Ranjit Singh Lal Singh and Others vs The State

Chopra, J.—Ranjit Singh Kaur Singh and Mandail Singh of village Sahaur have been convicted by the Additional Sessions Judge, Barnala u/s 302/34, I. P. C. for the murder of one Mai Singh son of Chuhar Singh of their village and eacnh. one of them has been sentenced to death. The convicts have appealed and the record is also before us for confirmation of the sentence.

Ranjit Singh Appellant is a lambardar and the other two accused Kaur Singh and Mandail Singh are said to be his friends. Mal Singh deceased was a bad character entered in register No. 10 of the Police for several years. His brother Chanau Singh P. W. was also similarly entered in register No. 10 with the police. Both of them were being prosecuted u/s 110, Code of Criminal Procedure and Ranjit Singh Appellant was cited as a prosecution wit-ness. He had already given evidence in the case against Chanan Singh and was yet to appear in the one against Mal Singh.

The prosecution case is that at about 8 P.M No. 25-12-1952 the three Appellants way-laid Mal Singh deceased when he, accompanied by Chanan Singh, was going from his cattle-shed to his residential house to take meals. The house of Ranjit Singh lies on a by-lane branching out from the main path by which the deceased was proceeding. The Appellants concealed themselves at the turning of the by-lane and waited for the deceased, Ranjit Singh had a pistol with him, while his two companions had a ganders each. As soon as Mai Singn came in front of them, Ranjit Singh shout ed that the person required had come. Ranjit Singh also fired a shot from his pistol and then all three of them forcibly took Mal Singh to Ranjit Singh''s house. Another shot was fired when Mal Singh was being so Carried The latter was then shut inside the house and given a severe thrashing by Kaur Singh and Mandhail Singh while Ranjit Singh held him by the hair. Mal Singh expired at the spot. Kirpal Singh and Maghar Singh P. Ws. were sitting in front of the farmer''s house when the three Appellants, armed as stated above, passed by them arid concealed themselves at the turning. On hearing the noise they went on the roof of Jangir Singh''s house, which is contiguous to that of Ranjit Singh, and from there saw the incident.

Chanan Singh who was following the deceased at a few paces, ran back towards his outer house as soon as the first shot was fired and Mal Singh was pounced upon by Kaur Singh and Mandhail Singh. From there he saddled a horse and proceeded to the police Station. He lodged a report at Police Station Mahal Kalan, situate three miles from the village, at 11 P.M. the same night. a case u/s 307, I. P. C. was registered against the three Appellants, since all that Chanan Singh reported was that a murderous attack was made on Mal Singh and that he had been caught hold of by the three Appellants in the lane. Mention of Mal Singh having been carried to Ranjit Singh''s house and killed there was not made in the report. M. Hayat Khan Head Constable, who was then incharge of the Police Station, proceeded to the village. He found the dead body of Mal Singh lying in the court yard of Ranjit Singh''s house.

After preparing the necessary memos he sent it for post mortem examination. Pour cartridge cases, out of which one was live, one missed, and two empty, were recovered from the lane in front of Rattan Singh''s house. It may here be mentioned that the lane for Ranjit Singh''s house bifurcates from the thoroughfare in front of Rattan Singh''s cause. The accused were formally arrested on the evening of 26-12-1952. A gandasa each was re- covered from the houses of Kaur Singh and Mandhail Singh at their instance on 28th, No pistol was, however, recovered from Ranjit Singh Appellant. The three Appellants were charge sheeted, u/s 302/34, I. P. C. and the trial resulted in their conviction as stated.

Post mortem examination on the dead body was conducted by Dr, Piare Lal, Assistant Surgeon Dhanaula and it revealed the following injuries on the person of Mai Singh: (Alter a description of the injuries His Lordship proceeded The death was due to shock and hemorrhage from the wounds on the face and neck. The stomach was full of digested food material. The deceased in the opinion of the doctor, must have died immediately on receipt of the injuries. Injury No. 1 was individually sufficient in the ordinary course of nature to cause death.

At the trial the prosecution examined Kirpal Singh alone out of the three eye-witnesses mentioned in the First Information Report The statements of the other two, namely Magher Singh and Chanan Singh, recorded by the Committing Magistrate were transferred to the Sessions record u/s 33 Evidence Act. The reason given is that they could not be served and were not available. When the case was being argued before us Chanan Singh was found to be present in Court. We, therefore, recorded his statement u/s 428, Code of Criminal Procedure He explains his non-appearance at the trial by stating that after his evidence at the commitment stage he was arrested by the Mahal Kalan Police and was detained at Dhanaula Police Station for several months. During this period he did not receive any summonses for appearance at the trial. He was released when the trial was over. The reason that he gives for his detention is that M. Bakhtawar Singh S.H.O. Mahal Kalan demanded that, he should not depose against the accused persons and to that he did not agree.

As regards Magher Singh he says that he may probably be at his father-in-law''s house in village . Nihaluwala or with his sister at Hussanpur. The facts'' which led to the reception of the previous depositions of these two witnesses as evidence at the trial are these Summonses for appearance of the witnesses before the trial Judge on 6-4-1953 were issued by the Committing Magistrate. Harnaik Singh Constable attached to Police Station Mahal Kalan was deputed to effect service. On 15-3-1953 he made a report that Chanan Singh and Maghar Singh were not found present in the village and their whereabouts also could not be ascertained. Warrants for their attendance on 6th April were then issued by the Additlpnal Sessions Judge on 4-4-1953. The same process server made identical reports on these warrants as well. in his statement recorded by the Additional Sessions Judge Harnaik Singh proved his reports on the summonses as well as the warrants and deposed to the facts stated there in

On behalf of the Appellants it is strenuously urged that the conditions precedent as laid down by Section 33, Evidence Act were not fulfilled and con- sequently the previous deposition of Magher Singh could not be admitted in evidence and should be left out of consideration. It may be remembered that while Chanan Singh is the deceased''s brother, Maghar Singh is a step-brother of theirs and is also their collateral in the fifth degree. Their, evidence is very material in the case since both'' of them proffer to be eye- witnesses of the incident.

The charge against the accused is undoubtedly very serious. Any amount of delay or expense which might be involved in securing the attendance of such witnesses would be insignificant as compared with the utility of their appearing before the trial Judge and the assessors. It is difficult to imagine any such close relations, as Chanan Singh and Magher Singh are, should have remained out and could not be served to appear at the trial.

In criminal cases, particularly where a man is being tried for his the and the evidence sought to be accepted is of signal importance, the Court must insist on strict proof before holding that the conditions required for admitting former deposition have been satisfied. It is an elementary right of an accused person that a witness who is to testify against him should give evidence before the Court trying him and thus afford an opportunity to the Court to see the witness and observe his demeanor and form a better opinion as to his reliability than is possible from reading his statement. It is only in exceptional circumstances, which should be strictly proved to exist, that a previous deposition of a witness should be transferred in a serious case like this.

It is a matter of general knowledge that, more often than not, cross-examination of prosecution witnesses in Sessions cases is deferred for the trial, meticulous attention is not paid to the cross-examination at the commitment stage and in very many of such cases the accused is represented, if at all, by a comparatively junior counsel. While the accused has the opportunity to cross-examine it is not often that this is effectively done. The prosecution should not easily be allowed to escape detailed cross-examination of its witnesses at the trial by taking up the plea of their non-availability and thus deprive the accused of the valuable right of being tried on viva voce testimony. In the present case the process-server went to the village once to effect service of the summonses and the second time for execution of the warrants and on either of these occasions he found the witnesses to be absent. According to Chanan Singh himself he was arrested by the Officer Incharge Police Station Mahal Kalan, through which the service was being effected, and it cannot, therefore, be believed that the police did not know of his whereabouts in his case recourse to Section 33, Evidence Act has not been properly taken.

As regards Maghar Singh all that we are told is that Harnaik Singh went twice to the house of the witnesses and was unable to find hhim there. He did not make necessary and proper enquiries as to where the witness could be found. Reasonable exertion was not made to find him and it cannot, therefore, be said that the witness was untraceable in view of the statement made by Chanan Singh that Maghar Singh might either be at his father-in-law''s or with his sister I do not think the previous statement of Maghar Singh can be regarded as validly transferred u/s 33, Evidence Act. It has, therefore, to be rejected and left out of consideration.

Now let us turn to the merits of the case. As regards motive, Chanan Singh in the first information report stated that there was longstanding enmity between members of his family & the accused. In his statement -recorded by the Committing Magistrate and also before us he disowns this part of the report and stated that in fact there was no serious enmity between the deceased and Ranjit Singh Appellant, except for some ordinary dispute regarding turns of water. With respect to Kaur Singh and Mandail Singh nothing has possibly been suggested. They are said to be friends of Remising and to have joined simply to help him The deceased and his brother Chanan Singh, on the other hand, had more than one cause of grudge against Ranjit Singh Appellant. He, as a Lambardar made complaints against them for non-payment of land-revenue and also appeared against them as a witness in the proceedings Tinder Section 110 Code of Criminal Procedure.

Chanan Singh admits that on the day of occurrence at. any time shortly before it, nothing untoward had happened which could be regarded as the immediate cause for the fateful incident. it his thus not been shown why the Appellants Should have pre-planned the murder and acted in the mane as they are alleged to have done. I would agree with Shri Chetan Dass, the learned State counsel that, it is not necessary, nor is it possible, that the prosecution should prove motive in every case. In a case where the evidence connecting the accused with the crime is clear & convincing, absence of proof of motive may not be of much consequence, but generally it does put the Court on its guard and make it judge the evidence with particular care and caution.

On behalf of the Appellants it is urged that the first information report in the case was in fact recorded after the Investigating Officer had reached the village and made enquiries at the spot. Reliance in this connection is placed on the statement of Chanan Singh, Hie informant. He deposes that he -went back to his outer house in midst of the incident, at once rode his horse from there, reached the Police Station within half ran. hour of the incident and lodged the report within four or five minutes of his arrival. It means that if the incident took place at 8 P.M., as stated by him, the report should have been recorded by 8-30 P.M., or 9 at the latest. M. Hayat Khan H.O deposes that he started for the village as soon" as the report was lodged and reached there within 20 minutes. The report purports to have been recorded at 11 P.M. It is, therefore, contended that the report was in'' fact recorded after the investigating officer had arrived at the spot.

Another fact, reference to which has been made In this connection, is that Chanan Singh in his statement before the Committing Magistrate processed that the report was recorded by Jangir Singh. Head Moharrir and the latter thereafter called M. Hayat Khan from his residence and in-formed him of the reported, murder. This has, however, been disowned by Chanan Singh in his statement recorded by us. Now he has gone in line with M. Hayat Khan and stated that the re-port was recorded by the latter. Counsel stresses ''that Chanan Singh, who was entered in register No. 10 and who was also being prosecuted by Mahal Kalan Police u/s 110, Code of Criminal Prcedure could not have made mistake in noticing whether the scribe was Jangir Singh Head Moharrir or M. Hayat Khan. It is, therefore maintained that something in the form of a report must have been written by Jangir Singh, that the same is being withheld and that the report now put forth was recorded by M. Hayat Khan after his arrival at the spot. Support in the matter is also taken from the fact that according to the first information report one Maru Constable had accompanied the Investigating Officer to the village. Maru, however, averred that he reached the village for the first time on the following morning at 5-30 A.M.

M. Hayat Khan, who was examined after Maru explained the contradiction by stating that Maru Accompanied him from the Police Station to the village but he sent him back to fetch blank and carbon papers and that he brought the same on the following morning. Counsel submits that it is all a made-up story as the Investigating Officer already had with him the Wank sheets and carbon papers and on them he had recorded the statements of the witnesses and prepared the neces-sary memos before Mam''s return on the following morning. Counsel, therefore, concludes that Maru was probably sent with the report which M. Hayat Knan recorded at the village. To meet this argument counsel for the State contends that the contents of the report itself are inherent evidence of its having been recorded at the Police Station and on behalf of a person who did not know the whole thing that had happened. His argument is that if the report was recorded in the village it would not have been so brief and sketchy It is correct that the report does not contain material details of the entire incident and only mentions that the three accused lay in ambush and caught hold of Mal Singh in front of Rattan Singh''s house when he, accompanied by Chanan Singh, was proceeding to his residential house. That Mal Singh was removed to Ranjit Singh''s house and killed was not stated in the report. This may, however, depend upon the extent of intelligence of the person who recorded the report, and the colour he wanted to give it.

To me it appears that some sort of writing was made by Jangir Singh Head Moharrir on the information given by Chanan Singh at the Police Station. M. Hayat Khan left for the village on that information and got the case registered after making enquiries at the spot. These are facts that irresistibly follow from Chanan Singh''s own statement before the Committing Magistrate and create serious doubts as regards the genuineness of the document put forth as the first information report in the case. On the other hand if Chanan Singh in fact reached the Police Station at 11 P. M. and the report was then recorded he must have stayed for more than twp hours in the village after the incident. This time he must have spent in deliberation and consultation and yet he could not know the material part of the incident that is alleged to have happened. In any case delay in lodging the report, the one that is depended upon by the prosecution, has not been satisfactorily explained.

Counsel next urges that the story of a the or shots having been fired by Ranjit Singh Appellant is a made up one. In this connection it is pointed out that in spite of the fact that two shots are said to have been fired from a close range neither of them hit the target. Jangir Singh and Dalip Singh P. Ws. have got their houses in the same lane, and in fact Jangir Singh''s house is contiguous to that of Ranjit Singh Appellant. The two witnesses were at their respective houses at the time of the incident and were awake but they did not hear any report of the fires. They are collaterals of the deceased and belong to the same family. Dalip Singh has further admitted that his relations with the accused were in no way cordial. The loud noise created by the release of 303 cartridge, whether from a pistol or a rifle, should have been heard throughout the village on the wintry night, and yet none out of the prosecution witnesses, except those who are alleged to have seen the actual incident, has supported the version. Ranjit Singh Appellant was taken into custody by the Investigating Officer soon after his arrival in the village, but no fire-arm was recovered from him. If one had in fact been used it would not have been difficult for the investigating officer to get hold of it, particularly when the bandanas alleged to have been used by the other two Appellants were recovered at their instance.

In the report only one shot was stated to have been fired Kirpai Singh deposes that two shots were fired at short interval. Chilian Singh, even if he had left the spot immediately after the first shot should have heard report of the second shot and would not have omitted to mention it in the report Two empty cartridge cases are said to have been picked up from the main street in front of Rattan Singh''s house. They could not have been possible if the second shot, as alleged by the fatnesses, as fired when the accused had gone into the by-lane and had reached near the house of ranjit Singh. There is no circumstantial evidence to support the prosecution story regarding the firing of shots. This appears to have been introduced to explain away the conduct of the witnesses in not coming to the rescue of the deceased or rendering him any help whatsoever.

After discussing the evidence of Kirpal Singh the only eye-witness and that of Chanan Singh, the brother of the deceased His Lordship proceeded:

Moreover, the prosecution story itself appears to be very much improbable. There was no motive or immediate cause for the alleged pre-planned murder. No marks of dragging or resistance in the lane were found. The deceased could have been at once fired at in the lane and finished; where was the necessity of carrying him to Ranjit Singh''s house? Why Ranjit Singh should have Shouted that the man required had come; his companions fully well knew their victim and must have recognised him. The deceased, on his way, had already passed in front of Kaur Singh''s house. A shot fired from their could have attained the object without disclosing identity of the assailant. Ordinarily these or such like matters may not be of much consequence because the manner in which a crime is committed and the place selected for it depend upon the mentality of the culprit and his way of looking at the things. But in view of the fact that the only witnesses examined by the prosecution are close relations of the deceased and also inimical to the accused and that no one out of the neighbors had come forward to support them, the improbabilities of the story make the whole thing very much doubtful. The house of Ranjit Singh is admittedly situate in a thickly populated part of the village. It is surrounded on all sides by residential houses. The incident took place at about 7 or 8 P. M. when most of the neighbors can be expected at their houses said awake. It looks very much strange that none of them came to know about the incident till the police arrived and took out the dead body from Ranjit Singh''s house.

Counsel for the State has laid great stress on the fact that the dead body was. admittedly recovered from Ranjit Singh''s house. He argues that '' this by itself is a strong incriminating factor and that It necessitates some explanation from Ranjit Singh as to how Mai Singh met with his death at his'' house. Ranjit Singh states that Mal Singh came to his house in order to kill him but fortunately he was then away and was at Harchand Singh''s (D. W. 1) house. It was there that he came to know from his brother Dalip Singh that Mai Singh was killed by his brother, Malkiat Singh, Narindar Singh and Surjit Singh. In support of this version he examined Harchandgir Singh Mangal Singh and Modan Singh in defence. It is correct that their evidence is equally worthless and, there lore, has not been relied upon by the defence counsel it is, however, a fact that the Investigating Officer on his arrival in the village first went to Surjit Singh''s house and also made a search of it.

The deceased as admittedly a bad character. He might have gone to Ranjit Singh''s house with some found motive or design and met with his death there That the murder was committed at Ranjit Singh''s house does raise a strong suspicion of guilt against him but any amount of suspicion cannot take the place of proof, Without reliable and convincing evidence that he actually took part in the assault or was in any way responsible for it he cannot be held liable for the murder.

For all these reasons I do not think the prosecution has succeeded in proving the charge beyond reasonable doubt. The appeal is, consequently, accepted and the conviction and sentence of the-Appellants set aside. The reference automatically stands declined.

Gurnam Singh, J.

I agree.