DATAR SINGH versus THE STATE OF PUNJAB

DATAR SINGH

THE STATE OF PUNJAB

December 19, 1973.

(M. H. BEG AND Y. V. CttANDRACHUD, JJ.)

J 11ditu1 Penal Code-S. 302 read with Ss. 25 and 21 of the Arms Act-Appel-lant conricted fol' n111rdering his own fatller--G'oncurrent finding of facts-·w1tetlzer can be rei•iewed wizen there is indicatio11 of serious miscarriagr of justh'e, ·

. The appellant was convicted u/s. 302 l.P.C. by the Sessions' Judge for murder-ing his father and sentenced to death. The High Court accepted the death sen-tence and dismissed his appeal. He was also convicted for an alleged · illegal possession of gun and his convictions and sentences under secs. 25 and 27·of the Arms Act were upheld by the High Court. The prosecution case was that the deceased was wealthy landlord whose s,ister was the Maharani of Patiala. He h<id executed wilt in favour of his wife and two sons on 24-8-1967. He cancelled this will and executed another in favour of his sister, Rani Prem Kaur, on 18-4-1968 and got it registered at place called Dburi, probably because P.W. 1, friend of the deceased, was the Sub Registrar there. The deceased also alienated some property to minor son of P.W. 1 sometime before 'the murder. The elder son of deceased had filed u JUit to pre-empt this sale and the suit was pending nt the time of the occurrence. The relation betw~en the deceased, his wife aild children were strained and this background was said to provide the motive for murder. It is alleged that ·the appellant, on the day of occurrence, had entered the room, where the decea·sed was sitting with 2 of his friends, P.W. 1 and P.W. 2, in the blazing light of electricity and had shot his father with gun.

Before this Court, the appellarit raised several questions of law and contended that there has been miscarriage of justice because the Courts below have ignored certain basic defects in the prosecution version .and misread Ute evidence.

Allowing the appeal,

H·ELD : (i) It is not the practice of this Court in appeal by special leave te disturb concurrent findings of fact unless the case discloses some exceptional fea-tures indicating 'that serious .mis-carriage of justice has taken place. [809 G-HJ

(ii) In criminal cases, it· is often difficult for courts of law to arrive- at the real truth. The judicial process can only operate· on h.c firm foundations of actual and credible evidence on record. Mere suspicion or suspicious circumstances can-not relieve ihe prosecution' of its primary duty of proving its case against an accus-ed person bi::yond reasonable doubt. Courts of justice cannot be swayed by senti. ment or prejudice againSt person accused of the very reprehensible crime of patricide. If the pieces of evidence on which the prosecution choses to rest its case are so brittle that they crumble easily, the superstructure built on such insecure foundations also collapses. [810EJ

(iii) The super-structure of the prosecution' case rests on the testimony of two alleged eye-witnesses whose evidence is not only of an inherently unreliable nature because of features disclosed by evidence, but the artificial and incredible versions of the shooting put forward by them are to0 unnatural to be accepted.

(iv) P.W. 1 gave false explanation to accept for his presence at the hoase of the deceased on the evening of 22-2-1970. He admitted, at the trial that be gave false information as to when he left for Patiala, but he pleaded that he did so at the instance of the S.D.O. who had put pressure on him not to tive evidence in the prosecution case against the appellant. If, as be h~d. admitted_. be was capable of making false staten1ent under such pressure. 1t 1s not possible to des-cribe this witness as thoroughly reliable. It is also difficult to believe that 8!1 S.D.0. witl put pressure upon Naib Tehsildar workiD;g under him tt;> commit perjury. Therefore, the testimony of the wi!ness is ~nherently. unrehab.le. He was both chance witness and one who admitted having committed pefJUTY·

(v) It is also difficult to b:lieve that P.W. 2, another eye-witness, who came ID the house of the deceased by chance, was really present at the time ef the occnr-rence. Although this witness- did not tell ~ dclitierate lie but he bad written . a.. letter, exhibit 'X', wherein lte stated that he had not witnessed the murder at all. and that the Police was harassing him to make false statement. The band\vriting ·on this letter and the signature below it were denied by the witness who duly·· proved to be his. There was no reason to discard the evidence of the hand-writing. expert cin these points, U Balbir Singh, P.W. 2, had written this letter he was shown to have done. he could not be relied upon at all when be stated that he· witnessed the murder,

(vi) Conflicting staten1ents made about the time of the alleged. presence of the witnesses on the scene of murder also show that they were not there at all to witness it. · ,

(vii) Further, from a. careful writing of the f.I.R., it seems· that the said F.I.]:t. was written up carefully afterwards. Under the circumstances, the convictiorr. and sentence cannot be &ustained.

CRIMINAL APPELLATE JURISl.>ICTION : Criminal Appeals Nos. 4· & 5 of 1973.

Appeals Nos. 1020 and 1021.of 1971 and Murder Reference No. 4g: 26th May 1972 of the Punjab and Haryana High Court in Criminal Appeals Nos. 1020 and 1021 of 1971 and Murder Reference No. 48: () of 1971.

Frank Anthony and Harjinder Singh, for the appellant

R. L, Kohli, for the respondent.

The Judgment of the Court was delivered by BEG, J. :-Datar Singh, appellant, was convicted under Section:. 302 Indian Penal Code by the Sessions' Judge of Patiala for murdering his father Thakar Singh at about 9.30 p.m. on 22-2-1970 at Naru House. in Patiala, and sentenced to death. The Punjab lligh Court had accepted the death reference and dismissed his appeal. He was also convicted in connected trial, for an alleged illegal possession o' gun, and his convictions .and sentences of two years' rigorous imprisonment and three years' rigorous imprisonment under Sections · 25 and 27 of Arms' Act were upheld by the High. Court. The; appellant's applications under Article 134(1)(i:) under the Consti-tution having been rejected by the High Court, he came to this Court and was granted special leave to appeal in both the connected cases which are now before us. ·

. It is not the practice of this Court in appeal by special leave t0> disturb concurrent findings of fact unless the case discloses some ex-ceptional features indicating that serious mis-cardage of justice has taken place. It has be.en contended on behalf of the appellant that such mis-carriage of justice has resulted in this case because Courts 'ign.i>red certain basic def09ts in the prosecution version and misread· ·evidence. • Several questions of law were also sought to be raised before us: These are : · .H ·· (1)_ Whether the prosecution bad failed to produce material wit-nesses in the case. ~o that ·~ presumption against the veracity of. any part of the prQ!!ecution version arose, due .to this non-production?

(2) Whether there had been violation of Section 157 Criminal Procedure Code, and, if so, what is its effect upon the prosecution case?

( 3) Whether there had been violation of Section 162 of the .Criminal Procedure Code by. inserting in the site plan information derived from statements made by prosecution witnesses and by annexing .their signed statements to inquest reports, and, if so, its effect · on the prosecution case ?

( 4) Whether the prosecution case was damaged by an infringe-ment of the best evidence rule inasmuch as•neither the ballistic expert, who examined the cartridges and the gun in the case, supported the prosecution case nor was the gur1 said to have been used . by the appellant for the commission of murder examined for the appellant's finger prints nor was chick alleged to be hanging outside the door of the room in which the murder took place taken into possession by the Investigating Officer ? .

( 5) Whether the prosecution instead of the accused had been given the benefit of doubt on various features of the case on which two views were possible?

(6) Whether different standards of proof had [1 ]been applied in judging the credibility of the defence evidence as compared with the prosecution evidence ?

It is often difficult for Courts of law to arrive at the real truth in criminal cases. The judicial process can only operate on the firm foundations of actual and credible evidence on record. Mere suspicion or suspicious circumstances cannot relieve the prosecution of its primary duty of proving its case against an accused person beyond reasonable doubt. Courts of justice cannot be swayed by sentiment or prejudice agah1st person accused of the very reprehensible crime of patricide. They cannot even act on some conviction that an accused person has committed crime unless his offence is proved by satis-factory evidenre of it on record. If the pieces of evidence on which the prosecution choses to ~est its case are so brittle that they crwnble when subjected to close and critical examination so that the whole super-structure built on such insecure foundations collapses, proof of some incriminating circumstances, which might have given support to merely defective evidence cannot avert failure of the prosecution case.

After having been taken through the evidence on record we have come to the conclusion that the superstructure of the prosecution case is based on thl testimony of two alleged eye-witnesses whose evidence is not only oi an inherently unreliable nature but the artificial and in-<:redible versions of the shooting put forward by them are too unnatural to be accepted. It seems to us to' be quite unsafe to convict the appellant on their testimony despite some circumstances which raise grave suspicion against the appellant. Suspicion, however, grave, can-not be satisfactory basis for convicting an accused person. We will, therefore, examine the evidence of these two witnesses and set out our reasons for finding them quite unreliable and deal with other questions

mentioned above in the course of an examination of evidence the credibility of which is assailed.

Tbakar Singh, deceased was wealthy landlord whose sister was the Maharani of Patiala. He had executed will in fa vow: of his. wife and two sons vtar Singh, and Datar Singh on 24-8-196 7. He cancelled this will and executed another in favour of his sister Rani Prem Kaur on 18-4-1968 and got it registered at Dhuri ·probably because Joginder Singh, P.W.I., friend of. his, was the Sub Registrar there. Tbe deceased Tbakar Singh had also alienated some property in favour of Jasvinder Singh, minor, aged about 10 or 11 years, son of Joginder Singh, ·P. W.I, apout year and half before the murder. Avtar Singh, the elder son of Thakar Singh, had filed suit to pre-empt this sale. The suit was pending at the time of the occurrence. The relations of Thakar Singh deceased with his wife and children were straine4. This background was said to provide the motive for murder. If Balbir Singh, P .W.2, could be believed, tlie wife of Thakar Singh had described her husbai;d as sweeper's son. Apparently, there was not much love lost between Thakar Singh on one side and his wife and children on the other. The alleged motive for this murder was certainly too old to convincingly appe.ra as the cause of the murder of 22-2-1970 in so melodramatic styfe as the alleged eye witnesses would have us believe. Moreover, if former will had been cancelled and another will executed in favour of sister of Thakar Singh, it could very well be urged that other persons interested in seeing that Thakar Singh died before he could cancel his last will of 18-4-1968 had stronger motive to murder him than others who might still be able to persuade him to change his mind. And, if Thakar Singh's strained relations with his wife and children could be sufficient motive for the murder it is difficult to underst.and why Datar Singh rather than.his elder brother Avtar Singh could have stronger animus to kill the father. In any case, there is no evidence to show that Datar Singh, appellant, had any special motive or reason of his own for patricide such as violent quarrel or dispute with his father precedini: the murder which could have unhinged bis mind. If, as was suggested repeatedly on behalf of the prosecution, the members of the family of Thakar Singh were really influential, it was much easier for them to hire some individual to murder Thakar Singh, assuming that t~eir hostility to Thakar Singh went so far as to impel them to think' of getting rid of him like that, rather than for one of them to murder Thakar Singh himself right in front of his two alleged close _friends in the blazing light of electricity after rushing into the room in which they were-sitting and revealing his identity to witfieS<cs as Datar Singh alleged to have done. On the whole, the evidence of alleged motive and of Thakar Singh's unhappy relations with his wife ani cl1ildrcn. all said to be living together in the Naru Houoe with Thakur Singh, hinders rather th. n helps us in accepting the prosecution version that it was Datar Singh who had committed the murder of his father in the reckless ma~ner set up and not somebody else in diffcren• and less foolish way. Of course, if Joginder Singh, P.W.1 and Balbir Singh P.W.2, could be implicitly relied upon, the mere absence of strong enough motive for committing such an unnatural crime ·as patricide or the mode of its commission could be of no assistance to the appellant..

The evidence of Joginder Singh, P. W. l, not only shows that he was probably the principal adviser and helper to Thakar Singh in such dispositions of properties as Thakar Singh made, but, t6at he was also, according to his own adm'~sions, capable of making any state-ments at any time to suit his own p11rposes'. This is clear from the web of lies in which he is shown to have entangled himself in trying to .account for his presem:e at Naru House in the company of Thakar .Singh at the time of murder, and the contradictory and different excme; .he gave on various occasions, such as when applying. for leave for .absence from Sunam on 22-2-1970. He stated in cross-ex&mination that he had left Sunam, where he was posted as Naib Tehsildar, at .2.45 or 3 p.m., reaching Patiala by 4 or 5p.m. An order of the Sub Divisional Officer dated 26~2-1970 (ex, DC-I) shows ·that an expla-nation was called for from Joginder Singh for leaving · Sunam on election day as he had sent wire from Patiala asking for leave. Jn :his explanation (ex:DE), he had stated that he had received message .at Sunam at 4.30 p.m. on 22-2-1970 that his baby was ill so that he proceeded to his home in Patiala by the 5.20 p.m. bus after the polling was over at 5 p.m. When this contradiction was put to him, he admitted that false explanation was given by him but pleaded that thi; was done at the instance of the Sub Divisional Officer who had put ·pressure on him that he should not give evidence in the prosecution case against the appellant. It is difficult to see what connection tho :alleged pressure had to do with his ·putting down that he left by bus .at 5.20 p.m. If. as he had admitted, he was capable of making false statement under such pressure, so as to make deliberately false state-ment to damage the prosecution case, it is not possible to describe thi_s witness as thoroughly reliable whose testimony could be accepted without demur or satisfactory corroboration. It is difficult to believe ·that sub Divisional Officer. who is Magistrate, will put pressure upon the Naib Tehsildar working under him to commit perjury. Hi; statement also shows that he had no hesitation in giving different and contradictory excuses at different timC' for leaving Sunam. He could state either that his child was ill, or that his wife was ill, or that no one was really ill but that he needed to go to his home in Patiala for some other purpose on 22-2-1970 without realising that it was im-·proper or reckless to make such contradictory statements.

We have also noticed that Joginder Singh has used his favourite reply ''I do not remember", when cross-examined, no less than _25 times. It is significant that although he stated that he, after meeting · Thakar Singh by chance in the course of walk, at about ~ p.m .. so ·that he was invited to sit and after that to dine with Thakar Singh, and ·;s said to have sat there till about 9 or 9.30 p.m., when the appellant suddenly appeared in the well lit room with double barrel gun and shot his father twice after ,,houting "Thakar Singh" at him, yet. ke did not remember single thing about the talk he had with Thakar ·Singh on that occasion during the course of the chat for an hour or more with the murdered man. Balbir Singh, P.W.2, could also not ·give any indication of the nature of the talk. It is difficult to believe that this would be so if either this witness or Balbir Singh. P.W.2, who is also said to have come to the house by chance after half an hour, ·were cea!ly present at the time of the occurence.

Although, Balbir Singh, P.W.2, who had apparently, also strayed in by chance into the room where the shooting is alleged to have taken place at about 9 or 9.30 p.m. did not declare himself liar on any point in the course of his testimony in Court as Joginder Singh, P.W.1, had been forced to do, yet, he had, we think, made an even more serious and d1maging declaration in letter dated 20-4-1970 (Ex. 'X'). He had stated there that he had not witnessed the murder at all and that the police was harrassing him to make false statement. He had denied his handwriting and signature on this Jetter. Therefore, an application was made by the defence to the District Judge on 26-5-1971 to send this letter to the Director of the Government Department of Questioned Documents so that the official handwriting expert may give his report on the hand-writing. The relevant documents were, however, sent to and examined by Shanti Sarup Jain, D.W.l, hand-c writing expert who had given detailed report for coming to the con-clusion that the hand-writing on the letter (Ex. 'X') tallied with the admitted hand-writin~ of Balbir Singh, P.W.2. We have gone through the report and exammed the writings ourselves. We see no reason to discard the evidence_ of the hand-writing expert. We arc sorry to observe that the High Court had mis-read the evidence in holding that this letter was not put to Balbir Singh at all. It was put to him both in u the Committing Court and in the Trial Court. In both the Courts he nad denied his writing and signature on it. If Balbir Singh had written this letter, as we think he did, whatever may be his reason for doing so, Balbir Singh could' not be relied upon at all when he stated that ho had wit!\essed the m9rder. - ll was also contanded on behalf of the appellant that it was most £ unlikely that Balbir Singh, P.W.2, would go to Thakar Singh as he had written another very acrimonious letter to Thakar Singh dated 24-11-1967 in which he had compared Thakar Singh to 'Kanjars' and 'Kalas' who also "possess money in abundance". No doubt he had deposed that he had made up with Thakar Singh's since then Sv much so _that he had prepared Thakar Singhs' Income.tax and wealth-tax returns, yet, Baibir Singh's angry letter showed that he did not have high opinion of Thakar Singh deceased who is said to have disliked Balbir Singh's >tssociation with this datighter-in-!ow called "Bibi", for whom Balbir Singh had expressed great admiration in thLs letter. Balbir Siiigh _had admitted_ writing this letter but had refused deliberately to explain some of its contents. -He admitted that he .had been convicted under Section 409 l.P.C. but he asserted that he wac. acquitted by the Sessions' Court. The judgment _of the Punjab High Court dated 16th February, 1966, in Criminal Appeal No. 610 ,,f 1964 (Ex. DM} shows that the order_ of acquittal passed by the Scssigns' Court was set aside and that of the Trial Court convicting him under Section 409 I.P.C. was restored. The appellant, however, denied knowledge of what happened l-0 this case in the High Court. Furthermore, we find that the name of this witness is not mentioned in the substance· of the report entered in the daily diary report at the Police Station '(Ex. PN)' although his name is mentioned in the F-1.R. which was shown as lodged at Police Station, Civil Lines, l>atiala, on 22-2-1970, as early as 9.55 .p.m.

We have examined carbon copy of the very neatly written F.I.R. at Police Station, Civil Unes Patiala, in which the time of the occurrence is given as 9 p.m. It was stated by Balbir Singh that the Police came with Joginder Singh only 20 or 30 minutes after Joginder Singh had gone to the Police Station and that it must have been 10 p.m, by that time. It is difficult to believe that so neatly written and detailed F.l.R. could. have been w[itten up so soon. It is more likely that if Joginder Singh returned so soon with the Police, the .I.R. was drafted and written up carefully afterwards.

The column in the form in which F.I.R. was taken down does not mention the time and date of the despatch of the report from the Police Station to Magistrate. The prosecution had tried to prove, by the evidence of Avtar Singh, P.W.15, that the special report was delivered to the Chief Judicial Magistrate at 1 a.m. on the night between 22nd and 23rd February, 1970. The defence had produced Surinder Singh, P.W.5, Reader of the Judicial Magistrate, to wh.om the report was alleged to have been sent, but we co1dd discover neither the time nor the date of its receipt from the register brought by the Reader who deposed that the report must have been handed to lhe Investigating Officer Tel Ram, P.W. 19. If so, the copy handed over to the Investi-gating Officer should have been produced, as it would probably have shown the time of its receipt, but it was not forthcoming for some reason. No one was produced by the prosecutioi. to show what hap-pened to the copy of the report sent to the Magistrate All we can say is that the mystery surrounding the very quick writing up of and copying out of the F.I.R. and the absence of any entry showmg when it was sent to the Magistrate concerned may be due to the fact that the First Information Report was lodged, as learned Counsel for the appel-lant contends, much later than 9.55 p.m. and after Joginder Singh bad convinced the police that the murder was committed by the appellant. We cannot conclude from facts proved, as the High Court bad done, that the appellant must have caused the disappearance of the special report. In any case, the appellant could not possibly be responsible for the failure at the Police Station to .enter the date and time of despatch of information to magistrate in the column of the F.LR. meant for it. This omission seems to us to be quite significant in the light of other facts indicating that the F.LR. must have been drawn up much later than it is actually shown to haye been.

Herc we may refer to the contradictory and irreconcilable state-ments made by Joginder. Singh and Balbir Singh nbout the time at which shooting took place. Jogim!cr Singh .sai•.\ that ho was passing near the Naru House at 8 p.m. when Thr.kar Singh met him on the r0aJ side where they stood for some time. After that, Thakar Singh is said to have taken him to his house and into room called Chow-bara used a.s drawing room. He said that Balbir Singh had joined the two, apparently without any previous appointment. afterwards after an interval of about half an hour. Nevertheless, this witness had stated. in the Commitfing Magi>.trate's Court that Datar Singh, appel-11nt. came at S p.m. with double barrelled gun with which he shot

-f :i ' . iif (.· '* • ,,, '

Thakar Singh. The statement in the Committing Magistrate's COurt seems to. have been brought in as evidence •t'the trial under Section 28~ ol the Criminal Procedu1e Code. It the time given by him in the Committing Magistrate's Court was correct, it would mar the whole prosecution case. . If that were true, it would be clear that Balbir Singh could not have possibly been there when tlle shooting took place. And, in that case, the whole story of long chat between 8 p.m. & 9 p.m. or 9.30 p.m. would collap;e. Probably, this was the reason f.;1 the change of time by this witness at the trial for the en.try. of the appellant into tne Chowbara from 8 p.m. to 9 or 9.30 p.m. Balbir Singh had also stated in the Committing Magistrate's Court that he went to Naru House at 8 p.m., withom giving any rea'o" why he should go 1hcre although he gave the time at which Datar Singh came as•9 or 9.15 p.m. At the Trial, he gave the time of his own arrival at Naru House as ~.15 p.m. and said that he had sat in the company of Thakar Singh and Joginder Singh for about one or one hour a11J half befo;e the appel· !ant entered the room suddenly wit.h double barrelled gun. If Balbir Singh could have made correct assessment of the time which elapsed between his arrival and tlle time of murder, as one to one hour and half, .the murder could have taken place between 9.1 S and 9.45 p.m. it is evident that, if this was correct, it would make it very dilticu1t to bolieve that an F'.I.R was neatly written out and then copied out at the Police Station within few. minutes even though the Police Station was only one furlong away.

The most malodramatic part of the prosecution version, put for· ward both by Joginder S111g 1 and lialbh· Srngh, consisted of the aUega-uon that Datar Singh, appeUant, actually entered the room, :snv1 .. ued ';fhakar Singh" at his father, and then fired two shots at him, and then escaped. Both Joginder Singh and Balbir Singh had said that Datar Singh entered the Chowbara by lifting "chick" hanging outside the door. No such "chick" was either mentioned in the·F.I.R. or in the seizure list or in the site plan. It was not taken into his resession by the Investigating Officer who took the gun left outside Cbowbara and other objects, such as the blood stained cloth on the· sofa and the sofa itself on which Thakar Singh was sitting, into his possossion.

If we assume, for the sake of argument, that there was actually "chick" hanging outside the' rQOlll, it would be evident that only per· son driven. to the verge of insane. recklessness could think of entering the Chowbara and shooting at Thakar Singh when he could have easily done so by merely inserting the barrel of his gun by the side of the "chick" and taken good aim at fairly cl05e range at Thakar Singh sitting right· in front in bla7.lng electric light so that the assailant's face and body arc concealed behind the wall adjoining the entrance. Per-haps that is how the shooting took place. At .that time, the sofa 011 which Thakar Singh was said to be sititng, was quite near the door and, almost facing anyone who would try to look in from the 1ide of the chick farthest removed from the sofa. There is nothing on the. record to show that the appellant was suddenly so incensed and gripped by passion to shoot his father as to· have become oblivious to the · conse-quences of revealing his identity by rushing, intn the Chowbara to shoot at Thakar Singh. If he did so he .would risk being caught by the two l2-L748Su~Cl/74

allegedly good friends of Thakar Singh one of whom had been invited to stay on for dinner and the other, Balbir Singh, who although it was not certain whether he had been invited to dine or not, had, neverthe-less, stayed on.

Both Joginder Singh and Balbir Singh stated that they tried to run after the appellant and "over-power" him. Jf they had really tried to over-power him they could have shown some evidence of the attempt co over-power such as the gun snatched from the applalnt or button wrenched from the clothing. Perhaps they realised this, and, there-fore, they proceeded to depose that they had only run after him and did not even see him place the gun found outside the Chowbara, although they heard cluttering sound whe.n the gun was dropped on bench from which they inferred that the particular gun, the weapon founu there, was used for the murder.

The sofa on which Thakar Singh was· sitting was quite near the door. Its distance from the door was given by Balbir Singh as only 2 ft. Joginder Singh had stated that the length of the gun from end to end was 4 ft. and that it was at distance of 2 ft. when 'l'hakar S111gh was !ired at. If the gun was fired from distance of 2 ft. only from the sofa and if that was also the distance of the sofa from the door, the assailant would also be at the door and not inside when Thakar Singh was fired at. Apart from the difficulties created by the medical evidence in accepting such picture of the shooting even from 2 ft:. we find that the site plan also does not show that the shooting took place from any place inside the Chowbara but gives the position taken up by the murderer to be in the middle of line acroos the entrance, that is ro say, in the middle of the door-step. That would not be evidence of where the murderer shot from. But, we mention it to indicate the shifting of prosecution version on the pomt. Balbir Singh had stated that the murderer was neither inside nor outside the door. Accordin~ to this witness, one foot of the appellant was inside and the other wa< outside the threshold, probably because it was felt that shooting after entry into the Chowbara would conllict with medical cvidcw:c. The position given by Balbir Singh destroys the whole account of melodramatic entry of Datar Singh nito the Chowbara itself to murder Thakar Singh by shooting at very close range. Could this bo the state of evidence if these were really eye-witnesses ?

Another difficulty which arises in imagining shooting from the middle of the door-step with one foot of the murderer inside and the other outside the door is that, in-- such po•ition, the "chick", which was said to be there, would operate as an obstacle to shooting unless it was neatly thrown behind resting on the back of the murderer. The act of arranging "chick:' in this peculiar position, so as to prevent the "chick" from hindering the shooting, would itself take so much time as to crt11ble the three· men inside the room easily to take some. step to arrest or grapple with or resist the murderer. It is inconceivable that such cumbersome procedure would be adopted by murderer out to shoot hastily and then to run way when he could have shot more easily and effectively by inserting the barrel of the gun from side of the "chick". The witnesses do not give anv •uch account of the shooting which could make it appear credible.

It is much more likely ·that the "chick" was not there at all. The witnesses admitted that it was pitch dark outside. The assailant could, therefore, very weli shoot at Thakar Singh from outside without revealing his identity by being seen. It appears to us that the "chick" was deliberately int~oduced to show that the murderer had to enter the Cbowbara and be seen shooting as alleged by the two eye witnesses to conceal the truth that the shooting had taken place from the dark out-side in circumstances in which it was impossible or very difficult to make out the ideptity of the actual murderer.It may be mentioned here that the sit.e plan, relied upon by the High . Court to give 7 feet as the distance between the door and the place on the sofa where Thakar Singh was sitting, was prepared by Draftsman, Bakshi Singh, P.W. 10, on 24-2-1970, at time when the sofa was not there at all. He admitted that he had shown the sofa and its distance from the door only on enquiry from the Investigation Officer. We do not think that such statement could be admitted in evidence. More-over, even if we assume, for the sake of ar~ument, that this distance was 7 feet and, also that there was "chick' , as deposed by the wit-nesses, the shooting could easily take place from distance of 6 feet by inserting the barrel of the gun by the side of the "chick" and taking aim while taking the cover of the wall adjacent to the door. Dr. G. S. Gambhir, the Medical Officer, who had perfomed the post-mortem examination, said, after looking at the injuries of Thakar Singh : '"These injuries were caused when the nozzle of the gun was at dis-tance of about 6 feet from the body". He also said : "These injuries could not be caused if the nozzle was 4 feet away from the body. By nozzle I mean "muzzle' of the gut! barrel".

"When the distance is less than 4 feet or 4 feet, the pellets enter the body-en-masse. If the distance is more than 4 feet, then the pellets will spread and will enter the body within diameter of 2 inches from the main hole. In !h~ present case there are three separate openings adjacent to m1ury ~o: 1 and there were four small openings around the sec?nd m1ury. I have not noted the exact distance of the· vanous openings with regard to injuries Nos. 1 and 2. Up ~o distance of 3 feet the pellets do not spread. My opinion 1s based on Modi's Medical Jurisprudence" ..

The following injuries were found .on the body of Thakar Singh :

"~ne circ~lar wound about 2" in diameter with lacerated marg1~ on t~e front of the chest, slightly on the right side of th~ middle hne. !here were three small separate openings ad1acent to the mam wound.

~ne circular wound about 1 I" in diameter with lacerated mar8!n ave~ the left sh~ulder joint. There were four small operungs ad1acent to mam wound".

There injuries show that Thakar S!ngh!s back was probably turned towards the door when he was first hit. Perhaps that is why he was first struck on his left shoulder joint. He must have turned slightly after the first shot. Hence, the other injury is on tlie front of the

chest on the right side. If the assailant had actually entered tho room and shouted 'fhakar Singh" and shot the injuries would bo right in front: In that case, there could have been no injury on the left shoul-der joint. It may be mentioned here that the F.l.R. lodged by Jogin-der Singh does not mention that the assailant had shouted Thakar Singh before shooting at him. He admitted this omission but gave no explanation for it.

Medical evidence also revealed that there was no blackenin:, tatooing, scorching, charring or synging around the main wounds. lt was, therefore, contended before us that the shooting must have taken place from distance of more than 3 feet. The High Court had explain-ed the absence of blackening and charring by observing that the car-tridge inside the gun bore the word "smoke-less" and opined that the shooting need not have been from distance of more than 4 feet. It seems to us that the High Court had assumed that the cartridges found in the gun were actually of kind which would not cause blackeninf or charring or synging and that these were the very cartridges used by the murderer. The requirements of technically proper proof were wanting on this point. The ballistic expe.rt, called in as defence witness, was not even questioned on the point.Here, we may refer to the evidence of Ballistic expert Shri J, X. Sinha. D.W. 10. Assistant Director of the Forensic Science Labora-tory, who was not produced by the prosecution probably because he had made reoort showing that it was not oossible to connect the cartridges with the gun as the impressions made by the hammer were too indistinct. The gun was proved, from its licence, to belong to Mohan Singh, the son-in-law of Thakar Singh. It was not sent for examination of any finger prints on it. Had there been such evidence of the appellant's finger prints on the gun, it would have furnished strong corroborative evidence. In the circumstances of the case, we find it difficult to link the gun with the actual weapon with which the murder was committed. It is not inconceivable that it was left deli-berately outside by someone to confuse the investigating authorities.

According to tho prosecution case, members of the family of Thaks~ Singh, strangely appeared on the scene only after the police bad arrived. By then Joginder Singh is said to have already lodged his F.I.R. If their alleged conduct was meant to suggest that m~mber~ of the family had conspired with. the appellant, it may also indicate that another rtlember of the family could commit the murder.

Peareylal (D.W. 8), the domestic servant of Thakar Singh, who a••erted that he was the first to come to the Chowbara from the kitchen after the murder deposed that he saw nobody in the Chowbara "here the dead body of _Thakar Singh lay. He denied the presence of the two alleged eye-witnesses there. He stated, under cro•s-examination, that no chick was hanging outside the door of the Ch°"-bara. He also stated that the name of the murderer could not be known at night. Furthermore, his statement showed that, althouib Avtar Singh the brother of the appellant, as well as the mother of the appelian°t, were in Naru House at the .time of the. !'1urder, the appellant was not there. This may have directed susp1c10n towards

th~ appellant. Peareylal was diabelieved by the Trial Court. illid the. H1ab Court because he was abandoned by the prosecution on the ground that h,e had been won. over. We do not think that his evidence could,, for th~ reason, be s~d ~o be so completely unreliable as that ot Jogmder Singh and Ba!bll' Smgh. At any rate his statement that he and Joginder, another servant, and Mohan, who kept tall at the back Of the house, and Joti, shopkeeper who kept tea stall ·B .nearby; came to the Chowbara after the murder, appears more natural than the evidence of Joginder Singh, (P.W. I), and Ba!bir Singh (P.W. 2), that no one came there before the police arrived. Th~ statement of this witness that the identity ·of the murderer was not known during the night is supported by the circumstance that no attempt appears to have been made to stop the flight of the appellant from Patiala by the police during the nigbt between 22nd and 23rd February, 1970. Learned Counsel for the appellant drew our attention to the fact that the signed statements of Joginder Singh and Balbir Singh had been annexed to the inquest report and proved by the prOleCution. It la rightly pointed out that this looked like device adopted to get round the bar of Section 162 Criminal Procedure Code. It also shows that the police was not quite confident about the reliability of the two alleged eye witnesses of the occurrence. ·The appellant had given some evidence to support his plea that he was actually at Delhi staying at the Sarai of Gurdwara Sis Ganj on 22-2-1970. He produced, Daya Singh, D.W. 7, to show that his name was entered at serial No. 47 as person who had come to stay at the Sarai on 21-2-1970 and had left it on 23-2-70. We find that the register ·brought by this witness showing the names and addresses of the person who had stayed at the Sarai from January to March, 1970, was 9.uite impressive. We do not, however, think that this evidence established that the appellant was actually present at the Sarai during the night on which the murder took place. The defence witness did not state that he actually saw the appellant at the Sarai on 22-2-1970, although there is an entry for 22-2-1970 also showing that Datar Singh bad stayed there. The witness stated that at 8-30 p.m. every evening all persons who wanted to stay went to him for allocation of accommodation. The object of this evidence seemed to be to show that the entry, taken with the practice at the Sarai, w~uld raise. the presumption that Datar Singh was actually at ~e S~a1 at Delhi, as he said he was at 8-30 p.m. on 22-2-1970. Th!S evidence, however, does not appe;r to us to be strong enough to establish that the appel-lant was actually at Delhi at the time of the murder. He had not given this defence in the Court of the Committing Magistrate. .

Considerable emphasis has been laid by leamed Counsel for the State on the· fact that the appellant was not traceable or was absconding until he surrendered in Magistrate's court nearly year after the murder. It was contended that the family of the appellant was very inlluential so that its members would have moved heaven and earth if Joginder SingJi had merely appeared on the scene la~r llJ!d taken 1he responsibilitr for lodging the F.I.R. and started d1rectmg the

investiga.tion unless the case was true. It was urged that the fact that the relations of lhe appellant took no interest on his behalf indicated that the appellant must be guilty.

We do not think that inferences from failure to surrender or even abswnding of the appellant and the lack of interest shown by his brother, Avtar Singh, or other relations of the appellant in obstructing the prosecution of the appellan.t could possibly prove the guilt of the appellant. Indeed, the !!_omplamt of the prosecution which is incon-sJStent with the last mentioned submission, was that the appellant's relations had succeeded in winning over witnesses so much so that neither the 'Tall Keeper' living behind the Naru House, nor even Harinder Singh, the son of Joginder Singh, who were witnesses of- the seizure list, appeared as prosecution witnesses.

We do not think that the appellant needs the support of any presumption from non-production of any of these witnesses. We also do not think that the prosecution can benefit from the merely suspicious circumstance that the appellant did not surrender or was not traceable for nearly year. Reliance was placed by the appel-lant's Counsel on Prakash Mahadeo Godse v. State of Maharashtra('), to contend that conduct of the accused· such as hiding after the offence, by itself, does not conclude matters. Even though the facts there were somewhat different, the same principle would apply here. In any case the super-structure of the prosecution case, based on the testimony of two alleged eye witnesses, having crumbled in the case: before us, .we find it impossible not to give the appellant the benefit of doubt because of circumstances which could only raise suspicion against him. Sufficient number of very significant features of evidence on record, dealt with by us above, were ignored by the High Court and the Trial Court. Hence, we were compelled to reassess the evidence for ourselves. ·

The result is that we allow this appeal, set aside the convictions of the appellant for murder and as well as for the allege~ illegal possession of the gun and we direct that he be released forthwith from custody unless wanted in some other connection.