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Synopsis

The Supreme Court has on February 21, 2024 said non recovery of murder weapon and non examination of ballistic experts may not be fatal to the prosecution case, if there is direct eye witness account found to be credible and trustworthy.

A bench of Justices Abhay S Oka and Ujjal Bhuyan set aside the Allahabad High Court's 2018 and the trial court's 1983 judgements, which held appellant Ram Singh guilty in a murder case of year 1982.

In the case, the bench said, "There are glaring inconsistencies in the prosecution version which have been magnified by the absence of the testimony of the material witnesses and the ballistic report coupled with the non-recovery of the weapon of crime".

According to the prosecution, Radhey Lal filed an FIR, alleging when he along with his mother was sitting on a cot in his village in Kanpur, accused Ram Singh fired a shot with a country made pistol at him at instigation by co accused Lala Ram. He, however, slipped and the fire hit his mother who died instantaneously.

The motive of the incident was alleged to be previous enmity over village head election.

The court, however, noted Desh Raj, brother of complainant and son of the deceased, who was very much present at the place and time of occurrence was not examined by the police. Similarly, the other brother Sunder Lal, was not examined by the police. 

Besides, the main material evidence, i e, the weapon of offence was not exhibited as it could not be recovered. Further, one tikli and 12 pellets, seized from the wound of the deceased, were not sent to any ballistic expert, as a result of which there is no ballistic report on the basis of which it could be said for sure that the pellets found outside the body and from within the body could be traceable to the tikli of the 12 bore cartridge which in turn could be traced to the country made pistol, the court pointed out.

Relying upon SC judgment in 'Munna Lal Vs State of UP', (2023), the bench said, this court took the view that failure to seize the weapon of offence on the facts and in the circumstances of the case, had the effect of denting the prosecution story so much so that the same together with non-examination of material witnesses constituted a vital circumstance amongst others for granting the appellants the benefit of doubt.

Citing other cases, the bench said it is not that in each and every case where the death of the victim is due to gunshot injury that opinion of the ballistic expert should be obtained and the expert be examined. 

"When there is direct eye witness account which is found to be credible, omission to obtain ballistic report and non examination of ballistic expert may not be fatal to the prosecution case but if the evidence tendered including that of eyewitnesses do not inspire confidence or suffer from glaring inconsistencies coupled with omission to examine material witnesses, the omission to seek ballistic opinion and examination of the ballistic expert may be fatal to the prosecution case," the bench said.

Coming back to the instant case, the bench said on the whole, the evidence tendered on behalf of the prosecution cannot be said to be full proof so much so that non-recovery of the weapon of offence, non-obtaining of ballistic opinion and non examination of ballistic expert would be immaterial.

"In such circumstances, it cannot be said that the prosecution could prove the accusation against the appellant beyond all reasonable doubt," the bench said.

As a matter of fact, on the same set of evidence, the trial court gave the benefit of doubt to the other accused Lala Ram primarily on the ground that there was a grudge between the accused and the complainant, the court said.

Holding the prosecution could not prove guilt of the appellant beyond reasonable doubt, the bench said, "Any lingering doubt about the involvement of an accused in the crime he is accused of committing, must weigh on the mind of the court and in such a situation, the benefit of doubt must be given to the accused. This is more so when the co-accused is acquitted by the trial court on the same set of evidence."

The court thus acquitted the appellant and ordered his release.