Harnam Singh and Others vs The State

Capoor & Bedi, JJ.—This Judgment will dispose of criminal appeals Nos. 1062 and 1034, of 1663, as they arise out of the same order.

Harnam Singh aged 25, Sher Singh aged 25, Dulla Singh aged 19 and Thakar Singh aged 25 years, were committed to the Court of Session to stand their trial under sections 302 read with section 34 and section 201 read with section 34, of the Penal Code. The trial was held by Shri Sant Ram Garg, Sessions Judge, Ferozepore, who found the charge u/s 302 read with section 34 proved against all the appellants, convicted them accordingly, and sentenced each of them to imprisonment for life. He also found the charge u/s 201 read with section 34 proved against Harnam Singh, Sher Singh and Dulla, and sentenced them to five years rigorous imprisonment, vide his order dated 7th November, 1963, out of which these appeals have arisen,

The brief facts of this case as given by the prosecution witnesses are as under: Deceased Piara Singh a Rai Sikh and resident of village Mozam, police station Fazilka, had been giving information to the police against Harnam Singh appellant as a result of which the, latter was arrested in an excise case. Sometime before this occurrence, Piara Singh deceased was assaulted by Harnam Singh and one Surain Singh. Piara Singh was examined as a witness in that case and the case is still pending when the present occurrence took place on 24th March, 1963.

On 24th March, 1963, the Panchayat of the Rai Sikhs held a Bhog in village Rohela Teja where a large number of their brotherhood, including the four appellants and the deceased besides Bahadur Singh and Jallu Singh P.Ws. got together to attend the ceremony. The ceremony was over by about 4.30 p.m. when the people started dispersing. Piara Singh, his brother Bahadur Singh P.W. 2, Jallu Singh P.W. 4 and one Kartar Singh started for village Mozam. When they reached the bank of river Sutlej and were to cross the river by a boat, the four appellants, who were lying in ambush, emerged from there. Thakar Singh was armed with a rifle while the others had kulharis. Harnam Singh challenged Piara Singh saying that they would kill him (Piara Singh) as he had been giving information to the police and that he would not be allowed to escape. On saying so, all the appellants attacked Piara Singh. The latter jumped into the river in order to save himself. Harnam Singh, Sher Singh and Dulla Singh appellants also jumped after him carrying their weapons with them. Bahadur Singh, Kartar Singh and Jallu Singh went forward to rescue Piara Singh but Thakar Singh appellant who was armed with a rifle threatened them of dire consequences if they tried to interfere. Harnam Singh appellant then gave a kulkari-blow to Piara Singh when the latter had reached some high place in the river hitting him on the head. Sher Singh and Dulla Singh also started injuring Piara Singh with their weapons. After killing Piara Singh, these three appellants threw the bead body in the river. All the appellants then went away.

Leaving Jallu Singh and Kartar Singh at the spot, Bahadur Singh went to the police station, Fazilka, situated at a distance of about five miles and lodged the first information report at 8.25 p.m. which was taken down by A.S.I. Gulzar Singh. At 8.55 p.m. the A.S.I. sent the special report with a copy of the first information report to the Illaqa Magistrate through a foot constable making the relevant entry in the roznamcha. He then, along with Bahadur Singh, started in a jeep for the spot and also joined A.S.I. Tej Singh P. W. on the way. Kartar Singh and Jallu Singh P. Ws. were sitting at the river bank at the spot. Gulzar Singh then recorded the statements of Kartar Singh, Jattu Singh, Gulab Singh and Jallu Singh and set out for the search of the appellants. The appellants were arrested by A.S.I. Tej Singh on 27th March, 1963. The dead body of Piara Singh was recovered from a distance of four or five yards, from where the deceased was murdered, on. 27th March,. 1963 at about 6 a.m. The investigation was taken in hand by A.S.I. Tej Singh P.W. from A.S.I. Gulzar Singh. After preparing the inquest report, the A.S.I. sent the dead body for post-mortem examination.

On 31st March 1963, A.S.I. Tej Singh interrogated Harnam Singh regarding the weapon of offence in the presencs of Bakar Singh and Teja Singh who after some prevarication divulged that he had kept concealed a bloodstained kulhari in a thick sarkanda near river Sutlej and that he could point out the same. The A.S.I. then interrogated Sher Singh who also stated, in the presence of the aforesaid two persons, that he had kept concealed his bloodstained kulhari in sarkanda in the area of village Rovela Teja near river Sutlej and that he could produce the same. These two appellants then produced the above-mentioned weapons from the places stated by them. These were sent to the chemical examiner who found the same to be stained with human blood.

Post-mortem examination was performed by Dr. Shanti Sachdeva Assistant Surgeon, civil hospital, Fazilka, on 27th March, 1963, at 5.15 p.m. The following injuries were noticed by him-

Irregular fracture of the skull 5"x 1/8" oblique on the right side occipitoparietal region.

Fissured fracture of the skull 5"x 1/8" behind the frontal suture at its middle skull bone in the area of 2 1/4"x2 1/2" was missing between injury No. 1 and 2. Subdural haemotoma 1/6x6x4" on the top off the head extending to the occipital region underneath the injury No. 1 and 2 and the area from which the bone was missing was present.

Complete fracture of the tibia and fibula bone in the middle of the right leg. Febula bone missing 6" in its upper part. The whole soft tissue of right leg in its upper third was eaten up except the skin.

Incised wound 2 x 1 x 1/4" on the inner side of the palmer aspect, palm of the right hand.

All the soft tissues were missing from the face, head and neck except on the posterior part of the neck and head, the area of which was 11''''x6" with gray and black hairs. Whole of the front of the pelvis with upper third of both thighs'' flesh with skin was missing and the edges were ragged except posteriorly. Death in the opinion of the doctor was due to shock resulting from fracture of skull. Injuries Nos. 1 and 2 were sufficient in ordinary course of nature to cause death. Injuries Nos. 1, 2 and 3 were caused with blunt weapon and No. 2 with sharp-edged weapon.

The appellants denied the allegations against them and attributed this case to their enmity with the prosecution witnesses. They, however, led no evidence in defence.

The learned trial Judge did not rely on the recoveries of bloodstained weapons and also on the statements of Gulab Singh P.W. 9 and Jattu Singh P.W. 10. They were alleged to have seen the appellants going away from the spot armed with weapons mentioned above, after the occurrence. He, however, relied on the ocular evidence of Bahadur Singh and Jallu Singh P. Ws. and convicted the appellants as mentioned above.

Learned counsel for the appellants criticised the evidence of Bahadur Singh and Jallu Singh on a number of grounds. The first objection against Bahadur Singh P.W. 2 was that he was the brother of the deceased and therefore, highly interested. This in itself may not be a ground for discarding his evidence, but the learned counsel further pointed out that his evidence was in conflict with the medical evidence. According to him, the appellants used the sharp side of their kulharis against the deceased, but the post-mortem examination revealed a different story. According to the post-mortem report three injuries were caused with blunt weapon and only one with sharp weapon. The counsel also contended that admittedly there was enmity between Piara Singh and Harnam Singh appellant, the other appellants being his collaterals; and if Bahadur Singh had seen the occurrence as alleged by him then way the appellants did not even cause a scratch to him what to say of finishing him there and then. Further he submitted, that Bahadur Singh was a confirmed liar. Elucidating this point, he submitted that Jallu Singh was admittedly married to Thari, daughter of Jaimal Singh, real uncle of Bahadur Singh; and yet Bahadur Singh denied his relationship with Jallu Singh P.W. and also the knowledge if his wife''s name was Thari. If a person could go to that extent, it is then difficult to attach much importance to a witness of that type. Not only that, but he tried to improve his evidence at the trial to a considerable extent to which he was confronted. The important omissions and contradictions are quite in number with which he was duly confronted. It may also be mentioned that according to Bahadur Singh, the appellants emerged from wheat crop before the assault while according to Jallu they emerged from sarkanda, although according to the draft plan no sarkanda was found near about. In the committing Court, Bahadur Singh had stated that the assault was made on Piara Singh at a distance of four or five karams from him, while according to him at the trial and also according to Jallu Singh, the distance between them and the place of the assault was about 40/50 karams, Jallu P. W. 4 was admittedly married to Thari, first cousin of Bahadur Singh.

It was then submitted by the appellants'' counsel that Jallu was a put-up witness and that he came from a village at a distance of 15 miles from the place of occurrence. The counsel submitted that it was doubtful if he did go to attend the Bhog ceremony as alleged by him and if he at all did so he had not given any cogent reason why he was proceeding to Mozim along with the deceased and his companions on that particular day. According to Jallu Singh himself, he was going there to see his relatives while according to Bahadur Singh there was no special reason why Jallu Singh was going to Mozam on that day. It may he mentioned that after this occurrence, Jallu Singh did not go to Mozam. It is true that when Tej Singh A.S.I. went to the spot he found Jallu Singh sitting there, but may be he was during that interval summoned from his village or elsewhere where he happened to be. There are a number of contradictions, as to how the assault was opened, between this witness and Bahadur Singh. The police tower was at a distance of four or five karams from the spot, which was always manned by a police nan. Moreover, Raj Kumar, a boatman, had a hut at a distance of four or five karams from the place where Harnam Singh had given the first kulhari blow on the head of Piara Singh. There was also a shisham tree near that hut which was a watch-tower where a police constable kept on standing to check any intrusion from the Pakistan side. Besides there was a police post at a distance of about 200 yards. Yet none of those persons who would in all probability have seen this occurrence came forward to support the prosecution case. It may also be mentioned chat Bahadur Singh admitted in the committing Court that one Sunder Singh and Nagar Singh were also with them at the time when the occurrence took place, but they were not examined for obvious reasons. It was stated that about 400/500 persons did attend the Bhog Ceremony. About 50 or 60 of them belonged to village Mozam. A number of persons had to return to the neighbouring villages and yet we have it in the evidence of Jallu Singh and Bahadur Singh that none of those persons either preceded or followed them in the return journey although it is usual that people on such occasions returned to their villages together or in big batches. Another factor which also goes against the prosecution considerably is that according to it, after Harnam Singh appellant caused an injury on the head of the deceased, he jumped into the river and swam at a distance of 40/50 karams, but the injury on the head was so extensive that it was almost impossible to have swum to such a distance.

The defence counsel also agitated that according to the prosecution the current in the river was very strong. Search for the dead body was made immediately after the occurrence which continued for days by the P. A. P. and other Rai Sikhs and yet we find that they were unable to take out the dead body which was found three days after only at a distance of four or five yards from the place of occurrence. If the current was strong, the boy would have been swept away and if the dead body was in fact lying at a distance of four or five yards from the spot the divers would Certainly have taken the dead body out. This, in our opinion, makes the prosecution case highly doubtful.

The appellants'' counsel has further drawn our attention to the observations made by the trial Court against the evidence of Jattu and Gulab Singh P. Ws. The trial Court observed that these two prosecution witnesses "were imported into the prosecution evidence by the investigating agency as a mere padding". Regarding the arrest of the appellants, the Court observed that "the alleged arrest of the accused on 27th March 1963, at 6 p.m. from sarkanda is a faked affair". The counsel then cited Amin Chand v. The Crown (1947) 48 Cri L J. 522 a decision of a Division Bench of the Lahore High Court, where it was held that where the investigation of a case was found to be tainted and defective, same value could not be attached to the evidence of witnesses as would be done in an ordinary case. Once the bona fides of the investigation is successfully questioned, it was only natural that the Court should look with suspicion on the evidence produced during the investigation. Another Division Bench case of this Court in Naurang Singh v. The State (1961) 63 P. L. R. 908, was also cited on the same point.

We feel it necessary to observe that when persons offer themselves as eye-witnesses there are a number of ways to find out, and to check, if they actually had seen the occurrence as alleged by them. One of the tests is whether the evidence of such witnesses is corroborated by the medical evidence. The other is whether there are any contradictions or discrepancies in the statements of such eye-witnesses. It has also got to be seen whether during the trial the witnesses have tried to improve upon their earlier statements. If the answer to the above questions is in the affirmative, naturally this leaves an impression in the mind of the Court that such witnesses have perhaps not seen the occurrence; and it so appears in this case. It seems that somehow or other Bahadur Singh was informed by some persons about the assault made on Piara Singh at which he immediately rushed to the police station, and because of their strained relations with the appellants he named them as the assailants.

For the above reasons, we are impressed by the arguments of the counsel for the appellants and feel that the evidence produced by the prosecution is not conclusive enough on the strength of which their conviction could be upheld. The appellants are, therefore, given the benefit of doubt and acquitted.