Balvendra Singh vs State of Rajasthan

This appeal has been filed by Balvendra Singh, against the judgment dated 3rd July, 1976, passed by the Sessions Judge, Ganganagar in sessions case No. 152/75. In the sessions case aforesaid, the appellant was prosecuted in respect of offences u/s 302 I.P.C. and Sections 25 and 27 of the Arms Act. The Sessions Judge convicted the appellant for the aforesaid offences and sentenced him to imprisonment for life u/s 302 I.P.C. and to rigorous imprisonment for six months u/s 25 as well as u/s 27 of the Arms Act. After the conclusion of the arguments in the appeal, we passed the order dated 22nd November 1982 whereby the appeal was allowed in part. The conviction of the appellant u/s 302 I.P.C and Section 27 of the Arms Act was set aside and consequently the sentence awarded to the appellant on the aforesaid two counts Were also set aside The conviction of the appellant u/s 25 of the Arms Act and the sentence awarded on this count was however, maintained. Since the appellant had already undergone the sentence of rigorous imprisonment of six months, it was directed that he shall be released forthwith, if not required in connection with any other case. The directions given by the Sessions Judge relating to the drum, pistol and live cartridge were maintained. In the order itself it was stated that the, reasons in support of the order shall be recorded later on. The reasons for the aforesaid order are being set out as under. The prosecution of the appellant in the sessions case aforesaid relates to an incident which is alleged to have taken place in the night intervening January 6 and 7, 1975 in the field of Laxmansingh (P,W.9) in Chak 22 F, Tehsil, Karanpur. In the said incident one Balbirsingh (deceased) sustained fire arm injuries as a result of which he died. The first in formation report (Ex P.I) with regard the aforesaid incident was lodged by Kundansingh (P.W.I), the brother of the deceased, at police station, Kesrisinghpur on 7th January, 1975 at 12.30 p m. In the said report it was stated that 2-3 days back the appellant and Darshan (P W.3)had stolen a drum of Ramlal of Phusawala and that Ramlal had come to know about it and that the appellant had a suspicion that the information about this was given to Ramlal by the deceased, In the said report, it was further stated that last evening the appellant had asked Kukoo (P.W 1C) and the deceased Balbir to accompany him for having liquor, Kukoo did not go with the appellant but deceased Balvirsingh went wiih him. In the morning at about 9 a.m. Mukhtyarsingh (P.W.) son of Mahanga Singh informed him that Balbir singh had been killed in the night by the appellant by firing a shot with a pistol and that the dead body was lying in the field of Laxman Singh. Thereupon the informant with Nangal Singh (P.W.1) Sarpanch Indersingh (P.W.7) etc. went to Chak 22 F and found that Balbir Singh was lying on his face with a wound of fire arm injury on his back and he was dead and that the drum was lying nearby. On the basis of the aforesaid report, a case u/s 302 L.P.C. was registered and Narainsingh (P.W.14), A.S.I. Incharge of police station, Kesrisinghpur proceeded to the scene of occurrence. After reaching there he prepared the memo(Ex.P.9) about the condition of the dead body, inquest report (Ex.p. 10), site plan (Ex.P. 1) memo of site inspection (Ex-P. 11 A). Narain Singh also recovered an empty cartridge case (Article 8) from near the dead body vide seizure memo (Ex P.12) and also collected blood stained earth and ordinary earth from the scene vide seizure memo (Ex. P.13). The shoes turban and ''Khes'' (cotton sheet) of the deceased were seized vide seizure memo (Ex.P. 14) and the drum which was lying on the scene was seized vide seizure memo (Ex.P.15). The post mortem examination of the dead body was conducted at the scene of the incident by Dr. Ramlal (P.W. 15), who prepared the post mortem report (Ex.P.19). During the course of post mortem examination of the dead body of the deceased, Dr. Ramlal recovered two pellets (shots) which were duly sealed by him and sent to the S.H.O, police station Kesrisinghpur, vide letter (Ex.P.20). After the post mortem examination, the clothes found on the person of the deceased were seized vide seizure memo (Ex.P.17). The appellant was arrested on 9th January, 1975 vide memo of arrest (Ex P. 18). After the arrest, the appellant, on January 13, 1975, gave information vide memo of information (Ex P 3) about his having concealed a country made pistol loaded with a 12 bore cartridge in his house in village Kaminpur and on the basis of aforesaid information a country made pistol along with a cartridge was recovered from the house of the appellant vide seizure memo (Ex.P.4).

After completing the investigation and after obtaining the sanction (Ex P. 5) of the District Magistrate for the proseution of the appellant in respect of offence u/s 3/25(1)(a) of the Arms Act, the police filed a challan aginst the appell the in the court of Judicial Magistrate, Karanpur, who committed the appellant for trial to the court of Sessions on charges u/s 302 I.P.C. and Section 25 and 27 of the Arms Act. The appellant pleaded not guilty and denied the recovery of the pistol at his instance. The prosecution in support of its case examined 16 witnesses out of whom Darshansingh (P.W.3), Labhsingh (P.W.4) and Baisakha Singh (P.W.5) are claimed to be the eye witnesses of the alleged occurrernce. Nasibkaur (P W.6) and Kakusingh (P.W.10) have come forward to prove that the deceased was last seen alive in the company of the appellant. Dr. Ramlal (P.W. 15) has proved the post mortem and the other witnesses were examined to prove the F.I.R. and the other documents.

3 The Sessions Judge, in his judgment dated 3rd July, 1976, did not not accept the evidence adduced by the prosecution with regard to the motive for the alleged offence. The Sessions Judge, was how ever, of the view that the failure on the part of the prosecution to prove the motive is of no consequence in view of the direct evidence adduced by the prosecution. The Sessions Judge accepted, as trust worthy, the testimony of the three eye witnesses namely Darshansingh, Labhsingh and Baisaka singh examined by the peosecution. The Sessions Judge has also accepted the evidence of Nasib Kaur and Kakusingh wilh regard to the deceased having been last seen alive in the company of the appellant. The Sessions Judge has also accepted the evidence of Mukhtyar Singh with regard to the extra judicial confession said to have been made by the appellant to him. The Sessions Judge also accepted the evidence adduced by the prosecutions with regard to recovery of the empty cartridge case from the scence of occurrence and the pistol and the cartridge from the house of the appellant and the opinion of the ballistic expert that the empty cartridge case that was recovered from the scene of occurrence had been fired from the pistol that was recovered from the house of the appellant at the instance of the appellant. In view of the evidence aforesaid, the Sessions Judge held that the offences u/s 302 IPC and Sections 25 and 27 of the Arms Act were proved beyond reasonable doubt against the appellant and the Sessions Judge awarded the sentences referred to above. Being aggrieved by the aforesaid judgment of the Sessions Judge, the appellant has filed this appeal.

Shri M.L.Carg, Jeanrned counsel for the appellant has assailed the findings recorded by the Sessions Judge. The learned Public Prosecutor on the other hand has supported the said findings.

The evidence that has been adduced by the prosecution to prove its case falls broadly in the following categiories, (i) evidence of eye witnesses of the occurrence (Darshan Singh, p. w. 4 and Baishakha Singh p. w 5), (ii) evidence of the witnesses who have claimed to have seen the deceased in the company of appellant in the evening of January 6, 1975 (Nasibkaur p. w. 6 and Kakusingh p w. 10), (iii) extra-judicial confession of the appellant (Mukhtyarsingh p. w. 8), (iv) medical evidence and (v) expert evidence about the empty cartidge case which was recovered from the site having been fired from the country made pistol which was recovered from the house of the appellant at the instance of the appellant.

We may first lake up the evidence of the eye witnesses of the occurrence. All the three eye witnesses viz., Darshansingh (p. w. 3), Labhsingh (p. w. 4) and Baisskha Singh (p. w. 5), have deposed that 10-15 days before the recurrence, they along with the appellant, had gone to the field of Ramlal in village Phusewala and had ccmmited the theft of a drum filled with ''Lahan and that 16 bottles of liquor were extracted and four bottles came to the share of each of them wich was consumed by them. On the day of occurrence the appellant approached the witnesses in the evening and asked them to accompany him for the purpose of removing the drum and concealing it elsewhere otherwise Ramlal would get him arrested. Thereupon the said witnesses alongwith the appellant and the deceased went in the night at about 9 p m. to the field of Laxmansingh in Chak 22 Fand they took out the drum and concealed it in the cotton sticks in the field of Laxmansingh The said witnesses have further stated that while they were returning, the appelland fired the pistol at the deceased from behind because he suspected that he could give the information about the theft of the drum to Ramlal and that the shot from the pistol, hit the deceased on his back and he fell down on his face. After receiving the fire arm injury, the deceased had told the appellant that he had deceived him. The witnesses have further stated that the appellant reloaded the pistol and told the witnesses that if they would inform anybody about this incident, he would kill them also and that on account of fear, they did not tell anybody about the incident in the night and came back to their houses and slept.

While dealing with the testimony of these witnesses it has to be borne in mind that the Investigating Officer, Gom Dam (P.W.13), has stated that the statements of all the three witnesses were recorded before the Magistrate u/s 164 Cr.P.C. In respect of a winteess whose statement has been recorded u/s 164 Cr.P.C the law is well settled that, the evidence of such a witness must be approached with caution because such a witness feels tied to the previous statement given on oath and has but a theoretical freedom to depart from the earlier version and a peosecution for perjury could be the price for that freedom. (See Balakram v. Stale of U.P . 1974 SCC 837

It is pertinent to note that the names of these witnesses are net mentioned in the F.I.R. Labhsingh (P.W.4) and Baisakhasingh (P.W.5) have both stated that they had met Kundansingh (P.W.1) and told him about the whole incident and were present with him at the time when Mukhtyar singh (P.W.8) came and told Kundansingh about the murder of the deceased. They have also stated that they had accompanied him to the police station. Kundan Singh (P.W.(sic) ) has also stated that Labhsingh and Baisakha Singh had gone with him to the secene of occurrence from the Village and they had informed him about the incident while they were going to the scene of occurrence. Similarly Mukhtyarsingh (P.W 8) has stated that he had informed Kundansingh that Darshansingh, Labhsingh and Baisakha Singh were present at the time of the occurrence and that thereupon those persons were called and Labhsingh and Baisakha Singh came and told everything and that they also went to the field of Laxmansingh where the dead body was lying and had also gene to the police station. Laxman-Singh (P.W.9 has also deposed that Labhsingh and Baiskha Singh had come to his field alongwith the other persons who had come to look for the dead body of the deceased. Apart from the fact that the names of Darshansingh, Labhsingh and Bassakhasingh do not find place in the F.I.R, the case set up in the F.I.R is also different from that put forward by the witnesses. In the F I.R. it was stated that Kakusingh and the deceased had been asked by the appellant to accompany him for having a drink and that Kakmingh refused but the deceased accompanied him. It is inconceivable that if Darshansingh and Baisakha Singh were the eye witnesses of the occurrence and if they had met informant before the lodging of the F.I.R., their names ould not be mentioned in the F.I.R. From a perusal of the F.I R. only two inferences are possible i.e. (i) Darshan singh, Labh Singh and Baisakha Singh did not meet Kundan singh before he lodged the F.I R, or (ii) Darshan Singh, Libhsingh and Baisakha Singh are not the eye witnesses of the occurrence and are falsely claiming to be eye witnesses. The first inference cannot be drawn in view of the evidence of Kundansingh, Labhsingh, Baisakasingh Mukhtyarsingh and Laxmansingh. Therefore, the only possible inference is that of Darshan Singh, Labhsingh and Baisakha Singh are not the eye witnesses of the occurrence.

It may also be observed that Darshansingh (P W.3) happens to be the cousin brother of the deceased. Baisakha Singh (P.W.5) is the nephew of the deceased and Labhsingh (P.W.4) is also related to the deceased. It is not the case of the prosecution that these witnesses have any hostility against the deceased. The said witnesses have deposed that the appellant first collected them and thereafter he called the deceased. It appears highly improbable that the appellant, if he wanted to murder the deceased, would collect these witnesses who are all related to the deceased. The presence of these witnesses could not, in any way, be said to facilitate the object of the appellant and could only create difficulty in his achieving the said object. Moreover, if the evidence of the eye witnesses is examined, one cannot fail to note the time or the incident and after the incident After the appellant had fired the pistol at the deceased the witnesses did not make any effort to snatch the pistol from the hands of the appellant but permitted him to reload the pistol although the appellant was alone and the witnesses were three in number. According to the witnesses the deceased had not died after receiving the injury. But the witnesses, even though they are related to the deceased, did not make any effort to save the life of the deceased. The witnesses neither went to the house of the deceased to inform the wife of the deceased about the incident nor did they inform his brother or anybody else about the same and kept quiet till the next morning. The aforesaid conduct of the witnesses in failing to take any step to inform anybody or to secure medical aid for the deceased even though they happened to be relatives of the deceased appears to be highly improbable.

Shri Garg has invited our attention to the various contradictions in the evidence of the three eye witnesses on a number of matters, namely, the place where they gathered, how they gathered, the weapons carried by them, their return from the field of Laxmansingh after the occurrence, and with regard to the occurrence itself. Shri Garg has submitted that the aforesaid contradictions in the evidence of the witnesses are material in nature and in view of the contradictions no reliance should be placed on their testimony. The learned public prosecutor on the other hand has submitted that the aforesaid contradictions in the evidence of these witnesses that have been pointed out by Shri Garg are minor in nature and they do not throw doubt on the testimony of these witnesses. The learned Public Prosecutor has also submitted the it the evidence of these witnesses finds corrboration from the medical evidence namely, post mortem report which shows there were fire arm injuries on the back of the deceased. We are unable to accept the contention of the learned public prosecutor that the presence of firearm, injuries on the back of the deceased provides sufficient corroboration to the testimony of Darshansingh, Labhsingh and Baisakba Singh. Ths witnesses could have moulded their testimony in the light of the injury found on the b dy of the deceased in the post mortem examination report. A perusal of the post mortem report shows that the medical officer who conducted the post mortem examination has not made any mention about the contents of the stomach, the small intestines and the large intestines in the report. If the contents of the stomach, small intestines and large intestines had been mentioned in the post mortem report, they might have given an indication as to whether the deceased had died in the evening as deposed by the witnesses and might have provided the corroboration for the testimony of the eye witnesses about the incident having taken place at the time stated by them In the absence of any such mention in the post mortem report about the contents of stomach, small intestines and large intestines, the medical evidence is consistent with the possibility that the crime had been committed in the early hours of the morning when the deceased had gone to answer the call of nature and that nobody had seen the actual incident. Taking into consideration the fact that the names of the witnesses are not mentioned in the FIR. and takingl into consideration the abnormal conduct of the witnesses and the time of the incident and after the incident, we are of the opinion that it is not possible to accept the testimony of Darshansingh (P.W.3), Labhsingh (P.W.4) and Bai-sakhasingh (P W.5). In the cirenmstances we do not consider it necessary to deal with the various contradictions in the testimony of these witnesses to which reference bad been made by Shri Girg, learned Counsel for the appellant.

As regards the evidence that has been adduced by the prosecution to prove that the deceased was last seen in the company of the appellant, it may be observed that Smt Nasib Kaur (P.W.6) is the wife of the deceased, who has stated that at about 8 p.m. the appellant, alongwith Labhsingh and Darshaniingh, had come to her house and had called her husband and that white taking the deceased white them, the appellant had said that they had some work and they would return shortly and that on the next day in the morning at 8 a m she learnt that her husband had been shot dead by the appellant. the statement of Smt. Nasibkaur u/s 161 Cr.P.C. was recorded by the Investigating Officer on January 13,19/5, i.e. seven days after the incident No explanation has been offered for this delay in recording the statement of Smt. Nasib Kaur. The conduct of Smt. Nasib Kaur also appears to be unusual in as much as even though according to her, the deceased had left with the appellant at about 8 p.m. she did not take any step to inform anybody when the deceased did not return during the night. It was expected that Smt Nasib Kaur would have contacted Kundansingh, the brother of the deceased and other relatives of the deceased when the deceased did not return during the night but Smt. Nasib Kaur did not do any such thing. Smt. Nasib Kaur has also stated that after she learnt that her husband had been killed she did not go to the spot. According to Kundansingh the field, of Laxmansingh, where the dead body of the deceased was found, is about 4 to 5 Murabbas from his house. In the circumstances it is highly unnatural that Smt. Nasib Kaur would not have gone to see the dead body of her husband on being informed about his death. More over the statement of Smt Nasib Kaur that the appellant along with Darshansingh and Labhsingh had come to her house to take ihe deceased with them is contradicted by the testimony of Darshansingh and Labhsingh who have deposed that the appellant and Kundansingh hsd gone to bring the deceased from his house. In our opinion in view of the long delay of six days in recording the statement of Smt Nasib Kaur and the abnormal conduct en her part as well as the contradictions between her statement and that of Darshansingh and Labhsingh it is not possible to place reliance on the testimony of Smt Nasib Kaur that the deceased had gone with the appellant at 8 p.m. on the night on the alleged date of occurrence.

The other witness examined by the the prosecusion in this regard is Kakusingh (P.W.10) who has deposed that at about 8.30 p.m., the appellant had come to his house and asked him to accompany him for the purpose of hiding the drum and that after coming out from the house he saw Baisakhasingh, Darshan Singh and Labh Singh standing at a distance of 1 killa away from his house. The said witness has deposed that after he had gone with the aforesaid persons for some distance, he started feeling cold and thereupon appellant said that they would take the deceased with and that the appellant west to call the deceased and after the deceased and Darshansingh, Baisakhasingh and Labhsingh went to hide the drum and he (Kaku singh) returned to his house. Kakusingh, during the course of cross examination, has deposed that his statement was recorded by the police after 8 or 9 days and that he had remiined in the village during this period. He has also stated that he had been going to the police for 2-3 days after the incident but his statement was not recorded and he had also asked the police to record his statement but they did not record it. More over the version given by Kakusingh is contradicted by Darshansingh, Labhsingh and Baisakhasingh who have deposed that the appellant and Kakusingh had gone to bring the deceased from his house. In view of fact that the statement of Kakusingh is said to have been recorded by the police 8-9 days after the incident end no explanation has been offered for the delay in the recording of his statement, and the testimony of Kakusingh stands contradicted by the evidence of Darshan Singh, Labhsingh and Baisakha Singh, we do not find it safe to place reliance on the testimony of Kakusingh. For the reasons aforesaid we are of the opinion that no reliance can be placed on the evidence of Smt. Nasibkaur and Kakusingh that the deceased was last seen in the company of the appellant on the evening of January 5, 1975.

Coming to the extra judicial confession said to have been made by the appellant to Mukhtiarsingh (P. W. 8) it may be observed that in so far as extra judicial confessions are concerned, the law is well settled that before the court would act on an extra judicial confession the circumstance under which the confession is made, the manner in which it is made, the person to whom it is made must be considered along with two rules of caution, (i) whether the evidence of confession is reliable and (ii) whether it finds corroboration (See Vakil Nayak v. State of Bihar 1972 SCC ) 9). In the present case the only evidence about the extra judicial confession is that of Mukhtiarsing (P. W. 8) who has deposed that he had gone to his field in the morning and that while he was in his field he saw the appellant going from near his field and when the appellant came near the witness he asked him as to where he was going and thereupon the appellant made the confession that he had done a bad deed and that he was going to his father in law''s place and that when he further asked as to what the bad deed was, the appellant replied that Balbirsingh had died and also told him that three more persons were present with him and gave the names of those three persons as Baiskha singh Labhsingh and Darshansingh. Mukhtiarsingh has also stated that he asked the appellant as to where he had died and thereupon the appellant told him that he had died in the field of Laxman Singh. Mukhtiarsingh has also stated that he did not ask the appellant as to who had killed the deceased and he also did not tell him hut later on Mukhtiar Singh stated that the appellant had told him that the bad deed had been committed by him but did not tell him how the deceased had died. In the first place we are of the opinion that the version given by Mukhtiarsingh about the confession said to have been made to him by the appellant is highly improbable. It is difficult to believe that the appellant would make a confession to the witness while just passing by through the field of Mukhtiar Singh. There is nothing to show that Mukhtiarsingh close relations with the appellant so as to inspire the appellant deposing confidence in Mukhtiarsingh. In the absence of any corroboration we are unable to place reliance on the testimony of Mukhtiar singh alone. Further more, we are unable to read the statement alleged to have been made by the appellant to Mukhtiarsingh to be a confession of the crime said to have been committed by the appellant. According to Mukhtiarsingh all that the appellant told him was that a bad deed had been committed by him and that Balbirsingh had died. The evidence of Mukhtiarsingh does not show that the appellant had confessed before him that he had murdered Balbirsingh. In our view, therefore, not much value can be attached to the evidence about the extra judicial confession said to have been made by the appellant to Mukhtiar Singh.

We may now come to the evidence with regard to the recovery of the empty cartridge case from the scene of the occurrence. The recovery of the pistol fron the house of appellant on the basis of the information given by the appellant and the report of the ballistic expert that the empty cartridge case which v. as recovered from the scene of the occurrence could have been fired from the pistol that was recovered from the house of the appellant. Shri Garg has challenged the recovery of the empty cartridge case from the scene of the occurrence as well as the pistol from the house of the appellant. In so far as the recovery of the empty cartridge is concerned, the submission of Shri Garg was that there is no mention about the throwing of the empty cartridge and reloading of the pistol in the statement made by Darshansingh before the police and in the statement of Labhsingh recorded before the Magistrate u/s 164 Cr. P. C, which shows that the story of the reloading of the pistol by the appellant and throwing of the empty cartridge case at the scence of the occurrence is an after thought. Shri Garg has also placed reliance on the testimony of Inder singh (PW 7) who has stated that he did not see the cartridge when he saw the dead body. As against this, there is the evidence of Kundansingh (PW 1) and Mangal Singh (PW 2) who have stated that the empty cartridge was recovered from the scene of occurrence vide seizure memo (Ex. P. 12). The attesting witnesses of the said memo are PW 1 Kundansingh and (PW 9) Laxmansingh. Although Laxmansingh (PW 9) does not make any mention of the recovery of the empty cartridge vide seizure memo (Ex. P 1), Kundansingh (PW 1) has referred to the recoveiy of the empty cartridge from the scene of the occurrence and having put his thumb impression on the seizure memo. We find no reason to disbelieve the testimony of Kundansing (PW 1) and Manual Singh (PW 2) about the empty cartridge case being found lying near the dead body. We, therefore, accept the case of the prosecution that an empty cartridge case was recovered from near the dead body of the deceased in the field of Laxmansingh, vide seizure memo (Ex. P. 12).

In so far as the recovery of the pistol from the house of the appellant is concerned, it may be observed that the said recovery is proved by the memo of information (Ex. P. 3) and the seizure numo (Ex P. 4). The attesting witnesses of the seizure memo (Ex. P. 4) are Kakusingh (PW 10) and Karnail Singh (PW 12). Although Kakusingh (PW 10) has not proved the said seizure memo but Karnailsinsh (PW (sic)2) has proved it. The aforesaid seizure memo and the memo of information (Ex. P.3) have also been proved by the Invest gating Officer Gorudan (PW 13). There is no reason not to accept the evidence of the aforesaid witnesses and in view of their evidence it must be held that a country made pistol with a live cartridge was recovered from the house of the appellant on the basis of information given by the appellant.

Shri Garg has, however, submitted that even if the recovery of the empty cartridge case from the scene of the occurrence and the pistol from the house of the appellant is accepted, it cannot be said that the empty cartridge case which was sent to the State Forensic Science Laboratory was the empty cartridge case which was actually recovered from the scene of the occurrence. In this connection Shri Garg has pointed out that Narasing (PW 14), which had seized the empty caridge case, has stated, in the course of cross examination that he had not obtainted the signatures or thumb impressions of the witnesses on the cloth in which the empty cartridge case was sealed and that no chit bearing the signaturee of the witnesses bad been pasted on the empty cartridge case. Shri Garg has also pointed out that even though the empty cartridge case was seized on 7th January 1975 and the pistol bad also been seized on 13th January, the same were sent to the State Forensic Science laboratory only on 28th April, 1975, i.e. after more than three months. Shri Garg has also pointed out that Sadhusingh (PW 16). who had taken the packets containing the empty cartridge case and the pistol to the State Forensic Science Laboratory has stated that the said packets had been delivered to him by the Head Mohrir who was incharge of the Malkhana at police station Kesrisinghpur and that the prosecution had not examined the Head Mohrir of the Malkhana Police Station Kesrisinghpur in order to show that the seals of the packets had not been tampered with while they were kept in the Malkhana. Shri Garg has also submitted that during the course of post mortem examination of the dead body, two pellets had been recovered from the dead body Dr. Ramlal and the said pellets were duly sealed and sent to the SHO Kesrisinghpur but the said pellets were not sent to the State Forensic Science Laboratory along with the empty cartridge cass and the pistol. The submission of Shri Garg was that it was necessary for the prosecution to have sent the pellets to the State Forensic Science Laboratory for an opinion as to whether the said pellets could be fired from the empty cartridge case, that is said to have been recovered from scene of occurrence and which was sent to the State Forensic Science Laboratory and that in the absence of the pellets being sent to the State Forensic Science Laboratory it could not bi said that the pellets which Wire removed from the dead body of the deceased had been fired from the empty cartridge case which is said to have been recovered from the scence of the incident and which is said to have been fired from the pistol recovered from the house of the appellant.

In State v. Banwari (RLW 1959 RAJ 196) a Division Bench of this Court has laid down:

In this connection I desire to take this opportunity of pointing out that whenever fire-arms or fired cartridges were recovered during the course of investigation, the investigation officer should not only make a list of them, but see that they are properly scaled. It is also desirable that the sealed covers should be signed by the Motbirs who have witnessed the recovery. There must be further satisfactory evidence on the record to show that these seals remained intact until the articles were sent to the ballistic expert and that the recovered articles were not tampered with while in the custody of the police. Finally, there must be evidence from the side of the ballistic expert to show that the articles sent to him had not been tampered with while they were in his custody.

In the present case from the evidence of Narainsing (PW 14) it apears that no chit containing the signatures or thumb impresssion was placed on the empty cartridge case or on the packet containing the said cartridge case, Narainsingh has also stated that he had not obtained the signatures or the thrum impressions of the witness on the cloth in which the empty cartridge case was sealed. In view of the aforesaid evidence of Narainsingh P W 14 it is not possible to hold that the empty cartridge case which was recovered from the scence of the occurrence was the same one which was actually sent to the State Forensic Science Laboratory because in the absence of any chit containing the signatures or thumb impressions of the witness to the seizure memo, it could be possible to replace the empty cartridge case that was recovered from the scene of the occunence by another cmpey cartridge case fired from the pisol that was recovered from the house of the appellant. In this connection it may also be noticed that the empty cartridge case and the pistol were sent to the State Forensic Science Laboratory after more than three months. In Santa Singh Vs. The State of Punjab, it has been observed:

There is another element in the case which creates even greater difficulty. An empty cartridge case is alleged to have been recovered from the place of occurrence by the police on the 10th of September when they went there for investigation after receipt of the first information from Uttam Singh (PW 16); so also some blood-stained earth.

They were carefully packed and sealed in two separate packets and despatched to the Police Station. The sealed parcel of the earth was sent to the Chemical Examiner at Kasauli on the 11th October, 1954, and the sealed parcel of the empty cartridge case was sent to Dr. (sic)Goyle as late as the 27th October, 1954

Even if we accept the expianation given by the Sub-Inspector of Police that the empty cartridge case had to be kept at the police station till the rifle used was recovered so that both might be sent to the expert for his opinion, nothing has been stated why after the rifle was recovered on the 26th September, 1954, along with 24 cartridges from the house of the accused, it was incumbent for the police to retain the parcels and empty cartridge case with them till the 11th October, 1954.

Naturally this inordinate delay raises much suspicion and has given rise to the suggestion on the part of the accused made in the course of the cross-examination of the Sub-Inspector that the empty cartridge case ultimately sent to the expert relates to a cartridge that was fired by them at the police station and is not the one recovered at the spot.

In Hanuman v. The State RLW 1974(RAJ) 1959 the empty cartridges recovered from the place of occurrence on 26th August, 1970 and the gun was recovered at the instance of the accused on 19th December, 1970 but the same was despatched to the Laboratory on 12th April, 1971. A Division Bench of this Court held that in the absence of any reasonable explanation, the delay in despatching the empty cartridge cases and the gun, madethe whole tiling very suspicious. In the said case reference has been made to the earlier decisions of this Court in D B Criminal appeal No. 71/70 decided on 10th August 1971 Hardev Singh v. State and Dtsraj v. State (1969 WLN 42). In In Hardev v. State supra) the delay in sending the incrimating articles to the ballistic expert was of three months and it was held to be inordinate delay. In Desraj v. State (supra) the delay in sending the empty cartridge cases and the pistol was only 1 1/2 months and it was treated as inordinate delay raising suspicion against the prosecution case.

In view of the decisions aforesaid, it must be held that even if there was some justification for retaining the empty cartridge case till the recovery of the pistol there is no reasonable explanation for not sending the empty cartridge case and the pistol to the State Forensic Science Laboratory after 13th January, 1975 when the pistol had been recovered and there was a delay of more than three months in sending the empty cartridge case and the pistol to the State Forensic Science Laboratory. The said delay in our opinion raises suspicion against the prosecution case.

In this context it may be mentioned that the prosecution has failed to produce the Head Mohrir who was incharge of the Maikhana, police station Kesrisinghpur. The evidence of the Head Mohrir who was incharge of the Maikhana at police station Kesrisinghpur was necessary for the purpose of establishing that while the packets containing the empty cartridge case and the pistol remained in the Malkhana of police station, Kesrisinghpur, the said packets were not tampered with. The aforesaid evidence cannot be treated to be a formal evidence only in view of the decision of the Supreme Court in Ukha Kolhe v. State of Maharashta AIR 1963 S.C. 1531 and the decisions of this Court in Ratanlal v. State (RLW 1966(RAJ) 451) and Hardev Singh v. State (supra).

Another circumstance which cannot be ignored is that the two pellets which were recovered from the dead body of Balbirsingh by Dr. Ramlal at the time of the post mortem examination were not sent to the State Forensic Science Laboratory along with the empty cartridge case and the pistol If the pellets had been sent, the ballistic expert could have expressed his opinion en the question whether the said pellets could have been fired from the empty cartridge case which was sent. The failure on the part of the prosecution in sending the pallets to the State Forensic Science Laboratory means that the prosecution has failed to establish beyond reasonable doubt that the pellets which were removed from the dead body of Balbirsingh during post mortem examination were fired from the empty cartrioge case which was recovered from the seen. of occurrence and which is said to have been tired from the pistol recovered from the possession of the appellant. In view of the circumstances mentioned above, we are of the opinion that it is not possible to act upon the report (Ex. P. 8) of the Ballistic Expert and to hold that the empty cartridge which was recovered from the scene of occurrence had been tired from the pistol which was recovered from the possession of the appellant. It must therefore, be held that the prosecution has failed to establish beyond reasonable doubt the complicity of the appellant in causing the death of deceased Balbirsingh and the conviction of the (sic)appe-for the offence u/s 302 I. P. C. cannot be upheld. For the same reasons the conviction of the appellant for the offence u/s 27 of the Arms Act also cannot be upheld.

The position with regard to the offence u/s 25(1)(a) of the Arms Act is, however, different. In view of the evidence of Karnail Singh (P. W. 12) and Gorudan (P. W. 13) it is established that the pistol loaded with live cartridge was recovered from the house of the appellant. From the aforesaid evidence it is also established that the said pistol was found hidden in the room of the house of appellant. Shri Garg has submitted that the wife and father of the appellant also reside in the said house and it cannot, be said that the appellant was in conscious possession of the pistol which is said to have been recovered from the house of the appellant. We are unable to accept the aforesaid contention. The aforesaid recovery of the pistol and the live cartridge was made on the basis of the information (Ex. P. 3) given by the appellant himself and the pistol and live cartridge were found hidden in the room of the house of the appellant. In the circumstances it must be held that the said pistol and the live cartidge were recovered from the possession of the appellant. It is not the case of the appellant that he possesses a licence for the sail pistol. In the circumstances the Sessions Judge was right in convicting the appellant of the offence u/s 25(1)(a) of the Arms Act and we find no reason to disturb the aforesaid finding recorded by the Sessions Judge. We, therefore, uphold the conviction of the appellant u/s 25(1)(a) of the Arms Act and the sentence of six months rigorous imprisonment awarded for the said offence by the Sessions Judge.

For the reasons aforesaid, the appeal stands partly allowed in the terms of the order that was passed on 22nd November, 1982.