State of Punjab Vs. Wasson Singh &
Ors [1981] INSC 16 (15 January 1981)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
VENKATARAMIAH, E.S. (J)
CITATION: 1981 AIR 697 1981 SCR (2) 615 1981
SCC (2) 1 1981 SCALE (1)146
CITATOR INFO :
R 1989 SC1966 (9)
ACT:
Criminal Procedure Code 1973, S. 154 &
Indian Penal Code, S. 302-Trial for murder-Accused convicted by Sessions
Court-Acquitted by High Court-Interference by Supreme Court.
F.I.R.-Promptness in lodging-Evidentiary
value of.
Eye-witnesses-Related to deceased-Antecedents
of questionable nature-Scrutiny of evidence by Court- Methodology to be
adopted.
Investigation Officer-Failure to join
respectable persons of locality to witness recovery of M.O.-Value of such
evidence.
HEADNOTE:
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 along with
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 available 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 (Ex.
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]
CRIMINAL APPELLATE JURISDICTION: 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. S. 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 (Ex. 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
(Ex. 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 (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 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 (Ex. 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 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 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. (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.
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. (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 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. (Ex. 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. (Ex. 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 (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 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
(Ex.P3 and Ex. 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 (Ex. 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
(Ex. 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 (Ex. 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 (Ex. 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 (Ex. PL), leading to the discovery of the rifle (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 was that the cartridge, marked C1 which in the opinion
of the Ballistic Expert had been fired through the rifle (Ex. 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 (Ex. 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 (Ex. 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 (Ex. PL) made by
Mukhtar Singh, and to witness the sub-sequent discovery of the rifle (Ex. 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 (Ex. 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 (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 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 (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. The
circumstance of the recovery of the rifle (Ex. 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 (Ex.
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.
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