# Srwendra J( alh Jr/i111/a v Dalip Sinili B. P. Sinha ]. Kalua v. Tiu S<at, of Uttar PTadlsh

- **Citation:** [1957] 1 S.C.R. 187
- **Court:** Supreme Court of India
- **Decided:** 1955-11-25
- **Case number:** Criminal Appeal No.. 135 of 1956
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/srwendra-j-alh-jr-i111-a-v-dalip-sinili-b-p-sinha-kalua-v-tiu-s-at-of-uttar-1332
- **Pages:** 9

## Headnote

,
S.C.R.
SUPREME COURT REPORTS
187
been set aside.
But s. 100 in terms provides that if
the Tribunal was of the opinion, as it was in this case,
that the result
of the election
had been materially
affected by the improper rejection
of the nomination
paper, "the
Tribunal shall declare the
election
to be
wholly voi<l". The election in this case was in respect
of a double seat constituency
and was
one integral
whole. If it had to be declared
void, the
Tribunal
was justified in setting aside the election as a whole.
As all the
contentions raised in support of
the
appeal fail, it must be dismissed with costs to the contesting respondents.
Appeal dismissed.
KALUA
v.
THE STATE OF UTTAR PRADESH
(JAGANNADHADAS,
JAFER
lMMAM and
GovINDA
MENON JJ.)
Criminal Trial-Murder-Cricumstantial
evidence-Opinion of
fire-arms expert-Whether conclusive.
One Daya Ram had been murdered by shooting with a country made pistol.
The circumstantial evidence established
against
,
the appellant was (I) that he had a motive for the murder, (2) that
three days before the murder the appellant had held out a threat
to murder the deceased, ( 3) that a cartridge Ex. I was found near
the cot of the deceased, and ( 4) that the appellant produced a
country
made pistol Ex.
III from
his house in circumstances
which clearly showed that he alone could have known of its existence there.
The fire-arms expert examined the recovered
pistol
and the cartridge and after making
scientific tests was of the
definite opinion that the cartridge Ex. I had
been fired from the
pistol Ex. III.
Held, drat the
opinion of the
fire-arms expert
conclusively
proved that the cartridge Ex. I had been fired
from the
pistol
Ex. III.
The circumstantial evidence
was
sufficient to
establish the
111ilt of the appellant.
CRIMINAL
APPELLATE
JuRISDICTION:
Criminal
Appeal No.. 135 of 1956.
1956
Srwendra J( alh
Jr/i111/a
v ..
Dalip Sinili
B. P. Sinha ].
Kalua
v.
Tiu S<at, of
Uttar PTadlsh.
188
SUPREME COURT REPORTS
[1957]
Appeal by special leave from the judgment and
order dated November 25, 1955, of the Allahabad High
Court, in
Criminal Appeal No. 702 of 1955 and Referred No. 77 of 1955 arising
out of the judgment and
order dated May 17,
1955, of the
Court of Sessions
Judge, at Moradavad in Sessions Trial No. 29 of 1955.
P. S. Safeer, for the appellant.
G. C. Mathur and C. P. Lal, for the respondent.
1956. November 21. The Judgment of the
Court
was delivered by
IMAM J.-The appellant was sentenced to death for
the murder of
Daya
Ram
by shooting him
with
a country made pistol.
He was also convicteg for being in possession of an unlicensed fire-arm
under the
Arms
Act for which offence he was sentenced to two
years rigorous imprisonment.
He appealed
to
the
High Court of Allahabad, but his appeal was dismissed
and the conviction and sentence was affirmed.
Against
the decision of the
Allahabad
High Court the appellant obtained special leave to appeal to this Court.
According to the prosecution., the occurrence took:
place at about
midnight of July 4, 1954, when
Daya
Ram was sleeping on a cot on a platform. Near him were
sleeping Goku~ Doongar and Jai
Singh, while
two
women Ratto and Bhuri slept in a room to the north
of the platform and adjoining it. The report of
the
shot fired woke up these people.
According to them;
they saw the appellant running towards the east.
He
was accompanied by
three
others who were armed
with lathis. Daya
Ram died
almost
instantaneously
as the result of the injuries on his chest
and stomach
from where pellets were recovered at the time of the
post mortem examination.
Daya Ram had been $hot
from a close distance because the skin
was charred
over the entire area of the wound.
Near the cot, on
which he slept, a cartridge Ex. I. was found which was
handed over to the Police Officer when he arrived
for
investigation.
A first information report was lodged
at the police station five
miles away at 8-10 a. m. on
July 5, 1954.
S.C.R.
SUPREME COURT REPORTS
189
The motive for the murder, as alle

## Text

,
S.C.R.
SUPREME COURT REPORTS
187
been set aside.
But s. 100 in terms provides that if
the Tribunal was of the opinion, as it was in this case,
that the result
of the election
had been materially
affected by the improper rejection
of the nomination
paper, "the
Tribunal shall declare the
election
to be
wholly voi<l". The election in this case was in respect
of a double seat constituency
and was
one integral
whole. If it had to be declared
void, the
Tribunal
was justified in setting aside the election as a whole.
As all the
contentions raised in support of
the
appeal fail, it must be dismissed with costs to the contesting respondents.
Appeal dismissed.
KALUA
v.
THE STATE OF UTTAR PRADESH
(JAGANNADHADAS,
JAFER
lMMAM and
GovINDA
MENON JJ.)
Criminal Trial-Murder-Cricumstantial
evidence-Opinion of
fire-arms expert-Whether conclusive.
One Daya Ram had been murdered by shooting with a country made pistol.
The circumstantial evidence established
against
,
the appellant was (I) that he had a motive for the murder, (2) that
three days before the murder the appellant had held out a threat
to murder the deceased, ( 3) that a cartridge Ex. I was found near
the cot of the deceased, and ( 4) that the appellant produced a
country
made pistol Ex.
III from
his house in circumstances
which clearly showed that he alone could have known of its existence there.
The fire-arms expert examined the recovered
pistol
and the cartridge and after making
scientific tests was of the
definite opinion that the cartridge Ex. I had
been fired from the
pistol Ex. III.
Held, drat the
opinion of the
fire-arms expert
conclusively
proved that the cartridge Ex. I had been fired
from the
pistol
Ex. III.
The circumstantial evidence
was
sufficient to
establish the
111ilt of the appellant.
CRIMINAL
APPELLATE
JuRISDICTION:
Criminal
Appeal No.. 135 of 1956.
1956
Srwendra J( alh
Jr/i111/a
v ..
Dalip Sinili
B. P. Sinha ].
Kalua
v.
Tiu S<at, of
Uttar PTadlsh.
188
SUPREME COURT REPORTS
[1957]
Appeal by special leave from the judgment and
order dated November 25, 1955, of the Allahabad High
Court, in
Criminal Appeal No. 702 of 1955 and Referred No. 77 of 1955 arising
out of the judgment and
order dated May 17,
1955, of the
Court of Sessions
Judge, at Moradavad in Sessions Trial No. 29 of 1955.
P. S. Safeer, for the appellant.
G. C. Mathur and C. P. Lal, for the respondent.
1956. November 21. The Judgment of the
Court
was delivered by
IMAM J.-The appellant was sentenced to death for
the murder of
Daya
Ram
by shooting him
with
a country made pistol.
He was also convicteg for being in possession of an unlicensed fire-arm
under the
Arms
Act for which offence he was sentenced to two
years rigorous imprisonment.
He appealed
to
the
High Court of Allahabad, but his appeal was dismissed
and the conviction and sentence was affirmed.
Against
the decision of the
Allahabad
High Court the appellant obtained special leave to appeal to this Court.
According to the prosecution., the occurrence took:
place at about
midnight of July 4, 1954, when
Daya
Ram was sleeping on a cot on a platform. Near him were
sleeping Goku~ Doongar and Jai
Singh, while
two
women Ratto and Bhuri slept in a room to the north
of the platform and adjoining it. The report of
the
shot fired woke up these people.
According to them;
they saw the appellant running towards the east.
He
was accompanied by
three
others who were armed
with lathis. Daya
Ram died
almost
instantaneously
as the result of the injuries on his chest
and stomach
from where pellets were recovered at the time of the
post mortem examination.
Daya Ram had been $hot
from a close distance because the skin
was charred
over the entire area of the wound.
Near the cot, on
which he slept, a cartridge Ex. I. was found which was
handed over to the Police Officer when he arrived
for
investigation.
A first information report was lodged
at the police station five
miles away at 8-10 a. m. on
July 5, 1954.
S.C.R.
SUPREME COURT REPORTS
189
The motive for the murder, as alleged by the prosecution, was that on the death of one
Bhai Singh the
appellant hoped to become guardian of
Ratto's
property, who, however, appointed
Daya
Ram
to take
charge of it.
The appellant resented
this
very much.
Three days before the murder of Daya Ram there had
been a quarrel between the appellant and his
wife
on
the one side and Ratto and Bhuri on the other.
The
quarrel arose over an attempt
by
the
appdlant
to
construct a wall
over
Ratto's land.
The appellant
uttered a threat that he would soon settle
with
the
person on whom Ratto was depending,
that is
to say,
the deceased
Daya Ram.
According
to the
High
Court, the defence did not seriously
challenge
these
allegations
and the
appellant
himself admitted
that
Ratto wanted him to be turned out of his house.
The appellant
was arrested on the night between
July 5 and July 6, 1954, at a village fourteen miles
away from the
village of occurrence
Dhakeri.
On
July 7, he informed
the
Sub-Inspector
that he
was
prepared to produce
the pistol
Ex. III.
The
SubInspector and the appellant
went to
village
Dhakeri
and
Kartar Singh, Mahtab Singh and Khamani were
invited to witness the events
that might follow.
On
reaching the appellant's house, which adjoins the residential house of Ratto, the appellant stated
that
the
pistol Ex. III had been concealed by him in a corn-bin.
From a secret place he took out a key and opened the
lock of his house with it.
He then
took
the
SubInspector and the witnesses to a mud corn-bin
inside
his house, which appeared to be freshly plastered at
one place.
The appellant removed the plaster at this
place and from inside took out tl1e
country
made 12bore pistol Ex. III, and
three live
12-bore cartridges.:
The cartridge Ex. I, which was found near the
cot of
Daya Ram, and the pistol Ex. III were sent to Shyam
Narain, a· Deputy
Superintendent of Police,
who is
a fire-arms expert of the C. I. D. of Uttar
Pradesh
Government. He
made scientific tests.
He came to
the conclusion as the result of the various
tests made
by h.if that the cartridge Ex. I was fired
from the
pistol
Ex. III and no other fire-arm.
v.
The S!ate of
Uttor PradeJh
Imam].
19j6
Kalua
V,
Tht State of
Uttar Pradesh
Imam J.
190
SUPREME COURT REPORTS
[ 1957]
While the
Sessions Judge believed the testimony of
the eye-witnesses,
the learned Judges
of the
High
court were of the opinion that they
were unable to
accept the
assertion of the
eye-witnesses
that
they
actually saw the appellant
with
a pistol
by the bedsi<le of the deceased.
The High Court, however, relied
upon the
circumstantial evidence in the
case in upholding the
conviction of the appellant.
There was
motive for the crime and a few days before the killing
of Daya Ram the appellant had held
out a threat
against him.
The
appellant was
arrested
fourteen
miles away from his
village
which is
the
place of
occurrence.
He produce<l a pistol Ex. III
from his
house in circumstances which clearly showed
that he
only could
have known
of its existence there.
The
opinion of the fire-arms expert clearly established
that
the cartridge Ex. I, found near the cot of Daya
Ram,
was fired with
the pistol
Ex. III produced
by the
appellant.
All these circumstances,
in the
opinion of
the
High
Court, left no doubt in the minds of the
learned J u<lges of that
Court that the appellant murdered Daya Ram by shooting him with his pistol.
The learned Advocate for the appellant urged. that
the appellant could not have placed the ,Pistol in his
house and it must have been planted there by someone because none of the witnesses stated that they had
seen him going to his house after the murder and the
appellant was certainly not found in his house in the
morning.
According to the situation of the house of
the appellant and where the witnesses were immediately
afte;- the occurrence, it was impossible for the appellant
to have entered his house
without being seen. It was
further unlikely that after having committed the murder, the appellant, after having run away, would return to his house.
Both the Courts below,
however.
found no reason to disbelieve the
Sub-Inspector
and
the witnesses that the
appellant
had produced
the
pistol Ex. III from the corn-bin inside his house.
The
appellant had the key of the house which was hidden
in a secret place and the corn-bin
was itself
freshly
plastered at one place.
These cricumstanccs clearly
showed that no one but the
appellant
could
have
.
S.C.R.
SUPREME COURT REPORTS
191
known of the existence of the pistol in the corn-bin in
his house.
As to whether the appellant could
or could
not have gone to his house
after the
occurrence that
is a matter of pure speculation.
It does
not
appear
that any witness
was asked anything about it.
The
High Court found that the witnesses might have caught
a glimpse of the people
who Vl'.ere fast
disappearing
from the scene but who had no reasonable opportunity
of marking their features.
In the
confusion
of the
occurrence the witnesses may not have observed where
the culprits had disappeared
except
that
they
were
seen running towards the east. On the record, there
is nothing to show that to enter the appellant's house,
after the occurrence, the appellant had necessarily to
go into his house within the view of the witnesses. It
is quite unnecessary to examine this matter any further because the evidence
concerning
the production
of the pistol Ex. lII by the appellant from his house is
clear and reliable and, therefore, it is certain that the -
appellant did
enter his house
after
the
occurrence
without being seen by anyone.
It was next urged on behalf of the appellant, that it
was impossible for a cartridge to have been near the
cot of Daya Ram, because after the shot had
been fired
the cartridge would still remain in the barrel of the firearm. This again is pure speculation. That the cartridge
was ejected from the fire-arm is certain.
Why it
was
ejected none can say.
It may be that the miscreant
reloaded
his weapon to meet any
emergency.
The
evidence of the Sub-Inspector is clear that on his arrival
at the place of
occurrence the cartridge
E. I was
handed over to him
by the witness
Khamani
who
cannot be said to be unfavourable
to the appellant.
The Courts
below had no reason
to disbelieve the
evidence in the case that the cartridge Ex.
I was found
near the cot of Daya Ram and we can find no extraordinary circumstance
to justify us saying that the
Courts below took an erroneous view of the evidence.
On the facts found there was a motive for the murder.
Apparently, for no good reason the appellant was not
found at his house on the morning of July 5, but was
1956
Kalua
v.
Tht Stal• of
U11or Pradnli
Imam].
1956
Iralua
v.
Thi Stat1 of
Utt<Ar Pradesh
Imam].
192
SUPREME COURT REPORTS
[1957]
in a village fourteen miles away at the time of his arrest.
The appellant
produced the pistol Ex. III in circumstances clearly
showing that he had deliberately kept
it concealed.
Y./ e have no reason to doubt the evidence
in this respect.
The real question is, whether it is safe
to act upon the opinion of the fire-arms expert that the
cartridge Ex.
I was fired from the pistol
Ex. III
produced by the
appellant
and
none other, because
without that evidence the
circumstantial
evidence in
rhe case would be insufficient to convict
the appellaμt
of the crime of murder.
The opinion of the fire-arms
expert, based on the result of his tests, does not seem
to have been challenged in cross-examination
or
before
the High Court.
If there is no reason to think that
there is any room for error in matters of this kind and
it is safe to accept the opinion of the
expert,
then
dearly it is established that the cartridge Ex. I, found
near the cot of Daya Ram, was fired .from the pistol
Ex. III produced by the appellant.
To satisfy ourselves
we have looked into the works of some authors dealing
with the marks left on cartridges
and
shell cases
by
fire-arms in order to ascertain that there is no error in
the opinion of the fire-arms expert in the present case.
Kirk in his book
"Crime Investigation" at page 346
states :
"Fired cases are less often encountered in
criminal
investigation than are bullets, but when found they are
usually of greater significance because
they
receive at
least as clear markings as do bullets, have a greater
variety
of
such
markings, and are not ordinarily
damaged in firing .............................. ..
The questions which may be asked as a result of
finding such materials are similar to those that require
answers whi::n only bullets are located. In the ordinary
case, quite definite answers can be given.
This is true
both of shotgun shells and of cartridge cases from pistols,
revolvers,
and
rifles.. . . . . . . . . . . . . . . . . . . In
general,
it is possible
to identify a certain fire-arm as having
fired a particular shell or cartridge.
It is often possible
to identify the type or make of gun
which fired
it,
though in many instances this must be tentative
or
probable identification only."
S.C.R.
SUPREME COURT REPORTS
193
After dealing
with the
marks
left by breech-block,
firing pin
impressions,
marks
from extractors
and
ejectors, marks due to expansion, magazine marks and
loading mechanism marks, he states,
"Summarizing, the
cartridge or shell case usually
carries markings which are quite distinctive of the gun
in which the charge is fired, and can be used for positive identification of the latter.
These marks arise from
a variety of contacts with various parts of the
gun, an
analysis of which is useful in determining the
type of
weapon in case no suspected
gun
is
available ....... .
. . . . . . . . . . . . . . Thus, the recdvered
shell or
cartridge
case is one of the most useful types of physical evidence
which can be found in shooting cases."
Soderman and O'Connel in their book "Modern Criminal Investigation" also deal with the subject and they
refer to the marks from the fire pin, the extractor, the
ejector and the breech-block.
After referring to compari>on being made of the cartridge or shell fired
from
a fire-arm
for the
purpose
of test,
they
state
at
page 200,
"If they are in the same position in relation
to
one another and their general
appearance is the same,
one may conclude that they have
been
fired
from a
pistol of the same make.
An absolute
conclusioR about
the origin of the shells, however, can be reached only
after a photomicrographic examination of the markings
from the breech-block on the rear of the shell ....... .
Identification, with . the
aid
of the
enlargement,
should not prove difficult.
The characteristic scratches
can he easily seen.
A photograph of the
incnmmating
sht:ll and one of a comparison shell should be pasted
side by side on cardboard, and the characteristic marks
should be recorded wi,th lines and
ciphers,
following
the same method as that used in the identification
of
fingerprints."
In Taylor's book on Medical
Juriaprudence, Tenth
Edition, Vol. I, at page 459, it is stated,
"It is never safe to say that a caftridge case was
not fired from a given pistol unless the marks are quite
1956
Ealua
v.
Tk Stat• of
Uttar Pradesh
Imam].
1956
Kalua
v.
Tiu Sr.ii •f
C.lttor Pradtilr.
Imam J.
194
SUPREME COURT REPORTS
[1957]
different, and a case which bears no marks at all may
quite well have been fired from the same pistol as one
which leaves well-defined
marks.
In general,
however, though it is unlikely that
all
marks
will be
equally good, it is usually
possible
to obtain
definite
information from the marks of the firingcpin, extractor,
ejector, or breech-block
on the base
or rim, or from
grooves or scratches on the surface.
In-weapons of the
same manufacture, the marks
are of the same general
nature, but in
each
weapon
there
are
individual
Jifferences which
usually
enable
it
to be definitely
identified."
The expert's evidence in this case shows that he had
fired four test
cartridges from the pistol Ex. III. He
found the individual characteristics
of the chamber to
have been impressed upon
the test
cartridges Exs. 9
and 10 and that
exactly
identical
markings
were
present on the paper tube of the cartridge Ex. I. He
made microphotographs
of · some of these
individual
marks on Exs. 1 and 10.
In giving his reasons
for his
opinion. the fire-arms expert stated that every fire-arm
has individual characteristics
on its preach face striking
pin and chamber.
When a cartridge is fired
gases
are generated
by the
combustion
of the
powder,
creating a pressure of 2 to 20 tons
per square inch.
Under ,the effect of this pressure the cap and the paper
tube of the cartridge cling firmly
with the breach face
striking pin and chamber and being of a softer matter
the individualities of these parts are
impressed
upon
them.
By firing a number of test cartridges from a
given fire-arm and comparing them under a microscope
with the evidence cartridge, it can definitely be stated,
if the marks are clear, whether the evidence cartridges
had been fired or not from that fire-arm.
It seems to
us that the fire-arms expert made the
necessary
tests
and was careful
in what he did. There is no good
reason for distrusting his opinion.
The learned
Judges
of the
High Court examined the micro-photographs in
question and were satisfied that there was no ground
for distrusting the evidence of the expert. They
were
accordingly justified in corning to the conclusion that
the cartridge Ex. I, found near the cot of Daya Ram,
S.C.R.
SUPREME COURT REPORTS
195
was· fired from the pistol
Ex. III
produced
by
the
appellant from his house.
There can, therefore, be no
room for thinking, in the circumstances established ·in
this case, that any one else other than the
appellant
might
have shot
Daya Ram.
He
was,
therefore,
rightly convicted for the offence of murder.
The appeal is accordingly dismissed.
P. LAKSHMI REDDY
ti.
La LAKSHMI REDDY
(JAGANNADHADAS, B. P. SrNHA and
JAFER IMAM, JJ.)
Adverse
Possession-Possession
of co-heir, when
adverse,-
Ottster-Possession of Receiver pendente lite, if can be tacked.
V died an infant in 1927 and H, an agnatic relation, filed a
suit for the recovery of the properties belonging · to V which were
in the possession of third parties, on the ground that he was the
sole nearest male agnate entitled to all the properties.
During
the pendency of the suit a
Receiver was appointed for the pro- ·
pcrties in
February, 1928.
The suit having been decreed
H
obtained possession of the properties from the
Receiver on January 20, 1930, and after his death in 1936, his nephew, the appellant, got into possession as H's heir.
On
October 23, 1941, -the
respondent brought the present suit
for the recovery of a onethird share of the properties from the appellant
on the footing
that he and his brother were agnatic
relations of V of the same
degree as H, that all the three were equal co-heirs of V and that
I-I obtained the decree and got into possession on behalf of all the
co-heirs.
The appellant resisted the suit and contended that the
respondent lost his right by the adverse possession
of
H and his
successor and
that for this
purpose not only
the period
from
January 20, 1930, to October 23, 1941, was to be counted but also
the prior period when the Receiver was in possession of the properties during the pendency of H's suit.
It was found that the
respondent's case that H o'btained the decree and got possession
from the
Receiver on behalf of the other co-heirs was not true :
Held, that the respondent did not lose
his right by adverse
posses~ion.
Even assuming that H's possession from January 20,
1930, was adverse and amounted to ouster of
the other co-heirs,
such adverse possession was not adequate in time to displace the
title of the respondent and the period during which the Receiver
was in possession could not be added, because (I) the
Receiver's
Kalua
"·
The Stat1 ef
U1tar Pradesh
Imam].
De&1mbtr, 5.