TMI Blog1981 (1) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sham Singh deceased persons. He also took into possession blood-stained earth 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 (Ex. 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 Ex. 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 accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urder 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ex. 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 (Ex. 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 (Ex. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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. (Ex. P.E.) was lodged by him at Police Station Valtoha, so promptly that he had practically no time to spin out a false story. 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. (Ex. 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 Ex. PE, bears out that the copy of the First Information was in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 toward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ends assurance to the 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 (Ex. 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 (Ex. P7) and the cartridges (Ex. P8 to 12) therefrom. The Sub-Inspector prepared the sketch of the rifle and the memo (Ex. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fle (Ex. 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 (Ex. 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 (Ex. P7) and the live cartridges recovered from Mukhtar Singh accused. In the Report (Ex. 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 (Ex. 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 (Ex. P7). The oblique suggestion wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 (Ex. 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 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 (Ex. P7) at his instance and the opinion (Ex. PQ) of the Ballistic Expert was put to this accused in his examination under Section 342, Cr. P.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. Appeal partly allowed. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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