Jagar Singh vs The State

Gurnam Singh, J.—Jagar Singh Appellant Was tried for the murder of Kahan Singh and sentenced to death. He has appealed against his conviction and sentence. There is also a reference before us u/s 374, Code of Criminal Procedure for the confirmation of death sentence. This judgment will dispose of the appeal as well as the reference.

The prosecution case is that Mastan Singh, the brother of Kahan Singh deceased, his wife, Mst. Sham Kaur, Dhanna Singh his nephew and Dhanna Singh''s wife Mst. Harnam Kaur were returning from their fields at about 6-7 P. M. on 6-10-46. The present Appellants along with Kundan Singh, Bachan Singh, Labh Singh and Jang Singh were standing in the lane. The Appellant and Kundan Singh were armed with spears, Bachan was armed with a gandasi, Labh with a lathi and Jang Singh with a pistol. Jang Singh shouted that Dhanna Singh should not be allowed to go. On hearing this Dhanna Singh and his wife Mst. Harnam Kaur rushed into their house and closed the shutters from inside. Kahan Singh deceased uncle of Dhanna Singh intervened and asked the accused not to kill Dhanna Singh. He was first assaulted by the present Appellant immediately followed by his companions who inflicted injuries on his person with their respective weapons. Out of them Jang Singh merely kept on shouting end did not open fire with the pistol in his possession. The accused he ran away from the spot. Kahan Singh was moved into the house of Dhanna Singh, Mastan Singh then brought Lambdar Karoal Singh and Ors. before whom Kahan Singh made a statement regarding the incident. The same night at 3-30 A.M. Mastan Singh made a report of the occurrence at police station Dhanaula situate at a distance of 5 ''Kose'' from the spot. Having registered a case the investigating officer came to the spot and conducted the investigation. He sent the dead body for post-mortem "examination. Dr. Ujgar Sain performed the postmortem examination on 21-6-2003 at 2-30 P.M. and found the following injuries on the person of Kahan Singh.

One incised wound 2 1/3" x 1" x deep to bone on the frontal region of the head in the medium line.

One contused wound 1 1/2 "x 1/2"x skin deep on the right side oil the frontal region of the head.

One confused wound 3/4" x 1/8" x skin deep on the right side of the fore-head about J" above the right eyebrow.

on the 4. One contused wound 1/2" x 1/2" x 1/8" on the dorsal aspect of the left fore-arm on its upper third.

One incised penetrating wound 2" x 1/2" on the left side of the abdomen in front in the epigastric region, penetrating deep.

Two contusions 4" x 3/4" and 2" x 1/2" on the left side of the back in the scapular region.

One contusion 1 1/2" x 1/2" on, the dorsal aspect of the left upper arm in its upper part.

Out of the seven injuries one was the result of a sharp edged weapon and Anr. the result of a penetrating sharp edged weapon. The rest of the injuries- wove caused by a blunt weapon. Injury No. 5 which was caused with a weapon like spear was necessarily fatal. The death was due to shock and on hemorrhage resulting from injury No. 5 caused by a sharp pointed weapon. The investigating officer looked for the Appellant and for his companions who were found to be absconding. Later Kundan Singh, Bachan Singh, Labh Singh were arrested and challenged. Out of them Labh Singh was acquitted. The other s two were convicted u/s 326, Penal Code. It appears '' from the record that Jang Singh died and was never put on trial. The present Appellant, was arrested on 29-2-52 ;of the investigating officer from the judicial: lock-up at Bnvnala and was put on his trial with the result indicated above.

The case of the prosecution mainly depends on the testimony "of Mastan Singh and vDhanna Singh, the brother and the nephew res "reactively of the deceased, Sham Kaur his ; widow and that of Hakam Singh. Out of these -witnesses Dhanna Singh, Mastan Singh and Hakam Singh did not support the case as narrated above during the trial. There are clear indications on the record that they have been won over by the Appellant or his relations. At -the same time the fact that they are close relations of the deceased cannot be lost sight of. '' "Mastan Singh deposed that the assault on the '' deceased in fact did not take placa in his presence. He was the last to arrive from the ; fields and when he came he found the deceased lying injured. He, however, deposed that the Appellant and his companions were still present in the lane. He even refused to identify the Appellant during the trial on account of bad eye-sight. He could not say if the Appellant was tae same Jaggar Singh who was present in the lane. To cut it short he deposed that the name of the Appellant was given, by him in the F, I. R. on account of enmity and this was done after consultation between, the members of the- family including Dhanna Singh and Sham Kaur P. Ws. He was confronted with his previous statement made during the commitment proceedings and trial of the companions oi! the Appellant. The witness admitted having made those statements but stated that they were not true. The witness, therefore, is condemned from his own mouth. During the trial the public prosecutor made an application requesting the Court to transfer the statement made by the witness before that C. M. to his own file.. This was done. It is conceded by the learned Counsel appearing for the State '' that this statement also does not help the prosecution. Apart from this the statement itself is, in my opinion, not admissible in evidence. I will have an occasion to deal with this point in the later part of the judgment. Like Mastan Singh, Dhanna Singh the nephew of the deceased deposed during the trial that he shut himself inside his house and ''did not see the assault on the deceased. The Public Prosecutor was permitted to cross-examine this witness also. He was confronted with his previous statements made during the commitment proceedings and the trial of the companions of the accused. He admitted having made those statements but explained that they were given at the instance of other persons. Ultimately the witness admitted that the statement against the present Appellant was made by him at the instance of one Bakhshi at the pain of death. Hakam Singh, the third witness also made a every prevaricating statement. He could not say where this occurrence had taken place and who inflicted the injuries on the persons of the deceased, According to his testimony on hearing noise he shut himself inside his house. He was also confronted with some previous statements. He admitted enmity with the present Appellant and then stated that, he had only identified him by voice. Ha could only see the figures and could not identify from a distance where the Appellant and his companions were standing as there was insufficient light to identify. The statement of this witness made before the C. M. was transferred u/s 288, Code of Criminal Procedure at the request of the Public Prosecutor but this statement, as conceded by the learned Counsel for the Slate, does not help the prosecution. According to the evidence given before the C.M. the witness did not see any weapon in the hands of the Appellant or his companions nor he saw the assault on the deceased. So I cannot understand why the learned public prosecutor was keen to have this statement transferred to the record of the trial Court.

We are then left with the deposition of Mst, Sham Kaur widow of the deceased. This witness was not available either at the time of enquiry or the trial against the present Appellant. It was held by the trial Court and I have no reason to differ from that finding that her'' whereabouts were not known. The public prosecutor made an application during the trial that the statement of Mst. Sham Kaur made on 7-10-2004 which was attached with . .the file No. 18 of 20-8-2004 may be transferred to the file of the trial Court. This was objected to by the counsel for the defence Ultimately,- however, the trial Court ordered that the statement made by her to the Magistrate may be transferred. I do not understand why after learned Additional Sessions Judge did not transfer the statement of the witness made during the previous trial as requested by the Eublic Prosecutor. It is clear from the application of the, Public Prosecutor that he wanted the statement of the witness made on 7-10-2004 ,to be -transferred. The statement transferred To the Court is dated 20-12-2003 and it was Made to the Magistrate. However, the Appellants conviction cannot be maintained on the solitary testimony of Mst. Sham Kaur as it is open to serious objections. The occurrence took place on the evening of 6-10-46:. The investigating officer arrived at the spot on the morning of 7-10-46. Mst. Sham Kaur was sitting by the dead body of her husband at that time.

She made no statement to the investigating officer'' nor any such statement was recorded by him on that day. It was on the 3rd day that the police officer for the first time interrogated Mst. Sham Kaur. Even then he did not re cord her statement. He merely noted that she ''corroborated the statement of Jang Singh.'' Even this Jang Singh who was named as an eye-witness in the F. I. R. was not produced by the prosecution. There is no explanation why Mst. Sham- Kaur''s statement was not re- corded at the earliest and then why it was not recorded in detail. We do not know what Jang Singh hadstated to the police. officer whose statement was corroborated by Mst. Sham Kaur. As the investigating officer did not record the statement of this witness separately at the earliest possible opportunity and such statement was not available to the defence for testing the credibility of the witness, no conviction, in my opinion, could be maintained on the . solitary testimony of such a witness. Apart from this the witness did hot appear during the present trial and there was no opportunity for the Appellant to test her veracity by cross- examining her. It is no doubt true that the witness was not available but at the same time the fact remains that the Appellant had no opportunity to cross-examine her. The other "three alleged eye witnesses out of whom two are close relations of: the deceased did not support the original case of the prosecution against the Appellant. As already mentioned in the earlier part of the .judgment there are clear indications of their having been won over but at ;the same time they are condemned from their own mouth. Therefore the guilt of the Appellant is not established from their testimony. "We are then left with the solitary test mohy of Mst. Sham Kaur widow of the deceas ed. Apart from its being open to serious ob sections it is, in my opinion, not safe to maintain the conviction of the Appellant on her solitary statement specially when the testimony of the other three eye-witnesses is rejected.

The only other evidence was that of dying declaration which again does not connect the accused with the crime. Out of several witnesses mentioned before whom the dying man made a statement only Karpal Singh has been produced. He stated that Kalian Singh lad told him that he was injured by Kundan Singh. There was solitary injury with a sharp-edged pointed weapon on the person of the deceased. Kundan Singh like the present Appellant was also armed with a spear. This evidence, if believed, rather helps the Appellant. The witness was cross-examined by the public prosecutor as well as the defence. It is needless to discuss further the statement of this witness.

Before I close this judgment I would like to point out that the'' procedure adopted by the learned Additional Sessions Judge for transferring the statements of witnesses u/s 288, Code of Criminal Procedure was not in accordance with law. It is clear from the record that no request was made by the public prosecutor for the transfer of their statements at the time they made their depositions. Regarding each witness the, public prosecutor made an application requesting the trial Court to transfer such statements. It is not clear from- the record, however, at what stage these applications were made. The learned Counsel for the State when questioned was not able to show whether the applications and the orders on those applications were made when the witnesses whose statements were required to be transferred were still in the witness box. The orders on all the applications are similar. One of such orders can be quoted here with advantage. "The statement of this witness be transferred to the present Sessions file u/s 288, Code of Criminal Procedure." The order does not show whether this order was made in presence of the Appellant or his counsel nor does it show at what stage it was made. It is clear from the order that no opportunity was given to the defence for cross-examining the witnesses in reference to the statement to be transferred. In - ''The Sate v. Hardial Singh'' AIR 1953 Pepsu 66 (A), I had an occasion, sitting with my, Lord the Chief Justice, to consider this point. It was observed there.

It implies that when the witness is in the witness box and his statement during the trial is a departure from the previous statement made during the, inquiry, the Sessions Judge has full discretion to order its trans fer In view of the fact that these statements, once they are admitted u/s 288 Code of Criminal Procedure is substantive piece of evidence, the accused was entitled to an opportunity to test them by further cross-examination. This opportunity .was denied to the Respondent by the manner in which the statements were ordered to be transferred. In fact the statements were ordered to be transferred at the time when the witnesses were not in the witness box and in fact had left the Court after making their depositions.

In the same judgment it was further observed: "Another objection to these statements is that they were never put to the prosecution witnesses as required by Section 145, Evidence Act. In other words, their attention was not drawn to the departure made by them during the trial. Thus the prosecution witnesses were given no opportunity to explain the contradiction in the two depositions. In my judgment this was absolutely necessary. The witnesses must be given opportunity to explain the departure from the previous statements made by them during the committing proceedings. In the absence of this pro-centre, the Court is only left to guess the reason for the contradiction and is likely to fall in error.

At the time I made these observations there was some conflict of opinion on the point which is set. at rest now by their Lordships of the Supreme Court. In .- Tara Singh Vs. The State, their Lordships observed.

There is no reason why Section 145, Evidence Act, should be excluded when Section 288 states that the previous statements are to be "subject '' to the provisions of the Indian Evidence Act". Section 145 falls fairly and squarely within the plain meaning of these words more than that. This is a fair and proper provision and is in accord with the sense of fair play to which Courts are accustomed. On giving effect to the plain meaning of '' these words, therefore, the evidence in the Committal Court cannot be used in the Sessions Court unless the witness is confronted with his previous statement as required by Section 145, Evidence Act. If the prosecution wishes to use the previous testimony to the contrary as substantive evidence, then it must confront the witness with those parts of it "which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence u/s 288.

I have made these observations in this judgment for the future guidance of the learned Additional Sessions Judge, otherwise in this case'' the statements made before the C. M. by the witnesses, as conceded by the counsel for the State, do not connect the accused with the crime. They are, therefore, of no assistance to the prosecution.

For the reasons stated above in my opinion the prosecution has failed to establish the guilt of the Appellant beyond any reasonable doubt. I, therefore, accept his appeal and order his acquittal forthwith. The reference for confirmation of sentence of death is, for the reasons given above, rejected.

Kesho Ram Passey, J.

I agree with the order proposed.