# GURCHARAN SINGH v. STATE OF PUNJAB

- **Citation:** [1963] 3 S.C.R. 585
- **Court:** Supreme Court of India
- **Decided:** 1962-02-21
- **Bench:** P. B. Gajendragadkar, K. C. Das Gupta, J. R. MunHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gurcharan-singh-v-state-of-punjab-2648
- **Pages:** 19

## Headnote

Orimi·1al Trial-Murder-Shooting with gun- Acquittal
of
possession
af
'Unlicensed firearm-Effect on trial for
murder--Ballistic expert-Failure to produce-If vitiates trialDutg of High Court to consider Points 'TUised in appeal.
The two appellants G and S together with three others
B, D and A were tried·for the muder of four pers~ns by shooting them with guns. Two spent cartridges were recovered
at the spot; G produced a gun on the very day o.f occurrence
and D produced a gun one week after the occurrence. The
cartridges and guns were sent for examination to the ballistic
expert but neither he nor his report was produced before the
Sessions Judge. The Sessions Judge convicted the appellants
and B and D but acquitted A. The same Judge tried G under
s.19(f) Arms Act for being in possession of the unlicensed gun
which G had surrendered but acquitted him of the charge.
On appl"al against the conviction for murder the High Court
confirmed the conviction and sentence of death passed against
the appellants but acquitted Band D. The appellants con•
tended (i) that in view of his acquittal in the s.19(f) Arms Act
case, the allegation of the recovery of the gun from G in the
murder case could not be accepted, (ii) that the failure to
produce the ballistic expert and his report had introduced a
serious infirmity in the pro~ecution case, and (iii) that the
High Court had failed to deal with these and other points
raised before it.
Held, that the conviction of the appellants was not vitiated by any infirmities.
The acquittal of G in s.l9(f) Arms Act case did not
affect his conviction in the murder case. If the order of
acquittal under s.19(f) had been pronounced before the judgment in the murder case, then in the latter case the prosecu·
tinn could not contend that G was in illegal possession of the
firearm.
Though the two judgment were pronounced on the
same day there was nothing to show that the judgment
in the s.19(f) Arms Act c'lse was pronounced earlier. On the
other hand there were indications that it was pronounced
196S
YI
August 1 I.
1161
•.uckraa Stn1A
••
St,t1 •f P..,.b
586
SUPREME COURT REPORTS (1963)
after the judgment in the murder case.
The evidence clearly
established that G had produced the gun.
Pritam Singh v. Stat• of Punjab, A.I.R. 1956 S. C. 415,
referred to.
There is no inflexible rule that in every case when a
person is charged with murder caused by a firearm, the prosecution can succeed only by examining an expert to prove
that the injuries could be caused by the weapon alleged to
have been used. Where the direct evidence is not satisfactory
or disinterested or where the injuries arc alleged to have been
caused with a gun and they prima facie appear to have been
inflicted by a rifle, the apparent inconsistency can be cured or
the oral evidence can be corroborated by the evider.ce of a
ballistic expert. In the present case there was no necessity
to examine-an expert. Admittedly, G had fired twice and
there was nothing to show that the injuuries could not have
been caused by the Eun which was in his hands. D had kept
the gun with him for a week before surrendering it and it was
unlikely that D had not removed traces of its use. · The report
of the ballistic examiner, which was sent for by the Supreme
Court, did not help the defence and no inference could be
drawn against the prosecution from its failure to produce it at
the trial,
Mohintkr Singh v. The State, [1950] S.C.R. 821, referred
to.
In dealing with confirmation cases the High Court should
consider the evidence carefully .and record its conclusions
clearly after dealing with all the points urged before it by the
defence.
In all criminal appeals before it the Supreme Conrt
is reluctant to interfere with the findings of fact recorded by
the High Court. In the present case some of the reasons
given by the High Court were erroneou.s and some of the arguments urged before it were not duly considered and the Supt·eme Court had therefore to go into the evidence.
CRIMIIU

## Text

3 S.C.R.
SUPREME COURT REPORTS
585
GURCHARAN SINGH
v.
STATE OF PUNJAB
(P. B. GAJENDRAGADKAR, K. C. DAS GUPTA and
J. R. MunHOLKAR, JJ.)
Orimi·1al Trial-Murder-Shooting with gun- Acquittal
of
possession
af
'Unlicensed firearm-Effect on trial for
murder--Ballistic expert-Failure to produce-If vitiates trialDutg of High Court to consider Points 'TUised in appeal.
The two appellants G and S together with three others
B, D and A were tried·for the muder of four pers~ns by shooting them with guns. Two spent cartridges were recovered
at the spot; G produced a gun on the very day o.f occurrence
and D produced a gun one week after the occurrence. The
cartridges and guns were sent for examination to the ballistic
expert but neither he nor his report was produced before the
Sessions Judge. The Sessions Judge convicted the appellants
and B and D but acquitted A. The same Judge tried G under
s.19(f) Arms Act for being in possession of the unlicensed gun
which G had surrendered but acquitted him of the charge.
On appl"al against the conviction for murder the High Court
confirmed the conviction and sentence of death passed against
the appellants but acquitted Band D. The appellants con•
tended (i) that in view of his acquittal in the s.19(f) Arms Act
case, the allegation of the recovery of the gun from G in the
murder case could not be accepted, (ii) that the failure to
produce the ballistic expert and his report had introduced a
serious infirmity in the pro~ecution case, and (iii) that the
High Court had failed to deal with these and other points
raised before it.
Held, that the conviction of the appellants was not vitiated by any infirmities.
The acquittal of G in s.l9(f) Arms Act case did not
affect his conviction in the murder case. If the order of
acquittal under s.19(f) had been pronounced before the judgment in the murder case, then in the latter case the prosecu·
tinn could not contend that G was in illegal possession of the
firearm.
Though the two judgment were pronounced on the
same day there was nothing to show that the judgment
in the s.19(f) Arms Act c'lse was pronounced earlier. On the
other hand there were indications that it was pronounced
196S
YI
August 1 I.
1161
•.uckraa Stn1A
••
St,t1 •f P..,.b
586
SUPREME COURT REPORTS (1963)
after the judgment in the murder case.
The evidence clearly
established that G had produced the gun.
Pritam Singh v. Stat• of Punjab, A.I.R. 1956 S. C. 415,
referred to.
There is no inflexible rule that in every case when a
person is charged with murder caused by a firearm, the prosecution can succeed only by examining an expert to prove
that the injuries could be caused by the weapon alleged to
have been used. Where the direct evidence is not satisfactory
or disinterested or where the injuries arc alleged to have been
caused with a gun and they prima facie appear to have been
inflicted by a rifle, the apparent inconsistency can be cured or
the oral evidence can be corroborated by the evider.ce of a
ballistic expert. In the present case there was no necessity
to examine-an expert. Admittedly, G had fired twice and
there was nothing to show that the injuuries could not have
been caused by the Eun which was in his hands. D had kept
the gun with him for a week before surrendering it and it was
unlikely that D had not removed traces of its use. · The report
of the ballistic examiner, which was sent for by the Supreme
Court, did not help the defence and no inference could be
drawn against the prosecution from its failure to produce it at
the trial,
Mohintkr Singh v. The State, [1950] S.C.R. 821, referred
to.
In dealing with confirmation cases the High Court should
consider the evidence carefully .and record its conclusions
clearly after dealing with all the points urged before it by the
defence.
In all criminal appeals before it the Supreme Conrt
is reluctant to interfere with the findings of fact recorded by
the High Court. In the present case some of the reasons
given by the High Court were erroneou.s and some of the arguments urged before it were not duly considered and the Supt·eme Court had therefore to go into the evidence.
CRIMIIUL APPELLATE JURISDICTION: Criminal
Appeal No. 87 of 1962.
Appeal by special. leave from the judgment
a.nd order dated February 21, 1962, of the Punjab
High Court in Cr. A. No. 1231 of 1961 and Murder
Reference No. 98 of 1961.
,--
-. -
3 S.C.R.
SUPREME COURT REPORTS
587
PurushoUam Trikamdas, 0. L. Sareen and
R. L. Kohli, for the appellants.
1"11
Gurtharan SingA
v.
N. S. Bindra and P. D. Menon, for the responS1a11of PunJa•
dent.
·
1962. August 10.
The Judgment of the court
was delivered by
GAJENDRAGADKAR,
J .-The two appellants
Gajentlroiadlar J.
Gurcharan Singh and Surjit Singh along with three
others, Ba.land Singh, Daljit Singh and Ajit ~ingh, were
tried before the 2nd Addi. Sessions Judge,Ferozepore
for offences under Section 148 ands. 302/149 I.P.C.
The prosecution case against these five pers9ns was
that on or about the 18th May, 1961, they formed
an unlawful assembly at the village Jhote with the
common object of killing Arjan Singh, Sukhjit Singh
Gurdial Singh and Piara Singh alias Balo, aml that in
prosecutiop of the sa;d common object, they committed the offence of rioting when they were armed with
deadly weapons. That is the essence of the charge
under s. 148. It was further alleged that on the
same day and at the same time and place the said
members of the unlawful assembly carried out its
unlawful object a.nd in so doing, the appellant
Guroharan Singh murdered Gurdial Singh and Sukhjit
Singh, while the appellant Surjit Singh murdered
ArjanSingh and Piara Singh. That is how all the
five accused persons were charged under section
302/149 of the Indian Penal Code.
The trial Judge held that the charges against
Daljit Singh had not been proved beyond a
reasonable doubt and so, according to him, the pros"cution case under s. 14,8 had not been proved and
that charge under s. 149 had not been sustained. In
regard to the four other accued persons, he held
that they were guilty under s. 302/34 I.P.O. Having
thus convicted them of the said offence, the learned
Judge sentenced Gurcharan Singh, Baland Singh
lUI
$archa1an Sinrh
v.
Sl•te •f Punjab
fi11:j1nJrsgadkar ,J
588
SUPREME COURT REPORTS f 1963)
and Surjit Singh to death and
directed that
Ajit Sigh should suffer imprisonment for life. The
sentence of death imposed by the learned trial Judge
was submitted to the Punjab High Court for confirmation, while all ~he four convicted persons preferred an appeal challenging their convictions and
sentences imposed on them. The High Court consi-
/
dered both the matters together and has come to
the conclusion that the charge under s. 302/34 had
not been proved against Baland Singh and Ajit
Singh.
T]iat is why the said two accused persons
have been acquitted, whereas the conviction of the
appellants Gurcharan Singh and Surjit Singh as well
as the sentence of death imposed on them have
been confirmed. It is against this order that the
two appellants have come to this Court by spe·
cial leave.
The incident which has given rise to the present criminal proceedings against the appellants
took place on May 18, 1961, and as a result, four
persons have been murdered-they are Arjan Singh,
Sukhjit Singh. Gurdial Singh and Piara Singh. The
prosecution case is that on May 18, 1961, at about
6.30 A.M., the appellant Gurcharan Singh was proceeding to the house of his friend, Ajit Singh. Guroharan Singh, Surjit Singh and Daljit Singh are
the sons of Ba.land Singh. ,Whilst Gurcharan 'Singh
was thus proceeding to the house of Ajit Singh, he
had to pass by the house of Saudagar Singh.
Saudagar Singh objected to Gurcharan Singh passing by his house and that led to an altercation.
In this altercation, Saudagar Singh and his two
sons Kulwant Singh and Darshan Singh inflicted
some injuries on Gurcharan Singh as well as on
Ajit Singh who came on ·the scene.
Gurcharan
Singh 1md Ajit Singh thereupon ran away.
This is
the first incident which took place on that day.
About half an hour after this incident, another incident took place. It appears that the five
-
,
I
'
3 s.c.R.
SUPREME COURT REPORTS
589
accused persons got together and wanted to avenge
the beating given by Sauda.gar Singh and his sons
to Gurcharan Singh and Ajit Singh. Gurcharan
Singh and Daljit Singh a.rmed themselves with
gandasas, Surjit Singh carried a gun for which bis
brother Daljit Singh had a licence, Ajit Singh carried a 'dang', while Ba.land Singh, the appela.nts'
father, headed the party, but was not armed. This
party came across Arjan Singh near the house of
Jarnail Singh. It appears that Arjan Singh was
afraid of these men and so, he used to carry with
him a licensed gun. As soon as Arjan Singh was
sighted, Balaud Singh told his sons and Ajit Singh
to assault him, and the party began to assault
Arjan Singh.
A gandasa. blow was· given on his
forearm as a result of which Arja.n Singh lost his
grip on the gun and it fell down. Immediately
thereafter, Gurcharan Singh picked it up. Arjan
Singh then implored his assailants not to beat him
. and offered to go to the Gurdwara to take an oath
that the allegation against him was untrue. It is
suggested that Ealand Singh was satisfied with this
offer and so persuaded his sons and their friend not
to harass him any more. This is the second incident which took place as a re!!ult of the first incident.
lt is the epilogue of the second incident which
followed soon -after that led to the murder of the
four victims. It appears in evidence that while
Arjan Sin_gh was imploring his assailants not to
attack him and soon after the attack stopped,
Gurdev Singh, the son of Arja;o ~ingh, happened to
come out of the Gurdwara and saw his father facing
a dangerous crowd. So, he ran to his house and
asked his brothers to come and help him to rescue
their father. While Arjan Singh was returning to
his house, . on the way, he met his sons Gurdev
Singh, Gurdial Singh and Gurcharan Singh who had
~rined themselves and were
~roceedin~ toward,&
1962
Ourehara.n Singh
y,
State of Punja#
1811.
6ur1haran s;nga
••
Slat• of Punjab·
I
590
SUPREME COUHT REPORTS fil963J
the spot where he had been encircled by his opponents.
At that time, Rekha Ram also come on the
spot and he was being followed by his brother
Piara. Sukhjit Singh and Jagjit Singh also came
on the scene.
Arjan Singh told them all to go back
and assured them that his offer to take the oath in
the Gurdwara had pacified his opponents and he was
no longer in any difficult situation. As a result of
this statement of Arjan Singh, tbe persons who were
· going to the spot to help him desisted from going
any further. At that time, all the five accused persons spotted Arjan Singh's sons coming to the spot
and that infuriated Baland Singh. He then renewed his exhortation to his companions and asked
them to finish
their enemies.
Sooii thereafter;
Gurch~ran Singh fired a shot from the gun which hit
Gurdial Singh on his forehead and in consequence,
he fell down dead on the Hpot.
Surjit Singh fired
two shots in quick succession which hit Arjan Singh
and killed him. Gurcharan Singh fired another shot
which hit Sukhjit Singh who fell down with serious
injuries. Surjit Singh again fired another shot
which hit Piara and he fell
down dead on the
spot.
AU the five accused persons then indulged in
lalkaras and abused their enemies. This occurrence
was witne•sed by Gurdev Singh (P.W. 2), Sukhdev
Singh (P.W. 3),. Gurcharan Singh (P.W. 4), Rakha
Ram (P.W. 15), and Jagjit Singh (P.W. 6).
Sukhjit
Singh who lay seriously injured was taken to the
hospital at Ferozepore for medical treatment, but
notwithstanding the treatment, he Huccqmbed to
his injuries. That, in brief, is the prosecution case
against the appellants.
,
The prosecution attempted to prove its case
by examining the eye-witnesses, Gurdev Singh,
'
Sukhdesv· Sihngh, Gurchdaradn ~ingh and Rekba Ram,
. I
Jagjit
mg
was ten ere
ior cross-examination.
~
The defence admitted that Gurcharan Singh and
Ajit Singh were present on the scene
!i<lld~,tJla.~
t,
3 S.C.R.
SUPREME COURT REPORTS
591
Gurchara.n Singh fired· twice from a gun, but that ,
was in self-defence. The remaining three accused
persons denied. their presence on the scene of the
offence and alleged that they had· been falsely
implicated.
It; does appear that there was bitter
enmity between the two parties for several years
past. Criminal proceedings had taken place between them and there is no doubt about the existence of hostili1;y between them.
Sometime before
this occurrence, Kulwant Singh (P.W. 7)
was
arrested in an excise case for running a still, and
in that case, the appellant Guroharan Singh was a.
prosecution witness. Besides, the appellant Gurcharan
Singh
had
opposed
Arjan
Singh
for the office of Sarpanoh but had ,failed. The
defence, therefore, was that it is out of enmity
and hostility that the three accused persona who
were not preseltlt had been falsely involved in this
case and that in respect of Gurcharan Singh and
Ajit Singh who , were present, the truth was that
they had been attacked by the persons belonging to
the party of Arjan Singh, and Gurcha.ran Singh
had fired in exercise of his right. of private defe.
ence.,
The trial Judge examined the eTidence adduced
before him, considered the arguments raised by the
defence and came to the conclusion that the charge
of murder under s. 302/34 had been proved against
Baland Singh, Clurcharan Singh, Surjit Singh and Ajit
Singh. The High Court, in substance. has agreed with
the conclusions of the trial Court in respect of the
prosecution case against the two appellants Gurcha·
ran Singh and ~lurjit Singh. It bas, however, held
that the evidence about the exhortation alleged to
have been given by Baland Singh was not proved by
satisfactory evidence and the main charge against
Baland Singh and Ajit Singh had not been proved
be~ond a
re~~sonable doubt.
lt fs
o~
tb~I!
--
6ur~""1'~'$ingh
.,.
' . .
$1411 of Pu•J.11,b
1962 --
C~oharaa S.ingh
' ' . . y..
.
Slate ofhnja!
592
SUPREl\m COURT REPORTS [1963]
finding that the said two accused persons were acquitted, whereas the
appellants' conviction and
sentence have been confirmed.
Mr. Purushota.m for the appellants contends that
the judgment of the High Court suffers from some
serious infirmities and so, he argues that in the
interest of justice, we ought to examine the evidence
ourselves. It is, therefore, necessary to examine the
broad arguments on
which the jud?ment under
appeal has been attacked by l\ir. Purushotam. The
first poiDt which has been urged before us is that
the High court has not properly considered the plea
of self-defence raised by Gurcharan Singh, and it is
pointed out that in rejecting the said theory, the
High Court has relied on a prirlr statement of
Gurcharan Singh which had been excluded from
evidence by the trial Judge. It appears that Gurcharan Singh had filed a comnlaint against the prosecution witnesses and that complaint was admitted
at the trial as Exbt. DK The said document first
describes the injuries inflicted on Guroharan Singh
and then proceeds to give a detailed account of the
incident which led to the said injuries.
l'his docu·
ment was proved by Sub-Inspector Udham Singh by
the defence in cross-examination. When this document was tendered, the part of the document which
referred to the injuries on Gurcharan Singh. was
marked and admitted in evidence. The remaining
portion of the document was excluded. When the
High Court considered the theory of self-defence
urged on behalf of Gurcharan Singh, it took the
. view that the said theory could not be accepted
because it was inconsistent with Gurcharan Singh's
version about the incident contained in Exbt. DE.
Mr. Purushotam objects to this part of the judgment
and we think, rightly. It is unfortunate that the
attention of the High Court was not drawn to the
fact that the portion of document DE on which it
'\V!l.S basing its criticism against the defence theor;v
l
..
•
3 ~.C.R.
SUPREME COURT REPORTS
593
of self-defence had not been admitted in evidenc1e.
Tha.t no doubt is a serious infirmity in the raasoning
a.nd so, Mr. Purushotam is entitled to _say that the
conclu~ion of the Hig\ Court on this pa.rt of the
defence case cannot be accepted without examination of its merits by us.
The oth~r contention which Mr. Purushotam has
raised before us is that in dealing with the case cf
self-defence, the High Court has not referred to the
injuries on the person of Gurcharan Singh. The
evidence adduced in the case shows that Gurcharan
Singh had 13 injuries on his person, 12 of which
were contusions and one was a grievous hurt as
disclosed by X-ray. It was an injury on the foot and
it may be that there was a fracture ·or a crack.
Whether these injuries decisively helped the defence
version or not is a different matter. The argument
is that these injuries should have been considered
by the High Court when it was called upon to decide
the validity of the defence claim of the exercise of
the right of private defence. There is some force
even in this contention.
Since we are satisfied that these two contentions
are well-founded, we have examined the plea of
self-defence ourselves and in that connection, we
have conHidered the oral evidence adduced by the
prosecution. It is true that Gurdev Singh and Gurcharan Singh can be said to be interested witnesses and
in that sense, their evidence is the evidence of partisan witnesses and has to be carefully examined. On
the other hand, Sukhdev Singh and Rekha Ram
are not shown to be hostile to the appellants and
their evidence cannot, therefore, he characterised as
partisan. It is true that Rekba Ram's brother 'Piara
has been murdered, but Piara has apparently died as
a result of reckless shooting and it is not shown
that either Piara was the enemy of the appellants or
Re~ha Ram is hostile to them. The attempt made
--
Gurcharan Sing II
v.
Stal1 of Pu.jab
Gttjendragadkar· J.
IlllJI
Gur&Atran Singh
••
~ Stott of Purijab
<lajmdragadk"r J.
594
SUPREME OOURT REPORTS (1963]
in the cross examination of Sukhdev Singh to show
that he was related to the complainants' party has
failed,
and, so,
Sukhdev
Singh
must be
held to be
a
disinterested
witness.
Mr.
Purushotam
fairly
conceded
that
t.he
account given by
all these witnesses about the
occurrence is 00111sistent and cogent and the only
criticism he had to make agair;ist that evidence
was that it is partisan evidence.
We have considered the whole of this evidence, and we are satisfied that the courts below were right in su bstantially accepting it against the appellants. If this
evidence is believed, then the sequence of events
that took place is clearly disclosed and that shows
that the plea of self .defence urged by the appellant Gurcharan Singh cannot be accepted. · Injuries on his person are of a minor character and
they may have been inflicted while some of the
victims may have beaten him with a stick. However that may be,
having regard to the sequence
of events, it is impossible to a<:icede to the argument that Gurcharan Singh fired twice from the
fire-arm in order to save himself.
In this connection, it is relevant to recall
that the party of the appellants was armed with
. deadly weapons.
Gurcharan Singh had picked up
the gun which fell down from the hands of Arjan
Singh and Surjit Singh had a gun for which his
brother Da.ljit Singh had a licence. The others were
armed with gandasas and similar deadly weapons.
Therefore, when the incident took place, tho two
appellants were armed with fire-arms and on the
evidence which is believed, a1rgression proceeded
from them and not from Arjan Singh or his friendR.
That also shows that the theory of self-defence
cannot be accepted. Therefore, though the High
Court has not considered this point as well as it
ebould have, and though a :par~ of th«;i re~soning
• '
•
3 S.C.R.
SUPREME COURT REPORTS
595
adopted by the High Court in dealing with this
point suffers from the infirmity to which we have
referred. in the result, its conclusion on this point
seems to be right; Incidentally, it ma.y be pointed
out that this plea of self-defence was not seriously pressed before the High Court .
That takes us to the next broad criticism
made by Mr. Purushotam against the judgment of
the High Court. It is urged that the High Court
did not take into account the fact that Gurcharan
Singh who had been charged under s. 19(f) of the
Indian Arms Act has been acquitted by the same
learned Sessions Judge who ?onvicted him for the
offence of murder under s. 302/149. It appears
that the prosecution case is that Guroharan Singh
produced the fire-arm when he surrended and
since he had no licence to keep a fire-arm and indeed, the fire-arm in question belonged to Arjan
Singh,· a charge under s. 19(f) had been framed
against him. The learned trial Judge believed the
evidence of the two witnesses Pur~n Singh and
Sohan Singh as well as the evidence of the SubInspector Udha.m Singh,
and held that about
6.30 P.M. on· May 18, 1961, Gurcharan Singh produced the fire-arm.
The evidence shows that
Arjan Singh Sarpanch of Valtoha took Gurcharan
Singh and Ajit Singh to Udham Singh and the two
of them then surrendered. The document containing the memo, about this surrender has been duly
proved (Ext.P.21). The trial Judge delivered his
judgment in the principal case on November 18,
1961. It appears that on the same day, he delivered his judgment in the companion case in which
Gurcharn Singh was charged under s. 19(f) of the
Indian Arms Act and held that the said charge
had not been pr~ved and so, he acquitted him of
that charge.
It may be
conceded that in this
jud~ment, the sa'fI!e evidence about the productioq
1962
Gur1haran Singh
' v.
Slatl of Punjab
---
Gajentlragddltar J.
1961 --
GUrelzaran Singh
v.
Stale of PUnjab
Gaj•ndragadkar J.
596 SUPREME' OOURTL REPORTS [1963]
of the weapon by Guroharan Singh has been disbelieved.
On these facts, Mr.
Purushotam contends
that this matter was argued before the Hi!!h Conrt
and it was urged that the finding of the trial Court
in the prin0ipal case
about the recovery of the
weapon fron Gurcharan Singh should not be accepted, and this argument has not been considered by
the High Court. It would be noticed that this
argument is based on tbe decision of this Court in
Pritam Singh vs. State of Punjab (1).
There is no
doubt that if the order of acquittal under s.19(f)
had been pronounced . before the judgment in the
principal case was delivered, then in the latter case
the prosecution will
not
be entitled to contend
that Gurcharan Singh was in
illegal possession
of the fire-arm.
This position cannot be and is
not disputed.
The question,
however, still remains as to
whether the judgment in the fire-arm case was pronounced first or the judgment in the murder case
was pronounced first.
Mr. Purushotam frankly
stated before us that he was not in a position to
contend that the judgment on which he relies was
procounced in point of fact before the judgment
in the murder case •. Th" manner in whicl:i this
judgment has been produced before this Court is very
irregular. The judgment does not appear to have
been filed in the High Court as it should have
been if it was intended to rely upon itBut the
petition for special leave l!tates that it was utilised
for the purpose of raising the point in appeal before
the High Court. This judgment was not filed before
this Court along with the petition for special leave.
It has been tendered at a later stage when the
index of papers was settled for inclusion in the
paper-book in this Co1irt.
fn our opinion, this
(1) A.l.R, (1956) S.C. 4\~.
_,
a S.C.R.
SttPR~M~ OOURT ·REPORTS
597
method of producing this document is irregular.
But apart from this, unless it is shown that the
judgment on which the defence relies was pronounced first, no argument oan be raised about the
invalidity of the conclusion in the murder case
that Gurcharan Singh surrendered the gun. Prima
facie, the judgment in the murder case must have
been delivered first. It is numbered as 88 and 93 of
1961, whereas the a.rmi:l case is numbered as 89
. and 94 of 1961.
Therefore, we do not think it is
open to the appellants to contend that the acquittal of Gurcharan Singh under s. 19(fl was prior to
his conviction under s.302/149 and so, tne finding
that he surrendered the
weapon should not be accepted. It is to be regretted that the same learned
Judge should have rendered two inconsistent find- .
ings in two companion cases in judgments .pronounced on the same day. This ·is a · matter to which
his attention ought to be drawn by the High Court.
Though the point sought to be raised on the
strength of this judgment cannot technically arise,
we thought it necessary to examine the evidence
about the production of the weapon ourselves. We
have accordingly gone through the evidence of
Puran ::-ingh, Soban Singh and Udham Singh and
we have taken into account the fact that Gurchara.n
Singh was produced by Arjan Singh who is a
Sarpanch of Valtoha. We feel no hesitation in
holding that this evidence clearly establishes the
fact that Gurcharan ~ingh produced the weapon,
as disclosed by the production memo.
(Ext. P21).
In this connection, wei may recall the fact that
Gurcharan Singh in fact admitted that he had used a
fire-arm and had fired twice in self.defence. He did
not admit that was the gun which was snatched from the hand af Arjan Singh ; but that is
another matter. Therefore, the argument that the
aquittal of Gurcha.ran Singh in arms case affects
196Z
Gureharan Singh
v.
S1at.,qf Punja9
---
Gajet1lf'!1-1'1111ka" J •
19~11
Gurcharan Singh
••
Siale of Punjab
Gafenuazai,kor J.
508
SUP&E}iE COU&T REPORTS (1983]
the finding as to the surrender of the gun by him,
cannot be sustained.
'
The last argument on which the judgment on the
High Court was attacked by Mr. Purushotam arises
from the fact that a ballistic expert has not been
examined in this case. It is urged that this ground
was taken before this High Court and has not been
considered by it. Petition for special leave makes
a definite averment to that effect. As the argument
was presented before us by Mr. Purushotam, it
assumed that a report had been received from the
ballistic expert, but that report had not been proved,
because it was appehended by the prosecution that
it would destroy its case. There is no doubt that
the two fire-arm~ along with two empty cartridges
were s1mt to the Scientific Laboratory, Chandigarh
(Ext. P. Z.) oll June 28, 196 l. Of the two guns
which were sent for examination, one was used by
Gurcharan Singh ·which he picked up as soon as it
fell down from the hand of Arjan Singh and the
other was used by Surjit Singh which was taken by '
him from Daljit Singh. It appears that Daljit Singh
produced that gun and surrendered it on May 27,
1961, i.e., nearly a week after the incident took place.
lllr. Purushotam contended that since these weapons
had been sent for examination by a ballistic expert
and a report had .been received, it was the duty of
of the prosecution to examine the. ballistic expert.
We were impressed by this argument, and so, we
adjourned the hearing of the case and called upon
Mr. Bindra to produce that report before us.
Accordingly, the .report has been produced and it
shows that according to the expert· opinion, out of
the two fired cartridges sent for expert examination
one had been fired from the right barrel of the gun
contained in parcel No. l and the other had been
fired from the left barrel -of the same gun. In
other words, this reports shows that two empties
found near the scene of the offence had been fired
'
;-
3 s.c.:R..
SuPREM:E COURT REPORTS
. 59()
from the same gun. After this report was received
and a copy of it was served on Mr. Purushotam, he
fairly conceded that the said report was not inconsistent with the prosecution case, though he argued
that it did not corroborate it either. This report
has not been proved and no ballistic expert has
been examined in this case. But having regard to
the fact that the report prima f <tcie is· not inconsis·
tent with the prosecution.case, we do not see bow
it would be urged that the failure of the prosecution to examine a ballistic expert is due to the faot
that it was apprehended that the expert opinion
would be against the prosecution case. That is the
only argument which it was alleged had been urged
before the High Court but had not been considered
by it. We are inclined to think that this argument
may not have been pressed before the High Court
a.nd in any event, now •it is conceded that there is
'no substance in that argument. That is why we do
not think any useful purpose would be served by
examining the ballistic expert at this stage.
Whilst we are on this point, we may briefly
indicate .the nature of the prosecution case so far
. as the use of the guns is concerned. The appellant
Gurobara.n Singh has fired two shots, one of ,which
killed Sukhjit Singh and the other Gutdial Singh.
The appellant Surjit Singh had fired three shots, two
at Arja.n Singh and one at Piara. The evidence seems
to show that Surjit Singh loaded the gun once in
the preseuce of the witnesses and whilst so doing,
he put two cartridges in the gun and the spent
cartridges in his pocket. The two empties which
had been sent for expert examination
were .
found and picked up on a thoroughfare in front of
the house
of Jarnail Singh. Apparently,
th~
prosecution case is that these two cartridges had
been fired by the appellant Gurcharan Singh· from
Arjan Singh's gun picked up by him. In any event,
the report shows that the two cartridges had been
1968
Guroharan Sinih
v.
State of PunJab
1961
Gnreharan Sing.
v.
Sto.e of PunJ•b
Gajendragadkar J.
600
SUPREME OOURT .REPoRTS [1963)
fired from the same gun.
That is why the failure
to prove the report oannot be said to have prejudiced the appellants' oase at all.
Mr. Purushotam, however, argued that a
ballistic expert should have been examined in order
to ascertain whether the gun surrendered by Daljit
Singh had been used at all. But this argument is
obviously untenable for the simple reason that this
gun was surrendered morfl than a week after the
inoident and' it takes no imagination to realise that
when Daljit Singh surrendered the gun, he must
have cleaned it so as to remove any evidenee about
its user on the date of the incident.
It bas, however, been argued that in ~very
case where an accused person is charged with
having committed the offence of murder by a lethal
weapon, it is the duty of the prosecution to prove
by expert evidence that 'it was likely or at least
possible for the injuries to have been caused with
the weapon with which, and in the manner in
which, they have been alleged to have been caused;
and in support of this proposition, reliance has been
placed on the decision of this court in M ohinder
Singh v. The St,ate (1 ). In that case, this oourt 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 -porson only,
and there was no evidence to show that tJ,nother
person also shot, and the oral evidenoe was such
which was not disinterested, the failure· to examine
·an expert would be a serious infirmity in the proseoution case. It would be noticed that these observation were made in a oase where, the prosecution
(I) (li50) S.C.R. 1121.
J
" '
3 S.C.R.
SUPREME COURT REPORTS
601
evidence suffered from serious infirmities and in
determining the effect of these observations, it
would not be fair or reasonable to forget the facts
in respect of which they came to be made. These
observations do not purport 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 an expert is examind. It is possible to imagine oases where the qirect evidence is
of such an unimpeachable character and the nature
of the injuries disclosed by post mortem notes is so
clearly consistent with the direct evidence that the
examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not
satisfactory or disinterested or where the injuries
are alleged to have been caused with a gun and they
prima facie appear to have been inflicted by a rifle,
undoubtedly the apparent inconsistency can be
cured or the oral evidence can be corroborated by
leading the evidence of a bal1istio expert. In what
ca sea the examination of a ballistic expert is essential for the proof of the proeecutiOn case, must naturally cjepend upon the circumstances of each case.
Therefore, we do not think that Mr. Purushotam is
right in contending as a general proposition that in
every case where a fire-arm is alleged to have been
used 'by an accused person, in addition to the direct
evidence, prosecution must lead the evidence of a.
pallistic expert, however good the direct evidence
may be an~ though on the record there may be no
reason to doubt the said direct evidence.
· In the present case, no· useful purpose could
have been served by examining an expert for the
purpose of showing that the gun had been used by
~urjit Singh, because, as we have already pointed
out, Daljit Singh took care to keep the gun with
himself for over a week and then surrendered it. It'
would be idle in such a case to suggest that it was
1962
Gurcharan Singh
v.
Stale OJ Punjab
Gajendragad/r;ar J.
1962
Gtfrcharan Singh
v.
Stat1 of Ptlffjab
G•jendt'agadtar J ,
602
SUPREME COURT REPORTS [19p3]
necessary for the prosecution to examine an expert
even though it is extremely μnlikely that traces
of its use had not been removed by Daljit Singh
before he surrendered it. Then, as to Gurcharan
Singh, it is admitted that he fired twice and there
is nothing on the record to show that the injuries
disclosed by the po'st mortem notes and deposed to
by the doctor 'Could not have been caused by a gun
which, it was alleged, belonged to Arjan Singh and
which was picked up by Gurcharan Singh after it
fell down from his hands.
Therefore, in the circumstances of this case,
we do not think it would be possible to accept the
plea that the failure of the prosecution to examine
a ballistic expert has introduced a serious infirmity
in the prosecution case.
Even so, since we were satisfied that the judgment of the High Court suffered from some infirmities and was not as satisfactory as it should have
been, we have read the evidence with Mr. Purushotam and heard his comments on it. Having
carefully considered the said evidence, we see no
reason to differ from the conclusion reached by the
Courts below that broadly stated, the in.:iident took
place as it has been deposed to by the prosecution
witneBSes and that eliminates the exercise of the
right of private defence by the appellants and establishes thn.t they used their fire-arms aggressively
and thus committed the offence of murder under
section 302/34.
Before we part with this case, however, w~
would like to observe that in dealing with confirmation cases, the High Court should consider the
evidence ~arefu)ly and recor? its conclusions clearly
after deahng with all the pomts urged before it by
. the counsel for the defence. In all criminal appeals,
ti
the findings recorded by the High Court bind the
r.
•
- Tr
3 S.C.R.
SUJ:>REME dOURT REPORTS
603
parties and this Court is generally reluctant to
interfere with them. This principle is usually followed even in confirmation cases, but it is hardly
necessary to emphasise that in dealing with oonoonfirmation oases, judicial approuoh both at the
trial and in appeal has to be careful and
thorough and so, it is of utmost importance that
no room should be left for any legitimate complaint
by the defence that important points were argued
before the High Court and were not considered by
it. In the present appeal, we have come to the conclusion that some of the reasons given by the High
Court are erroneous and apparently, some of the
arguments urged before it have not been duly con·
sidered. That is why we had to go through the
evidence for ourselves.
·
In the result, the appeal fails and the order of
oonfiotion and sentences pa.Beed. against the appellants is confirmed.
A11pe,al iiamissed.
Guraharcn Sin•h
\ v.
',.
State of Pu.,j tb
Ga,fMiraqadbr 1.