Kalua vs The State Of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 135 of 1956

Decision Date: 21 November 1956

Coram: Syed Jaffer Imam, B. Jagannadhadas, P. Govinda Menon

In this case the Court noted that the appeal was titled Kalua versus the State of Uttar Pradesh and was decided on 21 November 1956 by a Bench consisting of Justice Syed Jaffer Imam, Justice B. Jagannadhadas and Justice P. Govinda Menon, the judgment being reported in 1958 AIR 180 and 1957 SCR 187. The petition was filed by the appellant Kalua and the respondent was the State of Uttar Pradesh. The matter concerned a criminal trial for murder in which the prosecution relied on circumstantial evidence and the opinion of a firearms expert to establish that a cartridge recovered from the scene had been discharged from a country‑made pistol that the appellant possessed. The headnote of the reported judgment set out the material facts: Daya Ram had been killed by a shot fired from a country‑made pistol; the circumstantial evidence against the appellant comprised (i) a motive to kill the deceased, (ii) a threat made by the appellant three days before the murder, (iii) a cartridge (Exhibit I) discovered near the victim’s cot, and (iv) the recovery of a country‑made pistol (Exhibit III) from the appellant’s house under circumstances indicating that only the appellant could have known of its existence. The firearms expert examined the pistol and the cartridge, performed scientific tests and expressed a definite opinion that the cartridge had been fired from that pistol. The Court held that the expert’s opinion conclusively proved the link between the cartridge and the pistol and that the circumstantial evidence as a whole was sufficient to establish the appellant’s guilt.

The judgment recorded that Criminal Appeal No 135 of 1956 was filed by special leave against a judgment and order dated 25 November 1955 of the Allahabad High Court in Criminal Appeal No 702 of 1955, which in turn arose from a judgment and order dated 17 May 1955 of the Sessions Judge at Moradabad in Sessions Trial No 29 of 1955. Counsel for the appellant argued the appeal, while counsel for the respondent represented the State. The Court observed that the appellant had been sentenced to death for the murder of Daya Ram by shooting him with a country‑made pistol and had also been convicted under the Arms Act for possessing an unlicensed firearm, for which a term of two years’ rigorous imprisonment was imposed. The appellant’s challenge to the High Court’s decision had been rejected, and the conviction and sentence were affirmed before the special leave was obtained to bring the matter before the Supreme Court.

According to the prosecution’s version, the incident occurred at about midnight on 4 July 1954 when Daya Ram was sleeping on a cot situated on a platform. Near the cot were sleeping Gokul, Doongar and Jai Singh, while two women, Ratto and Bhuri, slept in a room to the north of the platform. The report of a shot fired awakened these persons, who testified that they saw the appellant running eastward. The Court recorded that Daya Ram died almost instantly from injuries to his chest and abdomen, and that pellets were recovered from the post‑mortem examination, indicating a close‑range discharge because the skin over the wound was charred. A cartridge identified as Exhibit I was found near the cot and was handed over to the police officer who arrived to investigate. The first information report was lodged at a police station five miles away between eight and ten in the morning on 5 July 1954. The prosecution alleged that the motive for the murder was the appellant’s desire to become the guardian of Ratto’s property after the death of Bhai Singh; the deceased Daya Ram had been appointed to take charge of the property, a situation that the appellant resented. The Court noted that three days before the murder a quarrel had taken place between the appellant and his wife on one side and Ratto and Bhuri on the other, establishing the alleged motive presented by the prosecution.

He was accompanied by three other persons who were armed with lathis. The victim, Daya Ram, died almost immediately because of injuries to his chest and abdomen; pellets were recovered from those wounds during the post‑mortem examination. The nature of the injuries indicated that the shot had been fired from a very short distance, as the skin over the wound was charred throughout the affected area. Near the cot on which Daya Ram had been sleeping, a cartridge labeled Exhibit I was discovered and handed to the police officer who arrived at the scene for investigation.

A first information report was lodged at a police station located five miles from the incident site at approximately eight to ten in the morning on 5 July 1954. According to the prosecution, the motive for the murder was that, following the death of Bhai Singh, the appellant hoped to become the guardian of Ratto’s property. Ratto had, however, appointed Daya Ram to manage that property, a decision that the appellant resented strongly. Three days before Daya Ram’s killing, a quarrel had arisen between the appellant and his wife on one side and Ratto and Bhuri on the other. The dispute stemmed from the appellant’s attempt to construct a wall on land that belonged to Ratto. During that argument the appellant threatened that he would soon settle the matter with the person on whom Ratto relied, namely the deceased Daya Ram.

The High Court observed that the defence did not seriously dispute these allegations, and that the appellant himself admitted that Ratto wanted him expelled from his house. The appellant was apprehended on the night of 5 July 1954, extending into 6 July 1954, at a village situated fourteen miles from the location of the occurrence, Dhakeri. On 7 July 1954, he informed the Sub‑Inspector that he was prepared to produce the pistol identified as Exhibit III. Accordingly, the Sub‑Inspector, the appellant, and three local witnesses—Kartar Singh, Mahtab Singh and Khamani—traveled to Dhakeri to observe the subsequent actions.

When they arrived at the appellant’s house, which adjoined Ratto’s residential house, the appellant declared that the pistol Exhibit III had been hidden by him in a corn‑bin. He retrieved a key from a concealed place, unlocked his house, and led the Sub‑Inspector and the witnesses to a mud‑filled corn‑bin inside the dwelling that showed fresh plaster at one spot. He removed the plaster at that location and extracted from inside the country‑made.12‑bore pistol Exhibit III together with three live.12‑bore cartridges. Both the cartridge Exhibit I recovered near Daya Ram’s cot and the pistol Exhibit III were sent to Shyam Narain, a Deputy Superintendent of Police who served as the firearms expert for the Central Investigation Department of the Uttar Pradesh Government. After conducting scientific examinations, he concluded that the cartridge Exhibit I had been fired from the pistol Exhibit III and from no other firearm. While the Sessions Judge believed

In the appellate proceedings the High Court examined the testimony of the eye‑witnesses and concluded that it could not accept their claim that they had actually seen the appellant standing with a pistol beside the bedside of the deceased. Nevertheless, the Court relied upon the circumstantial material that had been presented and, on that basis, upheld the conviction of the appellant. The Court noted that a motive for the offence existed, because a few days before the killing of Daya Ram the appellant had issued a threat against the victim. It was recorded that the appellant was apprehended at a location fourteen miles distant from his native village, which was the site of the crime. After his arrest the appellant produced a pistol marked as Exhibit III from within his own house; the circumstances of that production indicated that only the appellant could have known of the pistol’s presence there. A firearms expert had examined the cartridge identified as Exhibit I, which had been recovered near the cot of Daya Ram, and opined that the cartridge had been discharged from the pistol Exhibit III that the appellant had produced. Taking all of these facts together, the High Court held that there was no doubt in the minds of the learned judges that the appellant had murdered Daya Ram by shooting him with the pistol. Counsel for the appellant argued that the appellant could not have placed the pistol in his house and that it must have been planted by another person, because none of the witnesses reported seeing the appellant return to his house after the murder and because the appellant had not been found in his house the following morning. According to the position of the appellant’s house and the locations of the witnesses immediately after the incident, it would have been impossible for the appellant to enter his house without being seen, and it was deemed unlikely that, after committing the murder and fleeing, he would have gone back to his residence. Both the trial court and the High Court, however, found no reason to disbelieve the Sub‑Inspector’s account or the witnesses’ statements that the appellant had retrieved the pistol Exhibit III from a corn‑bin inside his house. The appellant possessed the key to the house, which he had concealed in a secret place, and the corn‑bin itself was newly plastered at one point, circumstances that, in the Courts’ view, demonstrated that only the appellant could have known of the pistol’s concealment in that bin. Whether the appellant could or could not have gone to his house after the occurrence was described as pure speculation, and the record showed that no witness had been questioned on that particular point. The High Court observed that the witnesses might have caught only fleeting glimpses of individuals who were rapidly disappearing from the scene and who had no reasonable opportunity to be identified. In the confusion surrounding the incident, the witnesses could not ascertain the exact direction in which the perpetrators fled, apart from noting that they were seen running towards the east. Consequently, there was no evidence on the record establishing that the appellant necessarily entered his house after the occurrence.

The Court observed that further inquiry into whether the appellant entered his house within the view of the witnesses was unnecessary, because the record already demonstrated that the pistol identified as Exhibit III had been produced by the appellant from his own residence. The evidence regarding that production was described as clear and reliable, and consequently the Court concluded as a matter of certainty that the appellant had indeed gone into his house after the occurrence without being seen by anyone. The appellant then contended that it was impossible for a cartridge to have been found near the cot of Daya Ram, insisting that a cartridge, once a shot is fired, would remain in the barrel of the firearm. The Court labeled that contention as pure speculation. While it was undisputed that the cartridge had been ejected from the firearm, the reason for its ejection could not be determined; the Court allowed the possibility that the assailant might have re‑loaded the weapon to respond to an emergency. The testimony of the Sub‑Inspector was held to be clear: upon arriving at the scene, the Sub‑Inspector received Cartridge Exhibit I from the witness Khamani, a witness who could not be characterized as unfavorable to the appellant. The Court found no justification to disbelieve the evidence that Cartridge Exhibit I was recovered near Daya Ram’s cot, and saw no extraordinary circumstance that would warrant finding that the lower courts had erred in their assessment of that evidence. Turning to the motive, the Court noted that the appellant was inexplicably absent from his own house on the morning of 5 July and was instead located in a village fourteen miles away at the time of his arrest. The appellant’s production of the pistol, Exhibit III, was made under circumstances that plainly indicated deliberate concealment, and the Court expressed no doubt about that evidence. The pivotal issue, the Court held, was whether it was safe to rely upon the firearms expert’s opinion that Cartridge Exhibit I had been fired from the pistol Exhibit III produced by the appellant and from no other weapon. Without that expert opinion, the circumstantial evidence would have been insufficient to sustain a conviction for murder. The expert’s opinion, based on his tests, had not been challenged either in cross‑examination or before the High Court. The Court reasoned that, in the absence of any indication of error in such forensic matters, it was appropriate to accept the expert’s conclusion, thereby establishing that Cartridge Exhibit I, found near the cot of Daya Ram, had been discharged from the appellant’s pistol, Exhibit III. To confirm this view, the Court examined scholarly writings on the markings left on cartridges and shell cases by firearms, noting that such analysis supports the reliability of the expert’s opinion. As cited, Kirk in his book “Crime Investigation,” page 346, states: “Fired cases are”

In addressing the evidential value of cartridge cases, the Court referred to the work of Kirk in his book Crime Investigation (page 346). Kirk observed that cartridge cases are encountered less often in criminal investigations than bullets, but when they are found they are usually of greater significance because they retain at least as clear markings as bullets, display a greater variety of such markings, and are not ordinarily damaged in firing. He explained that the questions which may be asked as a result of finding such materials are similar to those that require answers when only bullets are located. In ordinary cases, quite definite answers can be given, and this holds true both for shotgun shells and for cartridge cases from pistols, revolvers and rifles. Kirk further stated that, in general, it is possible to identify a certain firearm as having fired a particular shell or cartridge, and that it is often possible to identify the type or make of gun which fired it, although in many instances such identification must be only tentative or probable.

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, Kirk summarised that 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. He noted that those marks arise from a variety of contacts with various parts of the gun, and that an analysis of them is useful in determining the type of weapon when no suspected gun is available. Consequently, Kirk described the recovered shell or cartridge case as one of the most useful types of physical evidence which can be found in shooting cases. The Court also cited Soderman and O’Connel in their book Modern Criminal Investigation, which discuss the marks from the fire‑pin, the extractor, the ejector and the breech‑block. After referring to the comparison of a cartridge or shell fired from a firearm for testing, they wrote that if the marks 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. They added that an absolute conclusion 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 enlargement, should not prove difficult because the characteristic scratches can be easily seen. A photograph of the incriminating shell and one of a comparison shell should be pasted side by side on cardboard, and the characteristic marks should be recorded with lines and ciphers, following the same method as that used in the identification of fingerprints.

The Court further quoted Taylor’s Medical Jurisprudence (Tenth Edition, Vol 1, page 459), which states that it is never safe to say that a cartridge case was not fired from a given pistol unless the marks are quite different, and that a case which bears no marks at all may quite well have been fired from the same pistol.

In the technical discussion, the report explained that a cartridge that is discharged from a pistol normally leaves well‑defined marks on its components. Although it is unlikely that every mark will be equally clear, it is generally possible to obtain reliable information from the impressions left by the firing‑pin, extractor, ejector, or breech‑block, as well as from marks on the base, rim, or from any grooves or scratches on the surface of the cartridge. Firearms that are produced by the same manufacturer tend to produce marks of a similar general character, but each individual weapon also displays unique differences that usually permit a definite identification of that particular weapon. In the present case, the firearms expert testified that he had fired four test cartridges from the pistol identified as Exhibit III. He observed that the distinctive characteristics of the chamber were impressed on two of the test cartridges, namely Exhibits 9 and 10, and that exactly identical markings appeared on the paper tube of the incriminating cartridge, Exhibit 1. The expert prepared micro‑photographs of several of these individual marks on Exhibits 1 and 10. In explaining the basis of his opinion, the expert stated that every firearm possesses unique characteristics on its breech face, striking pin, and chamber. When a cartridge is fired, the combustion of the powder generates gases that produce a pressure ranging from two to twenty tons per square inch. This pressure forces the cap and the paper tube of the cartridge to cling firmly to the breech face, striking pin, and chamber. Because the cartridge components are comparatively softer, the individual features of the firearm are impressed upon them. By firing a series of test cartridges from a given firearm and comparing the resulting marks under a microscope with those on the evidence cartridge, it can be conclusively determined—provided the marks are clear—whether the evidence cartridge was fired from that particular firearm. The Court observed that the firearms expert had carried out the required tests and had acted with appropriate care in performing them.

The Court found no satisfactory reason to doubt the expert’s opinion. The learned judges of the High Court had examined the micro‑photographs in question and were satisfied that there was no basis for distrusting the expert’s evidence. Accordingly, they were justified in concluding that the cartridge identified as Exhibit 1, which had been found on the cot of Daya Ram, had been discharged from the pistol labeled Exhibit III that the appellant possessed in his house. In the circumstances established by the evidence, the Court determined that no other person besides the appellant could have fired the shot that killed Daya Ram. Consequently, the appellant’s conviction for murder was upheld. The appeal was therefore dismissed.