the infirmities pointed out by us above which
render his testimony as not wholly reliable and
since in the present case no such independent
corroboration is available on the record, it
would be unsafe to rely upon the testimony of
PW3 only to uphold the conviction of the
appellant. The prosecution has not been able to
establish the case against the appellant beyond a
reasonable doubt. The trial court, therefore, fell
in error in convicting and sentencing the
appellant. His conviction and sentence cannot
be sustained. This appeal consequently succeeds
and is allowed. The conviction and sentence of
the appellant is set aside. The appellant is on
bail. His bail bonds shall stand discharged."

25. The judgement in Sukhwant Singh
case was considered by the Supreme Court in
Surendra Paswan vs. State of Jharkhand,
(2003) 12 SCC 360. The Supreme Court once
again reiterated that Sukhwant Singh is not an
authority for the proposition that whenever
bullet is not sent for ballistic examination, the
prosecution has to fail. In that case the victim
was fired on the left eye. On receiving bullet
injuries the victim fell down and was later
declared dead. The Supreme Court after
considering the oral and medical evidence held
that there was only one injury on the body of the
11 All. Monu Vs. State of U.P.
537
deceased which was fully explained by the
doctor in his evidence and consequently, failure
to send the weapon and the bullet for ballistic
examination did not result in denting the
prosecution version. The relevant observations
are as follows :-

"10. So far as the effect of the bullet
being not sent for ballistic examination is
concerned, it has to be noted that Sukhwant
Singh's case (supra) is not an authority for the
proposition as submitted that whenever a bullet
is not sent for ballistic examination the
prosecution has to fail. In that case one of the
factors which weighed with this Court for not
finding the accused guilty was the prosecution's
failure to send the weapon and the bullet for
ballistic examination. In the instant case, the
weapon was not seized. That makes a significant
factual difference between Sukhwant Singh's
case (supra) and the present case.

11. It has to be noted that there was
not even a suggestion to any of the prosecution
witnesses that the injuries were sustained by the
accused-appellant in the manner indicated by
him, as stated for the first time in the statement
under Section 313 Cr.P.C.

12. So far as the confusion relating to
bullet and pellet is concerned, the same has been
clarified by the doctor's evidence. In his
examination the doctor (PW-3) has categorically
stated that there was only one injury on the body
of the deceased and no other injury was found
anywhere on the person of the deceased.
Therefore, the question of the deceased having
received any injury by a pellet stated to have
been recovered by the investigating officer is not
established.
The
investigating
officer
has
clarified that the embodied bullet was given to
the police officials by the doctor which was
initially not produced as it was in the Malkhana
but subsequently the witness was recalled and it
was produced in Court."

26. Once again, the Supreme Court in
State of Himanchal Pradesh vs. Mast Ram,
AIR 2004 SC 5056 reiterated the legal
proposition that the bullet recovered from the
body of the victim need not be necessarily sent
for ballistic examination or in case of failure, an
adverse inference is liable to be drawn.
Paragraph 7 of the judgement, which is relevant,
is reproduced below :-

"7. Thirdly, the High Court was of the
view that during the course of post-mortem
examination conducted by PW-2 Dr. Sanjay
Kumar Mahajan, two pellets were recovered -
one each from the right and left lung of the
deceased, which were handed over to the police.
However, the pellets recovered were never sent
for examination to a ballistic expert in order to
find out if such pellets were fired from the gun
(Ex. P-11) or not. According to the High Court,
failure of the prosecution to send the pellets for
examination by a ballistic expert will draw an
inference
against
the
credibility
of
the
prosecution story. This finding, in our view, is
utterly perverse. It is not the requirement of law
that pellets recovered from the body be sent to
ballistic expert to determine as to whether the
pellets were fired from the exhibited gun or not.
On the contrary, the recovery of pellets from the
body clearly establishes the prosecution case
that the deceased died of gun shot injuries."

27. In a more recent judgement in
Prabhash Kumar Singh vs. State of Bihar
(now Jharkhand), (2019) 9 SCC 262, the
Supreme Court was dealing with a case where
the weapon of assault and the bullet were not
even recovered. The issue was whether on the
basis of eye witness account, the accused can be
convicted. The Supreme Court dealt with the
said issue in the concluding paragraph of the
judgement as follows :-

"13................As
there
is
clear
eyewitness account of the incident and none of
538 INDIAN LAW REPORTS ALLAHABAD SERIES
the two eyewitnesses could be shaken during
cross-examination and they had stuck to the
recollection of the facts relating to the incident,
the mere fact that the weapon of assault or the
bullet was not recovered cannot demolish the
prosecution case."

28. Thus law on the point whether it is
essential for the prosecution to obtain report of
ballistic expert to prove the charge of gun shot
injury against the accused is clear and
unambiguous. Where there is direct evidence of
unimpeachable character and nature of injury
stands corroborated by medical evidence, the
examination of the ballistic expert would not be
essential. However, where the oral evidence of
the witness is not trustworthy or the injuries
sustained do not stand corroborated by medical
evidence, the prosecution may have to take aid
of the ballistic expert to bring home the guilt.

29. In the instant case, as discussed above,
the statement of PW-1 and PW-4 who were eye
witnesses is consistent and of unimpeachable
character. They were put to lengthy crossexamination but the defence could not succeed
in extracting anything which may demolish the
prosecution case. The injuries sustained by the
victim is fully corroborated by the medical
evidence. Albeit, it would have been better if the
lead bullet was sent for opinion of the ballistic
expert but the same is not sufficient to demolish
the prosecution case which otherwise stands
fully proved. We thus find no force in the
submission that the prosecution of the appellant
should fail for want of opinion of ballistic
expert.

30. In view of the foregoing discussions,
it is clear that the accused appellant inflicted
injuries with the intention of causing such
bodily injury as he knew to be likely to cause
death of the victim. He has rightly been held
guilty of criminal intimidation and murder and
convicted for the offences.

31. As regards offence under the Arms
Act, according to the prosecution version, a
tamancha (an immitation firearm converted into
firearm) and three live cartridges
were
recovered on the pointing out of the appellant.
Concededly, the appellant was not having any
licence in that behalf, as envisaged under
Section 6 of the Act. The seizure memo was
duly proved by PW-9 and PW-11. The
contention that in absence of public witness to
the seizure memo, it cannot be relied upon,
stands rightly discarded by the trial court
relying on the judgement of the Supreme Court
in Manish Dixit and others vs. State of
Rajasthan, (2001) 1 SCC 596 and judgement
of Delhi High Court in Ashraf Ali vs. State,
(1991) 2 Crimes 226. Learned counsel for the
appellant did not make any other submission
relating to the finding of conviction and
sentence recorded by the court below in respect
of commission of offence under the Arms Act.
We have perused the statement of PW9 and
PW11 and we fully endorse the findings
recorded by the trial court in relation to
commission of offence and under Section
25(1)(b) of the Arms Act.

32. As regards sentence, since the offence
was committed in a preplanned and ghastly
manner inside the house of the victim, we do
not find any reason to take lenient view and
interfere with the sentence imposed by the trial
court. Accordingly, we uphold the conviction
and sentence as awarded by the trial court in
toto.

33. Before parting, we clarify that this
judgement will in no manner influence or
prejudice the proceedings, if any, pending
before any court of law in respect of coaccused Khalid, who was declared juvenile and
against whom separate trial was held.

34. The appeal lacks merit and is
accordingly dismissed.
11 All. Abrar Vs. State of U.P. & Anr.
539
----------
(2021)11ILR A539
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.10.2021

BEFORE

THE HON'BLE SUBHASH CHANDRA SHARMA, J.

Criminal Appeal No. 2130 of 2021

Abrar ...Appellant
Versus
State of U.P. & Anr. ...Respondent

Counsel for the Appellant:
Sri Bhuvnesh Kumar Singh

Counsel for the Respondents:
A.G.A.

(A) Criminal Law - U.P. Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Section 2/3 ,Section 14 - Attachment of
property , Section 15 - Release of property,
Section 16 - Inquiry into the character of
acquisition of property by Court, Section 17 -
Order after inquiry -
order
of
the
District
Magistrate attaching one's property should be
based on reasons and not arbitrary - puts
check on the arbitrary exercise of power of
attachment by denying him of his right to any
property - requirement of law - there must be
reason to believe that the property sought to
be attached has been acquired by a ''gangster'
as a result of commission of any offence under
the Act.(Para - 12)

(B) Words and Phrases - Indian Penal Code,
1860 - Section 26 - "reason to believe" - A
person is said to have ''reason to believe'' a
thing, if he has sufficient cause to believe that
thing but not otherwise - contemplates an
objective determination based on intelligent
care and deliberation involving judicial review
as
distinguished
from
purely
subjective
consideration - must be rational and intelligible
nexus between ''reason' and ''belief' - "Reason
to believe" is not the same thing as "suspicion"
or "doubt" and mere seeing also cannot be
equated to believing - "Reason to believe" is a
higher level of the state of mind. (Para-12,13)