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PETITIONER:

RAJINDER SINGH & KADA

Vs.

RESPONDENT:

STATE OF PUNJAB

DATE OF JUDGMENT21/04/1992

BENCH:

PUNCHHI, M.M.

BENCH:

PUNCHHI, M.M.

JEEVAN REDDY, B.P. (J)

CITATION:

1992 AIR 1433 1992 SCR (2) 574

1992 SCC Supl. (3) 13 JT 1992 (2) 575

1992 SCALE (1)822

ACT:

: Criminal Law

: Indian Penal Code, 1860-Section 302-Offence of Murder-

Presence of eye witnesses at the scene of occurrence not

free from doubt-Investigation in doubt as to culprit-

Introduction of second dying declaration with names of eye

witnesses-Despatch of FIR after recording of second dying

declaration-Contradictions in two dying declarations-Inves-

tigation not free from taint-Material witnesses-Not exam-

ined-Whether High Court justified in reversing trial court's

decision acquitting the accused-Absconding of accused-Wheth-

er per se establishes guilt-Whether accused entitled to

benefit of doubt.

HEADNOTE:

: The appellant was alleged to have fired a

shot from his pistol hitting the left flank of one `C' who

rushed inside PW.3's house and hid himself by chaining the

door from inside. PW.3 and another person raised alarm, but

the appellant escaped from the place of occurrence with his

pistol. PW.4 who had also arrived at the spot saw the occur-

rence. While PW.3 went to the village Police Station and

lodged the First Information Report, two other persons took

the injured person to the City Civil Hospital, where PW.2

the doctor, attended on the injured person, who remained in

the hospital for about 13 days, and ultimately succumbed to

the injury. PW.2, who performed the autopsy of the deceased,

opined that the death was due to toxemia and shock resulting

from peritonitis, as a consequence of fire arm injury in

which the small gut was injured, and that the injury was

sufficient to cause death in the ordinary course of nature.

The appellant was charged under Section 302 IPC and

Section 27 of the Arms Act, 1959, for the murder and for

making use of a pistol for an unlawful purpose. The

appellant was declared absconder. He was arrested when in

possession of a pistol 40 months after the incident.

The prosecution supported its case by production of two

eye wit-

575

nesses, PWs 3 and 4. It also introduced two dying declara-

tions, one recorded by PW.14, the then Executive Magistrate,

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and the second recorded by PW.15 the S.I. of Police Station

of the village in which the incident took place. Besides,

the fact of accused's absconding after the incident was also

pressed into service. The Sessions Judge, placed no reliance

either of the occular version or the dying declarations and

acquitted the appellant. However, on appeal, by the State,

the High Court set aside the acquittal and convicted the

appellant under Section 302 IPC and Section 27 of the Arms

Act, and sentenced him to life imprisonment and a fine of

Rs.2,000 and, in default, a further period of one year's

rigorous imprisonment and also one year's rigorous imprison-

ment respectively.

Allowing the appeal of the accused, by giving benefit

of doubt, this court,

HELD: 1.1 The presence of the two witnesses, PWs.3 and

4, at the scene of occurrence is not free from doubt. The

investigation was in doubt as to who was the culprit. As a

first step, the theory of the first dying declaration was

introduced without taking somebody independent, like the

doctor, into confidence. The investigation later introduced

the story of another dying declaration. This one was with

the aid of the doctor, but this brought in the names of the

two eye-witnesses to figure at a time when everything was

manageable from the official point of view in reporting the

matter to the Magistrate. The investigation also, in the

instant case, therefore, is not free from taint. The High

Court, therefore, was not right in setting aside the trial

court's decision and conviction the appellant.

[584 F-H, 585 A]

1.2 There are contrasting features in the two dying

declarations. The presence of PW.3 and PW.4 at the scene of

occurrence had not been mentioned specifically in the first

dying declaration. However, their names got introduced in

the second dying declaration. Besides, the brother of the

appellant had been introduced in the second dying declara-

tion as a coculprit. Though the City Police was present in

attendance at the hospital, after it had been informed of

the arrival of the injured there, it was not prepared to

carry the burden of getting recorded a dying declaration. In

this situation, it is rather dramatic that PW.14 should jump

into the fray without having been asked by anyone official-

ly, under proper documents, to record the statement of the

injured at 6.45 p.m. and without complying with the

576

essential formalities of making an application to the

doctor, disclosing his identity, seeking his opinion as to

the fitness of the injured to make a statement, and if

permitted, having recorded the statement, the injured in the

presence of the doctor. The role of PW.14, even if the

suspicion entertained by the Sessions Judge on his veracity

on the basis of his judicial career is left aside, is sug-

gestive of an overdoing, shared by the police to not let go

a crime against their fellow policeman unpunished. It is

also plain that while introducing the expression "other

persons" to be present in the first dying declaration it was

like drawing a blank cheque to be filled in at a later stage

conveniently, in order to plug in convenient witnesses, if

the ones mentioned already were not prepared to support the

prosecution. The effort in that regard was to say the least

naive, if not clumsy. [582 F-G;583 A-D]

The dying declaration recorded by PW.15, S.I. of the

village Police Station on the following morning also

demonstrates that by that time PWs.3 and 4 had been tied up

as willing witnesses.[583 D]

1.3 PW.3, one of the two eye-witnesses has said that

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the reason for his being at the spot was that he had gone to

the house of his friend for taking a plough. He lives in the

east of the village whereas the house of the friend is

towards the west of the village. He appears to be a chance

witness altogether. There could be plenty of ploughs to be

borrowed in his own neighbourhood. So far as the second eye-

witness, PW.4 is concerned his house is towards the south of

the place of occurrence and there intervened about 150

houses between the two places. He too is a chance witness.

[584 B-C]

1.4 Nobody from the locality was examined by the

prosecution. Material witnesses, who were claimed to have

seen the occurrence and removed the injured to the hospital

in their jeep, were not examined by the prosecution. It is

due to the second dying declaration recorded by PW.15 the

S.I. of the Village Police Station that the names of these

two i.e. PWs.3 and 4 came in the forefront, and on accom-

plishing such a fiat, the F.I.R. was written thereafter and

the report despatched the next day at 8.00 p.m. to the

Magistrate afterwards. There was, in the interval, plenty of

time to withhold the despatch of F.I.R. till the story could

be woven, concerning as it was, a fellow policeman.[584 D-E]

1.5 The First Information Report was shown to have

recorded on the day of the incident at 6.15 p.m. under

section 307/34 IPC and under

577

section 25/27/54/59 of the Arms Act, 1959 and despatched to

the Magistrate the following day at 8.00 p.m., much after

recording of the second dying declaration, and received by

the Magistrate still two days later at 10.05 a.m. The

investigation stretched its timings. The version was im-

proved. It was said that after the occurrence when the

appellant ran away with his pistol, he was joined near the

Kikar trees by his brother, who too is a Constable in the

police. He is suggested to have been waiting for the appel-

lant as an aide. Then both of them are said to have fled

away. Since the appellant was shown to have been absconding,

the brother of the appellant was hurriedly put up for trial

for offence under section 302/34 IPC. The Sessions Judge,

however, discharged the brother of the appellant. This

apparently was an attempt to try the appellant in absentia,

but the effort failed. [583 E-H]

1.6 The abscondence of the accused is not a determining

factor, and not one which could outweigh the other material

appearing on the record. It by itself does not establish the

guilt of the appellant beyond reasonable doubt. [585 B]

1.7 In the circumstances, the appellant is extended the

benefit of doubt and acquitted. [585 C]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

531 of 1981.

From the judgment and Order dated 11.3.1981 of the

Punjab and Haryana High Court in Criminal Appeal No. 1044 of

1979.

A.N. Mulla, T.L. Garg and N.D. Garg for the Appellant.

Ranbir Singh Yadav and R.S. Suri(N.P.) for the

Respondent.

The judgment of the Court was delivered by

PUNCHHI, J. This appeal under section 379 of the

Criminal Procedure Code is directed against the judgement

and order dated March 11, 1981 of the Punjab and Haryana

High Court at Chandigarh in Criminal Appeal No.1044 of 1979.

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The appellant herein, Rajinder Singh, was charged under

section 302 IPC and under section 27 of the Arms Act for

causing the murder of Chamkaur Singh and for making use of a

pistol for an unlawful purpose,

578

before the Sessions Judge, Ferozepur. He was acquitted by

the learned Sessions Judge on February 9. 1979. On State

appeal to the High Court the acquittal was set aside and the

appellant was convicted under section 302 IPC and was sen-

tenced to life imprisonment as also to pay a fine of Rs.2000

or in default further rigorous imprisonment for one year.

The fine, if realised, was ordered to be paid to the heirs

of Chamkaur Singh deceased. He was also convicted under

section 27 of the Arms Act and sentenced to undergo rigorous

imprisonment for one year.

The prosecution case is that Chamkaur Singh, since

deceased, and the appellant herein belonged to village Ghall

Khurd. The deceased had four brothers. One of them, namely,

Thana Singh, had died 20 days before the occurrence on

account of taking liquor. The deceased suspected that the

appellant has administered poison to Thana Singh in liquor.

On December 20, 1974, just before sunset, the deceased came

from the side of the bus stand to his village. Harbans Singh

P.W.3 was standing in front of the house of one Jagtar Singh

for taking a plough and he beckoned the deceased to come to

him. At the moment, the appellant is stated to have come

from the side of the lane and made Chamkaur Singh deceased

stop, accusing him that he had talked ill to him to some

shopkeeper but Chamkaur Singh denied having done so. There-

upon Chamkaur Singh moved forward towards his house accompa-

nied by one Darbara Singh. The appellant at the juncture

took out his pistol from underneath the blanket, with which

he had wrapped himself, and fired a shot hitting the left

flank of Chamkaur Singh. After receiving the shot Chamkaur

Singh rushed inside the house of Harbans Singh Sansi and hid

himself by chaining the door from inside. Harbans Singh

P.W.3 and Darbara Singh raised alarm saying "do not kill"

"do not kill" but the appellant escaped from the place of

occurrence with his pistol. Hakam Singh, P.W.4 had also

arrived at the spot from the side of his fields and saw the

occurrence. Two others, Mohinder Singh and Gura Singh, took

Chamkaur Singh to the Civil Hospital Ferozepur while Harbans

Singh to P.W.3 went to the Police Station Ghall Khurd, in

the same village, and lodged the First Information Report.

On arrival at the hospital Dr. S.I.S. Sandhu P.W.2 attended

to him. Chamkaur Singh remained in the hospital for about 13

days till January 2, 1975 when he died. It fell to the lot

of Dr. Sandhu again to perform the autopsy of the deceased.

In the opinion of Dr. Sandhu the death of Chamkaur Singh was

due to toxemia and shock as a result of peritonitis as a

consequence of fire arm injury in which the small gut was

injured. According to the

579

doctor the injury was sufficient to cause death in the

ordinary course of nature.

The prosecution further alleges that the appellant

could not be arrested and was declared an absconder. It is

only on April 12, 1978, about 40 months later, that he was

arrested at a check-post in another part of district Feroze-

pur and at that time he was holding a pistol. It was taken

into possession as well as the ammunition found on his

person.

When the case we sent up for trial after completion of

investigation, the prosecution supported its case by

production of two eye witnesses, Harbans Singh P.W.3 and

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Hakam Singh P.W.4 to give the occular version. It also

introduced in evidence two dying declarations of the

deceased. One was said to have been made on December 20,1974

to Shamsher Singh, P.W.14 who then posted as Judicial

Magistrate, First Class, Ferozepur. He was no more a

Magistrate when his statement was recorded at the trial. The

other one was of December 21,1975 recorded by S.I. Vasdev

P.W.15.Besides, the absocondence of the accused was pressed

into service. The learned Sessions Judge however placed no

reliance on either the ocular version or the dying declara-

tion and acquitted the appellant, but he was reversed by the

High Court. The exercise in the instant appeal is to examine

whether the High Court was justified in interfering in the

acquittal of the appellant.

As said before, Chamkaur Singh had been taken to the

Civil Hospital, Ferozepur the same day, i.e., December

20,1974. On his arrival, Dr. S.I.S. Sandhu, Surgical Spe-

cialist, Civil Hospital, Ferozepur sent message Ex.P.B. at

6.00 p.m. to the S.H.O. police Station Ferozepur city,

intimating the arrival of the injured. The Hospital and the

Police Station are opposite each other. Another message Ex.

P.C. was sent likewise at 6.20 p.m. suggesting recording of

dying declaration of Chamkaur Singh since his condition was

serious. At 10.30 p.m. vide application Ex.PD S.I. Vasdev

asked the opinion of Dr. Sandhu whether Chamkaur Singh was

fit to make statement, but the doctor opined that the in-

jured was not fit to make a statement. Then on the next day

on 21.12.1974, again opinion was sought by the Police to

that effect at 11.00 a.m. and then the doctor declared

Chamkaur Singh fit to make a statement. Dr. Sandhu claimed

to have ordered giving pethedin injection to the injured by

way of sedation on the arrival of the injured in the Hospi-

tal, and another injection on 21-12-74 at

580

4.00 p.m. That was the reason that on the earlier day, i.e.

on 20-12-1974, When his opinion was sought about the ability

of the injured to make a statement, he had opined that he

was unfit to make a statement due to sedation. It is worthy

of notice at this stage that it was Vasdev S.I. attached to

Police Station Ghall Khurd who responded to the need of

recording a dying declaration and not the police of Police

Station Ferozepur City. It is also worthy to note that

Chamkaur Singh himself was a constable serving in the office

of S.P. Ferozepur City. From the medical report Ex.P.J., Dr.

Sandhu, when called again as a court witness, explained that

Chamkaur Singh was conscious when he was brought for exami-

nation at 6.15 p.m. and at that time he was fit to make a

statement although his condition was serious. He however

went on to say that he had ordered a pethedin injection to

be given to the patient so that he goes to sleep, which

injection should have had its effect after half an hour.

The first dying declaration of the deceased, as said

before, was recorded by Shamasher Singh P.W.14.According to

Shamsher Singh P.W.14 he received a police application on

the basis of which he went to the Hospital in order or

record the dying declaration of the deceased at 6.45 p.m.

Having reached there he obtained the opinion of Dr. Sandhu

regarding fitness of Chamkaur Singh to be fit to make a

statement. Noticeably no document was prepared by P.W.14 in

that regard. He claimed to have prepared his own proceedings

in the form of a memorandum Ex.P.N. and noted therein that

Dr. Sandhu had certified Chamkaur Singh to be fit to make a

statement and that on his pointing out Chamkaur Singh he had

recorded the dying declaration of the deceased. The memoran-

dum Ex.P.N. itself contains the dying declaration of Cham-

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kaur Singh which is pointed as Ex.P.N.2 P.W.14 claims that

it was recorded on the dictation of the injured, which was

read out to him after recording and to which injured put his

signatures. This dying declaration is to the following

effect:

"My brother Thana Singh had died earlier. He was

poisoned in liquor. Now I have come to know as to who had

done it. Earlier I did not know. I wanted to go from my

headquarters after taking leave but could not get an oppor-

tunity. Today, I got down at Ghall Khurd Bus Stop. Darbara

Singh member Panchayat was with me. Rajinder Singh accused

came there. He said that I had talked something about him to

some shopkeeper. I replied in the negative. I proceeded and

then saw

581

back that the accused took out a pistol from underneath his

blanket. He fired, which hit me on the left side of my

flank. I entered some one's house but the accused ran away.

Jagat Singh,Jagtar Singh, Darbara Singh and many other

people had come there".

P.W.14 further stated that the dying declaration was

sent by him to the Area Magistrate but corrected himself

that Police Station Ghall Khurd fell within his jurisdiction

and stood shifted to another Magistrate. He also stated that

he had resigned from the post of Judicial Magistrate, First

Class, Ferozepur. He while giving his evidence described

himself as a practising advocate at Kharar, a tehsil town.

In his memorandum Ex. P.N. besides his version and narra-

tion, there is no signature of Dr. Sandhu even though his

name prominently figures in it. Even after recording it Dr.

Sandhu was not asked to certify the recording of it. Accord-

ing to P.W.14 there was no necessity for it because he was

himself satisfied that Chamkaur Singh was fit to make a

statement all through. Memorandum Ex. P.N. was not put to

Dr. Sandhu or he even apprised to know its contents.The

prosecution dare not risk it. Dr. Sandhu may have totally

denied his involvement in the recording of the first dying

declaration. Another significant factor emerging from the

first dying declaration is that the names of the two eye-

witnesses Harbans singh P.W..3 and Hakam Singh P.W.4 do not

find mentioned as persons who had seen the occurrence. Other

were so named.

The second dying declaration is claimed to have been

recorded by S.I. Vasdev, P.W.15 of Police Station Ghall

Khurd. As he says, on 20-12-1974 at 6.15 p.m. he recorded

the First Information report at the instance of Harbans

Singh P.W.3. After recording it he went to the spot and

recovered therefrom an empty cartridge. He recorded the

statements of Hakam Singh P.W. 4 at that time. He then went

to Civil Hospital , Ferozepur reaching there at 9.30P.M. He

then made application Ex. P.D. at 10.30 P.M. enquiring from

the doctor about the fitness of Chamkaur Singh to make a

statement. The opinion being negative, he ventured again on

the next day at 11.00 a.m. This time the doctor's opinion

was positive and then he recorded the dying declaration Ex.

P.O. The dying declaration recorded by P.W.15 reads like

thus:

"I am a constable in the police, on 20-12-1974 I came

on leave

582

to Ghall Khurd. I came by bus, Darbara Singh was with me.

He and I came in front of the house of Harbans Singh .

Accused Rajinder Singh came from the front side. he was

having a blanket around. He said that I had talked to a shop

keeper about him. I told him that some-one had misled him. I

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Proceeded forward and looked backwards. The accused took out

his pistol and fired towards me. After that I started rais-

ing raula. The shot fired by accused hit me on my left flank

and I got injured. Out of fear I entered the house of Har-

bans Singh Sansi. I bolted the door from inside. Jagtar

Singh son of Joginder Singh, Harbans Singh son of Sawan

Singh Jats, Hakam singh son of Isher Singh had seen the

occurrence. Rajinder singh fled away with the pistol from

the spot. He ran towards Kikar trees. Where Kewal Singh

brother, was waiting for him. They both ran away. They had

both connived to kill me. The cause of enmity is that on 21-

12-1974 my borther Thana singh died by taking liquor. I

later on came to know that Rajinder Singh had poisoned him

in liquor due to which the death occurred. As I could not

know earlier. I could not proceed further. On Diwali night

my brother Balam Singh and Rajinder Singh gambled. Rajinder

Singh won some money. I had got that amount returned from

Rajinder Singh . While I was injured state, Gurnam Singh son

of Hari Singh and Mohinder Singh son of Arjan Singh of

Ghall Khurd took me in a jeep and got me admitted in the

hospital".

As is evident there are contrasting features in the two

dying declarations. The presence of Harbans singh P.W.3 and

Hakam singh P.W.4, as said before, had not been mentioned

specifically in the first dying declaration. In the second

dying declaration, the names of those two witnesses got

introduced. It is yet to be seen whether Harbans Singh and

hakam singh, P.W.s can be said to be reliable witnesses

whose presence at the spot could be taken as established.

besides in the second dying declaration the brother of the

appellant, by the name of Kewal singh, had been introduced

as a co-culprit. Though it is the admitted case of the

prosecution that Police Station city stood informed of the

arrival of the injured at the Hospital, and that ASI Rajind-

er Kumar of City Police Station had come there with consta-

ble Ashok kumar to be given the bag of clothes of the in-

jured on 20-12-1974,it indicates that even though the Fer-

ozepur

583

police was there in attendance, it was not prepared to carry

the burden of getting recorded a dying declaration. In this

situation, it is rather dramatic that Shamsher singh, P.W.14

should jump into the fray without having been asked by

anyone officially, under proper documents, to record the

statement of the injured at 6.45 p.m. and without complying

with the essential formalities of making an application to

the doctor, disclosing his identity, seeking his opinion as

to the fitness of the injured to make a statement, and if

permitted having recorded the statement of the injured in

the presence of the doctor. The role of Shamsher Singh

P.W.14, even if we leave aside the suspicion entertained by

the Sessions Judge on his veracity on the basis of his

judical career, seems to us suggestive of an

overdoing,shared by the police to not let go a crime against

their fellow policeman unpunished. It is also plain that

while introducing the expression "other Persons" to be

present in the first dying declaration it was like drawing a

blank cheque to be filled in at a later stage conveniently,

in order to plug in convenient witnesses, if the ones men-

tioned already were not Prepared to support the Prosecution.

The effort in that regard was to say the least naive, if not

clumsy. The dying declaration recorded by SI Vasdev on the

following morning also demonstrates that by that time Har-

bans Singh and Hakam singh had been tied up as willing

witnesses.

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The first Information Report was shown to have been

recorded on 20-12-1974 at 6.15 p.m. under section 307/34 IPC

and under section 25/27/54/59 of the Arms Act. It is shown

to have been despatched to the magistrate the following day

on 21.12-1974 at 8.00 p.m. much after the recording of the

second dying declaration. It is shown to have been received

by the Magistrate still two days later on 23-12-1974 at

10.05 a.m. The investigation stretched its timings. The

version was improved. It was said that after the occurrence

when the appellant ran away with his pistol, he was joined

near the kikar trees by his brother Kewal Singh, who too is

a constable in the Police . He is suggested to have been

waiting for the appellant as an aide. Then both of them are

said to have fled away. Since the appellant was shown to

have been absconding, Kewal Singh brother of the appellant

was hurriedly put up for trial for offence under section

302/34 IPC. The learned Sessions Judge, Ferozepur, however,

discharged the accused Kewal singh on 9-9-1975 vide his

decision in Sessions Case No.66 of 1975. This apparently was

an attempt to try the appellant in absentia, but the effort

failed.

584

We have also gone through the evidence of the two eye

witnesses. Harbans singh P.W.3 when detailing the version

said that after talking to the appellant, Chamkaur singh

along with Darbara singh moved forward towards their house

and when Chamkaur Singh turned back he was hit by pistol

shot fired by the appellant. His reason for being at the

spot was that he had gone to the house of one Jagir Singh

for taking a plough. He lives in the east of the village

where as the house of Jagir Singh is towards the west of the

village. Though he says that his house and that of Jagir

Singh was about 20 houses apart, the defence suggestion was

that about 200 houses intervene. He appears to be a chance

witness altogether . There could be plenty of ploughs to be

borrowed in his own neighbourhood. So far as Hakam singh

P.W.4 is concerned, his house is towards the south of the

place of occurrence and there intervened about 150 houses

between his house and the place of occurrence. He too is a

chance witness. Nobody from the locality was examined by the

prosecution. Material witnesses like Darbara Singh, Jagat

singh and Jagtar singh, as well as Guna Singh and Mohinder

Sigh, who were claimed to have seen the occurrence and

removed the injured to the hospital in their jeep, were not

examined by the prosecution. It is due to the second dying

declaration recorded by SI Vasdev P.W.15, that the names of

these two i.e., Harbans Singh and Hakam singh came in the

forefront, and on accomplishing such a fiat, the F.I.R.

seems to have been written thereafter and the report des-

patched on 21-12-1974 at 8.00 p.m. to the Magistrate after-

wards. There was in the interval plenty of time to withhold

the despath of F.I.R. till the story could be woven, con-

cerning as it was, to a fellow policeman.

Thus it appears to us that the presence of these two

witnesses Harbans Singh and Hakam Singh at the scene of

occurrence is not free from doubt.The investigation was in

doubt as who was the culprit. As a first step, the theory of

the first dying declaration was introduced without taking

somebody independent, like Dr. Sandhu, into confidence. The

investigation later introduced the story of another dying

declaration. This one was with the aid of Dr. Sandhu, but

this brought in the names of the two eye witnesses to figure

at a time when everything was manageable from the official

point of view in reporting the matter to the Magistrate. The

investigation also in the instance case therefore appears to

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us to be not free from taint. The views of the learned

Sessions Judge,Ferozepur in acquitting the appellant as

compared to those expressed by the High Court have been

weighed again by us with the evidence on record, and we tend

to

585

agree with the learned Session judge, disagreeing with the

views expressed by the High Court, so as to acquit the

appellant.

The abscondence of the accused relied upon by the High

Court remains of no consequence. In the first place it is

not a determining factor and not one which could outweigh

the other matarial appearing on the record. It by itself

does not establish the guilt of the appellant beyond rea-

sonable doubt.

For the views afore-expressed, we find it difficult to

sustain the conviction of the appellant. Accordingly he is

extended the benefit of doubt and acquitted. The appeal is

accordingly allowed.

N.P.V. Appeal Allowed.

586