Sardool Singh vs State

Dr. Anand, J.

(1) The appellant along with the Partap Singh, Nanak Singh, Bhagwan Singh, Ajit Singh and Barkat Singh was tried for offences under Section

302/307, 148 and 149 RPC. The learned Sessions JudgeJammu, vide his judgment dated 24576, convicted the appellant for an offence under

section 302 RPC and sentenced him to life imprisonment and to pay a fine of Rs. 200/. He also convicted him for an offence under section 324

RPC and sentenced him to suffer rigorous imprisonment for two years on that count. Rest of the coaccused of the appellant were acquitted by the

Sessions Judge. The sentences imposed upon the appellant were directed to run concurrently. The Sessions Judge has also submitted the record of

the case to this court, under section 374 Cr. P C. for confirmation of the sentence of life imprisonment. The appellant has filed an appeal against his

conviction and sentence. The judgment will dispose of both, the appeal filed by the appellant and the reference of confirmation made by the

Session Judge.

(2) According to the prosecution case as set out at the trial, the appellant armed with a 303 Rifle : Ajit Singh armed with a sword and their

coaccused armed with the lathies went to the land of the complainant on 26101973. at a time when the complainant party was ploughing their land.

Dispute about possession of the land, comprised in Khasra No1 599 situate in Nala Basantar, is stated to be the cause of grudge between the

parties. At the asking of Bhagwan Singh, Sardpol Singh fired a shot at Sadhu Singh and when Wadhawa Singh, brother of Sadhu Singh came near

Sadhu Singh he once again, at the instigation of Bhagwan Singh, fired at Wadhawa Singh, who as a result fell down. At the exhortation of Ajit

Singh, that since only Sadhu Singh and Wadhawa Singh were to be killed, they should go back, all the accused left the place of occurence, On a

report made by Gurbux Singh and Surjeet Singh PWs rally at Police Station, Samba a first Information Report was registered on 26101973, at

1215 P. M. The special report however, was received by the Munsiff Magistrate only on 2111973.

(3) With the view to connect the appellant with the crime, the prosecution examined Gurbux Singh, Surjeet Singh Wadhawa Singh, Prem Singh

and Joginder Singh as eye witnesses The prosecution also relied upon the medical evidence and the disclosure statement, allegedly made by

Sardool Singh, Exhibit PH, leading to the recovery of Rifle 303 and empty and live cartridges which were seized vide seizure memo, Exhibit PJ.

According to the evidence of Nazir Ahmad constable, the rifle 303 had been earlier issued to Sardool Singh appellant in connection with the

Border Security Scheme. Reliance was placed on the report of the ballistic expert also to show that the empty cartridges recovered at the instance

of the appellant had been fired from rifle Ex P 1 which had been earlier issued to the appellant and later recovered at his instance. The prosecution

has also relied upon the evidence of Amar Nath Patwari, Varinder Kumar Tehsildar. Amrik Singh S. I and Balwant Singh Inspector Police in

support of its case.

(4) Gurbux Singh, complainant and one of the two first informations has given the eye witness account of the occurrence. The statements of Surjeet

Singh, Wadhawa Singh, Prem Singh and Joginder Singh, the other eye witnesses are similar to the one given by Gurbux Singh P. W.

(5) According to Gurbux Singh, land measuring 50 kanals, situated in. Nalla Basantar, was in possession of his father Wadhawa Singh and others.

The appellant had instituted a civil suit with regarded to the possession of that land which had been decided against him. Ajit Singh the acquitted

coaccused of the appellant, had also filed an application, under section 145 Cr. P. C , alleging a dispute about the possession of the same land but

had not succeeded and the possession of the land continued to remain with the complainant party. The appellant and his coaccused wanted to take

forcible possession of the said land and with that end in view formed a party. They asked the complainant party to vacate their possession and

threatened them with dire consequences, in the event of their failure to do so but the complainant party did not vacate the possession. At about 6

A. M. on 26101973. Sadhu Singh, Wadhawa Singh ; Surjeet Singhj Prem Singh, Harnam Singh and Joginder Singh went to their land for

ploughing. Sadhu Singh and Wadhawa Singh started to take out the airy grass while Prem Singh, Surjeet Singh, Joginder Singh and Harnam Singh

started the ploughing of the land. All the accused persons suddenly appeared there, shouting 'Lalkaras'. The accused persons were armed, as

noticed in the earlier part of this judgment. At the instigation of Bhagwan Singh that there was a chance to take revenge, the appellant shot at

Sadhu Singh which hit in his chest and he fell down. When Wadhawa Singh went to the rescue of Sadhu Singh, he once again at the instigation of

Bhagwan Singh, shot at Wadhawa Singh hitting him in his left arm. Partap Singh praised Sardool Singh for having shot two persons and the

accused party went back. During the entire occurrence, Barkat Singh and Ajit Singh the other coaccused had stayed away. The witness went on

to depose that after the incident, he alongwith Surjeet Singh, went and reported the matter at the police Station Samba, where FIR Exhibit P A

was accordingly lodged. The police arrived at the spot and had the photographs of the dead body taken. The police seized earth all the accused

persons except Sardool Singh appellant were arrested on 27101973. Sardool Singh was later on arrested on 1111973. The evidence of all the

other eye witnesses is on similar lines and they have corroborated Gurbux Singh. There is, as such, no need to refer to their evidence.

(6) Wadhawa Singh, who had been injured, was medically examined by Dr Gej Bhadur Razden. He found the following injuries on his person.

On Medical side of the left upper arm six cms above the elbow joint an irregularly constructed circular injury. Black uneven, unsmooth and

unapproximating edges depressed and inverted in contour I Cm X Cm X 1/2 Cm in size

On the back of upper arm just in the centre and eighteen centimetres below the shoulder there is again an injury with irregular contour uneven

and unapproximate edges which are aborted and 1/2 Cm X 1/2 Cm X 1/2 Cm X 1/2 Cm in size.

Injury No. 1 and 2 are continuous with each other internally thus forming a funnel and giving these injuries shape of entrance and exit.

(7) The injuries, according to the doctor had been inflicted, as a result of a gun shot.

(8) The same witness had performed the postmortem on the dead body of Sadhu Singh on 271C1973. In the opinion of the doctor, Sadhu Singh

had died as a result of the destruction of vital organs of his body and perfused heamorrhage and shock. The time which had elapsed between the

postmortem examination and the death was estimated as 24/28 hours. The doctor also went on to a line, that looking to the course of the injury,

the exit and the entrance wound coincided, and therefore the injury could have been caused by a single shot only.

(9) A careful perusal of the statement of the eye witnesses shows that all of them have made a departure from the prosecution case, as set out in

FIR. In the FIR it had been projected that all the accused persons had come together and that whereas Bhaewan Singh had instigated Sardool

Singh to finish Sadhu Singh, it was Barkat Singh who had shouted to Sardool Singh that Wadhawa Singh also should be shot at and that it was Ajit

Singh who had later on declared that since both the brothers had been done away with, the accused persons should go back. Indeed. the first

information report is non substantive piece of evidence but it nonetheless"" is a very important piece, as it is the first version of the occurrence as

given out by the complainant and becomes all the more important when it has been lodged by one of the eye witnesses. Generally speaking courts

always insist upon the prompt lodging of the FIR so as to avoid any thought out or coloured version being or put up. Though, the FIR can only be

used to corroborate or contradict its maker nonetheless it gives out the salient aspects of the prosecution case and offers considerable assistance to

the court. At the trial all the eye witnesses, including the first informants Gurbux Singh and Surjeet Singh, take a complete departure and stated that

neither Ajit Singh nor Barkat Singh had formed a part of the accused group and that they had stayed away and had not even entered the disputed

land. The part which had been attributed to both Ajit Singh and Barkat Singh, in the FIR, was given away at the trial Even. Wadhawa Singh PW ;

brother of the deceased Sadbu Singh and himself an injured witness completely excluded the presence of Ajit Singh and Barkat Singh, in

contradiction of his earlier stand in the statements recorded by the police under Section 161 Cr P C. He was confronted with his statement,

recorded under section 161 Cr. P. C. where he had stated that Ajit Singh had a naked sword in his hand and that Barkat Singh had asked Sardool

Singh to shoot at him and that later on Ajit Singh had declared that since both the brothers were dead, they should go back. He denied having

made the said statement. The learned Sessions Judge accepted the version of the prosecution as put up at the trial., though noticing the departure

made by the witnesses from their earlier stand, and held that Ajit Singh and Barkat Singh had not participated in the offence and acquitted both of

them. He further held that there had been no unlawful assembly. The learned Sessions Judge opined :

without any hesitation, observe that their assertion in FIR and Police statements regarding the complicity of Ajit Singh and Barkat Singh

accused was false and was made to entangle two innocent persons.

(10) The learned Sessions Judge also noticed that the Special Report of FIR which was alleged to been recorded at 1215 AM on the date of

occurrence., was received by the Munsiff Magistrate on 2111973 i.e. on the 8th May from the date of its recording and the explanation given by

the SHO was abounded and that this late receipt of the FIR was a serious infirmity in the prosecution case. In the words the Sessions Judge :

Therefore all the excuses advanced by SHO are absolutely abound and useless effort to hide a grave infirmity in the prosecution case which goes

to the root of the case.

(11) The Sessions Judge, then after discussing the evidence led by the prosecution and the other salient features of the case acquitted the other

coaccused and observed :

I, therefore, taking all the facts and circumstances of the case discussed above observe that the prosecution has been miserably failed to bring

home charge to Bhagwan Singh, Nanak Singh and Pratap Singh accused. Therefore they are acquitted.

(12) The Sessions Judge, however, accepted the prosecution version that it was Sardool Singh who had fired the shots killing Sadhu Singh and

causing injury to Wadhawa Singh, and proceeded to convict him as noticed earlier. In our considered opinion, the approach of the Sessions Judge

was not proper. The learned Sessions Judge as noticed earlier Disbelieved the substratum of the prosecution case as well as the material parts of

the evidence, yet, proceeded to convict the appellant on the basis of the same evidence which he had not found reliable, Indeed the maxim,

falsusinuno falsus in mnibus, is neither a sound rule of law nor a rule of practice, yet, as observed by their Lordships of the Supreme Court in Uear

Ahir and others v. The State of Bihar AIR 1965 S. C. 277 :

It is therefore, the duty of the court to scrutinise the evidence carefully and in, terms of the felicitous metophor, separate the grain from the chaff.

But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own

out of the rest. That is what the courts have done in this case. In effect, the courts disbelieved practically the whole version given by the witnesses

in regard to the pursuit, the assault on the deceased with lathies, the accused going on a bicycle and the deceased wresting the bhala from one of

the appellants and attacking with the two of the appellants, the case that the accused attacked the witnesses, and the assertion of the witnesses of

their being disinterested spectators. If all this was disbelieved, what else remained. To reverse the mataphor, the courts removed the grain and

accepted the chaff and convicted the appellants"".

(13) In the instant case, it appears that the aforesaid dictum of the Supreme Court was last sight of by the Sessions Judge. Not only did the

Sessions Judge disbelieve all the eye witnesses, regarding the origin of the fight and the part played by the accused persons, he also found that

there had been an inordinate delay in the special report to the Magistrate which had not been explained and that the investion in the case was

tainted He still proceed to convict the appellant, on what ""extra ordinary,' material, we fail to understand. It appears that the Sessions Judge, was

influenced by the prosecution case relating to the recovery of rifle EXPI at the instance of the appellant and on that basis only proceeded to convict

him. For what we shall presently state, no reliance could be placed on the alleged recovery of the rifle and the empty cartridges.

(14) The prosecution case is, that the appellant made a disclosure statement EXPH and led to the recovery of rifle EXPI and two empty cartridges

besides some live cartridges. From the report of the Ballistic Expert, the prosecution has sought to establish that the empty cartridges which were

recovered at the instance of the appellant, had been fired from that very rifle EXPI.

That rifle EXPI had been issued to the appellant stands well established from the statement of Nazir Ahmed P. W. He has also proved that 50 live

cartridges had also been issued to the appellant. His evidence stands unrebutted and unchallenged. According to Mr. V. K Malhotra P. W. the

Ballistic Expert, the empties allegedly recovered at the instance of the appellant had been fired from the rifle PI. However, what is crucial to be

determined at this stage is whether the empties and the rifle have been established by cogent evidence to have been recovered at the instance

appellant ?

(15) Sardool Singh, the appellant herein was arrested on 1111973. He is alleged to have made the disclosure statement Ex PH on 21173. The

disclosure statement is stated to have been attested by Gurbux Singh, Sureet Singh and Bhadur Singh, Pursuant to the said disclosure statement,

the appellant is alleged to have led to the recovery of the rifle, the empties and live cartridges, in the same date i e on 21173 from a lane outside his

house. The seizure memo Ex PJ was also attested by the same Gurbux Singh, Surjeet Singh and Bhadur Singh, The prosecution, however,

examined only Gurbux Singh and Surjeet Singh as the witnesses of the ""disclosure statement and the seizure memo and did not examine Bahadur

Singh, who it appears to us was the only independent witness. Both Gurbux Singh and Surjeet Singh, the first informants, as already noticed have

told lies on material aspects of the case besides their interest in the prosecution is writ large. It would be unsafe to accept the story about the

recovery of the rifle and the empty cartridges only on the testimony of Gut bux Singh and Surjeet Singh P. Ws more so when Gurbux Singh P. W.

in his statement during his cross examination stated (p41 of the file) that apart from Surjeet Singh no one else had signed, either the disclosure

statement or the seizure memo. Similarly, Surjeet Singh stated that the disclosure statement was attested only by Gurbux Singh and Sardool Singh

appellant and none else. Both these witnesses, therefore, excluded the presence of Bahadur Singh and to that extent they stand belied by

documents, Exhibit PJ and PH Why was Bahadur Singh not examined has not been disclosed by the prosecution ? His non production creates a

doubt in our minds about the genuineness of the recovery. Courts have always insisted that, as far as possible, independent witnesses of

respectability should be joined by the police while effecting recoveries etc. The joining of an Independent witness would loose all its significance, if

he is not produced at the trial. As a matter of fact, with holding of such a witness can lead to an inference, that if examined he would not have

supported the prosecution case.

(6) There are some more circumstances also which go to show that it would not be safe to place any reliance on the so called recovery. The

recovery is alleged to have been made on 2nd November, 1973. Neither the rifle nor the empties were sent to the Ballistic expert till 7th Feb

1974. Why were the rifle and empties not promptly sent to the ballistic expert has not at all been explained by the prosecution. .Again, the rifle and

the empties were allegedly sealed at the spot but the seal was handed over to Surjeet Singh P. W. a deeply interested witness for safe custody.

There is again nothing on the record to explain as to where the sealed parcel remained during the period 2nd November, 1973 and 13th

November 1973., when the sealed packing was opened by the Executive Magistrate and resealed by him. There is again no evidence to show as

to where the rifles and the live and empty cartridges remained after 13th November. 1973 till 7th Feb 1974, when they were sent to the Ballistic

Expert It was the bounden duty of the prosecution to establish by content evidence that right from the time the rifle and the cartridges were

recovered, they remained in safe custody and no body could have tempered with them or actually tempered with them. The prosecution has

miserably failed to lead any evidence regarding the safe custody of the rifle and the cartridges and in the absence of any such evidence, the

possibility that the parcel containing the same may have been tempered with cannot be ruled put. It is some what surprising that the Sessions J, did

not deal with this important feature of the case in his judgment. It is the duty of the prosecution to lead evidence, to show that rifle and cartridges

right from recovery remanded in safe custody. Further under section 342 Cr. P. C. no question was put him regarding the alleged recovery of the

empty cartridges case at his instance which the prosecution was relying upon to connect the appellant with the Crime. The reliance placed by the

Ss. Judge, on the so called recovery in the facts and circumstances of the case was not justified and in absence of the incriminating articles

recovered by the police during the investigation, remained in safe custody during the period they were with the police and that nobody tempered

with the parcels. Failure to lead such evidence breaks the chain in the link evidence when the prosecution seeks to connect the accused with the

crime on the basis of the incriminating articles. Lately, we have noticed that the investigating and the prosecution agencies do not give due

importance to this aspect of the case and hardly have we come across the Moharar Malkhana, the carriers of the parcel to the Malkhana and from

the Malkhana to the expert being examined by the prosecution. This evidence particularly in a case where the recovery has importance is essential

to complete the chain. The prosecution agency should issue instructions to the investigating agency not to ignore this aspect of a case. The

inordinate delay in sending the sealed parcel of the empty cartridges case and the rifle PI, for opinion of the ballistic expert creates a considerable

doubt about the bonafides of the investigation and when considered with the other factor, that the copy of the special report had been sent to the

Magistrate, after an ordinate delay and that the investigating officer had failed to explain the delay, would make it unsafe to rely upon such

investigation. The suspicious delays that have occurred as regards some vital steps in the course of the investigation, in our opinion, render it unsafe

to hold that the case of the prosecution has been established beyond a reasonable doubt. It is relevant to point out here that even if the alleged

recovery had been established, the same could not have been used against the appellant, because in his statement under section 342 Cr P. C. no

question was put to him regarding the alleged recovery of the empty cartridges at his instance which the prosecution was relying upon to connect

the appellant with the crime. The reliance placed by the Sessions Judge on the so called recovery in the facts and circumstances of the case was

not Justified and in the absence of that connecting link, we find that there is no other distinguishing feature between the case of the appellant and his

other coaccused, who have been acquitted by the Sessions Judge and against whose acquittal the State has not come up in appeal being

apparently satisfied.

(17) We agree with the Sessions Judge that the eye witness have made material improvements in their statements. We also agree that all the eye

witnesses are highly interested in the prosecution in asmuch as Wadhawa Singh is the brother of the deceased and Gurbux Singh is his son. Surjeet

Singh and Prem Singh, who are brothers, on the showing of the prosecution itself; belong to the party of Wadhawa Singh and the same is the case

as regards Joginder Singh. In view of the discrepancies in their statements and the material improvements made by them in their statements we

agree with the Sessions Judge that it would not be safe to rely upon their testimony. As a matter of fact, the finding recorded by the Sessions Judge

about the unreliable nature of the witnesses and the trained investigation of the case are fully justified and we confirm the same. We have however,

found it difficult to rely upon the 'only' distinguishing feature viz the so called recovery of the rifle and the cartridges at the instance of the appellant

and, therefore, in our opinion, it would be unsafe to hold that the case of the prosecution against the appellant has been established beyond a

reasonable doubt. We therefore, accept this appeal and set aside the conviction and sentence of the appellant and order him to be released forth

with, if not required in any other case. The reference made by the Sessions Judge is accordingly rejected.

(18) Before parting with the judgment we may notice an argument of learned counsel for the appellant based on Section 3 54 Cr. P. C. He argued

that the statement of the appellant, under section 342 Cr. P. C. had not been recorded by the Sessions Judge himself in his own hand and the trial

stood vitiated on that score. Apart from the fact, that there is no material on the record from which any inference may be drawn that the statement

under section 342 Cr. P. C. was not recorded by the Session Judge himself, even if the allegation is accepted to be true in our opinion, the same

would not make any difference as it is not denied that the statement recorded under section 342 Cr. P. C. is that of the appellant himself and of

none else. Unless the appellant is able to show any prejudice to have been caused to him by the strict noncompliance, if any, with the provisions of

S. 364 Cr. P. C. we cannot hold that the trial is vitiated. Mr. J. P. Singh has been unable to point out what prejudice if, any has been caused to the

appellant by the alleged noncompliance with the provisions of Section 364 Cr. P. C. and as such we repel his argument.