TMI Blog1951 (11) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... and the accused Bheru Singh because Shiv Singh hit Hate Singh's young brother-in-law aged 12. There was some abuse Bheru Singh fired at Shiv Singh with a gun and hit him. Shiv Singh, though wounded, rushed at Bheru Singh with a lathi. The appellant Hate Singh, who also had a gun, thereupon intervened and fired at Shiv Singh and hit him. The result was that Shiv Singh dropped dead. 3. The medical evidence discloses that Shiv Singh had three gunshot wounds in his body, all in front: two on the chest and one in the stomach. All three wounds were on the left side of the front of the body. One of the shots penetrated the heart; the second was 2 1/2 inches from the left nipple and tore the spleen; the third, was on the left side of the umbilicus. Dr. Shukla, P. W. 16, tells us that any one of the three injuries would have proved fatal in itself. He also tells us that all three wounds could be caused by a single discharge from a gun. 4. Unfortunately, none of the shots or the bullets have been recovered. If they had been recovered we would the more easily have been able to determine whether they were fired from one gun or two. One of the guns used was a breech-loading double b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he could have denied. If the idea of the two brothers was to set up a false story so that one alone should suffer and the other go free, they could hardly have chosen a more dangerous version. On the face of it therefore their stories have about them a ring of truth. 8. Now the statements of an accused person recorded under Sections 208, 209 and 342, Criminal P. C. are among the most important matters to be considered at the trial. It has to be remembered that in this country an accused, person is not allowed to enter the box and speak on oath in his own defence. This may operate for the protection of the accused in some cases but experience elsewhere has shown that it can also be a powerful and impressive weapon of defence in the hands of an innocent man. The statements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness-box. They have to be received in evidence and treated as evidence and be duly considered at the trial (Sections 287 and 342). This means that they must be treated like any other piece of evidence coming fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found in an unloaded condition. The muzzle loader, unless it was already empty, would still be loaded. Now it has been accepted through out that Art. E, the muzzle loader, was found loaded. The question is about Art. D. 13.The seizure memo, Ex. P-8, states that the double barrel gun had one barrel loaded and one barrel empty and that the single barrel muzzle loader was loaded. This was questioned by the accused and one of the witnesses to the seizure Vajeram (P. W. 13) was cross-examined on the point He admitted in his cross-examination that only one gun was found loaded but could not remember which. The other witness Ramsingh, P. W. 12, said Art. E was found loaded but said nothing about the state of the other gun. These witnesses were examined on 25-1-1950. The Sub-Inspector Thakre (P. W. 17) was examined after this on 30-5-1950 and so had ample time to look into this matter, but he does not contradict Vajeram and does not say that he is wrong. He omits to tell us anything about the state of the guns when found. As Vajeram's statement accords with the defence version in a very material and important particular, and as he is not contradicted by the very person who ought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to know whether both barrels were fouled in Art. D or only one, and whether the barrel of Art. E was at all fouled. 16. These, in our opinion, are the salient features of the case which must be accepted as established beyond dispute. They all accord with the defence story. We have therefore to examine the evidence of the prosecution with more than usual care. 17. Deoji, P. W. 1, is the first eye-witness. He says he was present when the quarrel started and was near enough to take the deceased Shiv Singh by the hand and to try and dissuade him from continuing the quarrel. He was therefore close enough to observe which accused carried which gun and, to begin with, he tells us that Hate Singh had the single barrel gun and Bheru Singh the one with a double barrel. Up to this point his story accords with the defence version. 18. He continues that the parties moved off about 150 paces from him, still quarrelling, and that then Bheru Singh fired the first shot. Shiv Singh was hit and staggered backwards but re covered himself and rushed towards Bheru Singh with a stick. Thereupon, Hate Singh fired and killed the man. The explanatory notes to the Sketch Map, Ex. P. 2, show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , does the same thing. He supports the first regarding the order of the firing and says Bheru Singh fired first and Hate Singh next but goes on to say in cross-examination that Art. E was fired first and Art. D next and that Art. D was the gun. Hate Singh usually carried. We do not think two wit nesses could have departed from the case set out in the Committal Court on the same point and. in the same way by accident. 23. The defence version regarding the guns is the more probable because Deoji, P. W. 1, admits that Bheru Singh put his gun down after hitting Shiv Singh on the stomach and then attacked him with an axe. If the butt-end broke it is understandable that he would do this. But it is unlikely that he would put down a weapon which was still potent in the middle of an attack. 24. We turn next to the seven witnesses who heard the two shots and saw the accused but who did not see the actual firing. Two of those, who substantiate the story of the accused, namely Babru P. W. 4 and Ramsingh P. W. 15, have been disbelieved though for no valid reason that we can see. As regards the other five, the curious thing about them is that not one of them saw the second shot being tired ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
