# _,. GHUREY LAL v. STATE OF U.P

- **Citation:** [2008] 11 S.C.R. 499
- **Court:** Supreme Court of India
- **Decided:** 2008-07-30
- **Case number:** Criminal Appeal No. 155 of 2006
- **Bench:** R.V. Raveendran, Dalveer Bhandari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ghurey-lal-v-state-of-u-p-23616
- **Pages:** 43

## Headnote

Code of Criminal Procedure, 1973:
Chapter XXX - Appeals - Powers of appellate courts -
HELO: Appellate courts have wide and extensive powers of c
re-appreciating and re-evaluating the entire evidence, but the
same must be used with great care and caution - Principles
emerging from decisions of Supreme Court culled out.
s.378 - Appeal against acquittal - Power of appellate D
court - HELD: Appellate court would be justified in interfering
with judgment of acquittal only when the same is palpably
wrong, totally ill-founded or wholly misconceived, based on
erroneous analysis of evidence and non-existent material,
demonstrably unsustainable or perverse - Judgment of trial E
Court analyzing the infirmities in prosecution case acquitting
accused of the charge uls 302 /PC giving him benefit of doubt,
is correct and is based on the fundamental principles of criminal jurisprudence - Judgment of High Court being wholly unsustainable is set aside - Principles crystallized by decisions
F
of Supreme Court set out - Penal Code, 1860 - s. 302.
-~
Medical Jurisprudence:
Fire arm injuries - Prosecution case of bullet injury to
deceased and pellet injuries to a witness by a single gunshot
- HELD: It is well settled that a cartridge cannot contain petG
lets and bullet together - Injuries on deceased and the witness clearly establish that two shots were fired from two different fire arms - Penal Code, 1860 - s. 302.
499
H
500
SUPREME COURT REPORTS
[2008] 11 S.C.R.
..., ___
A
The accused-appellant was prosecuted for commission of offences punishable u/s 302 IPC and 307 IPC. The
prosecution case was that there. was enmity between the
accused and the deceased due to a property dispute. On
the day of the incident when the deceased and PWs 1,2
B and 4 alongwith two others were on their way home, they
happened to pass by the home of the accused who was
standing outside his house with a gun. The accused
abused the deceased and fired a shot as a result of which
the latter died at the spot and PW 2 received pellet injuc ries. The defence version u/s 313 of the Code of Criminal
Procedure, 1973 was that on the day of the incident. the
accused came to know in the local market that the deceased and PWs 2,4 and two others armed with 'pharsa',
'lathis' and 'cattas' were looking for him. He returned to
D his home and grabbed his gun. Meanwhile the deceased
and others reached there. One of them fired from his 'catta'
causing pellet injuries to PW 2. In the scuffle they tried to
snatch away his gun which accidentally fired and hit the
deceased. The trial court acquitted the accused, but on
E
appEtal by the State, the High Court convicted him u/s 302
IPC.
In the instant appeal filed by the accused it was contended for the appellant that the judgment of the trial court
was based on correct evaluation of the evidence and the
F High Court was not justified in interfering with the same.
~-
Allowing the appeal, the Court
HELD: 1. So far as the prosecution case of bullet injury to the deceased and pellet injuries to PW-2 by a single
G shot is concerned, according to the trial court, .the medical evidence coupled with the Ballistic Expert Report revealed that two shots were fired from two weapons and
~
this fact was inconsistent with prosecution story. The
Ballastic Expert opined that the injuries to PW-2 were from
H a different shot than the one that killed the deceased. The
GHUREY LAL v. STATE OF U.P.
501
.._""
Ballistic Expert is a disinterested, independent witness
A
who has technical knowledge and experience. It follows
that the trial judge was fully justified in placing reliance
on his report. It is well settled that a cartridge cannot contain pellet and bullet shots together. Therefore, the injuries on the deceased and injured P.W. 2 clearly establish B
""'(
that two shots were fired from two different fire arms. [para
16,17,21, 29 and 40] [510-0,E,F,G, 511-G, 516-0, 521-E]
"Principles of Forensic Medicine" by Apurba Nandy;
and "Firearms in Criminal Investigation a

## Text

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[2008] 11 S.C.R. 499
...._,.
GHUREY LAL
A
v.
STATE OF U.P.
(Criminal Appeal No. 155 of 2006)
JULY 30, 2008
8
.....,.,
[R.V. RAVEENDRAN AND DALVEER BHANDARI, JJ]
Code of Criminal Procedure, 1973:
Chapter XXX - Appeals - Powers of appellate courts -
HELO: Appellate courts have wide and extensive powers of c
re-appreciating and re-evaluating the entire evidence, but the
same must be used with great care and caution - Principles
emerging from decisions of Supreme Court culled out.
s.378 - Appeal against acquittal - Power of appellate D
court - HELD: Appellate court would be justified in interfering
with judgment of acquittal only when the same is palpably
wrong, totally ill-founded or wholly misconceived, based on
erroneous analysis of evidence and non-existent material,
demonstrably unsustainable or perverse - Judgment of trial E
Court analyzing the infirmities in prosecution case acquitting
accused of the charge uls 302 /PC giving him benefit of doubt,
is correct and is based on the fundamental principles of criminal jurisprudence - Judgment of High Court being wholly unsustainable is set aside - Principles crystallized by decisions
F
of Supreme Court set out - Penal Code, 1860 - s. 302.
-~
Medical Jurisprudence:
Fire arm injuries - Prosecution case of bullet injury to
deceased and pellet injuries to a witness by a single gunshot
- HELD: It is well settled that a cartridge cannot contain petG
lets and bullet together - Injuries on deceased and the witness clearly establish that two shots were fired from two different fire arms - Penal Code, 1860 - s. 302.
499
H
500
SUPREME COURT REPORTS
[2008] 11 S.C.R.
..., ___
A
The accused-appellant was prosecuted for commission of offences punishable u/s 302 IPC and 307 IPC. The
prosecution case was that there. was enmity between the
accused and the deceased due to a property dispute. On
the day of the incident when the deceased and PWs 1,2
B and 4 alongwith two others were on their way home, they
happened to pass by the home of the accused who was
standing outside his house with a gun. The accused
abused the deceased and fired a shot as a result of which
the latter died at the spot and PW 2 received pellet injuc ries. The defence version u/s 313 of the Code of Criminal
Procedure, 1973 was that on the day of the incident. the
accused came to know in the local market that the deceased and PWs 2,4 and two others armed with 'pharsa',
'lathis' and 'cattas' were looking for him. He returned to
D his home and grabbed his gun. Meanwhile the deceased
and others reached there. One of them fired from his 'catta'
causing pellet injuries to PW 2. In the scuffle they tried to
snatch away his gun which accidentally fired and hit the
deceased. The trial court acquitted the accused, but on
E
appEtal by the State, the High Court convicted him u/s 302
IPC.
In the instant appeal filed by the accused it was contended for the appellant that the judgment of the trial court
was based on correct evaluation of the evidence and the
F High Court was not justified in interfering with the same.
~-
Allowing the appeal, the Court
HELD: 1. So far as the prosecution case of bullet injury to the deceased and pellet injuries to PW-2 by a single
G shot is concerned, according to the trial court, .the medical evidence coupled with the Ballistic Expert Report revealed that two shots were fired from two weapons and
~
this fact was inconsistent with prosecution story. The
Ballastic Expert opined that the injuries to PW-2 were from
H a different shot than the one that killed the deceased. The
GHUREY LAL v. STATE OF U.P.
501
.._""
Ballistic Expert is a disinterested, independent witness
A
who has technical knowledge and experience. It follows
that the trial judge was fully justified in placing reliance
on his report. It is well settled that a cartridge cannot contain pellet and bullet shots together. Therefore, the injuries on the deceased and injured P.W. 2 clearly establish B
""'(
that two shots were fired from two different fire arms. [para
16,17,21, 29 and 40] [510-0,E,F,G, 511-G, 516-0, 521-E]
"Principles of Forensic Medicine" by Apurba Nandy;
and "Firearms in Criminal Investigation and Trials" by
Dr. B.R. Sharma - referred to.
c
2.1 The appellate court undoubtedly has wide and
extensive powers of re-appreciating and re-evaluating the
entire evidence, but the same must be used with great
care and caution. The appellate court would be justified D
in interfering with the judgment of acquittal only when the
same is palpably wrong, totally ill-founded or wholly misconceived, based on erroneous analysis of evidence and
non-existent material, demonstrably unsustainable or perverse. [para 45 and 7 4] [523-8,C, 540-8]
E
2.2 On marshalling the entire evidence and the documents on record, the view taken by the trial court is certainly a possible and plausible view. The settled legal position is that if the trial court's view is possible and plausible, the High Court should not substitute the same. by F
..-·~
its own possible views. The difference in treatment of the
case by two courts below is particularly noticeable in the
manner in which they have dealt with the prosecution evidence. While the trial court took great pains in discussing all important material aspects and to record its opinG
ion on every material and relevant point, the High Court
has reversed the judgment of the trial court without plac-
.,
ing the very substantial reasons in support of its conclusion. The trial court after marshalling the evidence on
record came to the conclusion that there were serious H
502
SUPREME COURT REPORTS
[2008) 11 S.C.R.
A infirmities in the prosecution story. The findings of the
trial court are based on the fundamental principles of the
criminal jurisprudence. The trial court carefully scrutinized
the entire evidence and documents on record and arrived
at the correct conclusion, and following the settled prinB ciples of law, it gave the benefit of doubt to the accused. ·
The High Court totally ignored the settled legal position
and the reasoning given by it for overturning the judgment of the trial court is wholly unsustainable. [para 75
and 76] [540-D,E,F,G,H, 541-A]
C
2.3 The trial court categorically came to the finding
that when the substratum of the evidence of the prosecution witnesses was false, then the prosecution case has
to be discarded. When the trial court finds serious infirmities in the prosecution version, then the trial court was
D virtually left with no choice but to give benefit of doubt to
the accused according to the settled principles of criminal jurisprudence. The trial court has the advantage of
watching the demeanour of the witnesses who have given
evidence; therefore, the appellate court should be slow
E to interfere with the decisions of the trial court. An acquittal by the trial court should not be interfered with unless
it is totally perverse or wholly unsustainable. [para 77 and
78] [541-B,C,D,E]
3.1 As regards the powers of the appellate court, the
F following principles emerge from the cases decided by
this Court:
(a) The appellate court may review the evidence in
appeals against acquittal under sections 378 and 386 of
G the Code of Criminal Procedure 1973. Its power of reviewing evidence is wide; it can re-appreciate the entire evidence on record; it can review the trial court's conclusion with respect to both facts and law.
(b) The accused is presumed innocent until proven
H guilty. The accused possessed this presumption when
. >-
GHUREY LAL v. STATE OF U.P.
503
~-,,.
he was before the trial court. The trial court's acquittal bolA
sters the presumption that he is innocent.
(c) Due or proper weight and consideration must be
given to the trial court's decision. This is especially true
when a witness' credibility is at issue. It is not enough for s,
.. 'f
the High Court to take a different view of the evidence .
There must also be substantial and compelling reasons
for holding that trial court was wrong. [para 72] [538-E,F,
G,H, 539-A]
3.2 The High Courts and other appellate courts c
should follow the well settled. principles crystallized by
number of. judgments if it is going to overrule or otherwise disturb the order of acquittal passed by the trial
court.
(a) The appellate court may reverse or otherwise disD
turb the order of acquittal passed by trial court only if it has
"very substantial and compelling reasons" for doing so.
A number of instances arise in which the appellate
court would have "very substantial and compelling reaE
sons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:
i) the trial court's conclusion with regard to the facts
is palpably wrong;
ii) the trial court's decision was based on an erroneF
~ -<(
ous view of law;
iii) the trial court's judgment is likely to result in "grave
miscarriage of justice";
iv) the entire approach of the trial court in dealing G
with the evidence was patently illegal;
--...,,
v) the trial court's judgment was manifestly unjust
and unreasonable;
vi) the trial court has ignored the evidence or misH
504
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A read the material evidence or has ignored material documents like dying declarations/ report of the Ballistic Expert, etc.
This list is intended to be illustrative, not exhaustive.
B
(b) The appellate court must always give proper
weight and consideration to the findings of the trial court.
y~
(c) If two rl?!asonable views can be reached - one that
leads to acquittal, the other to conviction - the High
Courts/appellate courts must rule in favour of the accused.
C [para 73] [539-B,C,D,E,F,G, 540-A,B]
Surajpal Singh& Others v. State AIR 1952 SC 52; Madan
Mohan Singh v. State of Uttar Pradesh AIR 1954 SC 637;
Alley v. State of UP. AIR 1955 SC 807; Aher Raja Khima v.
0
State of Saurashtra AIR 1956 SC 217; Balbir Singh v. State of
Punjab AIR 1957 SC 216; M. G. Agarwal v. State of
Maharashtra A!R 1963 SC 200; Umedbhai Jadavbhai v. The
State of Gujarat (1978) 1 SCC 228; B.N. Mutto & Another v.
Dr. T K. Nandi (1979) 1 SCC 361; Tota Singh & Another v.
E State of Punjab (1987) 2 SCC 529; Ram Kumar v. State of
Haryana 1995 Supp. (1) SCC 248; Sambasivan & Others v.
State of Kera/a (1998) 5 SCC 412; Bhagwan Singh & Others
v. State of M.P. (2002) 4 SCC 85; Harijana Thirupala & Others v. Public Prosecutor, High Court of A.P, Hyderabad (2002)
6 SCC 470; C. Antony v. K. G Raghavan Nair (2003) 1 SCC
F 1; State of Karnataka v. K. Gopalkrishna (2005) 9 SCC 291;
The State of Goa v. Sanjay Thakran (2007) 3 SCC 755; Staie
of Rajasthan v. Raja Ram (2003) 8 SCC 180 - relied on.
Sheo Swarup v. King Emperor AIR 1934 Privy Council
G 227; Tulsiram Kanu v. The State AIR 1954 SC 1; Noor Khan
v. State o,t Rajasthan AIR 1964 SC 286; Khedu Mohton & Others v. State of Bihar (1970) 2 SCC 450; Shivaji Sahabrao
r
I
Bobade & Another v. State of Maharashtra (1973) 2 SCC 793; .
1-'
Lekha Yadav v. State of Bihar (1973) 2 SCC 424; Khem Karan
H & Others v. State ofU.P &Another AIR 1974SC1567; Bishan
-t
GHUREY LAL v. STATE OF U.P.
505;
ii-)'
i
Singh & Others v. The State of Punjab (1974) 3 SCC 288 ;! A
Madan Lal v. State of J&K (1997) 7 SCC 677; and
Chandrappa & Others v. State of Karnataka (2007) 4 SCC
415 - referred to.
Case Law Reference:
AIR 1934 Privy Council 227 referred to
para 45
B
...
AIR 1952 SC 52
relied on.
para 46
AIR 1954 SC 637
relied on
para 49
AIR 1955 SC 807
relied on.
para 50
AIR 1956 SC 217
relied on.
para 51
c
AIR 1957 SC 216
relied on
para 52
AIR 1.963 SC 200
relied on.
para 53
AIR 1964 SC 286
referred to
para 54
(1970) 2 $CC 450
referred to
para 55
D
(1973) 2 sec 793
referred to
para 56
_..
(1973) 2 sec 424
referred to
para 57
AIR 1974 SC 1567
referred to
para 58,
(1974) 3 sec 288
referred to
para 59.i
E
(1978) 1 sec 228
relied on.
para 60
(1979) 1 sec 361
relied on
para 61
(1987) 2 sec 529
relied on
para 62
. 1995 Supp. (1) sec 248
relied on
para 63
I
F
(1997) 1 sec 677
referred to
para 64
.. _....
(1998) 5 sec 412
relied on
para 65 .
(2002) 4 sec 85
relied on
para 66
(2002) 6 sec 470
relied on
para 67
(2003) 1 sec 1
relied on
para 68
G
(2005) 9 sec 291
relied on
para 69
c2001) 3 sec 755
relied on
para 70
.. ..,.
(2003) a sec 1ao
relied on
para 70
(2001) 4 sec 415
referred to
para 71
H
506
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
.,, .......
No. 155 of 2006
f
From the final Judgment and Order dated 11.11.2005 of
the High Court of Allahabad in Government Appeal No. 365 of
1981
B
Sushil Kumar, G.C. Tyagi, Mukesh Tyagi, Kailash Pandey,
)
Varinder Kumar Sharma and Aaditya Kumar for the Appellant.
r
Ratnakar Das, Vikas Bansal and Anuvrat Sharma for the
Respondent.
'
~
c
•
The Judgment cf the Court was delivered by
j
DALVEER BHANDARI, J. 1. This appeal is directed
against the judgment of the High Court of Allahabad dated 11th
November, 2005 passed in Criminal Appeal No. 365 of 1981.
D
2. This is a murder case in which the trial court acquitted
the accused. The High Court reversed the trial court's decision,
>-
' finding the accused guilty. In doing so, the appellate court failed
.~
to give proper weight to the views of the trial court as to credE ibility of witnesses, thereby ignoring the standards by which the
appellate courts consider appeals against acquittals.
3. We have endeavoured to set out the guidelines for the
appellate courts in dealing with appeals against acquittal. An
overriding theme emanates from the ·1aw on appeals against
F
acquittals. The appellate court is given wide powers to review
the evidence to come to its own conclusions. But this power
~ ....
must be exercised with great care and caution. In order to ensure that the innocents are not punished, the appellate court
should attach due weight to the lower court's acquittal because
G the presumption of innocence is further strengthened by the
acquittal. The appellate court should, therefore, reverse an aci
quittal only when it has "very substantial and compelling rear
,_
sons."
--r- /
4. In giving our reasons for reversing the appellate court's
H judgment and restoring that of the trial court, we provide a brief
-
GHUREY LAL v. STATE OF U.P.
507
..... .,.
[DALVEER BHANDARI, J.]
review of the facts, the reasoning of the trial and High Court as
A
well as the standards by which appeals against acquittals are
reviewed according to settled principles of criminal jurisprudence
•
in our country .
5. Before turning to the facts that were before the trial cou.rt,
B
""'"
we note that there is an interesting coincidence in this case.
The names of both the accused and the deceased are Ghurey
Lal. Therefore, to avoid confusion, we have referred to them as
"accused" and "deceased."
6. Brief facts, according to prosecution, which are neces- c
sary to dispose of this appeal are recapitulated as under:-
It appears that at the heart of this matter lies a property
dispute. The accused testified in favour of his great-grand
daughter, Ram Devi. This testimony went against the deceased,
creating enmity between the parties.
D
7. On 14.3.1979, the deceased, Shiv Charan P.W.1, Brij
Raj Singh P.W.2, Yad Ram P.W.4, Nathi Lal (not examined) and
Bishambhar (not examined) had taken the customary Gur
(Jaggery) during the Holi festival.
E
8. On their way home, they happened to pass by the home
of the accused. The accused was standing just outside his home
and was holding a shot gun. The accused began to verbally
abuse the deceased. Thereafter, the accused fired one single
shot from his gun, killing the deceased with a bullet and causF
,,.. ...,
ing injuries to Brij Raj Singh P.W. 2 with pellets. Hearing the gun
shot, some people quickly assembled at the scene. The accused fled to his room, which he locked from inside. The uncle
of the deceased, Shiv Charan, lodged the FIR that very evening,
the 141h March, 1979 at 6.15 p.m., at the Barhan Police Station G
in the District of Agra.
"-
~
9. The accused provided his own version of the event.
According to the statement of the accused under section 313
of the Code of Criminal Procedure, he went to the place of
Kanchan Singh where Gur (Jaggery) was being distributed. One
H
508
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A
Bal Mukand told the accused to leave the Gur distribution ceremony, as the deceased, Brij Raj Singh P.W. 2, Yad Ram P.W.4,
Nathi Lal and Bishambhar had collected pharsa, lath is and kattas
declaring that they wBI deal with him (accused) when he comes
there. On hearing this, the accused returned to his home and
B grabbed his gun. The deceased and others then arrived· at his
home, brandishing weapons. The deceased carried a pharsa,
Nathi Lal had a katta, Brij Raj Singh a knife and Yad Ram and
Bishambhar possessed lath is. To threaten and check them, the
accused aimed his gun at them .. This was to no avail. The dee ceased and others struck at the accused, hitting his gun. Nathi
Lal fired his katta, causing pellet injuries to Brij Raj Singh P.W.2.
·A scuffle ensued in which the deceased's group tried to snatch
away his gun. In the scuffle, the gun was accidentally fired, killing the deceased. The accused sustained pharsa and lathi
D blows on the butt and barrel of the gun. Fearing for his life, the
accused went to his room and locked the door from inside.
10. Brij Raj Singh P.W. 2 was sent to the Government Hospital, Barhan for medical examination. Dr. Govind PrasadP.\fV.3
found the following injuries on the person of Brij Raj Singh, P.W.
E 2:
F
G
. 1..
Round lacerated wound 0.3 cm x 0.3- cm on right
side back 10 ems away from rnid line 9 ems below
border of scapula. Margins burnt and inverted, and
tattooing present in an area of 5 ems. No pellets
palpable. Bleeding present.
2.
Lac!=!rated wound of exit 1.5 cm x 0.5 cm on right
side back 0.8 cm away and lateral from injury no. 1.
Skin burnt and tattooing present in the area of 5 cm
x 5 ems. Merging of the wound inverted. No pellets
palpable.
·
..
.. .
11. The Doctor opined that the injuries were caused by a
"f' -r
firearm. He advised that X-rays be taken and that the injuries be
kept in observation. In his opinion, the injuries were caused by
H a gun shot and were of fresh duration. In his opinion, the injuries
(
•
GHUREY LAL v. STATE OF U.P.
[DALVEER BHANDARI, J.]
509
could have been caused around 4 p.m. The doctor sent the
A
memo Ex. Ka-4 on the same day, informing the case of Medico
legal nature to the Barhan Police Station.
12. The autopsy on the deceased was conducted by Dr.
Ram Kumar Gupta, P.W.5, Medical Officer, SNM Hospital,
Firozabad, District Agra. It revealed the following ante-mortem
B
injuries on the deceased:
1. ·
Gun shot wound of entry 2.5 cm x 2.5 cm x through
and through on right side neck 2 cm lateral to mid line
of neck front aspect.
c
2.
Gun shot wound of exit 5 cm x 4 cm x through and
through on right side back of neck 5 cm below right
ear corresponding to injury no. 1 with margins averted.
The Doctor opined that the cause of death was due to
D
shock and hemorrhage as a result of ante-mortem injury.
13. The prosecution examined Shiv Charan P.W.1, Brij Raj
Singh P.W.2 and Yad Ram P.W.4 as eye witnesses of the occurrence. Dr. Govind Prasad P.W.3, Medical Officer In-charge,
who had medically examined Brij Raj Singh, proved the injury
E
report Ext. Ka 3. Dr. Ram Kumar Gupta P.W. 5, who had conducted autopsy on the dead body of the deceased, was also
examined. On internal examination, he found semi digested
food material in the small intestine and there was faecal matter
present in the large intestines. He prepared the post-mortem
F
report Ex. Ka-5. In his opinion, the death of the deceased had
taken place around 4 p.m. on 14.3.79 on account of the said
injuries and shock.
14. The accused was charged with killing the deceased
under section 302 of the Indian Penal Code (For short, IPC) G
and with causing simple injuries to the injured under section
323 IPC. He was also charged with attempting to murder Brij
Raj under section 307 IPC. The accused appellant denied the
charges, pleaded not guilty and asked to be tried.
H
~
510
SUPREME COURT REPORTS
[2008] 11 S.C.R.
~·-'-.'
't.
A
15. The crucial question which arose for consideration was
whether the injuries caused to Brij Raj Singh P.W.2 could have
been caused by the same shot that killed the deceased. If that
I .,
was possible, the prosecution version became probable. But if
the shot that killed the deceased and the shot that caused injuB ries to Brij Raj Singh were from different weapons, then the
..,. -i
. defence version was more probable. Shri B. Rai, Ballistic Expert, Forensic Science Laboratory, U.P. was called as court
witness No.1. He was asked to explain the nature of the 12
bore cartridges and give an opinion, for which he wanted time
c to carry out experiments in the laboratory. The gun was given to
~
him and he performed a test in his laboratory in the light of the
statements of the eye-witnesses, medical report and site-plan.
~
He submitted his report, Ex. C-Ka.1, wherein he clearly opined
that injuries Nos. 1 and 2 of the deceased were possible by the
I
D gun Ex.3 of the accused and injuries Nos.1 and 2 of the injured
Brij Raj Singh were possible by another fire. By "fire", it is clear
from the record that the Ballistic Expert was referring to a "firearm".
16. Ultimately, we must answer the following question:
E Whether the prosecution story of a single shot causing injury to
1two persons, that is bullet injury to deceased and pellet injury to
Brij Raj Singh, with the accused as the aggressor, stands sufficiently proved beyond reasonable doubt?
17. In order to decide whether a single shot was fired or in
F
fact two different shots were fired, we must carefully examine
the versions of the prosecution and the defence and the report
~ --
of the Ballistic Expert. According to the trial court, the medical
evidence coupled with the Ballistic Expert report revealed the
existence of two fires from two weapons and as such was inG consistent with the prosecution story. The trial court further pro-
,--
vided that it is difficult to separate falsehood from the truth, as
some material aspects of the occurrence appeared to have been
...,.
deliberately withheld. "One has to separate the chaff from the
grain and it is difficult to lay hand upon what part of the prosecuH tion evidence is true and what part is untrue". According to the
I
I
-
GHUREY LAL v. STATE OF U.P.
[DALVEER BHANDARI, J.]
511
accused, the trial court had taken a reasonable and possible A
view of the entire evidence on record.
18. The post-mortem report Ex. Ka-5, photo lash Ex. Ka7 and the statement of Dr. Ram Kumar Gupta P.W.5 indicate
that the wound of entry was on the right side of the neck 2 cm.
lateral middle line on front aspect. The exit wound was on the
8
right side back of neck 5 cm. below the right ear. This means
that the bullet had entered from the front side of the neck from a
distance of 2 cm. lateral to middle line, and it had come out
from the back of the neck at a place 5 cm. below the right ear. In
this way, the trial court reasoned that the barrel of the gun, when C
discharging, was slanting vertical. The mouth of the barrel was
upward and its butt downward. The barrel and the butt were not
horizontal to the ground at that time.
19. The trial court observed that injury no. 1 (wound of entry)
0
on Brij Raj Singh P.W.2 was on the right side of his back 10 cm.
away from the mid line, 9 ems. below the lower border of scapula.
Injury no. 2 (wound of exit) was on the right side of his back 8 cm.
away and lateral from injury no.1. This means that the exit wound
was by the side of the entry wound at a distance of 8 cm.
20. The dictionary meaning of 'lateral' is "by the side" and
this means that the two injuries caused by pellets to Brij Raj
Singh P.W.2 were horizontal and not vertical. The trial court
opined that the single shot could not have caused vertical injury
E
to one person and horizontal injury to another. It found it doubtful
F
,.., ~
and not sufficiently proved that the same shot could have injured Brij Raj Singh and killed the deceased.
21. This conclusion is further fortified by the report. of the
Ballistic Expert Sri B. Rai court witness No.1. He has given a
definite opinion after making actual experiments by firing shots.
G
This was done from the distance at which the occurrence was
said to have taken place. The eye-witnesses had testified to
this distance. The Ballistic Expert opined that the injuries to Brij
Raj Singh P.W.2 were from a different shot from the one that
killed the deceased.
H
512
SUPREME COURT REPORTS
[2008] 11 S.C.R.
·~·~
A
22. The relevant part of the evidence of the Ballistic Expert reads as under:
"2. Question- Whether bullet and Chharras both be used
in 12 bore gun or not?
B.
Ans.-12 bore gun have no bullet. It has small chharas, big
..,..~
chharas or one single ball shot with diameter about 0645."
23. The Ballistic Expert after studying the post-mortem
~
report observed as under:
c
"Studying the Post rylortem report No. 51/79 of deceased
Ghurey Lal and injury report of Brijraj Singh dated 14:3.79,
statement of doctor and witnesses and site plan and
keeping the result of above experiments in mind, I reached
in conclusion that injury No. 1 and 2 possible to sustain to
D
deceased Ghurey Lal by this gun from the distance of _10
feet and injury No. 1 and 2 of injured Brij Raj Singh seems
to sustain by some other shot."
24. The Ballistic Expert categorically stated that in cartridges of standard 12 bore shot guns, bullets from other rifles
E cannot be used with small and big chharas (pellets). Therefore,
the trial court concluded that both the injuries were not possible
by a single firearm .
. 25. Leading experts of forensic science, particularly balF
iistic experts, do not indicate that from a single cartridge both
bullets and pellets can be fired. Professor Apurba Nandy in his
)c: --
book "Principles of Forensic Medicine", first published in 1995
and reprinted in 2001, discussed cartridges. Professor Nandy
mentioned that in some cases, instead of multiple pellets, a
single shot or metallic ball, usually made of lead, is used. We
G . note that the discussion regarding cartridges exclusively mentions pellets. No mention of bullets and pellets in cartridges is
found in the numerous volumes of scholarly literature thatwe
~ ·,
have consulted. Relevant discussion reads as under: p. 241
H
"The Cartridges (the ammunitions)-
GHUREY LAL v. STATE OF U.P.
513
[DALVEER BHANDARI, J.]
0
The cartridge of a shotgun and the cartridge of a rifled
A
weapon are essentially different in their makes.
The cartridge of a shot gun - (Fig. 10.69)
The cartridge of a shotgun has the following parts and
contents-
•· 'f
B
1. The ·cartridge case - The longer anterior part of the
cartridge case is made of card board. The posterior part
and the posterior surface is made of brass. The margin of
the breach end of the cartridge case is rimmed, so that,
the cartridge can be properly placed inside the chamber c
. and with pressure on the rim the empty cartridge case can
be easily ejected out of the chamber. The anterior margin
of the cartridge case is twisted inward to keep the pellets
and other materials inside the case compact. The anterior
part of the cartridge case is made of cardboard, for which, D
--"'
with production of gas inside the cartridge case it can
slightly expand so that, the twisted grip by the anterior
margin will be released and the pellets can come out of
the case. The posterior metallic part keeps the shape of
the breach end of the cartridge intact. It helps to maintain
E
the right position of the cartridge in the chamber, so that,
the percussion pin of the hammer strikes the percussion
cap rightly at the breach surface of the cartridge. At the
central part at the breach end inside the cartridge case is
the percussion cap.
F
mr-~
2. The percussion cap -
It contains primer or priming
mixture and there are some vents or openings on the wall
of the percussion cap. When the posterior surface of the
percussion cap is struck by the percussion pin, the priming
mixture which consists of a mixture either of mercury G
fulminate, pot, pot, chlorate.and antimony sulphide or of
~
antimony sulphide with lead styphnate, lead peroxide,
barium nitrate or tetracene, gets ignited due to the pressure
and friction and fire comes out through the vents or
openings on the wall of the percussion cap.
H
514
SUPREME COURT REPORTS
[2008] 11 S.C.R.
0
A
3. Contents inside the cartridge case. Surrounding the
percussion cap is the gun powder or the propellant charge
which cannot ignite by.pressure or friction and which on
being ignited does not produce flame but produces huge
amount of gas. Usually the gunpowder of the shotguns
B
contains charcoal, pot, nitrate and sulphur. This combination
of the gunpowder is known as black powder, as it produce
,.- ..
much smoke. Now-a-days semi smokeless gun powder
is in use in shot guns which is a combination of 80% of
black powder and 20% of smokeless powder. Smokeless
c
powder is ordinarily used in the cartridges of rifles
(nitrocellulose or a combination of nitrocellulose and
nitroglycerine). The black powder produces 200 - 300 ml.
of gas per grain. In front of the gunpowder, inside the
cartridge case, there is a thin cardboard disc. In front of
D
the cardboard, disc is placed the wad. The wad is made
of soft substance like, felt, cork, straw or rug. In front of the
wad, there is another card board disc. In front of this disc,
the pellets are placed. The pellets are spherical projectiles
used in shot guns. Their size may be variable, according
E
to the need and make. One ounce of pellets may consist
of 6 to 2,600 of them. In front of the pellets there is another
cardboard disc on the anterior margin of which the anterior
margin of the cartridge case is twisted. The functions of
the wad are to give compactness to the gunpowder, to
prevent admixture of propellant charge and the pellets
F
and prevent leakage of the gas produced after the firing.
Wad also cleans the inner surface of the barrel after the
,..111
pellets pass out through the barrel. To facilitate this
cleaning, some greasy material is soaked in the wad. In
between the propellant charge and the wad there is a
G
cardboard disc so that the greasy substance in the wad
will not be soaked by the propellant charge and become
useless. In between the wad and the pellets there is a disc
"f' - .
which in one hand prevents impregnation of the pellets in
the soft wad and on the other, preventR leakage of the
H
greasy substance from the wad in the pellets which would
...
-
GHUREY LAL v·. STATE OF U.P.
[DALVEER BHANDARI, J.]
515
otherwise become adhesive to each other loosing their A
dispersion capacity. The anterior - most disc, placed in
front of the pellets, give compactness to the pellets and
the whole content of the cartridge case.
Shots of different sizes are suitable for different purposes.
Accordingly "Buck shots" or "Bird shots" have different
8
sized shots or pellets for hunting wild birds or other prey.
In some cases instead of multiple pellets a single hot or
metallic ball, usually made up of lead, is used. "Rifled
slugs" are single shot projectiles for shot guns with c
prominent parallel grooves on the surface."
26. In this book, the assessment of the direction of firing
from the margin of the wound of entrance has also been given,
which reads thus: p. 257
D
"Assessment of the direction of firing from the margin of
the wound of entrance -
(i)
(a) In case of shotgun injury, the pattern of dispersion
of the pellets give the direction of the firing. The pellets
disperse over wider area as it travels more. Hence
E
firing is suspected to have been from the side
opposite to the side of wider dispersion of the pellets.
"
27. "Firearms in Criminal Investigation and Trials" was
written by a distinguished professor Dr. B.R. Sharma. He has
F
written in some detail about 12 bore guns. This book also defines Pellet Pattern which reads thus: p.204
"Pellet Pattern
The area covered (pellet spread) by the pellets fired from
G
a shotgun is proportional to the distance between the
muzzle of the firearm and the target. Greater the range,
greater is the area covered by the pellets. The spread of
the pellets is affected mainly by the length of the barrel of
the firearm and its muzzle characteristics (whether it is
H
A
B
c
516
SUPREME COURT REPORTS
[2008] 11 S.C.R.
choked or not). The condition of the ammunition also
affects the results. If experiments are performed with the
same firearm and ammunition of the same make and
batch, the test patterns provide fairly accurate estimates
of the range.
Generally, the whole charge enters the body en masse up
to a range of about two metres in a factory-made 12-bore
shotgun. It forms a rat-hole of about two to six centimetres
in diameter. The rat-hole is surrounded by individual holes
when the range of fire is about two to seven metres ... "
28. The trial court stated that in the FIR itself it is mentioned that the injuries to Brij Raj Singh were by pellets and that
of the deceased by a bullet. The Ballistic Expert has st~ted that
the cartridge containing pellets cannot contain a bullet. Accardo ingly, the trial court reasoned that two weapons were used.
E
29. The Ballistic Expert is a disinterested, independent
witness who has technical knowledge and experience. It follows that the trial judge was fully justified in placing reliance on
his report.
30. The trial court also observed that removing the body
of the deceased from the place of occurrence creates doubt
that the prosecution was planning to substitute another story for
the real facts. As such, the possibility that the deceased and his
group were the aggressors is not ruled out. It is possible that
F
pharsa and lathi blows had made the marks that were found on
the gun. The gun may have snatched all of a sudden, causing it
to fire upon the deceased and Brij Raj. Under the circumstances
of the case, the use of another weapon, which had caused injuG
H
ries to Brij Raj Singh P.W.2, is also not ruled out.
31. The trial court further observed that the substratum of
the prosecution story about the injuries to Brij Raj Singh is not
established beyond reasonable doubt and the story of shooting the deceased by the same shot fired by the accused is not
separable from other doubtful evidence of eye-witnesses. The
•
-
• ....
GHUREY LAL v. STATE OF U.P.
[DALVEER BHANDARI, J.]
517
circumstances show that the possibility of aggression on the
A
part of the complainant side is not ruled out, then the benefit of
doubt for killing the deceased by the accused would also go to
the accused.
32. The trial court also found force in the plea of right of
private defence as set up by the accused. The trial court men8
tioned that there is force in this argument where the circumstances
of the case show that two fire arms were used in the occurrence.
The accused was all alone in his house at that time. The availability of a second weapon is possible only when the complainant side had brought it to the scene. This circumstance support$ C ·
the defence case, that the complainants' side was the aggressor
and they had come armed with weapons to the scene. It follows
that the accused would apprehend grievous hurt and danger to
his life. Accordingly, the right of self defence was open to him.
33. In the concluding paragraph of the judgment, the trial
court ·observed that when neither the prosecution nor the defence version is complete, then it is obvious that both the parD
ties are withholding some information from the court. The burden of proving the charge to the hilt lies upon the prosecution. It
has failed to discharge its burden. Thus, the benefit has to go to
E
the accused. According to the trial court, the accused could not
be convicted for the charges framed against him . .He was entitled to get the benefit of doubt and, consequently, the accused
had to be acquitted of the charges under sections 302, 307
and 323 IPC.
F
34. The State, aggrieved by the trial court's judgment, preferred an appeal before the High Court.
35. The High Court' in appeal re-appreciated the entire
evidence and came to the conclusion that the trial court's judgG
ment was perverse and unsustainable. It therefore set aside
~ ,..
the trial court judgment and convicted the accused under section 302 IPC for the murder of the deceased and under section
324 IPC for injuring Brij Raj Singh and sentenced him to life
imprisonment and for six months R. I. respectively.
H
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SUPREME COURT REPORTS
[2008) 11 S.C.R.
~ ...
A
36. Against the impugned judgment of the High Court, the
accused appellant has preferred appeal to this court. We have
been called upon to decide whether the trial court judgment was
perverse and the High Court was justified in setting aside the
same or whether the impugned judgment is unsustainable and
B against the settled legal position?
37. We deem it appropriate to deal with the main reasons
y..-
by which the trial court was compelled to pass the order of acquittal and the main reasons of the High Court in reversing the
._
judgment of the trial court.
.
c
'
MAIN REASONS FOR ACQUITTAL BY THE TRIAL
COURT
38. The trial court acquitted the accused for the following
reasons:
D
1.
The prosecution story of single shot injury to two
persons one standing horizontally and the other
;. .....
vertically stands totally discredited by the medical
and the evidence of Ballistic Expert.
...
E
2.
According to the FIR, the deceased received a
spherical ball (ball shot) bullet injury and Brij Raj Singh
P.W.2 received pellet injuries. The accused's guri
.,.
had a cartridge that could only contain pellets. The
,; '
I
Ballistic Expert has clearly stated that a cartridge
F
containing pellets cannot contain a bullet. As such, it
appears that two weapons were used.
x -'f3.
Dr. Ram Kumar Gupta, P.W.5 who conducted the
post-mortem of the deceased, clearly stated that the
deceased received injuries from a bullet whereas
G
Dr. Govind Prasad Bakara who had examined Brijraj
Singh P.W.2 clearly stated that both injuries were
caused by a pellet.
'?" -+
Therefore, according to medical evidence coupled
1-:1
with the evidence of the Ballistic Expert, two firearms
GHUREY LAL v. STATE .OF U.P.
519
>--f
[DALVEER BHANDARI, J.]
must have been used. This version is quite A
inconsistent with the prosecution story.
4.
The injuries received by Brij Raj Singh P.W.2 were
from the back side and the injury received by the
deceased was from the front side and this shows
... 'f
that two weapons may have been used .
B
5.
Removal of the body of the deceased from the place
~
of occurrence also created doubt with regard to the
veracity of the prosecution version.
6.
The possibility that the deceased and the c
complainant's side were aggressors and had gone
there and caused pharsa and lathi blows on the
accused cannot be ruled out because of the marks on
the gun Ex.3. That the said gun was fired in snatching
all of a sudden, injuring the deceased also cannot be D
ruled out from the circumstances of the case.
7.
The trial court did not discard the defence version of
right of private defence as pleaded by the accused.
8.
The trial court observed that it is difficult to separate
E
falsehood from the truth, where some material
aspects of the occurrence seem to have been
deliberately withheld. It is a well-established principle
of criminal jurisprudence that when two possible and
plausible explanations co-exist, the explanation
F
.. ""·
favourable to the accused should be adopted .
MAIN REASONS FOR REVERSAL OF ACQUITTAL
ORDER:
39.