judgement:
N: Criminal Appeal No. 499 of 1976.
Appeal by Special Leave from the Judgment and Order dated 22 7 1975 of the Punjab & Haryana High Court in Criminal Appeal No. 166/75 and Murder Reference No. 10/75.
O.P. Sharma and M. section Dhillon for the Appellant.
R.K. Jain for Respondents Nos. 1 and 3 to 6.
R.K. Kohli and R. C. Kohli for the complainant.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by the State of Punjab is directed against a judgment, dated July 22, 1975, of the High Court of Punjab and Haryana, whereby the appeal of the respondents (hereinafter referred to as the accused) was accepted and they were acquitted of the double murder charge against them.
The prosecution story narrated by Resham Singh (P.W. 2), who claims to be an eyewitness of the occurrence, runs as follows.
Resham Singh (P.W.2) used to live with his brother in law, Hazara Singh deceased, in a hamlet in the fields outside the habitation of village Cheema.
One Ajit Singh of village Dhual was murdered, and Wassan Singh accused and his party men were tried therefor.
At the trial, Hazara Singh deceased appeared as an eyewitness of that murder.
The trial court convicted Wasson Singh and his companions in that case.
They went in appeal to the High Court.
Pending the appeal the High Court enlarged Wasson Singh accused on bail.
The occurrence now in question in the instant case took place when Wasson Singh was on bail.
The lands of Avtar Singh, Mukhtar Singh and Harbhajan Singh accused (respondents) adjoin the lands of Hazara Singh deceased.
Three or four days prior to the incident in question, the cattle of these accused persons trespassed on the land of Hazara Singh and damaged his cotton crop.
Thereupon, a sharp altercation took place 620 between Hazara Singh and Resham Singh on one side and Harbhajan Singh and Mukhthar Singh on the other.
Gajjan Singh son of Gopal Singh resident of the village interceded and pacified the parties.
Joginder Singh accused respondent is the brother of Mukhtar Singh accused respondent while Harbhajan Singh Respondent is their first cousin.
Mukhtar Singh and Harbhajan Singh accused are alleged to be partyman of Wasson Singh.
On August 4, 1973 at about 3.30 p.m., Resham Singh (P.W.2).
Resham Singh (deceased) son of another Hazara Singh and Hazara Singh deceased were proceeding by the foot path from the Bus Stand Amarkot to their hamlet.
On the way Bachan Singh, brother of Hazara Singh, met them and proceeded along with them.
When they reached near the fields of Jarmaj Singh Sarpanch of Mahmoodpura, all the six accused, namely, Wasson Singh, Baj Singh, Meja Singh, Joginder Singh, Mukhtar Singh and Harbhajan Singh emerged from the sann crop and came to the bank of the watercourse.
Baj Singh was armed with a pistol and the other five accused were armed with rifles.
Wasson Singh, Joginder Singh and Mukhtar Singh fired their rifles at Hazara Singh.
The rifle shots hit Hazara Singh on the left side of his head, and he dropped dead.
Resham Singh (P.W.2), Bachan Singh and Resham Singh deceased started running towards the ploughed fields.
Meja Singh, Harbhajan Singh and Baj Singh chased them.
Meja Singh and Harbhajan Singh encircled Resham Singh deceased and shot him dead with rifle shots.
Baj Singh chased Resham Singh (P.W. 2) and Bachan Singh (P.W. 3) and fired at them with his pistol.
When these two were running away, the other two accused also fired at them.
Resham Singh and Bachan Singh, however, succeeded in escaping unhurt.
Resham Singh (P.W. 2) immediately reached the Bus Stand Amarkot, picked up his motor cycle which was lying there at a shop and drove fast to Police Station Valtoha, where he lodged the First Information Report (exhibit PE) at 4.30 p.m.
Police Sub Inspector Bishambar Lal recorded the report of Resham Singh and sent a copy of the same as a special report to the superior officers, including the Judicial Magistrate, First Class at Patti, who received the copy of the F.I.R. at 6.30 p.m., on the same day.
While running away from the spot Resham Singh (P.W. 2) had left behind his shoe (exhibit P 1) near the scene of murders.
Sub Inspector Bashambar Lal reached the scene of occurrence at 5.30 p.m. and started investigation.
He prepared the inquest reports regarding the deaths of Hazara Singh and Resham Singh deceased persons.
He also took into possession blood stained earth 621 and other relevant articles lying near the two dead bodies.
He found two empty cartridge cases at the scene of Hazara Singh 's murder.
He took them into possession and sealed them into a parcel.
He also seized two pairs of shoes lying at the spot.
After his arrest, Mukhtar Singh accused was interrogated by the Investigating Officer on August 31, 1973.
After making a statement, Mukhtar Singh accused, in the presence of witnesses, led the police to the discovery of the rifle (exhibit P 7) and some live cartridges.
The rifle and the empty cartridges earlier found at the scene of crime were sent to the ballistic expert for examination and opinion.
After examination, the ballistic expert of the Forensic Science Laboratory, Chandigarh, reported (vide exhibit P. 9) that the 303 fired cartridge, marked C, had been fired through the 303 rifle marked `A ' by him.
But no definite opinion could be given regarding the linkage of the fired cartridge marked C, with the 303 rifle marked `A ' due to lack of sufficient individual characteristic marks on C2.
Joginder Singh accused was arrested on August 24, 1973 and Baj Singh accused on December 18, 1973.
The post mortem examination of the dead body of Resham Singh was performed by Dr. Gursharan Kaur on August 5, 1973 at 8 a.m.
The Doctor found five gun shot injuries on his body.
Two of these were wounds of entry, with everted margins on the back of the left chest.
No charring was present on any of these gun shot wounds.
The death in the opinion of the Doctor was due to shock and haemorrhage resulting from gun shot injuries on the chest which were sufficient to cause death in the ordinary course of nature.
On the same day, Dr. Gursharan Kaur conducted the autopsy on the dead body of Hazara Singh and found four fire arm injuries, two of which were wounds of entry and two were wounds of exit.
All these injuries were on the skull.
They involved fracture of the skull and damage to the brain.
These injuries had been caused with firearm and were sufficient to cause death instantaneously, in the ordinary course of nature.
At the trial, the main stay of the prosecution was the testimony of the two eye witnesses, Resham Singh (P.W.2) and Bachan Singh (P.W.3).
Examined under Section 342, Cr.
P.C., Wasson Singh accused admitted that he along with others was tried for the murder of Ajit Singh of village Dhual and Hazara Singh deceased had appeared against him as eye witness of that murder; and that he (Wasson Singh) was convicted by the Court of Session, but had been released on bail 622 pending his appeal in the High Court.
He denied the rest of the prosecution case and stated that he had been falsely implicated by the relations of Ajit Singh deceased on suspicion; and that on the day of occurrence, he was working as a Conductor on a truck at Muzaffarnagar.
The plea of Baj Singh was one of plain denial of the prosecution case.
He stated that his brothers Punjab Singh, Narinder Singh and Bagicha Singh had been prosecuted for the murder of one Puran Singh who was a relation of Bachan Singh (P.W.3); that Punjab Singh and his companions were acquitted in that case.
Baj Singh added that he used to look after the defence of the accused in Puran Singh 's murder case; and that on account of this, he had been falsely implicated.
He further stated that at the time of occurrence, he was residing in U.P. Meja Singh accused, also, denied the prosecution case.
He stated that one Balkar Singh of Village Wan had been murdered.
He (Meja Singh) used to look after the defence of Jarnail Singh (his wife 's brother, who was being tried for the murder of Balkar Singh; that on account of this, the relation of the said Balkar Singh had, in connivance with the complainant party, falsely implicated him in the instant case.
The remaining accused, also, denied the circumstances appearing in evidence against them.
The learned Additional Sessions Judge, Amritsar, who tried the case against these six accused persons, found that Wasson Singh had a strong motive to murder Hazara Singh deceased, because the latter had appeared as an eye witness against Wasson Singh in Ajit Singh 's murder case.
The trial Judge further accepted the prosecution evidence in regard to the fact that a few days before this occurrence in question, there was a: quarrel between Hazara Singh deceased and Resham Singh (P.W. 2) on one side and Mukhtar Singh, and Harbhajan Singh accused on the other, when the cattle of the accused had trespassed on the land of the deceased and damaged his cotton crop; and that on account of this ill will, Joginder Singh, Mukhtar Singh and Harbhajan Singh accused had a sufficient motive to join hands with Wasson Singh accused to murder Hazara Singh deceased.
The trial Judge further found that the prosecution had failed to establish the exact nature of the motive which might have actuated Meja Singh and Baj Singh to murder Resham Singh deceased.
The trial Judge further held that the F.I.R. which had been lodged by Resham Singh with great promptitude at Police Station Valtoha, which was about three miles from the place of occurrence, furnished valuable corroboration of the evidence of Resham Singh (P.W. 2).
623 He accepted the evidence of Resham Singh and Bachan Singh.
He further found that Sub Inspector Bishambar Lal had tried to favour Joginder Singh accused by fabricating a note in his zimini at some subsequent stage.
This note is to the effect, that Joginder Singh was, in fact, present irrigating his nearby fields and he joined the police investigation on the very day of occurrence and had remained with the police till the investigation by the Deputy Superintendent of Police.
The trial Judge disbelieved the plea of alibi set up by Meja Singh accused.
In the absence of independent evidence, the trial Judge was unable to hold from the bare testimony of Bishamber Lal, Sub Inspector, that the rifle (exhibit P 7) had been recovered from Mukhtar Singh accused.
He, however, criticised the conduct of Sub Inspector Bishamber Lal in not sending the empty cartridges found at the spot to the ballistic expert of the Forensic Laboratory, Chandigarh, with due promptitude.
In the result, the trial Judge held that Wasson Singh, Joginder Singh and Mukhtar Singh accused had fired their rifles at Hazara Singh deceased, and had caused his death.
He therefore, convicted these three accused for the substantive offence under Section 302, Penal Code.
He further held that the common object of the unlawful assembly constituted by the six accused was to murder Hazara Singh deceased.
He therefore, further convicted all the six accused under Section 302 read with Section 149, Penal Code, for the murder of Hazara Singh.
The trial Judge found that the murder of Resham Singh did not appear to have been caused in prosecution of the common object of the said unlawful assembly.
He therefore, convicted Baj Singh, Meja Singh and Harbhajan Singh accused only under Section 302 read with Section 34, Penal Code, for the murder of Resham Singh deceased and sentenced each of them to imprisonment for life and a fine of Rs. 200/ .
In respect of the murder of Hazara Singh, Wasson Singh was sentenced to death, while each of the other five accused were sentenced to imprisonment for life and a fine.
The trial Judge referred the case to the High Court for confirmation of the death sentence of Wasson Singh.
All the accused, also appealed against their conviction and sentences.
The High Court allowed the appeal, declined the reference and rejected the evidence of the eye witnesses, Resham Singh (P.W. 2) and Bachan Singh (P.W. 3), for these reasons: (i) Both these witnesses are closely related to the deceased Hazara Singh, who was the principal target of the accused.
(ii) (a) Excepting in the case of Wasson Singh who had undoubtedly a grudge against Hazara Singh deceased, it has not been 624 satisfactory established by the prosecution that the other five accused had any motive to commit the murders in question.
(b) Gajjan Singh, who is said to have interceded and pacified both the parties at the time of the alleged quarrel over cattle trespass, three or four days prior to the occurrence, between Mukhtar Singh and Harbhajan Singh on one hand and Hazara Singh deceased and Resham Singh (P.W. 2) on the other, has not been examined by the prosecution.
(c) There was no mention about this earlier incident in the statement of Bachan Singh (P.W. 3) before the police during investigation.
(iii) Both Resham Singh and Bachan Singh, P.Ws.
had earlier been involved in cases of serious crime, and Bachan Singh was admittedly registered as a bad character with the Police.
On account of their antecedents, Resham Singh and Bachan Singh do not appear to be reliable people.
(iv) The prosecution story is highly unnatural.
The presence of these two eye witnesses along with the deceased persons was unlikely.
Had these witnesses been with Hazara Singh deceased, they would have been the target of attack after Hazara Singh was killed and not Resham Singh deceased against whom the accused had no grudge.
(v) Hazara Singh deceased, Bachan Singh and Resham Singh, P.Ws.
, all admittedly reside in the hamlet of Hazara Singh deceased, and if they had to go to Amarkot for making purchases, they would have in all probability gone together.
Bachan Singh 's version, that he had gone to Amarkot to make enquiries regarding the availability of diesel and on his return journey in the way, met and joined the company of his brother Hazara Singh deceased, and his companions, was not believable, because there was no need for Bachan Singh to have gone to Amarkot for the purchase of diesel as he could have asked Hazara Singh to make the necessary enquiries.
(vi) There is a material inconsistency in the testimony of the two eye witnesses as to when Hazara Singh deceased and Resham Singh (P.W. 2) had left their behak (hamlet).
From the statement of Resham Singh (P.W. 2), it appears that from their behak they had gone to Amarkot that very day for purchasing cloth and on the return journey they met Bachan Singh.
As against this, the story told by Bachan Singh is that a day earlier Hazara Singh deceased and Resham Singh, P.W. had left their behak for some unknown destination and that a day later they had met him at the adda, after their departure from the behak the previous day.
This version completely belies the version of Resham Singh (P.W. 2) that they had left their behak 625 in order to make purchases of cloth and other articles.
(vii) Another odd feature brought out from the evidence of Resham Singh (P.W. 2) is the presence of motor cycle at Amarkot on that day.
It is surprising that he could afford to maintain a motorcycle from the meagre income that he would have got from his 5 or 6 acres of land.
His explanation as to why he left the motor cycle at Amarkot, is also not convincing.
(viii) The investigation of the case conducted by the Sub Inspector Bishamber Lal (P.W. 13) does not inspire confidence.
(a) The evidence relating to the recovery of empty cartridges (vide exhibit P.G.) and pair of shoes from the spot near the dead body of Hazara Singh, was not reliable, because P.W. 13 did not mention about the presence of these articles in the inquest report (exhibit PDZ).
(b) Though the empty (crime) cartridges recovered from the spot were sent to the ballistic expert earlier, they were returned to the Police Station on the plea that the test cartridges had not been sent along with those empties.
"Even if it was so, there was no need of sending the crime cartridges to the Police Station, as the test cartridges could be sent for through a separate letter.
In this situation, the suggestion that the crime cartridge had been later on fired through rifle (exhibit P7) when it was recovered cannot be considered improbable".
(ix) "On arrival at the scene of the incident, P.W. 13 found Joginder Singh accused at a distance of about 100 yards irrigating his field.
According to Bishamber Lal, he interrogated Joginder Singh there and then, but did not arrest him.
If Joginder Singh accused had been found near the scene of the crime within a short time, engaged in his normal activities, his participation in the crime would be highly improbable".
Learned counsel for the appellant vehemently contends that the reasoning of the High Court is manifestly unsound, if not wholly perverse.
Great emphasis has been laid on the fact that the First Information Report, in this case was lodged by Resham Singh (PW 2) with utmost promptitude, and even its copy had reached the Magistrate at about 6 or 6 30 p.m. at Patti, on the same day.
In the First Information Report, proceeds the argument, all the material facts including the names of the accused and of the witnesses have been mentioned It is submitted that since this F.I.R. was made without delay in circumstances in which the informant had no time to concoct a false story, it furnished valuable corroboration of the evidence of Resham Singh (P.W. 2), and made his evidence safe enough to be 626 accepted.
It is further maintained that in the first place, the prosecution had established that Mukhtar Singh, Harbhajan Singh and Joginder Singh had also a motive to join hands with Wasson Singh to murder Hazara Singh deceased, and that even if it was held that such motive on the part of the companions of Wasson Singh accused had not been substantiated as the High Court has held then P.Ws. 2 and 3 had also no motive or animus to falsely implicate them.
Counsel have criticised the failure of the High Court to discuss the value and effect of the F.I.R. lodged by P.W. 2.
It is emphasised that the circumstance that the F.I.R. was made without delay was a circumstance of paramount importance in evaluating Resham Singh 's evidence in particular and the prosecution evidence in general.
It is argued that the omission on the part of the High Court to deal with and discuss the F.I.R. has caused serious aberration in its approach and vitiated its appreciation of the evidence of the eye witnesses.
On the other hand, Shri R. K. Jain, learned counsel for the respondents, has submitted that since the reasons given by the High Court in support of the acquittal of the accused cannot be called perverse, this Court should not, in keeping with its practice, disturb the acquittal even if it feels inclined to hold that the view of the evidence taken by the trial court is also reasonable.
Shri Jain has further tried to support the reasoning of the High Court.
We have carefully considered the contentions canvassed on both sides.
We are also not unmindful of the fact that we are dealing with an appeal against an order of acquittal in a double murder case.
Even so, we find that the reasons given by the High Court for holding that Resham Singh (P.W. 2) was not an eye witness of these murders, are utterly unsustainable.
The mere fact that Resham Singh (P.W. 2) had succeeded in escaping unhurt, or that there are discrepancies in the statements of Resham Singh (P.W. 2) and Bachan Singh (P.W. 3), as to whether they had gone to Amarkot with Hazara Singh deceased on the very day of occurrence or a day earlier, was no ground for jumping to the conclusion that P.W. 2 was not in the company of the deceased or nearabout the scene of occurrence when Hazara Singh and Resham Singh were shot dead.
The occurrence took place on August 4, 1973, While Resham Singh (P.W. 2) and Bachan Singh (P.W. 3) were examined at the trial on December 27, 1974, that is to say, 17 months after the incident.
Such discrepancies in regard to collateral or subsidiary facts or matters of detail occur even in the statements of truthful witnesses, particularly when they are examined to depose to events which happened long before their examination.
Such discrepancies are 627 hardly a ground to reject the evidence of the witnesses when there is general agreement and consistency in regard to the substratum of the prosecution case.
As rightly observed by the trial court, Resham Singh (P.W.2) was never cross examined by the defence regarding his whereabouts and that of Hazara Singh deceased on the previous night.
The mere fact that P.W. 2 did not make any purchases at Amarkot could hardly be a reason to hold that his being in the company of Hazara Singh deceased at the material time, was improbable.
It is common ground that there was no love lost between Wassan Singh appellant and Hazara Singh deceased.
Wassan Singh, though convicted by the trial court for the murder of Ajit Singh, was released on bail by the High Court pending his appeal.
P.W. 3 is the brother and P.W. 2 a relation of the deceased.
All these three were living together in the same hamlet in the fields.
It is in the evidence of these witnesses that the other accused are partymen of Wasson Singh.
It is further in evidence that sometime before the occurrence both Hazara Singh and Resham Singh,(P.W. 2) were arrested and handcuffed by Darshan Singh, Police Sub Inspector on the allegation that they were indulging in smuggling and would be liquidated.
Both of them however, escaped and appeared with handcuffs on before the Deputy Home Minister and complained against the Police Sub Inspector.
Both were prosecuted for smuggling betel leaves across the border.
It was therefore, not improbable that this trio consisting of Hazara Singh deceased, P.W. 2 and P.W. 3 was, as usual, moving about or carrying on their activities together.
Moreover, the deceased Hazara Singh must have known that Wasson Singh accused who was inimically disposed towards him, was at large on bail.
This was an added reason for this troika to move about for their security, if not for anything else, in the company of each other.
Nor could P.W. Bachan Singh 's presence at the scene of crime be discounted and his evidence discarded merely on the score that there was no necessity for him to go to Amarkot for enquiring about the availability of diesel.
There is one towering circumstance which goes a long way to lend assurance to the claim of P.W. 2 that he was an eye witness of the occurrence.
It is that the F.I.R. (exhibit P.E.) was lodged by him at Police Station Valtoha, so promptly that he had practically no time to spin out a false story.
628 The learned trial Judge has accepted, and rightly so, the sworn testimony of Resham Singh (P.W. 2) and Sub Inspector Bishamber Lal (P.W. 13), who was then Station House Officer, Valtoha, to the effect, that the F.I.R. (exhibit P.E.), was recorded in the Police Station at 4.30 p.m. Police Station Valtoha is three miles from Bus Stand Amarkot.
According to Resham Singh, the occurrence took place at about 3.30 p.m. On seeing the occurrence and after eluding the pursuit, Resham Singh, as he says, ran to Adda Amarkot through the fields covering a distance of about one kilometre.
According to P.W. 2, his motor cycle was lying at a shop in Amarkot.
He picked up his motor cycle from there and drove to the Police Station, Valtoha and without loss of time lodged the first information, there.
The endorsement on exhibit PE, bears out that the copy of the First Information was in the hands of Shri K. K. Garg, Judicial Magistrate, First Class, Patti, at 6.30 p.m.
This circumstance assures the truth of the prosecution evidence on the point that the First Information Report was made by Resham Singh (P.W. 2) at the Police Station at 4.30 p.m., that is within two hours of the occurrence without undue delay.
The learned Judges of the High Court have not at all dealt with the F.I.R. or the promptitude with which it was made.
They doubted Resham Singh 's version that from Amarkot he went on his own motor cycle to Valtoha Police Station.
The argument employed by the High Court is that Resham Singh owned only four or five killas of land, and could not acquire and maintain a motor cycle from the income of his petty holding.
However, this was not the defence case.
In cross examination, the defence themselves, brought out and tried to establish that he was earning by smuggling betel or other things to Pakistan.
Thus, according to the own showing of the defence, P.W. 2 had a source of income other than his agricultural income.
It was, therefore, nothing improbable if Resham Singh owned a motor cycle.
Sub Inspector Bishamber Lal (P.W. 13) was not questioned in cross examination as to whether or not Resham Singh had come to the Police Station on a motor cycle.
He (P.W. 13) was however, questioned as to what transport he had used for going from the Police Station to the scene of murders.
The witness replied that he went on a motor cycle upto Amarkot and from there went on foot to the scene of occurrence.
Resham Singh stated that since it had recently rained, the kacha path from Amarkot to their hamlet in village Ban, had became muddy and unsafe for riding a motor cycle because of the high risk of skidding.
That was why, the witness had left the motor cycle at Adda Amarkot with a shopkeeper.
629 It may be noted that the occurrence took place on August 4, 1973 when the rainy season would be in full swing.
This explanation of Resham Singh (P.W. 2) regarding the kacha path from Amarkot to the scene of occurrence, being non motorable on the day of occurrence, receives inferential support from the fact appearing in the evidence of Bishamber Lal (P.W. 13), that he had to cover the distance from Adda Amarkot to the place of occurrence, on foot.
Thus, the reason employed by the High Court for disbelieving the version of Resham Singh (P.W. 2) regarding his owning and going on a motor cycle from Amarkot to Police Station Valtoha was manifestly unsound.
It was argued before the trial court on behalf of the accused that the occurrence might have taken place at about 2 p.m. when Resham Singh (P.W. 2) was about 400 or 500 yards away in his hamlet, and that on hearing the report of gun fire he was attracted to the scene of crime, and he having seen the dead bodies lying there, went home, took his motor cycle and then drove to the Police Station Valtoha and brought Sub Inspector Bishamber Lal to the scene of occurrence and the Sub Inspector prepared the F.I.R. at the spot after deliberation with Resham Singh and others.
This contention was rightly rejected by the trial court.
As observed earlier, since it had rained a day prior to the occurrence, the kacha path from Amarkot to the scene of occurrence and to the hamlet of the deceased must have been muddy and slippery.
Therefore, the very suggestion that from village Ban to Amarkot and thereafter to Valtoha, Resham Singh went on his motor cycle, was improbable.
Moreover, from the conduct of the Investigating Officer, Bishamber Lal, it appears that he was not favourably disposed towards the deceased and the informant.
Indeed, a suggestion was put to Bishamber Lal (P.W. 13) by the Public Prosecutor, that he has been unfair in the investigation of the case and tried to favour Joginder Singh and Meja Singh accused.
The learned trial Judge found that the investigation conducted by Sub Inspector Bishamber Lal was biased in favour of Joginder Singh and Meja Singh accused persons, and that the Sub Inspector fraudently interpolated a note in his zimini to help Joginder Singh accused.
The High Court has, also, found that this note in the zimini was a fraudulent insertion.
This being the case, Sub Inspector Bishamber Lal would be least disposed to join hands with Resham Singh informant in preparing the First Information Report, after deliberation with him (P.W.2) at the spot.
630 Dr. Gursharan Kaur (P.W. 1) who performed the post mortem examination of the dead bodies of Resham Singh and Hazara Singh on August 4, 1973 between 8 a.m. and 9 a.m. respectively, opined that the time which elapsed between these deaths and their post mortem examination was about 18 hours.
Thus, according to the Doctor 's opinion, also, the deaths took place at about 2 or 3 p.m. on August 4, 1973.
The opinion of the medical witness thus corroborated the version of Resham Singh (P.W. 2) in as much as the latter has testified that the murders took place at about 3.30 p.m.
This means, that the statement of Resham Singh (P.W. 2) in the First Information Report was made without undue delay, and, as such, furnished very valuable corroboration of his testimony at the trial, in all material particular.
If the presence of Resham Singh (P.W. 2) and Dalip Bachan Singh (P.W. 3) at the time and place of murders was probable the further question would be, how far their evidence could be safely accepted against each of the accused persons ? It is true that both these witnesses are related to the deceased, and, as such, are interested witnesses.
Their antecedents, also, are of a questionable nature.
But their antecedents or mere interestedness was not a valid ground to reject their evidence.
Persons with such antecedents are not necessarily untruthful witness.
Nor mere relationship with the deceased was a good ground for discarding their testimony, when, as we have already held, their presence at the scene of occurrence was probable.
All that was necessary was to scrutinise their evidence with more than ordinary care and circumspection with reference to the part or role assigned to each or the accused.
An effort should have been made to sift the grain from the chaff; to accept what appeared to be true and to reject the rest.
The High Court did not adopt this methodology in appreciating their evidence.
Instead, it took a short cut to disposal, and rejected their evidence whole sale against all the accused, for reasons which, as already discussed, are manifestly untenable.
Keeping the principle enunciated above, we have scrutinised the entire material on record with particular focus on the evidence of P.W.2 and P.W.3, against each of the accused.
Excepting the immaterial discrepancies considered earlier, the evidence of P.W. 2 and P.W. 3 was consistent, and their presence as already mentioned, at the time and place of murders was probable.
Even so, as a matter of abundant caution, it will be safe to act on their interested evidence 631 to the extent to which some assurance is coming forth from surrounding circumstances or other evidence.
The story narrated by the eye witnesses, Resham Singh and Bachan Singh is that Wasson Singh, Mukhtar Singh and Joginder Singh first fired a volley of rifle shots at Hazara Singh deceased as a result of which he dropped dead at the spot.
The evidence of the Doctor who performed the autopsy on the dead body of Hazara Singh is to the effect that there were two bullet wounds of entry on the left side of the head.
These wounds were located at a distance of 2 1/2 cms.
from each other.
There were two corresponding wounds of exit.
There was no blackening or charring around these wounds of entry.
This indicates that these injuries were caused by bullets fired almost simultaneously from two separate rifles from a distance beyond 6 feet.
This means at least the rifles fired by two of the three aforesaid accused did find their mark, causing instantaneous death of the deceased.
Now, both the courts below have concurrently found that Wasson Singh had a strong motive to murder Hazara Singh deceased.
This circumstance, by itself, is sufficient to lend the necessary assurance to the evidence of Resham Singh (P.W. 2) and Bachan Singh (P.W. 3) and make it a safe basis for convicting Wasson Singh accused for the murder of Hazara Singh.
The trial court had accepted the evidence of Resham Singh (P.W.2) in regard to the quarrel over cattle trespass that took place 3 or 4 days prior to these murders between Mukhtar Singh and Harbhajan Singh accused on one side, and Hazara Singh deceased and P.W. 2 on the other.
This story finds particular mention in the F.I.R. (exhibit PE) which was lodged by P.W. 2 without undue delay.
The High Court has rejected this story about this previous quarrel on the three fold ground, namely: (a) Gajjan Singh who interceded and pacified the parties has not been examined, (b) No evidence of the extent of damage done to the crop or of any complaint made to village Panchayat has been produced, (c) Bachan Singh (P.W.3), did not mention about this earlier incident in his police statement.
In our opinion, none of these was a valid ground for rejecting the evidence of Resham Singh (P.W.2) in regard to this incident.
Resham Singh 's consistent testimony on this point corroborated by the F.I.R. (exhibit PE) was sufficient to establish this fact beyond doubt.
Thus, it was proved by the prosecution that Mukhtar Singh accused had also a motive to join Wasson Singh accused in killing Hazara Singh.
The circumstance that Mukhtar Singh had also a motive to participate in the murder of Hazar Singh deceased lends assurance to the 632 testimony of Resham Singh (P.W.2) and Bachan Singh (P.W.3), and strengthens the inference of guilt against the said accused, also.
It is in the evidence of Sub Inspector Bishamber Lal (P.W.13) that Mukhtar Singh was arrested on August 18, 1973 and on August 31, 1973 Mukhtar Singh accused, whilst under Police custody, made a disclosure statement in the presence of Ajit Singh and Sardul Singh Constables, that he had kept concealed a 303 rifle with 5 cartridges wrapped in a piece on cloth in a bundle of reeds lying inside the courtyard of his house at village Thathiwala and he could get the same discovered.
P. W. 13 recorded that statement (exhibit P 1).
Thereafter, the accused was taken to village Thathiwala where he led the Sub Inspector in the presence of Sardul Singh and Ajit Singh Constables, to that bundle and got discovered the rifle (exhibit P7) and the cartridges (exhibit P8 to 12) therefrom.
The Sub Inspector prepared the sketch of the rifle and the memo (exhibit PM) which was attested by the aforesaid Constables.
The rifle and the cartridges were sealed into parcels and were thereafter sent through Constable Ajit Singh, with seals intact, to the Police Station where they were received by the Moharrir Head Constable Natha Singh (P.W. 10).
P.W. 13 has also, stated that he had on August 4, 1973 on inspecting the scene of murders, found two empty cartridges (exhibit
P3 and exhibit P4) from near the dead body of Hazara Singh.
The witness took them into possession and sealed them into a parcel in the presence of Anokh Singh and Gajjan Singh witnesses, and prepared the memo (exhibit PG).
The parcel containing the empties was later deposited by the Sub Inspector, with seals in tact, in the Malkhana of the Police Station.
The evidence of Sub Inspector Bishamber Lal, with regard to the seizure of the empty (crime) cartridges from the scene of occurrence on August 4, was supported by Anokh Singh (P.W.4) who is an attesting witness of the memo, Ex.PG.
The witness is a resident of village Cheema.
In cross examination, he revealed that these two fired cartridges were lying at a distance of 1.5 karams (8 or 9 feet) from the dead body of Hazara Singh.
Nothing was brought out in cross examination to show that the witness was in any way interested in the prosecution or was related to the deceased or had any animus against the accused.
Thus, it has been clearly proved that two fired cartridges were picked up from the scene of crime and sealed into parcels which were later deposited with seals intact in the Police Station.
In the memo (exhibit PG), it is mentioned that these fired cartridges were of 303 bore rifle.
633 Ajit Singh Moharrir Head Constable (P.W.11) swore in his affidavit that on August 4, 1973, he received the sealed parcel of 2 empty cartridges from Sub Inspector Bishamber Lal.
The seals on the parcel remained intact so long as the parcel remained in his custody.
Then, there are the affidavits of Avtar Singh Constable (P.W. 9) and Natha Singh Moharir Head Constable showing that on September 24, 1973, the sealed parcels containing the rifle (exhibit P7) and the five live cartridges were sent through P.W. 9 to the Forensic Science Laboratory Chandigarh, who delivered the same in the said Laboratory with seals intact.
The evidence of P.W. 13 regarding the discovery of the rifle (exhibit P7) from Mukhtar Singh accused was fully corroborated by Constable Sardul Singh (P.W. 12).
His cross examination reveals that Mukhtar Singh was interrogated in the Police Station at 4 5 A.M. when he made the statement (exhibit PL), leading to the discovery of the rifle (exhibit P7).
Sub Inspector Bishamber Lal (P.W. 13) has stated that the sealed parcel containing the empty cartridges, that had been found at the scene of crime, was sent to the Forensic Science Laboratory Chandigarh at a date earlier than the one on which the parcel containing the rifle (exhibit P7) and the five live cartridges was sent to the said Laboratory, but it was returned with the objection that it should have been sent along with the test cartridges.
Consequently, this parcel containing the empties was again sent to the Forensic Laboratory along with the sealed parcel containing the rifle (exhibit P7) and the live cartridges recovered from Mukhtar Singh accused.
In the Report (exhibit PQ) of the Ballistic Expert (L. A. Kumar) which was tendered in evidence and admitted without objection, it is opined that the empty (crime) cartridge, marked C1, had been fired through the rifle (exhibit P7).
In cross examination, the defence suggested to P.W. 13, that he had purposely recalled the parcel containing the empty cartridges from the Forensic Science Laboratory for creating evidence against the accused and he did so by firing one cartridge through the rifle (exhibit P7).
The oblique suggestion was that the cartridge, marked C1 which in the opinion of the Ballistic Expert had been fired through the rifle (exhibit P7) was substituted for the original empty cartridge that had been found at the scene of murder.
The Sub Inspector emphatically denied the suggestion.
It was further suggested to P.W. 13 that the rifle (exhibit P7) had, in fact, been handed over to the Police by the relations of the deceased after procuring it from some source.
This was also stoutly denied by P.W. 13.
634 The learned trial Judge discarded this evidence relating to the discovery of the rifle (exhibit P7) at the instance of the accused, Mukhtar Singh, for the reason that Sub Inspector Bishamber Lal, for no good reason, had failed to join respectables of the locality to witness the discovery of the rifle, and that he (P.W. 13) "has tried to be a defence witness rather than the investigating officer".
The trial Judge accepted Anokh Singh 's statement regarding the recovery of the two fired cartridges from the scene of Hazara Singh 's murder on August 4, but he adversely commented on the conduct of Bishamber Lal in delaying the despatch of those crime cartridges to the Forensic Science Laboratory Chandigarh till after the recovery of the rifle.
He observed: "In all probability, Sub Inspector Bishamber Lal wanted to help the accused by creating suspicion with respect to the identity of the firing impressions" (on the empties).
For this reason, according to the trial Judge, the ballistic evidence "will not be corroborative evidence for the prosecution.
" We agree with the trial Court that the investigating officer did not deliberately join with him respectables of the locality to attest the statements (exhibit PL) made by Mukhtar Singh, and to witness the sub sequent discovery of the rifle (exhibit P7) at the instance of Mukhtar Singh.
There was substance in the observation of the trial Judge that the investigation was biased in favour of the accused.
If that was so, the failure of Bishamber Lal (P.W. 13) to join with him respectables of the locality was, by itself, no ground for ruling out the evidence of the discovery of the rifle, altogether.
The partiality of Bishamber Lal towards the defence, rather assures the genuineness of the discovery He was least disposed to 'collaborate ' or 'cooperate ' with the relations of the deceased to procure this rifle (exhibit P7) from some other source and then foist it on Mukhtar Singh.
For the same reason, it is not possible to hold that he recalled the sealed parcel containing the fired (crime) cartridges from the Laboratory at Chandigarh, for substituting a cartridge fired through the rifle (exhibit P7) or for fabricating evidence in support of the prosecution.
Moreover, the parcel containing the two empties must have been returned by the Director of the Forensic Laboratory on his own initiative and not at the instance of the Sub Inspector (P.W. 13).
The omission on the part of this investigating officer to join with him some independent persons or respectables of the locality to witness the recovery devalues that evidence but does not render it inadmissible.
Although a suggestion of "planting" the rifle, and fabricating the evidence of the empty cartridge (C1) was put to Sub Inspector Bishamber Lal in cross examination, no such allegation was 635 made, nor any such plea was set up by Mukhtar Singh accused when the evidence relating to the recovery of the two empties from the spot, the discovery of the rifle (exhibit P7) at his instance and the opinion (exhibit PQ) of the Ballistic Expert was put to this accused in his examination under Section 342, Cr.
P.C. The circumstance of the recovery of the rifle (exhibit P7) and the opinion of the Ballistic Expert that the empty cartridge (marked C1) (found on August 4, at the scene of murder) had been fired through the rifle (exhibit P7), though feeble it might be was relevant and furnished a further pointer to the participation of Mukhtar Singh in the commission of Hazara Singh 's murder by rifle fire.
In sum, sufficient assurance of the testimony of P.W. 2 and P.W. 3, was available from the circumstantial evidence discussed above, regarding the participation of Wasson Singh and Mukhtar Singh accused in the murder of Hazara Singh.
The evidence of the eyewitnesses therefore, could safely be acted upon for convicting Wasson Singh and Mukhtar Singh accused respondents for the murder of Hazara Singh.
But such assurance of the evidence of these eyewitnesses was not available against the remaining accused regarding either of the murders in question.
Joginder Singh accused admittedly was not present when the quarrel over cattle trespass took place between Hazara Singh deceased and P.W. 2 on one side, and Mukhtar Singh and Harbhajan Singh accused on the other.
It has neither been alleged nor proved that Joginder Singh had any motive of his own to murder Hazara Singh deceased.
Although, the investigation betrays a tilt in favour of the accused, and P.W. 13 made a fraudulent insertion in the zimini to help Joginder Singh accused, it cannot be said that the version of P.W. 13 to the effect that when he went to the scene of murders at 5.30 P.M., he found Joginder Singh irrigating his nearby fields at a distance of about 100 yards therefrom and he (P.W. 13) interrogated him there and then, but did not think it necessary to arrest him, is necessarily false.
The absence of motive, and the presence of Joginder Singh near the scene of crime shortly after the murders, engaged in normal agricultural activities does cast a doubt about his participation in the commission of these murders.
P.W. 2 and P.W. 3 have stated that they started running away from the spot, immediately after Hazara Singh was shot dead.
The surrounding circumstances, natural probabilities and the normal course of human conduct also suggest the same inference, that 636 immediately on seeing Hazara Singh being shot down, these witnesses who were following Hazara Singh, ran fast for their lives.
Had they tarried for a while at the scene of Hazara Singh 's murder, it would have been too late for them to escape unhurt.
In such a situation, when they were being pursued by persons armed with fire arms, they could, if at all they turned and looked behind have only a fleeting glimpse in the distance of the assailants of Resham Singh deceased.
That is why, Resham (P.W. 2) is not consistent in his statements as to which of the accused had fired at him when he was running away for his life.
Moreover, it has not been established that any of the six accused had any motive, whatever, to murder Resham Singh deceased.
For the foregoing reasons, we partly allow this appeal by the State, set aside the acquittal of Wassan Singh and Mukhtar Singh accused (respondents) and convict them under Section 302 read with Section 34, Penal Code for the murder of Hazara Singh deceased and sentence each of them to imprisonment for life.
We would, however, accord the benefit of doubt to the rest of the accused (respondents) and maintain their acquittal on all the counts.
Wasson Singh and Mukhtar Singh shall surrender to their bail bonds to serve out the sentences inflicted on them.
N.V.K. Appeal partly allowed.

dataset_name: IN-Abs

summary/full:
The prosecution case against the six accused (Respondents) was that prior to the incident in question, there was an altercation between the two deceased on one side and the six accused on the other over trespass of cattle of the accused persons on the land of the deceased, which damaged his cotton crop.
On the day of the incident when P.W. 2, P.W. 3 and the two deceased were going by a foot path, the six accused suddenly emerged out of a field and fired.
The two deceased fell dead, while P.W. 2 and 3 ran and escaped unhurt.
P.W. 2 reached the bus stand, picked up his motor cycle parked at a shop and drove to the nearest police station to lodge the F.I.R.
The Additional Sessions Judge found that one of the accused had a strong motive to murder one of the deceased because of an old feud and that on account of this ill will, some of the accused had a strong motive in joining hands with the others to murder the deceased, but that no motive could be established for murdering the second deceased.
He also found that the fact that the F.I.R. was lodged by P.W. 2 with the utmost promptitude furnished valuable corroboration of his evidence and also disbelieved the evidence of the police Sub Inspector (P.W. 13).
In the result he convicted all the six accused under section 302 read with section 149 I.P.C. for murder of one of the deceased and sentenced them to imprisonment.
In the case of first accused however, he was sentenced to death for the murder of one of the deceased.
All the accused appealed against their conviction and sentence to the High Court which allowed the appeal and rejected the reference.
It rejected the evidence of the eye witnesses, P.W. 2 and P.W. 3 on the ground that these witnesses were closely related to the first deceased who was the principal target of the accused and that it had not been satisfactory established by the prosecution that the other five accused had any motive to commit the murders in question.
It found that the prosecution story was highly unnatural and that the presence of the two eye witnesses alongwith the deceased persons was un 616 likely.
It further held there was material inconsistency in their testimony, as to when the first deceased and P.W. 2 had left the hamlet, and that the investigation of the case conducted by the Sub Inspector (P.W. 13) did not inspire confidence.
In the appeal by the State to this Court it was contended on behalf of the State that the reasoning of the High Court was manifestly unsound, if not wholly perverse.
The fact that the F.I.R. was lodged by P.W. 2 with utmost promptitude and all the material facts including the names of the accused and of the witnesses having been mentioned therein, indicated that there was no time to concoct a false story.
On behalf of the respondents it was submitted that the acquittal could not be disturbed, as the reasons given by the High Court could not be called perverse.
^ HELD : 1(i) The acquittal of respondent Nos. 1 and 2 are set aside and they are convicted under section 302 read with section 34 Indian Penal Code for the murder of the first deceased and sentenced to imprisonment for life.
The benefit of doubt to the rest of the accused (respondents) and their acquittal on all the counts maintained.
[636 C D] (ii) Sufficient assurance of the testimony of P.W. 2 and P.W. 3 was avail able from the circumstantial evidence regarding the participation of respondents Wasson Singh and Mukhtar Singh in the murder of deceased Hazara Singh.
The evidence of the eye witnesses therefore, could safely be acted upon for convicting these respondents for the said murder.
[635 C D] 2.
The reasons given by the High Court for holding that P.W. 2 was not an eye witness of these two murders are utterly unsustainable.
The reason that P.W. 2 had succeeded in escaping unhurt, or that there are discrepancies in the statements of P.W. 2 and P.W. 3 as to whether they had gone with the deceased on the very day of occurrence or a day earlier was no ground for the conclusion that P.W. 2 was not in the company of the deceased or near about the scene of occurrence when the two deceased were shot dead.
[626 F G] 3.
Discrepancies in regard to collateral or subsidiary facts or matters of detail occur even in the statements of truthful witnesses, particularly when they are examined to depose to events which happened long before their examination.
Such discrepancies are hardly a ground to reject the evidence of the witnesses when there is general agreement and consistency in regard to the substratum of the prosecution case.
[626H 627A] In the instant case the occurrence took place on August 4, 1973, while P.W. 2 and P.W. 3 were examined at the trial on December 27, 1974 i.e. seventeen months after the incident.
The trial court has rightly observed that P.W. 2 was never cross examined by the defence regarding his whereabouts and those of the deceased on the previous night.
The mere fact that P.W. 2 did not make any purchase at Amarkot could hardly be a reason to hold that his being in the company of the deceased at the material time was improbable.
[626G, 627B] 4.
P.W. 3 is the brother and P.W. 2 relation of the deceased.
All three were living together in the same hamlet in the fields.
It is in the evidence of 617 these witnesses that the other accused are partymen of respondent No. 1.
It is further in evidence that sometime before the occurrence both the deceased and P.W. 2 were arrested and handcuffed by a police Sub Inspector on the allegation that they were indulging in smuggling and would be liquidated.
It was, therefore, not improbable that this trio consisting of first deceased, P.W. 2 and P.W. 3 were as usual moving about or carrying on their activities together.
Moreover the deceased must have known that Respondent No. 1 who was inimically disposed towards him was at large on bail.
This was an added reason for this troika to move about for their security, if not for anything else, in the company of each other.
[627C F] 5.
(i) The High Court has not all dealt with the First Information Report or the promptitude with which it was made.
[628D] (ii) The towering circumstance which lends assurance to the claim of P.W. 2 that he was an eye witness of the occurrence is that the First Information Report was lodged by him at the Police Station so promptly that he had practically no time to spin out a false story.
The reason employed by the High Court for disbelieving the version of P.W. 2 regarding his owning and going on a motor cycle to the Police Station was manifestly unsound.
The Sub Inspector P.W. 13 was not questioned in cross examination as to whether or not P.W. 2 had come to the Police Station on a motor cycle.
He was, however, questioned as to what transport he had used for going from the Police Station to the scene of murders.
The witness replied that he went on a motor cycle upto Amarkot and from there went on foot to the scene of occurrence.
This explanation of P.W. 2 regarding the kacha path from Amarkot to the scene of occurrence, being non motorable on the day of occurrence, receives inferential support from the fact appearing in the evidence of P.W. 13 that he had to cover the distance from Adda Amarkot to the place of occurrence, on foot.
[627H, 629E, 628G 629A] 6.
The conduct of the Investigation Officer (P.W. 13) indicates that he was not favourably disposed to the deceased and P.W. 2.
A suggestion was also put to P.W. 13 by the Public Prosecutor that he had been unfair in the investigation of the case and tried to favour the 3rd and 4th respondent.
The High Court found that the note in the zimini was a fraudulent insertion.
This being the case, Sub Inspector (P.W. 13) would be least disposed to join hands with P.W. 2 informant in preparing the First Information Report, after deliberation with P.W. 2 at the spot.
[629F H] 7.
The opinion of the medical witness P.W. 1 corroborates the version of P.W. 2 in as much as the latter has testified that the murders took place at about 3.30 p.m.
This means that the statement of P.W. 2 in the F.I.R. was made without undue delay, and, as such, furnished very valuable corroboration of his testimony at the trial in all material particulars.
[630B C] 8.
(i) Both P.W. 2 and P.W. 3 are related to the deceased, and as such are interested witnesses.
Their antecedents, also, are of a questionable nature.
But their antecedents or mere interestedness was not a valid ground to reject their evidence.
All that was necessary for the Court was to scrutinise their evidence with more than ordinary care and circumspection with reference to the part or role assigned to each of the accused.
An effort should have been made to sift the grain from the chaff; to accept what appeared to be true and to reject the 618 rest.
The High Court did not adopt this methodology in appreciating their evidence.
Instead it took a shortcut to disposal and rejected their evidence whole sale against all the accused for reasons which are manifestly untenable.
[630E G] (ii) Excepting for immaterial discrepancies the evidence of P.W. 2 and P.W. 3 was consistent and their presence at the time and place of murders was probable.
Even so, as a matter of abundant caution it will be safe to act on their interested evidence to the extent to which some assurance is coming forth from surrounding circumstances or other evidence.
[630H 631A] 9.
The prosecution has proved that the respondent No. 2 had also a motive to participate in the murder of the second deceased.
This lends assurance to the testimony of P.W. 2 and P.W. 3 and strengthens the inference of guilt against the said accused also.
P.W. 2 's consistent testimony corroborated by the F.I.R. was sufficient to establish this fact beyond doubt.
[631H 632A] 10.
It had been clearly proved that two fired cartridges were picked up from the scene of crime and sealed into parcels which were later deposited with seals intact in the Police Station.
On the memo it is mentioned that these fired cartridges were of 303 bore rifle.
[632H] 11.
There was substance in the observation of the trial Judge that the investigation was biased in favour of the accused.
If that was so, the failure of P.W. 13 to join with him respectables of the locality was by itself no ground for ruling out the evidence of the discovery of the rifle, altogether.
The partiality of P.W. 13 towards the defence, rather assures the genuineness of the discovery.
He was least disposed to 'collaborate ' or cooperate with the relations of the deceased to procure this rifle from some other source and then foist it on respondent Mukhtar Singh.
The omission on the part of this Investigating Officer to join with him some independent persons or respectables of the locality to witness the recovery devalues that evidence but does not render it inadmissible.
[634D F, H] 12.
The circumstance of the recovery of the rifle (exhibit P. 7) and the opinion of the Ballistic Expert that the empty cartridge (C1) had been fired through the rifle though feeble it might be was relevant and furnished a further pointer to the participation of Mukhtar Singh in the commission of Hazara Singh 's murder by rifle fire.
[635B] 13.
Although the investigation betrays a tilt in favour of the accused, and P.W. 13 made a fraudulent insertion in the zamini to help Joginder Singh accused, it cannot be said that the version of P.W. 13, that when he went to the scene of murders at 5.30 p.m. he found Joginder Singh irrigating his nearby fields at a distance of about 100 yards therefrom and he interrogated him there and then but did not think it necessary to arrest him is necessarily false.
The absence of motive and the presence of Joginder Singh near the scene of crime shortly after the murders, engaged in normal agricultural activities does cast a doubt about his participation in the commission of these murders.
[635 F G] 14.
P.W. 2 and P.W. 3 have stated that they started running away from the spot, immediately after deceased Hazara Singh was shot dead.
The surrounding circumstances, natural probabilities and the normal course of human conduct 619 also suggest the same inference, that immediately on seeing Hazara Singh being shot down, these witnesses who were following him ran fast for their lives.
Had they tarried for a while at the scene of the murder, it would have been too late for them to escape unhurt.
In such a situation, when they were being pursued by persons armed with fire arms, they could if at all they turned and looked behind have only a fleeting glimpse in the distance of the assailants of Resham Singh deceased.
That is why P.W.2 is not consistent in his statements as to which of the accused had fired at him when he was running away for his life.
Moreover it has not been established that any of the six accused had any motive, whatever to murder Resham Singh deceased.
[635H 636C]


judgement:
N: Criminal Appeal No. 163 of 1979.
Appeal by Special Leave from the Judgment and Order dated 23 8 1978 of the Allahabad High Court in Criminal Appeal No. 1264/78 and Murder Reference No. 9/78.
R. C. Kohli for the Appellant.
O. P. Rana and K. K. Bhatta for the Respondent.
Yogeshwar Prasad and Mrs. Rani Chhabra for the Complainant.
773 The Judgment of the Court was delivered by CHANDRACHUD, C.J.
A college going boy called Vijay Bhan Kishore was shot dead on the morning of November 2, 1976 near the Hathi Park, Dayanand Marg, Allahabad.
The appellant was convicted for that offence under section 302 of the Penal Code by the learned Third Additional Sessions Judge, Allahabad and was sentenced to death.
The order of conviction and sentence having been confirmed by the High Court of Allahabad by its judgment dated August 23, 1979, the appellant has filed this appeal by Special Leave.
Vijay Bhan Kishore alias Pappoo was the son of an Advocate called Brij Bhan Kishore who died in about 1967 leaving behind a widow, three daughters and Pappoo.
The youngest of the three daughters was married while the two elder were working as school teachers.
Out of those two, Ranjana Kishore was a teacher in the St. Anthony 's Convent.
The appellant, Dudh Nath Pandey, who was a motor car driver by occupation, used to live as a tenant in an out house of a sprawling bungalow belonging to the family of the deceased, situated at 17, Stanley Road, Allahabad.
The appellant developed a fancy for Ranjana who was about 20 years of age when he came to live in the out house.
The overtures made by the appellant to Ranjana created resentment in her family and its only surviving male member, her brother Pappoo, took upon himself the task of preventing the appellant from pursuing his sister.
As a first step, the appellant was turned out of the out house.
Soon thereafter, he filed an application before the City Magistrate, Allahabad, asking for the custody of Ranjana, alleging that she was his lawfully wedded wife.
That application was dismissed by the learned Magistrate after recording the statement of Ranjana, in which she denied that she was married to the appellant.
The appellant thereafter filed a habeas corpus petition in the Allahabad High Court alleging that Ranjana was detained unlawfully by the members of her family, including her uncle K. P. Saxena, and asking that she be released from their custody.
Ranjana denied in that proceedings too that she was married to the appellant or that she was unlawfully detained by the members of her family.
The habeas corpus petition was dismissed by the High Court on November 8, 1973.
On August 1, 1975, the Principal of St. Anthony 's Convent made a complaint to the police that the appellant had made indecent overtures to Ranjana.
The appellant was arrested as a result of that complaint.
774 On November 1, 1976, Ranjana was having an evening stroll with her brother, the deceased Pappoo, in the compound of their house.
The appellant came there in a rickshaw, abused Pappoo and is alleged to have threatened to kill him, if he dared oppose his, the appellant 's marriage with Ranjana.
As a result of these various incidents and the family 's growing concern for Ranjana 's safety, Pappoo used to escort Ranjana every morning to the school where she was teaching.
On the following day, i.e. on November 2, 1976, Pappoo took Ranjana to her school on his scooter as usual.
The classes used to begin at 9 30 A.M. but Ranjana used to go to the school 30 to 40 minutes before time for correcting the students ' home work.
After dropping Ranjana at the school, Pappoo started back for home on his scooter.
While he was passing by the Children 's Park, known as the Hathi Park, the appellant is alleged to have fired at him with a country made pistol.
Pappoo fell down from his scooter and died almost instantaneously.
The occurrence is said to have been witnessed by Harish Chandra (P. W. 3), a domestic servant of the family of the deceased and by Harish Chandra 's friend Ashok Kumar (P. W. 1).
Harish Chandra used to live in the out house of the deceased 's bungalow at 17, Stanley Road, while Ashok Kumar, who generally lived at Kanpur, is said to have come to Allahabad the previous day in search of employment.
Almost immediately after Pappoo and Ranjana left the house on the scooter, Ashok Kumar and Harish Chandra too left the house as the former wanted to see the Hathi Park.
They were near about the gate of the park, which is a few steps away from the scene of occurrence, when the deceased Pappoo was passing along on his scooter, after dropping Ranjana at the St. Anthony 's Convent.
Ashok Kumar and Harish Chandra are alleged to have seen the appellant, who was standing near the northern boundary of the park, firing a shot at Pappoo.
The appellant re loaded his pistol and is said to have run away to wards the south east.
Ashok Kumar and Harish Chandra rushed to St. Anthony 's Convent in a rickshaw and informed Ranjana Kishore about the murder of her brother.
Ranjana went to the scene of incident along with them and on finding that her brother was dead, she went straight to the Cannington police station which is about 2 kms.
She wrote out the report (exhibit Ka 1) in her own hand and submitted it to the officer in charge of the police station at 9 45 A.M.
In the meantime, information of the murder had reached the police station of Colonelganj, within the 'jurisdiction ' of which the murder had taken place.
775 The police deserve a word of appreciation because they did not, as usual, enter into a squabble as to in whose 'jurisdiction ' the offence had taken place.
H. R. L. Srivastava, the sub inspector attached to Colonelganj police station, went within minutes to the scene of offence and, believing that Pappoo was alive, sent him in a jeep to the Tej Bahadur Sapru hospital.
A little later, P. section I. Chandrapal Singh of the Cannington police station arrived on the scene and started the investigation.
He took charge of an empty cartridge shell and the bloodstained earth and later, he sent the dead body of Pappoo for postmortem examination.
P. section I. Srivastava arrested the appellant at about 2 30 P.M. while he was standing near a pan shop in front of the Indian Telephone Industries, Naini, where he used to work.
The appellant was taken to the scene of offence where he made a certain statement and took out a loaded pistol from a heap of rubbish lying on the Kamla Nehru Road, being the direction in which he had run away after killing Pappoo.
The Ballistic expert, Budul Rai, opined that the empty cartridge shell, which was lying at the scene of offence, was fired from that particular pistol.
Dr. G. section Saxena, who conducted the postmortem examination found a single gun shot injury on the left side of the chest of the deceased, below the armpit.
The injury had caused seven pellet wounds, each measuring 1/3 inch in diameter.
Seven pellets were recovered from the body.
The injury, according to Dr. Saxena, was sufficient in the ordinary course of nature to cause death.
The appellant stated in his defence that he used to live in the house of the deceased as the guest of the family and not as a tenant and that Ranjana got intimate with him during that period.
He left the house because she told him that there was danger to his life.
The murder of Pappoo, according to the appellant, was engineered by Dr. K. P. Saxena, the maternal uncle of the deceased.
The appellant denied his hand in the murder, saying that he had no reason to do so since the deceased 's mother and the other members of the family desired that he should marry Ranjana.
The appellant examined five witnesses to prove his alibi, his contention being that he was on duty at the Indian Telephone Industries, right from 8 30 A.M. on the date of the incident and that he was arrested from inside the factory at about 2 30 P.M. while on duty.
776 The learned Additional Sessions Judge, Allahabad, examined the Deputy Superintendent of Police, R. P. Bhanu, and the General Manager of the Indian Telephone Industries as Court witnesses.
The prosecution examined 13 witnesses in support of its case that the appellant had committed the murder of Pappoo.
Ashok Kumar (P.W. 1) and Harish Chandra (P.W. 3) were examined as eyewitnesses to the incident.
Ranjana Kishore (P.W. 2) was examined to prove the motive for the murder as also for showing that the deceased Pappoo had taken her to the school on his scooter and that, soon thereafter, she was informed by the two eye witnesses of the murder.
Ram Kishore (P.W. 4) was examined to prove the arrest of the appellant and the recovery of the loaded pistol.
P. section I. Srivastava (P.W. 9) and P.S.I. Chandrapal Singh (P.W. 10) deposed about the various steps taken during the course of investigation.
Dr. G. section Saxena (P.W. 11) was examined in order to show the nature of the injuries suffered by the deceased while Budul Rai (P.W. 12) stated that the empty cartridge shell which was lying at the scene of offence was fired from the particular pistol which is stated to have been recovered at the instance of the appellant.
The other prosecution witnesses are mostly of a formal nature.
Were this a case of circumstantial evidence, different considerations would have prevailed because the balance of evidence after excluding the testimony of the two eye witnesses is not of the standard required in cases dependent wholly on circumstantial evidence.
Evidence of recovery of the pistol at the instance of the appellant cannot by itself prove that he who pointed out the weapon weilded it in offence.
The statement accompanying the discovery is woefully vague to identify the authorship of concealment, with the result that the pointing out of the weapon may at best prove the appellant 's knowledge as to where the weapon was kept.
The evidence of the Ballistic expert carries the proof of the charge a significant step ahead, but not near enough, because at the highest, it shows that the shot which killed Pappoo was fired from the pistol which was pointed out by the appellant.
The evidence surrounding the discovery of the pistol may not be discarded as wholly untrue but it leaves a few significant questions unanswered and creates a sense of uneasiness in the mind of a Criminal Court, the Court of conscience that it has to be: How could the appellant have an opportunity to conceal the pistol in broad day light on a public thoroughfare ? If he re loaded the pistol as a measure of self protection, as suggested by the prosecution, why did he get rid of it so quickly by throwing it near the Hathi Park itself ? And how come that the police hit upon none better that Ram Kishore (P.W. 4) to witness the discovery of the pistol ? Ram Kishore had already 777 deposed in seven different cases in favour of the prosecution and was evidently at the beck and call of the police.
But the real hurdle in the way of the appellant is the evidence of the eye witnesses: Ashok Kumar (P.W. 1) and Harish Chandra (P.W. 3).
Shri R. C. Kohli who appears for the appellant made a valiant attempt to demolish their evidence but in spite of the counsel 's able argument, we find it difficult to hold that the eye witnesses have perjured themselves by claiming to be present at the time and place of the occurrence.
It is true that Harish Chandra, who was working as a domestic servant with the deceased 's family, should normally have been doing his daily morning chores.
Few masters would permit a household servant to go away on a sight seeing spree right in the morning.
But there are at least two plausible reasons which lend assurance to the claim that Harish Chandra left the house almost immediately after the deceased Pappoo drove away with his sister Ranjana.
Ashok Kumar had come to Allahabad the previous evening and he wanted to go to the Hathi Park where, though it is called a children 's park, adults too find their merriment.
There is nothing fundamentally improbable in Ashok Kumar coming to Allahabad in search of employment and equally, nothing inherently strange in the two friends going out on a frolic.
And though a small consideration, it is relevant that the normal morning routine of Harish Chandra was to help in the kitchen but the 2nd November, 1976 was an Ekadashi day and therefore, there was not much to do for him.
The second reason is more weighty and almost clinches the issue.
The evidence of Ranjana (P.W. 2) shows beyond the manner of doubt that Harish Chandra and Ashok Kumar broke to her the news of her brother 's murder, while she was in the school.
The events after the murder happened in such quick succession that there was no time for any one to contrive and confabulate.
Within ten minutes of the occurrence, Ranjana was informed of the incident by the two eyewitnesses and within a few moments thereafter she went to the scene of the tragedy.
Her F.I.R. (exhibit Ka 1) was recorded at the police station at 9 45 a.m. A fact of preponderating importance is that the story which Ranjana disclosed in the F.I.R. is precisely the same as the witnesses, including herself, narrated in the Court.
The F.I.R. is a brief document of a page and half.
But it is remarkable that it mentions (1) that the appellant wanted to marry Ranjana and was harassing her towards that end; (2) that there was a quarrel between the appellant and Pappoo the previous evening, in which the former gave a threat of life to the latter (3) that Ranjana left for the school on the day of occurrence at 8 45 A.M.; and (4) that soon thereafter Harish 778 Chandra and Ashok Kumar met her at the school and conveyed to her that they had gone to see the Hathi Park when, while Pappoo was passing along the road, the Appellant fired a shot at him.
We consider it beyond the normal range of human propensities that Ranjana could have built up the whole story within three quarters of an hour which intervened between the time that she learnt of her brother 's murder and the lodging by her of the F.I.R. She could not have taken the risk of creating a false witness by placing Ashok Kumar, who normally, resided in Kanpur, alongside Harish Chandra.
With the death of her brother, her own house was left without a male member.
At home was an ailing mother and two other sisters, more or less of her own age.
There was no one to advise her upon the hatching of a conspiracy to involve the appellant and she could not have been in a proper frame of mind to do anything of the kind on her own.
Her inexperience of life, the promptness with which she gave the F.I.R. and the wealth of details she mentioned therein afford an assurance that the story of the eye witnesses is true in so far as it goes.
Shri Kohli 's submission that Ranjana 's F.I.R. is anti timed and must have been recorded late in the evening leaves us cold.
Shri Kohli has pointed a defect here and an improbability there in the evidence of the eye witnesses but it has to be borne in mind that the Trial Court and the High Court have concurrently believed that evidence.
We do not suggest that the mere circumstances that two or more courts have taken the same view of facts shuts out all further inquiry into the correctness of that view.
For example, concurrence is not an insurance against the charge of perversity though a strong case has to be made out in order to support the charge that findings of fact recorded by more than one court are perverse, that is to say, they are such that no reasonable tribunal could have recorded them.
The merit of the normal rule that concurrent findings ought not to be reviewed by this Court consists in the assumption that it is not likely that two or more tribunals would come to the same conclusion unless it is a just and fair conclusion to come to.
In the instant case, the view of the evidence taken by the Sessions Court and the High Court is, at least, a reasonable view to take and that is why we are not disposed, so to say, to re open the whole case on evidence.
We have indicated briefly why we consider that the eye witness account accords with the broad probabilities of the case.
Counsel for the appellant pressed hard upon us that the defence evidence establishes the alibi of the appellant.
We think not.
The evidence led by the appellant to show that, at the relevant time, he was on duty at his usual place of work at Naini has a certain amount 779 of plausibility but that is about all.
The High Court and the Sessions Court have pointed out many a reason why that evidence cannot be accepted as true.
The appellant 's colleagues at the Indian Telephone Industries made a brave bid to save his life by giving evidence suggesting that he was at his desk at or about the time when the murder took place and further, that he was arrested from within the factory.
We do not want to attribute motives to them merely because they were examined by the defence.
Defence witnesses are entitled to equal treatment with those of the prosecution.
And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses.
Quite often, they tell lies but so do the prosecution witnesses.
Granting that D. Ws. 1 to 5 are right, their evidence, particularly in the light of the evidence of the two Court witnesses, is insufficient to prove that the appellant could not have been present near the Hathi Park at about 9 00 A.M. when the murder of Pappoo was committed.
The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place.
The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed.
The evidence of the defence witnesses, accepting it at its face value, is consistent with the appellant 's presence at the Naini factory at 8 30 A.M. and at the scene of offence at 9.00 A.M.
So short is the distance between the two points.
The workers punch their cards when they enter the factory but when they leave the factory, they do not have to punch the time of their exit.
The appellant, in all probability, went to the factory at the appointed hour, left it immediately and went in search of his prey.
He knew when, precisely, Pappoo would return after dropping Ranjana at the school.
The appellant appears to have attempted to go back to his work but that involved the risk of the time of his re entry being punched again.
That is how he was arrested at about 2 30 P.M. while he was loitering near the pan shop in front of the factory.
There is no truth in the claim that he was arrested from inside the factory.
That settles the issue of guilt.
We agree with the view of the High Court and the Sessions Court and uphold the appellant 's conviction under section 302 of the Penal Code.
The question of sentence has gravely agitated our minds.
A young college going boy was murdered because he was trying to wean away his sister from the influence of the appellant who had set his heart upon her.
But there are two reasons why we are not disposed to confirm the death sentence.
In the first place, the appellant was smarting 780 under the insult hurled at him by the deceased Pappoo, the previous evening.
As stated by Ranjana in the F.I.R., when the appellant proclaimed his determination to marry her, Pappoo retorted: "You are a man of two Paisa 's worth.
How can you dare to marry my sister ? I will break your hands and feet.
" A poor motor car driver that the appellant was, he must have been offended enormously that his poverty was being put up as the reason why Ranjana would not be allowed to marry him.
The dispute thus assumed the proportions of a feud over social status, the poor man fretting that the rich man 's daughter would not be allowed to marry him for the mere reason that he did not belong to an equal class of society.
And it is evident that he believed, rightly or wrongly, that Ranjana was not unwilling to take him as a husband.
It is in the immediate background of the previous evening 's incident that the question of sentence has perforce to be considered.
That incident cannot certainly be considered as affording "sudden" provocation to the appellant for the crime committed by him the next morning and, therefore, it cannot reduce the offence of murder into a lesser offence.
But, the mental turmoil and the sense of being socially wronged through which the appellant was passing cannot be overlooked while deciding which is the appropriate sentence to pass, the rule being that for the offence of murder, the normal sentence is the sentence of life imprisonment and not of death.
Secondly, Harish Chandra and Ashok Kumar do not appear to have revealed the whole truth to the Court.
If the appellant had fired a shot at Pappoo while the latter was driving along on his scooter, and if Pappoo, as is alleged, dropped dead, his scooter would have dragged him ahead and in that process he would have received some injury.
The scooter too would have been damaged, howsoever slightly.
But it is strange that apart from the gun shot wound, Pappoo had no other injury on his person except an abrasion on the left side of the chest which was evidently caused by the gun shot itself.
The scooter was not dragged at all, except for the mark of pellets.
And, most importantly, the scooter was not lying on the road but was "standing".
Pappoo seems to have stopped on seeing the appellant and quite clearly, there was an exchange of hot words between them which culminated in Pappoo 's murder.
The death of the brave, young lad which has deprived the family of the succour of its only male member is to be deeply lamented.
But, if witnesses on whose evidence the life of an accused hangs in the balance, do not choose to reveal the whole truth, the Court, while dealing with the question of sentence, has to step in interstitially and take into account all reasonable possibilities, having regard to the normal and natural course of human affairs.
781 Since a part of the crucial event has been screened from the Court 's scrutiny and the possibility of an altercation between the appellant and the deceased cannot reasonably be excluded, we consider it unsafe to sentence the appellant to the extreme penalty.
In the result, we confirm the conviction of the appellant under section 302 of the Penal Code but set aside the sentence of death imposed upon him.
We sentence the appellant to imprisonment for life.
The appeal is, accordingly, allowed partly.
P.B.R. Appeal allowed partly.

summary/full:
The prosecution alleged that when the appellant, a motor car driver who was living as a tenant in the out house of the bungalow belonging to the family of the deceased, developed a fancy for the sister of the deceased.
His overtures created resentment in the family and the deceased took upon himself the task of preventing the appellant from pursuing his sister.
The appellant 's effort to take custody of the deceased 's sister through legal proceedings had failed; sometime later on a complaint to the police that the appellant had been making indecent overtures towards her he was arrested.
A day before the day of the occurrence the appellant was alleged to have threatened to kill the deceased if he opposed his (appellant 's) marriage with his sister.
It was further alleged that while the deceased was returning home on his scooter after leaving his sister in the school where she was working as a teacher, the appellant fired a shot at him with a pistol at which the deceased fell dead instantaneously.
He was convicted under section 302 I.P.C. and sentenced to death.
The order of conviction and sentence was confirmed by the High Court.
On the question of sentence ^ HELD: 1.
The Sessions Court and the High Court were right in convicting the appellant under section 302 I.P.C. [779 G] (a) The mere circumstance that two or more courts have taken the same view of facts does not shut out all further inquiry into the correctness of that view.
Concurrence is not an insurance against the charge of perversity though a strong case has to be made out in order to support the charge that findings of fact recorded by more than one court are perverse.
The merit of the normal rule that concurrent findings ought not to be reviewed by this Court consists in the assumption that it is not likely that two or more tribunals would come to the same conclusion unless it is a just and fair conclusion to come to.
[718 E G] 2.
While dealing with the question of sentence for the offence of murder, the normal sentence is the sentence of life imprisonment and not of death.
If in a same conclusion unless it is a just and fair conclusion to come to.
[778 E G] 772 balances do not choose to reveal the whole truth the Court while dealing with the question of sentence has to step in interstitially and take into account all reasonable possibilities having regard to the normal and natural course of human affairs.
In the instant case it would be unsafe, on the evidence on record, to sentence the appellant to the extreme penalty of death.
[780 H] The appellant, a poor motor car driver, must have been offended enormously when the deceased abused him that he was a man of two paise worth and that if he attempted to marry his sister he would break his hands and feet and that his poverty was being put up as the reason why his sister would not be allowed to marry him.
The dispute thus assumed proportions of a fued over social status.
The poor man was fretting that the rich man 's daughter would not be allowed to marry him for the mere reason that he did not belong to an equal class of society.
The appellant, rightly or wrongly, believed that the girl was not unwilling to marry him.
The incident of the previous evening could not be considered as affording "sudden" provocation to the appellant for the crime committed by him on the following morning.
It cannot reduce the offence of murder into a lesser offence, but the mental turmoil and the sense of being socially wronged through which the appellant was passing could not be overlooked while deciding the appropriate sentence.
[780 B D] Secondly the fact that, apart from the gun shot wound, the deceased had no other injury on his person except an abrasion on the left side of the chest evidently caused by the gun shot itself coupled with the fact that the scooter was found "standing" on the road showed that the deceased stopped on seeing the appellant and that there was an exchange of hot words between them culminating in the murder.
But since in the present case a part of the crucial evidence had been screened from the Court 's scrutiny the possibility of an altercation between the appellant and the deceased cannot reasonably be excluded.
[780 F H] (3) The evidence of the defence witnesses has failed to establish the alibi of the appellants.
The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place.
The plea therefore succeeds only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed.
But in the present case the evidence of the defence witnesses, accepting it at its face value, is consistent with the appellant 's presence at the factory at the appointed hour and half an hour later at the scene of offence.
So short is the distance between the two points.
[778 H; 779 D]