Shambhoo vs State Of Uttar Pradesh

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 108 of 1961

Decision Date: 20 February 1962

Coram: Das Gupta

In the matter titled Shambhoo versus State of Uttar Pradesh, the Supreme Court delivered its judgment on 20 February 1962. The petitioner was Shambhoo and the respondent was the State of Uttar Pradesh. The case concerned a criminal trial for murder in which a pistol and several cartridges were recovered from the accused, but the authorities did not forward the weapon for examination by a ballistic expert. The issue before the Court was whether the failure to obtain a ballistic report justified rejecting the testimony of the eye witnesses who had identified the accused.

The headnote of the judgment summarized the facts as follows: Shambhoo, together with other participants, robbed a man named Dulla and two additional individuals. During the robbery Shambhoo discharged a pistol and killed Dulla. After a brief pursuit, the police apprehended Shambhoo and recovered the pistol and some cartridges from his possession. The recovered weapon and ammunition were not submitted to a ballistic expert for scientific analysis. At trial, several eye witnesses testified to having seen Shambhoo fire the pistol. The Sessions Judge initially acquitted Shambhoo, but on appeal the Allahabad High Court convicted him under sections 302 and 394 of the Indian Penal Code and imposed the death sentence.

Shambhoo appealed the conviction, contending that the circumstances of the case rendered the eye‑witness testimony unreliable and that the absence of a ballistic examination provided sufficient ground to reject those testimonies. The Supreme Court held that, although it would have been prudent for the prosecution to seize a ballistic opinion, the omission of such an examination did not, by itself, create any reason to doubt or discard the eye‑witness evidence. The Court observed that there was no indication that the fatal injuries to Dulla could not have been caused by a pistol; on the contrary, the nature of the wounds was entirely consistent with the prosecution’s narrative that a pistol had been used.

The Court also referred to the earlier authority of Mohinder Singh v. The State, [1950] S.C.R. 821, which it distinguished. It further noted that, while certain cases may reveal circumstances that render a witness’s testimony unsafe, the present case presented no such circumstance that would undermine the credibility of the prosecution’s case against Shambhoo.

The judgment addressed the criminal appellate jurisdiction, specifically Criminal Appeal No. 108 of 1961, which was an appeal from the Allahabad High Court’s order dated 11 May 1961 in Government Appeal No. 1492 of 1960. Counsel for the appellant were A. S. R. Chari and Udai Pratap Singh, and counsel for the respondent were G. C. Mathur and C. P. Lal. The Court’s opinion was delivered by Justice Das Gupta. The factual background presented by the prosecution stated that on 3 November 1959 Dulla, his son Ghasita, and a third person named Bbassu were traveling to Tahirpur Bazar to purchase bullocks. Each carried cash: Dulla possessed Rs 300, Ghasita Rs 100, and Bbassu Rs 1051. While the parties were near a tank close to Bhainsora, they were approached by four individuals—Shambhoo, Altaf, Sibte, and Shaukat—who emerged from a wheat field. Shambhoo and Sibte were armed with pistols, while Shaukat and Altaf carried lathis. The attackers demanded money; Ghasita complied, but Dulla resisted, prompting Shambhoo to fire his pistol and kill Dulla. Shambhoo then took Rs 300 from Dulla’s pocket, and Shaukat seized the money from Bbassu after administering a blow with his lathi. The alarm raised by the victims attracted several field workers who eventually overpowered Shambhoo.

According to the prosecution narrative, Dulla, his son Ghasita and a third man named Bhassu were travelling to Tahirpur Bazar with the intention of purchasing bullocks. They had previously visited Chandarpur Bazar for the same purpose but had not succeeded in buying any animals, and each of the three was carrying cash. Dulla possessed three hundred rupees, Ghasita had one hundred rupees and Bhassu carried one thousand fifty‑one rupees. Shortly before noon they arrived at the village of Mauza Bhainsora. While they were near a tank approximately two or three furlongs from Bhainsora, four men – Shambhoo, Altaf, Sibte and Shaukat – emerged from a wheat field that adjoined the tank. Shambhoo and Sibte were armed with pistols, whereas Shaukat and Altaf carried lathis. The four demanded money from the travellers. Ghasita complied and handed over his money, but Dulla resisted the demand. In response, Shambhoo discharged his pistol and killed Dulla. After the shooting, Shambhoo removed three hundred rupees from Dulla’s pocket, and Shaukat struck Bhassu with a lathi and took the cash that Bhassu was carrying.

The alarm raised by Dulla, Bhassu and Ghasita attracted a number of field workers who were nearby. These villagers succeeded in striking Shambhoo and Altaf with their lathis, preventing those two from escaping. However, Shaukat and Sibte managed to flee, although they were pursued by the villagers. During the chase Sibte again fired his pistol, inflicting bullet wounds on three of the pursuers – Lal Singh, Mahendra and Udaibir. After the pursuit, Ghasita, accompanied by a watchman named Kalu, went to a police outpost situated about four miles away and reported the incident. The police officer in charge recorded Ghasita’s statement and proceeded to the scene, where he arrested Altaf and Shambhoo, seized the pistols, twelve live cartridges and one cartridge case, and collected the evidence. Dulla’s body was sent for a post‑mortem examination, and the injuries sustained by Shambhoo as well as those of Lal Singh, Mahendra and Udaibir were examined medically. All the accused pleaded not guilty. The defence of Shambhoo asserted that he bore a personal enmity with Talebar Singh and that he had been arrested by Talebar and his associates when he stopped at a well for bathing on his return from Moradabad. To support this claim, the defence examined a witness who testified that Shambhoo was indeed bathing near a well at the time of his arrest. The prosecution’s case rested principally on the testimony of Ghasita, Bhassu and six villagers who heard the alarm – namely Kalu Singh, Kalu the watchman, Mahendra Singh, Talebar Singh, Lal Singh and Udaibir Singh. These eight witnesses gave substantially identical accounts, and the prosecution argued that their consistent testimony proved the case against all the accused.

The trial judge observed that, although there seemed to be no obvious reason to reject the testimony of the eyewitnesses, several circumstances in the case created serious doubt about the prosecution’s version of events. In particular, the medical evidence relating to the injuries sustained by Shambhoo, Mahendra, Lal Singh and Udaibir Singh left considerable room for reasonable doubt regarding the truthfulness of the prosecution’s story, and therefore the accused were entitled to the benefit of doubt. On that basis the trial judge acquitted all three accused. The Government appealed this decision, and the Allahabad High Court set aside the acquittal insofar as Shambhoo and Altaf were concerned. The High Court convicted Shambhoo under sections 302 and 394 of the Indian Penal Code and under section 19(f) of the Arms Act, sentencing him to death for the murder under section 302, to four years’ rigorous imprisonment for the robbery under section 394, and to one year’s rigorous imprisonment for the illegal possession of a firearm under section 19(f) of the Arms Act. The High Court also convicted Altaf, sentencing him to four years’ rigorous imprisonment under section 394 of the Indian Penal Code. The Government’s appeal against the acquittal of Shaukat was dismissed. Shambhoo filed an appeal before this Court under Article 134(1)(a) of the Constitution. He was not represented by counsel and he personally addressed the Court. A senior counsel of this Court appeared as amicus curiae and advanced arguments in support of the appeal. The Court noted that the direct evidence of the eight witnesses identified earlier indicated that the appellant had shot Dulla dead when Dulla had offered assistance in handing over money that the appellant and his companions demanded, and that the appellant subsequently removed three hundred rupees from Dulla’s pocket. The issue before this Court was whether the High Court was correct in accepting that evidence. The appellant’s claim that he had been falsely implicated by the witnesses at the behest of Talebar received no support; apart from the appellant’s own statement, there was no evidence of any enmity between Talebar and the appellant. Even assuming such enmity existed, there was no indication that any of the other witnesses were influenced by Talebar. Consequently, the suggestion that the appellant had been wrongly implicated by Talebar was rightly dismissed by both the trial judge and the High Court, and it was not pursued further by the amicus counsel. The Court, however, accepted the trial judge’s observation that even when there is no apparent motive for witnesses to lie, the totality of the evidence may reveal that their testimony cannot be safely relied upon. The amicus counsel drew the Court’s attention to two principal circumstances that the trial judge also regarded as highly significant. First, while the witnesses asserted that the appellant had been struck by them with lathis, the medical evidence disclosed only

In the present matter the Court noted that the medical findings indicated only a single injury on the accused Shambhoo that could plausibly have been caused by a lathi blow, and that the injuries sustained by the other persons named — Lal Singh, Mahendra and Udaibir S Singh — were not of the type that would have resulted from the discharge of the firearm for which the witnesses spoke. The Court observed that the eye‑witnesses had generally stated that those who arrived after hearing the alarm had employed their lathies, and that, on the face of that testimony, one would have anticipated a number of lathing injuries on Shambhoo’s body. It was equally true, however, that the forensic report disclosed a total of fifteen injuries on Shambhoo, of which fourteen were merely abrasions and only one, identified as Injury No. 7, was a swelling on the outer aspect of his right ankle. The Court found that Injury No. 7 could indeed have arisen from a lathi strike, whereas the remaining fourteen abrasions could not have been produced by such a weapon.

Nevertheless, the Court held that this disparity did not furnish any basis for disbelieving the witnesses regarding what they had observed. The likely sequence, according to the Court, was that a single lathi blow was sufficient to bring Shambhoo to the ground, after which he was not struck again with a lathi but was dragged, thereby acquiring the numerous abrasions on his person. The Court considered it unsurprising in such circumstances that all those who arrived after hearing the alarm would seek to claim credit for subduing the robber, and that this collective enthusiasm gave rise to a generalized statement that all of them had used their lathies. The Court emphasized that this exaggeration of their actions did not warrant any doubt about their veracity.

The learned Sessions Judge appeared to think that, if the witnesses truly saw what they claimed, the assault on Shambhoo would have been more ferocious; the Court could not concur with that inference. It reminded that the villagers who responded to the alarm were not associates of Dulla, and in fact Dulla and his companions were apparently unknown to them. Accordingly, there was nothing implausible or unnatural in the fact that these villagers were satisfied merely with restraining Shambhoo and did not continue to inflict further injury upon him.

According to the witnesses, Sibte had discharged his pistol at his pursuers, among whom were Lal Singh, Udaibir Singh, Mahendra and others. The medical examination conducted on 4 November 1959—the day after the incident—recorded the following findings: on Mahendra, a scabbed abrasion measuring 1/8 inch by 1/8 inch on the anterior upper part of the left leg, situated 12½ inches above the left knee; on Lal Singh, a scabbed abrasion measuring 1/6 inch by 1/8 inch on the anterior right side of the abdomen at the five‑o’clock position, located five inches from the right nipple; and on Udaibir Singh, two abrasions—one measuring 1 ⅛ inch by 1/2 inch on the inner side of the left leg, eleven inches above the left knee, and a second measuring 1/2 inch by 1/6 inch on the anterior right leg, eight inches below the right knee.

In this case, the Court observed that there was no reason to doubt the testimony of the witnesses and that it was entirely plausible that the injuries described were caused by pellets discharged from a firearm. The medical examination of the victims did not contradict the account given by the witnesses; rather, it supported their description, contrary to the argument advanced by counsel for the appellant. The Court also considered the Sessions Judge’s observation that the robbery allegedly took place at a location very close to many people who were working in the fields. The Court found no basis for considering such a place unsuitable for a robbery, noting that at least two of the accused were armed with firearms, which would have encouraged them to act boldly and to expect that the nearby workers would refrain from interfering with Dulla and his companions. The learned Sessions Judge had expressed doubt that the miscreants could have concealed themselves, apparently overlooking the fact that tall sugarcane grew in several adjacent fields, providing ample cover for concealment.

The Court further addressed the Sessions Judge’s remark that it was unreasonable for the robbers to have left Ghasita and Bhassu without any injuries. The Court explained that a person armed with a pistol does not necessarily fire it at every individual present. In the present incident, the pistol was used against Dulla because he resisted handing over the money, whereas Ghasita and Bhassu did not resist, which adequately explained why they were not shot. Evidence also showed that one of the assailants had struck Bhassu with a lathi. After a careful review of all the evidence, the Court found no circumstance that justified questioning the truth of the prosecution’s version of events as against the appellant. Counsel for the appellant, however, argued that the pistol seized from the appellant had not been sent to a ballistic expert for analysis, and that this omission should lead to the rejection of the eye‑witness testimony. The witnesses had testified that when Shambhoo was apprehended, the pistol from which the fatal shot was fired was taken from him, that an empty cartridge case was found inside the pistol, and that twelve live cartridges were recovered from the appellant’s person and handed over to the Sub‑Inspector. The Sub‑Inspector’s evidence confirmed that he received from Kalu Singh the pistol marked as Exhibit I along with the twelve live cartridges and the empty cartridge case.

It was clear that neither the pistol nor the cartridges were forwarded to any ballistic expert. Although the Sub‑Inspector might have been well advised to send the weapon and the ammunition, particularly the empty cartridge case, for expert ballistic analysis, the Court was unable to accept the argument advanced by Mr. Chari that the failure to obtain such expert opinion created a basis for doubting or rejecting the eyewitness testimony. Mr. Chari relied heavily on the decision of this Court in the case of Mohinder Singh v. The State and cited the passage of Fazl Ali J., which stated that when death results from injuries inflicted by a lethal weapon, the prosecution bears the duty to prove, through expert evidence, that the injuries could have been caused by the weapon in the manner alleged. In the cited case, the appellant Mohinder Singh had been charged with causing fatal injuries to Dalip Singh by means of a gun identified as gun P‑16. The High Court was not convinced by the identification and expressed doubt as to whether the injuries were produced by a gun or by a rifle. The Supreme Court, agreeing with that doubt, observed that only the testimony of a duly qualified expert could determine whether the injuries were caused by a gun or a rifle, and that such expert evidence alone could resolve the controversy about the possibility of a firearm being used at such close range. The record showed that Dr. Goyle, Director of the C.I.D. Laboratory, had testified that the cartridges seized could have been fired through gun P‑16, although he could not state whether they had in fact been discharged from that particular weapon or from a similar gun. The High Court rejected Dr. Goyle’s evidence and held that the nature of the wound created a serious difficulty in the case, leading the Supreme Court to conclude that the witnesses’ statements could not be relied upon. In contrast, the present case did not present any reason to think that the injuries which caused Dulla’s death could not have been caused by the pistol; on the contrary, the nature of the injuries, as described by the post‑mortem doctor, was wholly consistent with the prosecution’s theory that a pistol had been used.

In this case the medical evidence presented by Dr. Nigam, who conducted the post‑mortem examination, was found to be entirely consistent with the prosecution’s contention that a pistol had been used. Dr. Nigam described the external injuries on the deceased’s body as five entrance gun‑shot wounds, each measuring one‑quarter inch by one‑eighth inch. He noted that scorching was evident on the margins of each wound. Four of the wounds penetrated into the chest cavity, while the fifth wound on the outer side was described as bone‑deep. All five wounds were situated within an area measuring four and a half inches by four and a half inches on the right side of the chest, approximately one and one‑quarter inches from the upper and inner aspects of the right chest. The most external wound lay about one and a half inches below the right side. Dr. Nigam also reported that a bullet measuring three‑quarters of an inch had been recovered from the flesh on the inner side of this wound.

During his internal examination, Dr. Nigam observed that the second, third and fourth right ribs were fractured into several pieces both anteriorly and posteriorly. He reported clotted blood beneath the external injuries and identified four perforations beneath these injuries, each measuring one‑quarter inch by one‑eighth inch and extending into the chest cavity. The same dimensions applied to four additional perforations that passed completely through the right pleura; three of these were through‑and‑through while one was described as deep. All of the perforations were located in the upper portion of the right lung. Approximately three pounds of blood were present in the chest cavity. The pathologist extracted one shot from the right lung and three shots from the upper part of the right side of the back beneath the skin. He further noted that the abdominal cavity was empty and appeared normal, and that the urinary bladder contained about two fluid ounces of urine.

On cross‑examination, Dr. Nigam stated that he could not determine whether the injuries caused by the five bullets resulted from a single shot or from multiple shots. The use of the term “bullets” in his testimony indicated that he understood the word to include pellets. The Court concluded that this clarification meant that Dr. Nigam’s evidence did not contradict the prosecution’s case that the injuries were caused by a single pistol shot. Consequently, the lack of testimony from a ballistic expert was not considered a basis for doubting the eyewitness accounts.

The Court also considered the testimony of a witness, identified as Kasimulla, who had been examined on behalf of the appellant. Kasimulla recounted that the appellant was washing his hands and face at a location called Haudia near a well in Jayantipur when a person named Talebar, accompanied by seven or eight individuals, seized him. In cross‑examination, Kasimulla admitted that on several occasions he had purchased “Singharas” from Shambhoo at Sedhari Bazar and was therefore acquainted with him. After reviewing the entire record, the Court reached the conclusion that the statements provided by the aforementioned witnesses were not reliable.

In the matter before the Court, the factual description provided regarding the appellant’s conduct and the manner in which he was taken into custody was accepted as correct. The Court observed that the testimony of the witness identified as Kasimullah was deliberately false and was intended to assist Shambhoo. Because the present appeal was filed under Article 134(1)(a) of the Constitution, the Court undertook its own independent examination of the entire evidentiary record. After this fresh appraisal, the Court affirmed the findings of the High Court. Specifically, the Court held that the individuals who claimed to have observed the incident were truthful in their statements, and that their testimonies established beyond reasonable doubt that the appellant had committed the offence of murder as defined in section 302 of the Indian Penal Code by causing the death of the deceased, Dalla. In addition, the Court concluded that the appellant was also guilty of the offence punishable under section 304 of the Indian Penal Code and of the offence punishable under section 19(f) of the Arms Act. The Court further expressed the view that the High Court’s imposition of the death penalty, which was based on the conviction under section 302, was proper and justified. Accordingly, the Court dismissed the appeal and ordered that the conviction and sentence stand.