Subedar Singh v. Satnarain Singh, (SC) BS194174
SUPREME COURT OF INDIA

Before:- K.T. Thomas and S.N. Variava, JJ.

CrA no. 243-244 of 1999. D/d. 25.09.2001.

Subedar Singh - Petitioner

Versus

Satnarain Singh And Ors. - Respondents

Constitution of India, 1950 Article 136 Indian Penal Code, 1860 Sections 302 and 34 Murder - Acquittal - Proof of - Accused, father and son allegedly went inside the house and through the hole of window, they both shot the deceased with two firearms - Testimony of four eye witnesses standing in the open saw the act of gun fire, not believable - Post mortem report showed that there were pellet wounds on body of deceased and some corresponding exit wounds also - No effort made by prosecution to point out that these wounds should necessarily have been the result of two different gun shots being fired - No recovery of firearms - No ballistic expert called to examine wounds and pellets and to give expert opinion as to range, number of firearms used and number of shots fired at deceased - Hence, acquittal proper.

[Paras 4 and 5]

ORDER

A father and son were convicted by the trial court for the offence under section 302 read with Section 34 of Indian Penal Code. The High Court, in the appeal filed by them reversed the conviction and acquitted them. Subedar Singh, brother of the deceased Jamuna Rai has filed this appeal by special leave.

2. The incident happened at about 4.00 p.m. on 20.5.1980. There was an altercation which preceded the killing of the deceased Jamuna Rai. It took place at the sehan of the house of the deceased as well as the accused. According to the prosecution version, second accused Rakesh Singh suggested to his father, first accused Satyanarain Singh that deceased should be taught a lesson. Pursuant to that both of them went inside the house and through the hole of a window, they both shot the deceased with two firearms.

3. Out of four eye-witnesses examined by the prosecution, PW2 Kanhaiyaram turned hostile, leaving only three eye-witnesses for the prosecution to rely on. All the three witnesses said that while they were standing in the open, outside the house they saw the act of gun fire made through a small window having a dimension of 1" x 1".

4. The High Court felt the difficulty to believe the testimony of the eye-witnesses standing in the open, to definitely pinpoint the assailants who would have shot the fire arm. After considering the broad features of the case, we too felt the same difficulty.

5. That apart, the postmortem report shows that there were pellet wounds on the body of the deceased and some corresponding exit wounds also. No effort was made by the prosecution to point out that these wounds should necessarily have been the result of the two different gun shots. Though it may not be possible to rule out the possibility of the two gun shots being fired, it is equally possible that those injuries could have been caused by one gun shot. A further odd against the prosecution is that the firearms said to have been used, have not been recovered. Yet another difficulty for the prosecution is that no ballistic expert was called to examine the wounds and the pellets and to give his expert opinion as to the range, the number of firearms used and the number of shots fired at the deceased.

6. In view of the above difficulty for the prosecution, we are not disposed to interfere with the order of acquittal, though it is unfortunate that a person was shot dead by some assailants just in front of his own house.

7. We, therefore, dismiss these appeals.

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