Gurnam Singh vs State of Punjab

M.L. Koul, J.

The appellant Gurnam Singh (herein the accused) faced the trial for an offence under Section 302 IPC and on conviction was sentenced to undergo life imprisonment with a fine of Rs. 2000/; in default of which he had to further undergo rigorous imprisonment for a period of four months.

The case as set out by the prosecution is that the complainant Dalip Singh (PW4) made a statement with ASI Lakhmir Singh (since dead), on 7.10.1987 at 10.40 p.m. in Guru Teg Bahadur Hospital that he is resident of Village Saron and is an agriculturist. That about one month prior to the occurrence one Gurnam Singh son of Hazara Singh of his village along with 5/6 other persons came to his house and started attacking his son Kashmir Singh (deceased) with dangs and rifles and told him that they had some enmity with Gurdip Singh son of Hazara Singh resident of their village and as to why the deceased allowed him to come to his house. The complainant replied that Gurdip Singh never visited their house. The womenfolk closed the doors and on the intervention of some people, the matter was settled down. On the date of occurrence, the complainant, his son (deceased Kashmir Singh), his grandson Chinder Singh were going to their fields to irrigate the paddy crop and when they had reached near their fields at about 5 pm, the accused Gurnam Singh armed with a rifle came there and asked them that they instigated Gurdip Singh etc. against him and fired a shot from his rifle on the deceased which hit him on the right side of his abdomen. On receiving bullet injury he fell down on the ground and the accused ran away from the spot with his rifle. He took his son (deceased Kashmir Singh) in an injured condition to Guru Teg Bahadur Hospital, Amritsar in a truck where he died. On his statement formal first information report ws registered by ASI Harbans Singh at 1220 a.m. and the special report was sent to the Ilaqa Magistrate through Bhag Singh (PW6) which was received by him on 8.10.1997 at 8.80 am.

On completion of the investigation, the accused was tried and sentenced as mentioned above.

Heard Mr. R.S. Cheema, Sr. Advocate, for the accused and Mr. Randhir Singh, Deputy Advocate General, Punjab, on behalf of the State; also bestowed our thoughtful consideration over the record on the file.

The judgment of the trial court is assailed by the counsel for the accused on various grounds, to prove his innocence about the commission of the crime. According to the learned defence counsel, the whole prosecution case in nutshell is that the accused soon after committing the murder of the deceased ran away from the spot with his rifle. However, the same is belied from the prosecution evidence to show that the accused was one of the persons who lifted the injured to the hospital in a truck. In this regard Chinder Singh (PW5), son of the deceased was confronted with this statement recorded by DSP Narinder Pal Singh wherein from portion A to A1, it is stated that "the truck in which Kashmir Singh was taken to the Civil Hospital, Amritsar, belonged to Gurnam Singh, "accused" and Gurnam Singh along with Arjan Singh, Kabal Singh, Sukhwant Singh and driver Atma Singh came along with us at Amritsar Civil Hospital". He denied to have made such a statement and rather stated that the injured was taken to the hospital in the truck of his uncle Raghbir Singh. Nobody except his uncle Raghbir Singh and the cleaner of the truck accompanied the injured to the hospital. The said Raghbir Singh or the cleaner of the truck has not been examined by the prosecution to establish that actually the deceased was lifted to Civil Hospital in the truck of Raghbir Singh uncle of PW5. Accordingly, the complainant PW4 confronted with his statement recorded by Pargat Singh SI denied to have made such a statement on 29.10.1987 wherein from portion A to A1 it is recorded that "Gurnam Singh son of Hazara Singh accused had also accompanied us to Amritsar when we had gone there is a truck to admit the injured in the hospital". Both the complainant PW4 and his grandson PW5 attempted to conceal the fact that the accused accompanied and helped them in lifting the deceased in a truck to hospital soon after the occurrence took place. If the accused was the assailant and had committed the gruesome crime in their presence, why he was allowed to a accompany them and his services were used in lifting the injured to the hospital as contained in their statements recorded during the investigation by DSP Narinder Pal Singh and Pargat Singh SI respectively. The said Deputy Superintendent of Police Narinder Pal Singh and Pargat Singh SI for the reasons best known to the prosecution have not been examined as witnesses in the case and were given up as unnecessary by the Public Prosecutor on 27.10.1988. It was the bounden duty of the prosecution to examine the material witnesses particularly when no allegation has been levelled against them that if produced they would have not spoken the truth. In this regard we are motivated to make mention of AIR 1954 Supreme Court 51 wherein their Lordships of the Supreme Court have authoritatively held "that it is the bounden duty of the prosecution to examine a material witness, particularly when no allegation has been made that, if produced, he would not speak the truth. Not only does an adverse inference arise against the prosecution case from nonproduction as a witness in view of the illustration (g) to section 114 of the Evidence Act, but the circumstances of his being withheld from the court casts a serious reflection on the fairness of the trial." Had these two witnesses been examined, they could clinch the issue that while recording the statements of the complainant and his grandson they stated that the accused accompanied them in a truck to lift the deceased in the hospital. Once they have not been examined, the unrebutted evidence of theirs with which P.Ws 4 and 5 have been confronted establishes that the accused helped the complainant and his grandson in lifting the injured in a truck to the hospital, once it is proved that the accused was with them when the injured was admitted in the hospital they could easily produce him before the police saying that he was the culprit who committed the murder in their presence. In such circumstances the evidence of the complainant and his grandson that they witnessed the occurrence and soon after the deceased was hit with a gunshot by the accused he ran away from the spot, is not proved.

No explanation has been put forth by the prosecution as to why they were unable to recover the gun when the FIR was promptly recorded and the accused was readily available to be arrested for he was fully described in the report along with the allegation that he killed the deceased with a gun shot. They have not led any evidence to show that any such gun was in existence and it belonged to the accused with or without licence. They have not also led any evidence to show that it belonged to a third person and the accused after making use of it returned the same to him or destroyed it. He was not charged for an offence either for section 201 IPC for destruction of the gun or for any offence under the Indian Arms Act for holding any gun without licence.

It appears baffling and rattling that the learned trial Judge has substantiated the shortcomings of the prosecution case by his personal observations in contravention of the evidence collected by the police and recorded by the Court. One of such discrepancies meted out by the trial court is with regard to the site plan Ex. PH. Its author Lakhmir Singh ASI is since dead and his signatures on the site plan have been identified by PW7 Kashmir Singh constable. It has been observed by the trial court that actually the occurrence has taken place in the fields of complainant PW4 Dalip Singh but the investigator of the case in order to help the accused has changed the place of occurrence. In observing that he has not found any evidence on the record to confirm his judicial belief that such a thing was done by the investigating officer. The said ASI on 8.10.1987 at about 7 a.m. went to Sri Guru Tegh Bahadur Hospital, Amritsar ad from there he took the complainant to the spot and inspected the place of occurrence in his presence and prepared the site plan Ex. PH at his instance.

However, according to the trial court in the site plan Ex. PH placed on the judicial file the place of occurrence has been changed.

It is well settled and as enshrined under Sub section 2 of Section 172 Cr.P.C. that the court itself has the unfettered power to examine the entries in the case diaries. This is a very important safeguard that the legislature has reposed complete trust in the court which is conducting the inquiry or the trial. For ready reference subsection 2 is quoted below :

"Any criminal court may send for the police diaries of a case under inquiry or trial in such report, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial."

The above provision of the law has empowered the court to call for any such relevant case diary if there is any inconsistency or contradiction arising in the context of the case diary the Court can use the entries for the purpose of contradicting the police officer as provided in Subsection (3) of Section 172 Cr.P.C. No criminal court is empowered to use such entries as a piece of evidence unless the evidence so collected by a police officer has been used by him to refresh his memory or the court uses it for the purpose of contradicting such police officer. This view of ours finds recognition in Mukand Lal v. Union of India and another, 1989 Supreme Court Cases (Crl.) 606, wherein their Lordships have held in nutshell "that Section 172 Cr.P.C. has empowered the court to call any such case diary, if there is any inconsistency or contradiction arising in the context of the case diary, the court can use the entries for the purpose of contradicting the police officer as provided in Subsection 3 of Section 172 Cr.P.C." Their Lordships have further held "that ultimately there can be no better custodian or guardian of the cause of justice than the court trying the case. No court will deny to itself the power to make use of the entries in the diary to the advantage of the accused by contradicting the police officer with reference to the contents of the diaries."

In the instant case unfortunately the scribe of the document Ex. PH is dead and he could not be contradicted with his statement with regard to any inconsistency or contradiction arisen in the context of the case diary with regard to some entries therein as provided in Subsection 3 of Section 172 Cr.P.C. There was no public interest involved in the matter that if such an entry as available to the accused was put to contradiction might endanger the safety of the informant or deter the informant from giving any information to assist the investigating agency. The trial court at his own made use of the case diary to contradict the prosecution case that the spot map prepared by the investigating officer was changed to help the accused.

For argument''s sake even if the observation of the trial court is assumed as correct that the site plan Ex. PH has been changed by the investigating officer namely Lakhmir Singh, in favour of the accused but even then we are not in a position to ignore the statement of PE2 Rishi Ram, Draftsman who has prepared the scaled site plan Ex. PE on the spot on the demarcation of the complainant Dalip Singh PW4. According to him no field of the complainant was shown near the place of occurrence and he has described the place of occurrence not differently than that was shown by Lakhmir Singh ASI (since dead). Thus it does not look nice in the mouth of the trial court to say that the site plan was wrongly prepared by the investigating officer and the place of occurrence was changed to help the accused so that it is found that the occurrence has not taken place at a place as pointed out by the complainant PW4 and his grandson Chinder Singh. Rather it is a different place as described in the site plan Ex. PE prepared by the police officer and confirmed in scaled site plan Ex. PE prepared by an independent person who is PW2 Rishi Ram, Draftsman, examined by the prosecution.

The judgment of the trial court nowhere describes as to what happened to 10 pellets and a metallic piece recovered from the abdominal cavity of the deceased and how these got lost during the trial of the case. Those pellets and the metallic pieces were not sent to the Ballistic Expert for opinion. The trial judge Mr. Nirmal Singh, who was in seisin of the case and held the proceedings in the matter did not care to ask the police to inquire as to how the case property, the pellets in question which caused the death of the deceased, were lost and who was the guilty person and what action was taken against him. The medical evidence brings it to the fore that 10 pellets and a metallic piece was recovered from the abdominal cavity of the deceased but strangely enough the trial court has nowhere stated as to how those pellets were lost during the trial of the case and what was its effect on the prosecution case and how to believe that a 12 bore gun was used in the incident. Had those pellets been sent to the Ballistic Expert, he could have definitely opined the kind of the gun used in the incident and the distance wherefrom the fireshot was made by the accused.

It is mentioned in Woodroffe and Ameer Ali''s Law of Evidence, 14th Edition Volume 2, Page 1350 that in criminal cases the main purpose of the science of firearms is to establish the distance from where the shot was fired, the direction from which it was fired, the approximate time since when the weapon was last fired and whether the wound or wounds caused were accidental or suicidal or homicidal and whether a given bullet or cartridge was used in a particular weapon.

The learned trial court has tried to overcome this deficiency of the prosecution in giving credence to the evidence of the complainant and his grandson that one gunshot was fired by the accused and justifies that the two entrance wounds with regard to injury Nos. 1 and 5 were caused with one gun, the pellets can enter the body at number of places after they scattered. This observation of the trial court does not find support in the evidence of Dr. Jagdish Gargi, who conducted the postmortem examination on the dead body of the deceased. According to him the possibility of the injuries on the person of Kashmir Singh having been caused with one shot cannot be ruled out. The possibilities of injuries 2, 3 and 4 having been caused either by pellets of gunshot or by fall of the deceased on the ground cannot be ruled out. The doctor has further stated that the injuries No. 1 and 5 are two separate entrance wounds and these having been caused by two separate shots with two types of different weapons is not ruled out.

It is pertinent in this regard to make mention of the injuries sustained by the deceased as per the post mortem report conducted by the doctor which follow as under :

A lacerated wound 5 x 3.5 cms on the right side of abdomen, in the umbilicus region, 10 cms lateral and below the umbilicus. Omentem was protruding out of the wound and clotted blood was present. Tears in the shirt corresponding to injury was present.

A reddish abrasion 1 x 1 cm, 1 cm above injury No. 1.

Reddish abrasion 2 cms x 1 cm, 1 cm medial to injury No. 1.

Reddish abrasion 3 x 2 cms, 1 cm below injury No. 1.

A lacerated wound 0.5 cm in diameter on the lower margin of injury No. 1.

Once the doctor has expressed three opinions with regard to the abovesaid injuries caused on the dead body of the deceased the court had no alternative except to accept the opinion of the doctor which was favourable to the accused. The doctor has been specific to say that there were possibilities that injuries Nos. 2, 3 and 4 having been caused on the deceased from the pellets of gunshot or by a fall on the ground. Besides he has opined that injuries No. 1 and 5 had two separate entrance wounds and these were likely to have been sustained by the deceased out of two shots from two different kinds of weapons. This expert opinion of the doctor could not be brushed aside by the trial couirt by substituting his own opinion.

It was argued by the learned Deputy Advocate General that once the eye witnesses have vividly said that the deceased sustained the injuries out of a gunshot at the hands of the accused and the doctor having stated that the possibility of the injuries on the person of Kashmir Singh having been caused with gunshot have not been ruled out, there is no reason to disbelieve the evidence of the doctor that the deceased sustained all the five injuries with one gunshot. In this regard he referred to 1973 Cri. L.J. 271 wherein their Lordships of the Supreme Court have held "that it is true that we have not got on the printed record the description of the axe which is sought to be discredited on the basis of medical evidence. It was for the appellant to have this aspect specifically clarified from the evidence of the doctor". He also laid reliance on 1973 Cri.L.J. 769, wherein the Apex Court has observed "that the evidence in our view, was not rendered untrustworthy because of its inconsistency with the medical evidence which was also scrutinised by the High Court with greater care and anxiety. The appraisal of the evidence of the investigating officer by the High Court carries greater conviction, being more rational and objective." Both the abovementioned rulings have no bearing on the merits of the instant case. Firstly on the ground that out of the three investigators none has been examined by the prosecution. The Deputy Superintendent of Police Narinder Pal Singh and Pargat Singh have been given up as unnecessary. The evidence of any investigating officer has not been put to any evidentiary test by the trial court for no investigating officer was examined and therefore their statements under Section 161 Cr.P.C. do not carry any conviction and cannot be deemed to more rational and objective. Secondly, in the present case the weapon of the offence i.e. the gun has not been recovered by the police, neither any explanation has been put forth why it has not been seized. In that regard a great emphasis and discussion has been made above in the above paragraphs of the judgment. So it does not require any further ellucidation. Thirdly, in the above paragraphs of the judgment we have already disbelieved the complainant and his grandson to have witnessed the occurrence and in that regard as well great analysis has been made by us while giving our observations above.

In nutshell, in view of the above discussion the prosecution has totally failed to establish any case against the accused.

Hence, the order of conviction and sentence recorded by the trial court is set aside and the accused shall be deemed to have been acquitted.