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PETITIONER:

DATAR SINGH

Vs.

RESPONDENT:

THE STATE OF PUNJAB

DATE OF JUDGMENT19/12/1973

BENCH:

BEG, M. HAMEEDULLAH

BENCH:

BEG, M. HAMEEDULLAH

CHANDRACHUD, Y.V.

CITATION:

1974 AIR 1193 1974 SCR (2) 808

1975 SCC (4) 272

CITATOR INFO :

RF 1981 SC 631 (11)

ACT:

Indian Penal Code-S. 302 read with Ss. 25 and 27 of the Arms

Act-Appellant convicted for murdering his own

father--Concurrent finding of facts-Whether can be reviewed

when there is indication of a serious miscarriage of

justice.

HEADNOTE:

The appellant was convicted u/s. 302 I.P.C. by the Sessions'

Judge for murdering his father and sentenced to death. The

High Court accepted the death sentence and dismissed his

appeal. He was also convicted for an alleged illegal

possession of a gun and his convictions and sentences under

secs. 25 and 27 of the Arms Act were upheld by the High

Court. The prosecution case was that the deceased was a

wealthy landlord whose sister was the Maharani of Patiala.

He had executed a will in favour of his wife and two sons on

24-8-1967. He cancelled this will and executed another in

favour of his sister, Rani Prem Kaur, on 18-4-1968 and got

it registered at a place called Dhuri, probably because P.W.

1, a friend of the deceased, was the Sub Registrar there.

The deceased also alienated some property to a minor son of

P.W. 1 sometime before the murder. The elder son of

deceased had filed a suit to preempt this sale and the suit

was pending hi it the time of the occurrence. The relation

between the deceased, s wife and

children were strained and this background was said to

provide the motive for murder. It is alleged that the

appellant, on the day of occurrence, had entered the room,

where the deceased was sitting with 2 of his friends, P.W. 1

and P.W. 2, in the blazing light of electricity and had shot

his father with a gun.

Before this Court, the appellant raised several questions of

law and contended that there has been a miscarriage of

justice because the Courts below have ignored certain basic

defects in the prosecution version and misread the evidence.

Allowing the appeal,

HELD : (i) It is not the practice of this Court in appeal by

special leave to disturb concurrent findings of fact unless

the case discloses some exceptional features indicating that

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a serious miscarriage of justice has taken place. [809 G-H]

(ii)In criminal cases, it is often difficult for courts of

law to arrive at the real truth. The judicial process can

only operate on the firm foundations of actual and credible

evidence on record. Mere suspicion or suspicious

circumstances cannot relieve the prosecution of its primary

duty of proving its case against an accused person beyond

reasonable doubt. Courts of justice cannot be swayed by

sentiment or prejudice against a person accused of the very

reprehensible crime of patricide. If the pieces of evidence

on which the prosecution closes to rest its case are so

brittle that they crumble easily, the superstructure built

on such insecure foundations also collapses. [810E]

(iii)Ile super-structure of the prosecution case rests

on the testimony of two alleged eye-witnesses whose evidence

is not only of an inherently unreliable nature because of

features disclosed by evidence, but the artificial and

incredible versions of the shooting put forward by them are

too unnatural to be accepted.

(iv)P.W. 1 gave a false explanation to accept for his

presence at the house of the deceased on the evening of

22-2-1970. He admitted, at the trial that he gave false

information as to when he left for Patiala, but he pleaded

that he did so at the instance of the S.D.O. who had put

pressure on him not to give evidence in the prosecution case

against the appellant. If, as he had admitted, he was

capable of making a false statement under such pressure, it

is not possible to describe this witness as thoroughly

reliable. It is also difficult to believe that an S.D.O.

will put pressure upon a Naib Tehsildar working under him to

commit perjury. Therefore, the testimony of the witness is

inherently unreliable. He was both a chance witness and one

who admitted having committed, perjury.

809

(v)It is also difficult to believe that P.W. 2, another

eye-witness, who came to, the house of the deceased by

chance, was really present at the time of the occurrence.

Although this witness did not tell a deliberate lie but he

had written a letter, exhibit 'X', wherein he stated that he

had not witnessed the murder at all, and that the police was

harassing him to make a false statement. The handwriting on

this letter and the signature below it were denied by the

witness who duly proved to be his. There was no reason to

discard the evidence of the hand-writing expert on these

points. Balbir Singh, P.W. 2. had written this letter he

was shown to have done, he could not be relied upon at all

when he stated that he witnessed the murder.

(vi)Conflicting statements made about the time of the

alleged presence of the witnesses on the scene of murder

also show that they were not there at all to witness it.

(vii)Further, from a careful writing of the F.I.R., it

seems that the said F.I.R. was written up carefully

afterwards. Under the circumstances, the conviction and

sentence cannot be sustained.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 4

& 5 of 1973.

Appeals Nos. 1020 and 1021 of 1971 and Murder Reference No.

48 26th May 1972 of the Punjab and Haryana High Court in

Criminal Appeals Nos. 1020 and 1021 of 1971 and Murder

Reference No. 48 of 1971.

Frank Anthony and Harjinder Singh, for the appellant,

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R. L. Kohli, for the respondent.

The Judgment of the Court was delivered by

BEG, J. :-Datar Singh, appellant, was convicted under

Section. 302 Indian Penal Code by the Sessions' Judge of

Patiala for murdering his father Thakar Singh at about 9.30

p.m. on 22-2-1970 at Naru House in Patiala, and sentenced to

death. The Punjab High Court had accepted the death

reference and dismissed his appeal. He was also convicted

in a connected trial, for an alleged illegal possession of a

gun, and his convictions and sentences of two years'

rigorous imprisonment and three years' rigorous imprisonment

under Sections 25 p and 27 of Arms' Act were upheld by the

High Court. The appellant's applications under Article

134(1) (c) under the Constitution having been rejected by

the High Court, he came to this Court and was granted

special leave to appeal in both the connected cases which

are now before us.

It is not the practice of this Court in appeal by special

leave to disturb concurrent findings of fact unless the case

discloses some exceptional features indicating that a

serious miscarriage of justice has taken place. It has been

contended on behalf of the appellant that such a mis-

carriage of justice has resulted in this case because Courts

ignored certain basic defects in the prosecution version and

misread evidence. Several questions of law were also sought

to be raised before us. These are :

(1)Whether the prosecution had failed to produce material

witnesses in the case so that a presumption against the

veracity of any, part of the prosecution version arose due

to this non-production ?

810

(2)Whether there had been a violation of Section 157

Criminal 'Procedure Code, and, if so, what is its effect

upon the prosecution case?

(3)Whether there had been a violation of Section 162 of

the Criminal Procedure Code by inserting in the site plan

information derived from statements made by prosecution

witnesses and by annexing their signed statements to inquest

reports, and, if so, its effect on the prosecution case ?

(4)Whether the prosecution case was damaged by an

infringement of the best evidence rule inasmuch as neither

the ballistic expert, who examined the cartridges and the

gun in the case, supported the prosecution case nor was the

gun said to have been used by the

appellant for the commission of murder examined for the

appellant's finger prints nor was a chick alleged to be

hanging outside the door of the room in which the murder

took place taken into possession by the Investigating

Officer ?.

(5)Whether the prosecution instead of the accused had been

given the benefit of doubt on various features of the case

on which two views were possible?

(6)Whether different standards of proof had been applied in

judging the credibility of the defence evidence as compared

with the prosecution evidence ?

It is often difficult for Courts of law to arrive at the

real truth in criminal cases. The judicial process can only

operate on the firm foundations of actual and credible

evidence on record. Mere suspicion or suspicious

circumstances cannot relieve, the prosecution of its primary

duty of proving its case against an accused person beyond

reasonable doubt. Courts of justice cannot be swayed by

sentiment or prejudice against a person accused of the very

reprehensible crimp, of patricide. They cannot even act on

some conviction that an accused person has committed a crime

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unless his offence is proved by satisfactory evidence of it

on record. If the pieces of evidence on which the

prosecution closes to rest its case are so brittle that they

crumble when subjected to close and critical examination so

that the whole super-structure built on such insecure

foundations collapses, proof of some incriminating

circumstances, which might have given support to merely

defective evidence cannot avert a failure of the prosecution

case.

After having been taken through the evidence on record we

have come to the conclusion that the superstructure of the

prosecution. case is based on the testimony of two alleged

eye-witnesses whose evidence is not only of an inherently

unreliable nature but the artificial and incredible versions

of the shooting put forward by them are too unnatural to be

accepted. It seems to us to be quite unsafe to convict the

appellant on their testimony despite some circumstances

which raise grave suspicion against the appellant.

Suspicion, however, grave, cannot be a satisfactory basis

for convicting an accused person. We will, therefore,

examine the evidence of these two witnesses and set out our

reasons for finding them quite unreliable and deal with

other questions

811

mentioned above in the course of an examination of evidence

the credibility of which is assailed.

Thakar Singh, deceased was a wealthy landlord whose sister

was the Maharani of Patiala. He had executed a will in

favour of his wife and two sons Avtar Singh, and Datar Singh

on 24-8-1967. He cancelled this will and executed another

in-favour of his sister Rani Prem Kaur on 18-4-1968 and got

it registered at Dhuri probably because Joginder Singh,

P.W.1., a friend of his, was the Sub Registrar there. The

deceased Thakar Singh had also alienated some property in

favour of Jasvinder Singh, minor, aged about 10 or 11 years,

a son of Joginder Singh, P.W.1, about a year and a half

before the murder. Avtar Singh, the elder son of Thakar

Singh, had filed a suit to preempt this sale. The suit was

pending at the time of the occurrence. The relations of

Thakar Singh deceased with his wife and children were

strained. This background was said to provide the motive

for murder. If Balbir Singh, P.W.2, could be believed, the

wife of Thakar Singh had described her husband as a

sweeper's son. Apparently, there was not much love lost

between Thakar Singh on one side and his wife and children

on the other. The alleged motive for this murder was

certainly too old to convincingly appear as the cause of the

murder of 22-2-1970 in so melodramatic a style as the

alleged eye witnesses would have us believe. Moreover, if a

former will had been cancelled and another will executed in

favour of a sister of Thakar Singh, it could very well be

urged that other persons interested in seeing that Thakar

Singh died before he could cancel his last will of 18-4-1968

had a stronger motive to murder him than others who might

still be able to persuade him to change his mind. And, if

Thakar Singh's strained relations with his wife and children

could be a sufficient motive for the murder it is difficult

to understand why Datar Singh rather than his elder brother

Avtar Singh could have a stronger animus to kill the father.

In any case, there is no evidence to show that Datar Singh,

appellant, had any special motive or reason of his own for

patricide such as a violent quarrel or dispute with his

father preceding the murder which could have unhinged his

mind. If, as was suggested repeatedly on behalf of the

prosecution, the members of the family of Thakar Singh were

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really influential, it was much easier for them to hire some

individual to murder Thakar Singh, assuming that their

hostility to Thakar Singh went so far as to impel them to

think of getting rid of him like that, rather than for one

of them to murder Thakar Singh himself right in front of his

two alleged close friends in the blazing light of

electricity after rushing into the room in which they were

sitting and revealing his identity to witnesses as Datar

Singh is alleged to have done. On the whole, the evidence

of alleged motive and of Thakar Singh's unhappy relations

with his wife and children, all said to be living together

in the Naru House with Thakar Singh, hinders rather than

helps us in accepting the prosecution version that it was

Datar Singh who had committed the murder of his father in

the reckless manner set up and not somebody else in a

different and less foolish way. Of course, if Joginder

Singh, P.W.1, and Balbir Singh, P.W.2, could be implicitly

relied upon, the mere absence of a strong enough motive for

committing such an unnatural crime as patricide or the mode

of its commission could be of no assistance to the

appellant.

812

The evidence of Joginder Singh, P.W.1, not only shows that

he was probably the principal adviser and helper to Thakar

Singh in such dispositions of properties as Thakar Singh

made, but, that he was also, according to his own

admissions, capable of making any statements at any time to

suit his own purposes. This is clear from the web of lies

in which he is shown to have entangled himself in trying to

accountfor his presence at Naru House in the company of

Thakar Singh atthe time of murder, and the,

contradictory and different excuses he gaveon various

occasions, such as when applying for leave for absencefrom

Sunday on 22-2-1970. He stated in cross-examination that he

had left Sunam, where he was posted as Naib Tehsildar, at

2.45 or3 p.m., reaching Patiala by 4 or 5p.m. An order of

the Sub Divisional Officer dated 26-2-1970 (ex. DM) shows

that an explanation was called for from Joginder Singh for

leaving Sunam oil election day as he had sent a wire from

Patiala asking for leave. In his explanation (ex.DE), he

had stated that he had received a message at Sunam at 4.30

p.m. on 22-2-1970 that his baby was ill so that he proceeded

to his home in Patiala by the 5.20 p.m. bus after the

polling was over at 5 p.m. When this contradiction was put

to him, lie admitted that false explanation was given by him

but pleaded that this was done at the instance of the Sub

Divisional Officer who had put pressure on him that he

should not give evidence in the prosecution case against the

appellant. It is difficult to see what connection the

alleged pressure had to do with his putting down that he

left by bus at 5.20 p.m. If, as he had admitted, he was

capable of making a false statement under such pressure, so

as to make a deliberately false statement to damage the

prosecution case, it is not possible to describe this

witness as thoroughly reliable whose testimony could be

accepted without demur or satisfactory corroboration. It is

difficult to believe that a sub Divisional officer, who is a

Magistrate, will put pressure upon the Naib Tehsildar

working under him to commit perjury: His statement also

shows that he had no hesitation in giving different and

contradictory excuses at different times for leaving Sunam.

He could state either that his child was ill, or that his

wife was ill, or that no one was really ill but that he

needed to go to his home in Patiala for some other purpose

on 22-2-1970 without realising that it was improper or

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reckless to make such contradictory statements.

We have also noticed that Joginder Singh has used his

favourite reply "I do not remember", when cross-examined, no

less than 25 times.it is significant that although he

stated that be, after meeting Thakar Singh by chance in the

course of a walk, at about 8 p.m., so that he was invited to

sit and after that to dine with Thakar Singh, and is said to

have sat there till about 9 or 9.30 p.m., when the appellant

suddenly appeared in the well lit room with a double barrel

gun and shot his father twice after shouting "Thakar Singh"

at him, yet, he did not remember a single thing about the

talk be had with ThakarSingh on that occasion during the

course of the chat for an hour or more with the murdered

man. Balbir Singh, P.W.2, could also not give any

indication of the nature of the talk. It is difficult to

believe that this would be so if either this witness or

Balbir Singh, P.W.2, who is also said to have come to the

house by chance after half an. hour, were really present at

the time of the occurrence.

813

Although, Balbir Singh, P.W.2, who had apparently, also

strayed in by chance into the room where the shooting is

alleged to have taken place at about 9 or 9.30 p.m. did not

declare himself a liar on any point in the course of his

testimony in Court as Joginder Singh, P.W.1, had been forced

to do, yet, he had, we think, made an even more serious and

damaging declaration in a letter dated 20-4-1970 (Ex. 'X'),

He had stated there that he had not witnessed the murder at

all and that the police was harassing him to make a false

statement. He had denied his handwriting and signature on

this letter. Therefore, an application was made by the

defence to the District Judge on 26-5-1971 to send this

letter to the Director of the Government Department of

Questioned Documents so that the official handwriting expert

may give his report on the hand-writing. The relevant

documents were, however, sent to and examined by Shanti

Sarup Jain, D.W.1, a handwriting expert who had given a

detailed report for coming to the conclusion that the hand-

writing on the letter (Ex. 'X') tallied with the admitted

hand-writing of Balbir Singh, P.W.2. We have gone through

the report and examined the writings ourselves. We see no

reason to discard the evidence of the hand-writing expert.

We are sorry to observe that the High Court had misread the

evidence in holding that this letter was not put to Balbir

Singh at all. It was put to him both in the Committing

Court and in the Trial Court. In both the Courts he had

denied his writing and signature on it. If Balbir Singh had

written this letter, as we think he did, whatever may be his

reason for doing so, Balbir Singh could not be relied upon

at all when he stated that he had witnessed the murder.

It was also contended on behalf of the appellant that it was

most unlikely that Balbir Singh, P.W.2, would go to Thakar

Singh as he had written another very acrimonious letter to

Thakar Singh dated 24-11-1967 in which he had compared

Thakar Singh to 'Kanjars' and 'Kalas' who also "possess

money in abundance". No doubt he bad deposed that he had

made up with Thakar Singh's since then so much so that he

had prepared Thakar Singhs'Income-tax and wealth-tax

returns, yet, Balbir Singh's angry lettershowed that he

did not have a high opinion of Thakar Singh deceasedwho

is said to have disliked Balbir Singh's association with

this daughter-in-law called "Bibi", for whom Balbir Singh

had expressed great admiration in this letter. Balbir Singh

had admitted writing this letter but had refused

deliberately to explain some of its contents. He admitted

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that he had been convicted under Section 409 I.P.C. but he

asserted that he was acquitted by the Sessions' Court. The

judgment of the Punjab High Court dated 16th February, 1966,

in Criminal Appeal No. 610 of 1964 (Ex. DM) shows that the

order of acquittal passed by the Sessions' Court was set

aside and that of the Trial Court convicting him under

Section 409 I.P.C. was restored. The appellant, however,

denied knowledge of what happened to this case in the High

Court. Furthermore, we find that the name of this witness

is not mentioned in the substance of the report entered in

the daily diary report at the Police Station (Ex. PN)

although his name is mentioned in the F.I.R. which was shown

as lodged at Police Station, Civil Lines, Patiala, on 22-2-

1970, as early as 9.55 p.m.

814

We have examined a carbon copy of the very neatly written

F.I.R. at Police Station, Civil Lines Patiala, in which the

time of the occurrence is given as 9 p.m. It was stated by

Balbir Singh that the Police came with Joginder Singh only

20 or 30 minutes after Joginder Singh had gone to the Police

Station and that it must have been 10 p.m. by that time. It

is difficult to believe that so neatly written and detailed

a F.I.R. could have been written up so soon. It is more

likely that if Joginder Singh returned so soon with the

Police, the F.I.R. was drafted and written up carefully

afterwards.

The column in the form in which F.I.R. was taken down does

not mention the time and date of the dispatch of the report

from the Police Station to a Magistrate. The prosecution

had tried to prove, by the evidence of Avtar Singh, P.W.15,

that the special report was delivered to the Chief Judicial

Magistrate at 1 a.m. on the night between 22nd and 23rd

February, 1970. The defence had produced Surinder Singh,

P.W.5, Reader of the Judicial Magistrate, to whom the report

was alleged to have been sent, but we could discover neither

the time nor the date of its receipt from the register

brought by the Reader who deposed that the report must have

been handed to the Investigating Officer Tej Ram, P.W. 19.

If so, the copy handed over to the Investigating Officer

should have been produced, as it would probably have shown

the time of its receipt, but it was not forthcoming for some

reason. No one was produced by the prosecution to show what

happened to the copy of the report sent to the Magistrate.

All we can say is that the mystery surrounding the very

quick writing up of and copying out of the F.I.R. and the

absence of any entry showing when it was sent to the

Magistrate concerned may be due to the fact that the First

Information Report was lodged, as learned Counselfor the

appellant contends, much later than 9.55 p.m. and after

Joginder Singh had convinced the police that the murder was

committed by the appellant. We cannot conclude from facts

proved, as the High Court had done, that the appellant must

have caused the disappearance of the special report. In any

case, the appellant could not possibly be responsible for

the failure at the Police Station to enter the date and time

of dispatch of information to a magistrate in the column of

the F.I.R. meant for it. This omission seems to us to be

quite significant in the light of other facts indicating

that the F.I.R. must have been drawn up much later than it

is actually shown to have been.

Here we may refer to the contradictory and irreconcilable

statements made by Joginder Singh and Balbir Singh about the

time at which shooting took place. Joginder Singh said that

he was passing near the Naru House at 8 p.m. when Thakar

Singh met him on the' road side where they` stood for some

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time,. After that, Thakar Singh is said to have taken him

to his house and into a room called Chowbara used as a

drawing room. He said that Balbir Singh had joined the two,

apparently without any previous appointment, afterwards

after an interval of about half an hour. Nevertheless, this

witness had stated in the Committing Magistrate's Court that

Datar Singh, appellant, came at 8 p.m. with a double

barreled gun with which he shot

815

Thakar Singh. The statement in the Committing Magistrate's

Court seems to have been brought in as evidence at the trial

under Section. 288 of the Criminal Procedure Code. It the

time given by him in the Committing Magistrate's Court was

correct, it would mar the whole prosecution case. If that

were true, it would be clear that Balbir Singh could not

have possibly been there when the shooting took place. And,

in that case, the whole story of a long chat between 8 p.m.

& 9 p.m. or 9.30 p.m. would collapse. Probably, this was

the reason for the change of time by this witness at the

trial for the entry of the appellant into the Chowbara from

8 p.m. to 9 or 9.30 p.m. Balbir Singh had also stated in the

Committing Magistrate's Court that he went to Naru House at

8 p.m., without giving any reason why he should go there

although he gave the time at which Datar Singh came as 9 or

9.15 p.m. At the Trial, he gave the time of his own arrival

at Nara House as 8.15 p.m. and said that he had sat in the

company of Thakar Singh and Joginder Singh for about one or

one hour and a half before the appellant entered the room

suddenly with a double barrelled gun. if Balbir Singh could

have made a correct assessment of the time which elapsed

between his arrival and the time of murder, as one to one

hour and a half, the murder could have taken place between

9.15 and 9.45 p.m. It is evident that, if this was correct,

it would make it very difficult to believe that an F.I.R was

neatly written out and then copied out at the Police Station

within a few minutes even though the Police Station was only

one furlong away.

The most melodramatic part of the prosecution version, put

forward both by Joginder Singh and Balbir Singh, consisted

of the allegation that Datar Singh, appellant, actually

entered the room, Should 'Thakar Singh" at his father, and

then fired two shots at him, and then escaped. Both

Joginder Singh and Balbir Singh had said that Datar Singh

entered the Chowbara by lifting a "chick' hanging outside

the door. No such "chick" was either mentioned in the

F.I.R. or in the seizure list or in the site plan. It was

not taken into his possession by the Investigating Officer

who took the gun left outside the Chowbara and other

objects, such as the blood stained cloth on the sofa and the

sofa itself on which Thakar Singh was sitting, into his

possession.

If we assume, for the sake of argument, that there was

actually a "chick" hanging outside the' room, it would be

evident that only a person driven to the verge of insane

recklessness could think of entering the Chowbara and

shooting at Thakar Singh when he could have easily done so

by merely inserting the barrel of his gun by the side of the

"chick" and taken a good aim at a fairly close range at

Thakar Singh sitting right in front in blazing electric

light so that the assailant's face and body are concealed

behind the wall adjoining the entrance. Perhaps that is bow

the shooting took place. At that time, the sofa on which

Thakar Singh was said to be siting, was quite near the door

and almost facing anyone who would try to look in from the

side of the chick farthest removed from the sofa. There is

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nothing on the record to show that the appellant was

suddenly so incensed and gripped by a passion to shoot his

father as to have become oblivious to the consequences of

revealing his identity by rushing into the Chowbara to shoot

at Thakar Singh. If he did so he would risk being caught by

the two

12-L748SupCI/74

816

allegedly good friends of Thakar Singh one of whom had been

invited to stay on for dinner and the other, Balbir Singh,

who although it was not certain whether he bad been invited

to dine or not, had, nevertheless, stayed on.

Both Joginder Singh and Balbir Singh stated that they tried

to run after the appellant and "over-power" him. It they

had really tried to over-power him they could have shown

some evidence of the attempt to over-power such as the gun

snatched from the appellant or a button wrenched from the

clothing. Perhaps they realised this, and, therefore, they

proceeded to depose that they had only run after him and

did' not even see him place the gun found outside the

Chowbara, although they heard a cluttering sound when the

gun was dropped on a bench from which they inferred that the

particular gun, the weapon found there, was used for the

murder.

The sofa on which Thakar Singh was sitting was quite near

the door. Its distance from the door was given by Balbir

Singh as only 2 ft. Joginder Singh had stated that the

length of the gun from end to end was 4 ft. and that it was

at a distance of 2 ft. when Thakar Sing was fired at. If

the gun was fired from a distance of 2 ft. only from the

sofa and if that was also the distance of the sofa from the

door, the assailant would also be at the door and not inside

when Thakar Singh was fired at. Apart from the difficulties

created by the medical evidence in accepting such a picture

of the shooting even from 2 ft.. we find that the site plan

also does not show that the shooting took place from any

place inside the Chowbara but gives the position taken up by

the murderer to be in the middle of a line across the

entrance, that is to say, in the middle of the doorstep.

That would not be evidence of where the murderer shot from.

But, we mention it to indicate the shifting of prosecution

version on the point. Balbir Singh had stated that the

murderer was neither inside nor outside the door. According

to this witness. one foot of the appellant was inside and

the other was outside the threshold, probably because it was

felt that a shooting after entry into the Chowbara would

conflict with medical evidence. The position given by

Balbir Singh destroys the whole account of a melodramatic

entry of Datar Singh into the Chowbara itself to murder

Thakar Singh by shooting at a very close range. Could this

be the state of evidence if these were really eye-witnesses

?

Another difficulty which arises in imagining a shooting from

the middle of the door-step with one foot of the murderer

inside and the other outside the door is that, in such a

position, the "chick", which was said to be there, would

operate as an obstacle to shooting unless it was neatly

thrown behind resting on the back of the murderer. Tile act

of arranging "chick" in this peculiar position, so as to

prevent the "chick" from hindering the shooting, would

itself take so much time as to enable the three men inside

the room easily to take some step to arrest or grapple with

or resist the murderer. It is inconceivable that such a

cumbersome procedure would be adopted by a murderer out to

shoot hastily and then to run way when he could have shot

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more easily and effectively by inserting the barrel of the

gun from a side of the "chick". The witnesses do not give

any such account of the shooting which could make it appear

credible.

817

It is much more likely that the "chick" was not there at

all. The witnesses admitted that it was pitch dark outside,

The assailant could, therefore, very well shoot at Thakar

Singh from outside without revealing his identity by being

seen. It appears to us that the "chick" was deliberately

introduced to show that the murderer had to enter the

Chowbara and be seen shooting as alleged by the two eye

witnesses to conceal the truth that the shooting had taken

place from the dark outside in circumstances in which it was

impossible or very difficult to make out the identity of the

actual murderer.

It may be mentioned here that tile site plan, relied upon by

the High Court to give 7 feet as the distance between the

door and the place on the sofa where Thakar Singh was

sitting, was prepared by a Draftsman, Bakshi Singh, P.W. 10,

on 24-2-1970, at a time when the sofa was not there at all.

He admitted that he had shown the sofa and its distance from

the door only on enquiry from the Investigation Officer. We

do not think that such a statement could be admitted in

evidence. More,over, even if we assume, for the sake of

argument, that this distance was 7 feet and, also that there

was a "chick", as deposed by the witnesses, the shooting

could easily take place from a distance of 6 feet by

inserting the barrel of the gun by the side of the "chick"

and taking aim while taking the cover of the wall adjacent

to the door. Dr. G. S. Gambhir, the Medical Officer, who

had performed the postmortem examination, said, after

looking at, the injuries of Thakar Singh : "These injuries

were caused when the nozzle of the gun was at a distance of

about 6 feet from the body". He also said : "These injuries

could not be caused if the nozzle was 4 feet away from the

body. By nozzle I mean "muzzle' of the gun barrel".

"When the distance is less than 4 feet or 4

feet, the pellets enter the body-en-masse. If

the distance is more than 4 feet, then the

pellets will spread and will enter the body

within a diameter of 2 inches from the main

hole. In the present case there are three

separate openings adjacent to injury No. 1 and

there were four small openings around the

second injury. I have not noted the exact

distance of the various openings with regard

to injuries Nos. 1 and 2. Up to a distance of

3 feet the pellets do not spread. My opinion

is based on Modi's Medical Jurisprudence".

The following injuries were found on the body

of Thakar Singh

"One circular wound about 2" in diameter with

lacerated margins on the front of the chest,

slightly on the right side of the middle line.

There were three small separate openings

adjacent to the main wound.

One circular wound about 1-1/2" in diameter

with lacerated margin over the left shoulder

joint. There were four small openings

adjacent to main wound".

There injuries show that Thakar Singh's bark was probably

turned towards the door when he was first hit Perhaps that

is why he was first struck on his left shoulder joint. He

must have turned slightly after the first shot. Hence, the

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other injury is on the front of the

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chest on the right side. If the assailant had actually

entered the room and shouted Thakar Singh" and shot the

injuries would be right in frontIn that case, there could

have been no injury on the left shoulder joint. It may be

mentioned here that the F.I.R. lodged by Joginder Singh does

not mention that the assailant had shouted Thakar Singh

before shooting at him. He admitted this omission but gave

no explanation for it.

Medical evidence also revealed that there was no blackening,

tatooing, scorching, chaffing or synging around the main

wounds. It was, therefore, contended before us that the

shooting must have taken place from a distance of more than

3 feet. The High Court had explained the absence of

blackening and charring by observing that the cartridge

inside the gun bore the word "smoke-less" and opined that

the shooting need not have been from a distance of more than

4 feet. It seems to us that the High Court had assumed that

the cartridges found in the gun were actually of a kind

which would not cause blackening or chaffing or synging and

that these were the very cartridges used by the murderer.

The requirements of a technically proper proof were wanting

on this point. The ballistic expert, called in as a defence

witness, was not even questioned on the point,

Here, we may refer to the evidence of Ballistic expert Shri

J. K. Sinha, D-W. 10. Assistant Director of the Forensic

Science Laboratory, who was not produced by the prosecution

probably because he had made a report showing that it was

not possible to connect the cartridges with the gun as the

impressions made by the hammer were too indistinct. The gun

was proved, from its licence, to belong to Mohan Singh, the

son-in-law of Thakar. Singh. It was not sent for

examination of any finger prints on it. Had there been such

evidence of the appellant's finger prints on the gun, it

would have furnished strong corroborative evidence. In the

circumstances of the case, we find it difficult to link the

gun with the actual weapon with which the murder was

committed. It is not inconceivable that it was left deli-

berately outside by someone to confuse the investigating

authorities.

According to the prosecution case, members of the family of

Thakar Singh, strangely appeared on the scene only after the

police had arrived. By then Joginder Singh is said to have

already lodged his F.I.R. If their alleged conduct was meant

to suggest that members of the family had conspired with the

appellant, it may also indicate that another member of the

family could commit the murder.

Peareylal (D.W. 8), the domestic servant of Thakar Singh,

who asserted that he was the first to come to the Chowbara

from the kitchen after the murder deposed that he saw nobody

in the Chowbara where the dead body of Thakar Singh lay. He

denied the presence of the two alleged eye-witnesses there.

He stated, under cross-examination, that no chick was

hanging outside the door of the Chowbara. He also stated

that the name of the murderer could not be known at night.

Furthermore, his statement showed that, although Avtar

Singh, the brother of the appellant, as well as the mother

of the appellant, were in Naru House at the time of the

murder, the appellant was not there. This may have directed

suspicion towards

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the appellant. Pyarelal was disbelieved by the Trial Court

and the High Court because he was abandoned by the

prosecution on the ground that he had been won over. We do

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not think that his evidence could, for this reason, be said

to be so completely unreliable as that of Joginder Singh and

Balbir Singh. At any rate, his statement that he and

Joginder, another servant, and Mohan, who kept a tall at the

back of the house, and Joti, a shopkeeper who kept a tea

stall nearby, came to the Chowbara after the murder, appears

more natural than the evidence of Joginder Singh, (P.W. 1),

and Balbir Singh, (P.W. 2), that no one came there before

the police arrived. Ile statement of this witness that the

identity of the murderer was not known during the night is

supported by the circumstance that no attempt appears to

have been made to stop the flight of the appellant from

Patiala by the police during the night between 22nd and 23rd

February, 1970.

Learned Counsel for the appellant drew our attention to the

fact that the signed statements of Joginder Singh and Balbir

Singh had been annexed to the inquest report and proved by

the prosecution. It is rightly pointed out that this looked

like a device adopted to get round the bar of Section 162

Criminal Procedure Code. It also shows that the police was

not quite confident about the reliability of the two alleged

eye witnesses of the occurrence.

The appellant had given some evidence to support his plea

that he was actually at Delhi staying at the Sarai of

Gurdwara Sis Ganj on 22-2-1970. He produced, Daya Singh,

D.W. 7, to show that his name was entered at serial No. 47

as a person who had come to stay at the Sarai on 21-2-1970

and had left it on 23-2-70. We find that the register

brought by this witness showing the names and addresses of

the person who had stayed at the Sarai from January to

March, 1970, was quite impressive. We do not, however,

think that this evidence established that the appellant was

actually present at the Sarai during the night on which the

murder took place. The defence witness did not state that

he actually saw the appellant at the Sarai on 22-2-1970,

although there is an entry for 22-2-1970 also showing that

Datar Singh had stayed there. The witness stated that at 8-

30 p.m. every evening all persons who wanted to stay went to

him for allocation of accommodation. The object of this

evidence seemed to be to show that the entry, taken with the

practice at the Sarai, would raise the presumption that

Datar Singh was actually at the Sarai at Delhi, as he said

he was, at 8-30 p.m. on 22-2-1970. This evidence, however,

does not appear to us to be strong enough to establish that

the appellant was actually at Delhi at the time of the

murder. He had not given this defence in the Court of the

Committing Magistrate.

Considerable emphasis has been laid by learned Counsel for

the State on the fact that the appellant was not traceable

or was absconding until he surrendered in a Magistrate's

court nearly a year after the murder. it was contended that

the family of the appellant was Very influential so that its

members would have moved heaven and earth if Joginder Singh

had merely appeared on the scene later and taken the

responsibility for lodging the F.I.R. and started directing

the

820

investigation unless the case was true. It was urged that

the fact that the relations of the appellant took no

interest on his behalf indicated that the appellant must be

guilty.

We do not think that inferences from failure to surrender or

even absconding of the appellant and the lack of interest

shown by his brother, Avtar Singh, or other relations of the

appellant in obstructing the prosecution of the appellant

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could possibly prove the guilt of the appellant. Indeed,

the complaint of the prosecution, which is inconsistent with

the last mentioned submission, was that the appellant's

relations had succeeded in winning over witnesses so much so

that neither the 'Tall Keeper' living behind the Naru House,

nor even Harinder Singh, the son of Joginder Singh, who were

witnesses of the seizure list, appeared as prosecution

witnesses.

We do not think that the appellant needs the support of any

presumption from non-production of any of these witnesses.

We also do not think that the prosecution can benefit from

the merely suspicious circumstance that the appellant did

not surrender or was not traceable for nearly a year.

Reliance was placed by the appellant's Counsel on Prakash

Mahadeo Godse v. State of Maharashtra(1), to contend that

conduct of the accused such as hiding after the offence, by

itself, does not conclude matters. Even though the acts

there were somewhat different, the same principle would

apply here. In any case the super-structure of the

prosecution case, based on the testimony of two alleged eye

witnesses, having crumbled in the case before us, we find it

impossible not to give the appellant the benefit of doubt

because of circumstances which could only raise suspicion

against him. Sufficient number of very significant features

of evidence on record, dealt with by us above, were ignored

by the High Court and the Trial Court. Hence, we were

compelled to reassess the evidence for ourselves.

The result is that we allow this appeal, set aside the

convictions of the appellant for murder and as well as for

the alleged illegal possession of the gun and we direct that

he be released forthwith from custody unless wanted in some

other connection.

S.C.

Appeal allowed.

(1) [1969](3) S.C.C. 741.

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