Rajasthan High Court - Jaipur
Hakam Singh vs State Of Rajasthan on 14 December, 2005
Equivalent citations: 2006CRILJ1346, RLW2006(1)RAJ862, 2006(2)WLC362
Author: N.N. Mathur
Bench: N.N. Mathur, Gopal Krishan Vyas
JUDGMENT N.N. Mathur, J.
1. The instant appeal is directed against the judgment dated 27.3.2003 passed by the Additional Sessions Judge, Raisingh Nagar convicting the appellant Hakam Singh of offence under Section 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5000/-; in default of payment to further undergo 3 months rigorous imprisonment. He has also been convicted of offence under Section 27 of the Arms Act and Section 3/25(1-B) of Arms Act and sentenced to 1 year rigorous imprisonment and to pay a fine of Rs. 500/-; in default of payment to further undergo 15 days simple imprisonment on each count.
2. The brief factual backdrop of the case, as emerged during the trial is that one Surain Singh a resident of 12 GB, Tehsil, Vijay Nagar died in year 1988 leaving behind two sons appellant Hakam Singh, PW.4 Tara Singh and four daughters Mahendra Kaur, Jogendra Kaur, Pritam Kaur and Tej Kaur. P.W.5 Hardev Singh is the son of Jogendra Kaur. Sardul Singh is the son of Pritam Kaur. There existed hostility between appellant Hakam Singh and his son Virendra Singh on one side and P.W.4 Tara Singh and others on the other side, because of land dispute. Deceased Sardara Singh a resident of 15 GB aged 70 years was not connected with the family of Surain Singh, but was considered to be a man of the appellant Hakam Singh. The distance between 12 GB & 15 GB is 4 Kms. His two sons namely Satnam Singh and Baldev Singh has gone to Dubai for earning as labours. While first daughter-in-law, namely P.W.I Amarjeet Kaur W/o Satnam Singh lived with deceased Sardara Singh, in 15 GB, the other the P.W.2 Kulvinder Kaur W/o Baldev Singh in Vijay Nagar.
3. As per the prosecution version on 8.10.2001 deceased Sardara Singh on being summoned by appellant Hakam Singh reached at 12GB at his house. It is alleged that at about 10:00 P.M. he was shot dead by the appellant. Shocking news of the incident was conveyed to his daughter-in-law. P.W.2 Kulvinder at Vijay Nagar by P.W.5 Hardeo Singh. Kulvinder rushed to village 15 GB and passed on the shocking news to P.W. 1 Amarjeet Kaur. Both the ladies reached at the place of occurrence at 01:30 P.M. As regards motive it was suggested to falsely implicate the persons of opposite party i.e., P.W.5 Hardeo Singh, P.W.4 Tara Singh etc. on the charge of murder of Sardara Singh, the appellant shot him dead. As a strategy at the first instance he opened fire in the air from the terrace with a view to provoke the persons of other group. Thereafter he came down and fired the gun and killed Sardara Singh. The further case of the prosecution is that the appellant took the injured Sardara Singh to the hospital at Vijay Nagar in his Car to show his innocence. The incident was narrated to both the ladies by P.W.5 Hardeo Singh and others on their arrival on the spot. After apprising of the incident to their husbands at Dubai on telephone P.W.I Amarjeet Kaur submitted a written report Ex.Pl before P.W. 13 Ram Pratap the S.H.O., Police Station, Vijay Nagar at 4:15 A.M. On the basis of the said information police registered a case for offence under Section 302 I.P.C. and Section 27 of the Arms Act. It may be stated that before filing of the F.I.R. the police had received a telephonic information of the incident at about 11:00 P.M. from P.W.5 Hardev Singh, to the effect that the appellant Hakam Singh has opened fire and has left towards the Mandi in a car was entered in the Rojnamcha vide Ex.P45. The Police also received a telephonic information from hospital at Vijay Nagar to the effect that dead body of Sardara Singh was brought by appellant Hakam Singh. Accordingly P.W. 13 Ram Pratap the Incharge of the Police Station, Vijay Nagar reached to the hospital and found the dead body of Sardara Singh lying in Mortuary. He also met with Hakam Singh. Thereafter he proceeded to village 12 GB. He found that Jaswant Singh, Jarnail Singh, Charanjit, Baldev Singh, Sukhvir Singh, Tara Singh, Nirmal Singh, Bhajan Singh and Niranjan Singh assembled at the house of P.W.5 Hardev Singh. It was disclosed by them that a quarrel had taken place between Hakam Singh and P.W.5 Hardev Singh a day before the incident which led to the incident. The police arrested Hardev Singh and others under Section 151 Cr.P.C. and brought them to the police Station.
4. During investigation police prepared the site-plan and sent the dead body for autopsy. The police seized the muzzle loaded gun, a bag and other articles from the Maruti Car. A double barrel gun with other articles was also recovered from the possession of the appellant in pursuance of the information given by him. On 31.10.2001 the appellant submitted a report before the Judicial Magistrate making counter allegations against Hardev Singh and others. The said report was sent to the Police Station. After usual investigation police laid charge-sheet against the appellant for offence under Section 302 I.P.C. and Sections 27, 29B, 3/25 of the Arms Act.
5. The appellant denied the charges leveled against him and claimed trial. The prosecution adduced oral and documentary evidence in support of the case. After evidence of the prosecution was over the appellant filed a written statement under Section 233 of the Code of Criminal Procedure stating inter alia that the deceased Sardara Singh was his maternal uncle. On 8.10.2001 with a view to resolve the dispute between him and P.W.5 Hardev Singh a panchayat was convened. He summoned deceased Sardara Singh and co-accused Dalip Singh to be present in the Panchayat from his side. Because of the absence of Tara Singh the meeting of the panchayat was adjourned for a day. Deceased Sardara Singh and co-accused Dalip Singh stayed at his residence. While he along with Dalip Singh slept inside the house, the deceased Sardara Singh, out side in the court-yard on a cot. At about 9:00 P.M. P.W.4 Tara Singh, P.W.5 Hardev Singh, Sardul Singh and 3-4 persons armed with guns entered in the house and opened fire. Considering that he was sleeping on the cot they fired at Sardara Singh. He made shout and Dalip Singh opened fire from a licensed gun to disperse the accused persons. After Tara Singh and others left the place, he along with Dalip Singh came out and found that Sardara Singh had sustained injury on the leg. He took his muzzle loaded gun and put the injured Sardara Singh in the Car and took him to the hospital at Vijay Nagar. However, Sardara Singh succumbed to the injury on the way. The doctor declared him dead at the hospital at Vijay Nagar. He had also informed the police on telephone. The Incharge of the Police Station arrived and arrested Tara Singh and other accused persons on the same night. But subsequently on the intervention of Dy. S.P. Yogesh Goyal, Tara Singh, Hardev Singh were let out and he was falsely implicated. He pleaded innocence and complained of unfair investigation. In statement under Section 313 Cr.P.C. he denied the correctness of the prosecution evidence appearing against him. He took the plea as stated in the written statement filed under Section 233 Cr.P.C. The Trial Court considering the testimony of P.W.4 Tara Singh, P.W.5 Hardev Singh and P.W.6 Pritam Singh credit worthy corroborated by the medical and the evidence of recovery of weapon of offence found the prosecution case proved. Accordingly convicted and sentenced the appellant as indicated above.
6. Assailing the conviction at the outset Mr. Mahesh Bora has taken us to the site-plan Ex.PS in his endeavor to show that the narration given by P.W.4 Tara Singh and P.W.5 Hardev Singh is not credit worthy. He has also tried to show that the claim of the prosecution that the gun was fired from inside is incorrect. The learned Counsel has taken us to the evidence of P.W.4 Tara Singh, P.W.5 Hardev Singh and chance witness P.W.6 Pritam Singh and contended that they are wholly unreliable witnesses. He has also criticized the conduct of the Investigating Officer and other prosecution witnesses. According to Mr. Bora, learned Counsel the motive suggested is erroneous. There was no reason the appellant to kill his own man. It is submitted that the evidence of recovery of gun is planted. Learned Counsel has also invited our attention to the defence statement of the appellant filed under Section 233 Cr.P.C. It is submitted that in the facts of the case the version given by the appellant is more probable,
7. On the other hand the learned Public Prosecutor has supported the judgment of the Trial Court. Mr. H.S.S. Kharlia learned Counsel appearing for the complainant submitted that the appellant is an extraordinary clever man. On earlier occasion he was convicted on the charge of double murder but he was acquitted by the High Court. However, a special leave to appeal against the judgment of acquittal recorded by the High Court is pending before the Supreme Court. Reverting to the instant case it is submitted that to misdirect, the appellant climbed on the terrace and shot fire in air in order to give an impression that it was made by the opposite group. After fire from the terrace he came down and fired at the deceased Sardara Singh. In order to mislead he took injured Sardara Singh in car to the hospital. It is submitted, by Mr. Kharlia learned Counsel that perhaps the intention of the appellant was only to hurt Sardara Singh as such he fired on his leg but unfortunately the same became fatal. As regards the non-presence of the blood on his clothes and recovery of the gun from his box, it is submitted that the appellant after committing the murder put the dead body in the car, went in side the house, changed the clothes and put the gun in the Box and drove the car to the hospital. It is submitted by the learned Counsel that the false plea taken by the accused appellant should be taken as an additional incriminating circumstance against him. It is further submitted that P.W.6 Pritam Singh cannot be considered as a chance witness. He has placed reliance on a decision of the Apex Court in Thangaiya v. State of Tamil Nadu reported in 2005 Cr.L.J. Page 684.
8. We have carefully scrutinized the evidence and considered the rival contentions.
9. Before, we deal with the main contentions advanced by the learned Counsel for the parties, it is necessary to briefly survey the ocular evidence. It is not in dispute that Sardara Singh died of homicidal death. P.W.9 Dr. Devilal conducted the post-mortem on the dead body of deceased Sardara Singh vide Ex.P18. He noticed the injuries on the persons of deceased Sardara Singh as follows:--
(1) Wound of inlet Fire Arm 2" x 1 1/2" on Lt thigh (Blackening and tatoing present) above knee.
(2) Wound of out let 8" x 2" on Lt leg upper dilated & black of knee posteriorly - Bleeding in tissue present out side bleeding on leg present.
(3) Two black spot of blade 1/8" x 1/8" each on upper side of in let of wound.
In opinion the cause of death was shock and hemorrhage due to fire arm injury. The doctor also took out 17 Lead pellets and one wad piece from the wound of deceased Sardara Singh. They were packed and sealed in Packet J.
10. P.W. 1 Amarjeet Kaur is the daughter-in-law of deceased Sardara Singh. She lived in 15 GB. She stated that her sister-in- law P.W.2 Kulvinder Kaur came to the house in the night at about 1:30 from Vijay Nagar and inquired about her father-in-law. She disclosed that he had gone to the house of Hakam Singh at 12 GB. She further stated that in the morning at about 8:00 one Darshan Singh visited the house and conveyed that deceased Sardara Singh has been summoned by appellant Hakam Singh at 12 GB. At that time her father-in-law was in the field. He returned from the field at about 10:00 A.M. She told him that he was summoned by Hakam Singh at 12 GB. After taking food he left for 12 GB. Her sister-in-law P.W.2 Kulvinder Kaur told her that she had received a telephonic message from P.W.5 Hardev Singh to the effect that Hakam Singh has killed her father-in-law by gun shot. Thereafter both of them went to 12 GB. Number of people had assembled outside the house of Hakam Singh. The crowd included Avtar Singh @ Tara Singh. They were told that Hakam Singh killed her father-in-law. An information to the same effect was given by Darshan Singh as well. Avtar Singh @ Tara Singh P.W. 4 stated that he hasheard her father-in-law crying ^^ gk; eSuq /kks[ks uky ekj fnrk] gk; eSuq /kks[ks uky ekj fnrk AÞ He also disclosed that Hakam Singh climbed on the terrace of the house and fired the gun in air. Thereafter he came down and killed her father-in-law by gun shot fire. Hakam Singh took her father-in-law in Car to the hospital at Vijay Nagar. Thereafter they all boarded the jeep and proceeded to Vijay Nagar. On the way from a PCO she talked to her husband Satnam Singh at Dubai. Her sister-in-law talked to her husband Baldev Singh. Her husband was surprised as according to him the relations between Hakam Singh and Sardara Singh were cordial. He advised her to proceed to Police Station and take appropriate proceedings. Thereafter they got the complaint written from a person sitting outside the PCO. The said report Ex.PI was submitted at the police station. On the basis of the said report police registered F.I.R. Ex.P2. Thereafter she went to the hospital alongwith the police at Vijay Nagar. The police prepared the inquest report Ex.PS. In the cross examination she admitted that the relations between Hakam Singh and Sardara Singh were cordial. The appellant Hakam Singh used to call him Mama. Sardara Singh used to treat Hakam Singh's mother as his sister. She also admitted that there was some land dispute in which deceased Sardara Singh used to plead for the appellant Hakam Singh. She pleaded ignorance if Sardara Singh was called at 12 GB by Hakam Singh for setting the dispute between the brothers. She denied to have witnessed the incident of murder of Sardara Singh. The statement of P.W.2 Kulvinder Kaur is almost on the same line.
11. P.W.3 Sukhminder Singh is the neighbor of appellant Hakam Singh. He state that he had heard of gun shot fire from the house of Hakam Singh. He did not support the prosecution case further and as such he was declared hostile.
12. P.W.4 Tara Singh is the brother of appellant Hakam Singh. He stated that about 10:00 P.M. He heard of gun shot fire from the side of house of Hakam Singh. Out of anxiety he went on the terrace. He found Hakam Singh standing on the terrace of his house with a gun. After some time he went down the house. He heard of two gun shot fire from the house of Hakam Singh. Immediately thereafter he heard the screams of victim which he identified to be of deceased Sardara Singh. He also stated that he knew Sardara Singh being his maternal uncle. He had arrived at the house of appellant Hakam Singh in the morning at about 10:00 Sardara Singh often used to visit the house of Hakam Singh. On the date of incident at about 6-7 he had seen deceased Sardara Singh sitting in front of the house of Hakam Singh. The screams of Sardara Singh was followed by Hakam Singh's shouting at him to the effect he should keep quite. Thereafter there was one more gun fire hitting the iron gate. After some time appellant Hakam Singh was seen taking deceased Sardara Singh in Car towards Vijay Nagar. After departure of Hakam Singh, P.W.6 Pritam Singh met him on the way. It was disclosed by Pritam Singh that while he was just passing through in front of the house of appellant, he heard the cries of Sardara Singh to the effect that ^^ gk; eSuq /kks[ks uky ekjrk] gk; eSuq /kks[ks uky ekjrk]Þ He identified P.W. 5 Hardev Singh as his nephew. After ten minutes he along with other persons assembled at the house of Hakam Singh. At that time P.W.5 Hardev Singh also arrived. An information was given to the daughter- in-laws of Sardara Singh on telephone. Both the daughter-in-laws Kulvinder Kaur and Amarjit Kaur arrived at 11:00 P.M. After inquiry both of them left the spot. After some time the police arrived. In the cross- examination he admitted that a quarrel had taken place between appellant Hakam Singh and P.W.5 Hardev Singh a day before on the issue of land dispute. He denied the suggestion that deceased Sardara Singh had arrived to attend a panchayat meeting and the same was adjourned for a day as he had gone to Punjab.
13. The major criticism against this witness is that at the first instance he is an inimical witness inasmuch as he was having a land dispute with the appellant. Secondly looking to the distance between his house and the house of appellant Hakam Singh it is difficult to comprehend that he could have heard the screams of deceased Sardara Singh. It is not in dispute that this witness is not the witness of the occurrence. His evidence is relevant only to the extent that he had seen the appellant firing gun shot from the terrace of the house and thereafter he heard another gun shot fire, followed by the cries of deceased Sardara Singh. Thereafter the appellant was seen taking the deceased Sardara Singh in his car towards Vijay Nagar. No empty cartridge has been collected from the terrace of the house of the appellant. It is also difficult to conceive that an accused before committing the crime would make public by gun shot fire after climbing on the terrace as stated by this witness. In case he would have fired from the terrace there ought to have been some sign of fire on the terrace i.e., presence of empty cartridge or wad pieces. It is also significant to notice that he did not disclose this fact to the police at the earliest when he was taken into custody under Section 151 Cr.P.C.
14. P.W, 5 Hardev Singh is the nephew of appellant Hakam Singh. He was Sarpanch of Gram Panchayat 12 GB at the relevant time. In the opening sentence he has stated that relation between him and the appellant were strained on account of land dispute. He also stated that their relations were inimical because of elections. He also stated that on the date of incident he heard gun shot fires from the side of the house of Hakam Singh, After some time there were two more gun shot fire. After two or three minutes there was one more fire. All the fire were from the house of Hakam Singh. He informed the police about the. said gun shot fire on telephone. He also stated that he had a quarrel with Hakam Singh a day before the incident. An information in that regard was lodged at Police Station, Vijay Nagar. He informed the police apprehending harm to his family by Hakam Singh. After some time he came out of the house and found that Hakam Singh was proceeding in car towards Vijay Nagar. Thereafter he met P.W.4 Tara Singh, P.W.6 Pritam Singh and others in the street. It was disclosed by them that the appellant Hakam Singh shot dead Sardara Singh. After some time the daughter-in-laws of Sardara Singh also arrived. In the cross examination he admitted that he was having a quarrel with Hakam Singh for last more than two years. Tara Singh belongs to his group. The deceased Sardara Singh was the man of Hakam Singh. He denied the suggestion that Sardara Singh died of gun shot fired by him. He admitted the distance of 600-650 ft. between his house and the house of Hakam Singh. As far as evidence of P.W.5 Hardev Singh is concerned, it is relevant only to the extent that he had heard the gun shot fire from the house of Hakam Singh, He did not hear the cries of Sardara Singh from his house.
15. P.W.6 Pritam Singh has stated that at about 10:00 P.M. he was on way to another locality for recovery from some one. While he was in the street he heard two gun shot fires from the side of the house of appellant Hakam Singh. After some time he heard of two more fires. Thereafter he heard distress voice of deceased Sardara Singh. There was another fire hitting the gate. At that time he had also seen Tara Singh on the terrace of his house. After some time Hardev Singh also arrived on the spot. An information of the incident was also given to the daughter-in-laws of Sardara Singh. This witness is a chance witness. However, we are conscious of the position of law that the evidence of a witness cannot be discarded simply because his being a chance witness. In the examination in chief he has stated that he had seen P.W.4 Tara Singh standing on the terrace of his house at the time when he had heard of gun shot fire. In the cross examination he has admitted that when he heard of a gun shot fire P.W.4 Tara Singh was standing in front of him. Thus, there is material contradiction in his statement. In our view this witness cannot be said to be trustworthy.
16. P.W.3 Sukhmander Singh is a neighbor of appellant Hakam Singh. He stated that at about 10:00 P.M. Hearing the gun shot fire he went inside the house with his cot. He pleaded ignorance as to the happening of the incident. Thus, the prosecution declared him hostile. P.W.7 Krishan Lal is also a person of the same locality. He stated that he heard of the gun shot fire. He pleaded ignorance as to the place from where the gun was fired. At the time when he came out of the house Hardev Singh was in his house. P. W.8 Jogendra Singh is the witness of different police memos. P. W. 10 Shiv Lal is a police constable. He is a witness of link evidence. He stated that he had received the articles from the Incharge of the Malkhana of the Police Station, Vijay Nagar for delivery to Forensic Science Laboratory after obtaining the requisite papers from the Superintendent of Police. P.W.11 Chet Ram is the Incharge of the Malkhana at Police Station, Vijay Nagar, He stated that 9 packets were received at the police station. He had made an entry of the articles in the Register. He had delivered the packets to P.W, 8 Jogendra Singh for delivery in the Forensic Science Laboratory. P.W. 12 Sonu is a Photographer.
17. P.W.13 Ram Pratap is the Investigating Officer. He stated that he had received the telephonic call from Hardev Singh - Sarpanch to the effect that Hakam Singh was firing gun from his house. At the same time he also received a telephonic call from the Government Hospital, Vijay Nagar. Dr. Devi Lal informed that one Hakam Singh has come to the hospital with the dead body of Sardara Singh, He proceeded to the hospital after making an entry about the information in Rojnamcha Ex.P-45. Appellant Hakam Singh met him in the hospital. After completing certain initial formalities he returned to 12 GB and found that Jaswant Singh, Jarnail Singh, Charan Singh, Baldev Singh, Sukhbir Singh, Tara Singh etc. had assembled at the house of P.W.5 Hardev Singh. They narrated the incident of firing of the gun by appellant Hakam Singh. It was also stated by Hardev Singh that a quarrel had taken place between Hakam Singh and Hardev Singh. It was also stated that the relations between the two groups were strained. He arrested all the persons present under Section 151 Cr.P.C. Thereafter he returned to the Police Station at about 4:15 P.M. P.W.I Amarjit Kaur submitted the written First Information Report Ex.Pl before him. Thereafter he recorded the statements of Amarjit Kaur, Kulvinder Kaur, Tara Singh, Sukhmander Singh, Pritam Singh and Hardev Singh. Thereafter he went to the place of incident and prepared the site-plan Ex.PS and Ex.PSA. He also collected wad pieces, pellets and empty cartridges of 12 Bore Gun. All the articles were seized vide Ex.P7. They were packed and sealed in a Packet marked A in presence of both the motbirs. He also collected Lead Pellets and small granules and gun powder vide Ex.P8. They were packed and sealed in a Packet marked B. He got the place of incident photographed by P.W.12 Sonu. He also seized other incriminating articles like blood stained cot. Thereafter he proceeded to the hospital and prepared the inquest report of the dead body vide Ex.Pl 2. The body was sent for postmortem vide Ex.Pl 7. He also seized the Maruti Car wherein the deceased was brought in injured condition by the appellant to the hospital vide Ex.P13. Muzzle loaded gun, a small bag, licence of the gun and cartridges recovered from the Car were seized vide Ex.Pl4. The articles were packed. The appellant was arrested on 9.10.2001 at 5:15 P.M. Vide Ex.P48. In pursuance of the information given by him vide Ex.P49 a Double Barrel Gun (12 Bore & 315 Bore over & under) along with 12 Bore live cartridges and 3 empty cartridges were recovered vide Ex.Pl5. In pursuance of information given vide Ex.P.49 they were sealed and packed. He has given further details of the investigation. In the cross examination he admitted that the investigation revealed that the relations between the appellant Hakam Singh and P.W.5 Hardev Singh were hostile. A day before Hardev Singh lodged a F.I.R. Against the appellant. He also admitted that the recovered licence of Double Barrel Gun belonged to co-accused Dalip Singh. He denied the suggestion that the appellant has been falsely implicated at the instance of Dy. Superintendent of Police Yogesh Goyal. He also admitted that in the report Ex,P46 he recorded his suspicion to the effect that Sardara Singh was shot dead by Hakam Singh or other members and this may be a strategy to falsely implicate Hardev Singh - Sarpanch in a false case by misleading.
18. It is not in dispute that there is no direct evidence of the occurrence. The only evidence is to the effect that gun shot fires were heard from the house of the appellant Hakam Singh. In this regard the prosecution has examined 3 witnesses namely P.W.4 Tara Singh, P.W.5 Hardev Singh and P.W.6 Pritam Singh. We have dealt with the evidence of P.W.4 Tara Singh. According to P.W.4 Tara Singh hearing the gun shot fire he climbed on the terrace and found that the appellant was firing from the terrace of his house. While appreciating the evidence we have looked at the site-plan Ex.P5. As per the site-plan the incident had taken place in the court- yard of the house of Hakam Singh. The deceased Sardara Singh shot dead while he was sleeping on the cot at place A. Behind the house of the appellant there is a lane. At the end of the lane there is a diversion. The house of P.W.4 Tara Singh is at point 34. In between there are houses of various persons at point 36,38 on the one side, 28-29 on the other side. The details of the site have been given in memo Ex.PSA. Though exact distance has not been given but on perusal of Ex.PS we are of the view that Tara Singh could not have witnessed the appellant firing from his terrace. It is also difficult to comprehend that the appellant before firing at the deceased in order to create evidence will go on the terrace and fire the gun to make aware all the people in the locality. It is also significant to notice that no sign of the fire has been found on the terrace of the house of Hakam Singh. If the gun would have been fired from the terrace of the house of Hakam Singh there would have been empty cartridges or the pieces of wad. It is further difficult to comprehend that after the appellant had fired the gun the deceased Sardara Singh did not wake up and allowed Hakam Singh to come down and shot him dead.
19. We are unable to agree with the contention of Mr. H.S.S. Kharlia learned Counsel for the complainant that Hakam Singh is an extraordinary clever man and it was part of his strategy to first fire the gun shot from the terrace and to provoke Hardev Singh and party with a view to ultimately implicate them with a false charge of murder. As far as the cleverness is concerned, this can also be attributed to P.W.4 Tara Singh and P.W.5 Hardev Singh, more particularly when there is an admitted hostility between the prosecution witnesses and the appellant. P.W.4 Tara Singh has gone to the extent of saying that he heard the exact words spoken by the deceased Sardara Singh after he had sustained the fire arm injuries. Not only this he has even gone to the extent of saying that he heard the actual words spoken by the appellant as well. On careful consideration of the evidence of P.W.4 Tara Singh, it is difficult for us to accept that he could hear actual utterances made by the deceased and the appellant, as claimed by him. Looking to the suspicious nature of the evidence, we are of the view that P.W.4 Tara Singh cannot be placed in the category of trustworthy witness. As far as P.W.5 Hardev Singh is concerned, his statement is only to the extent that he had heard of the gun shot fire from the side of the house of Hakam Singh. Simply on the basis of the fact that there was gun shot fire from the house of Hakam Singh it cannot be said that it was the Hakam Singh who fired the gun at Sardara Singh. P.W.6 Pritam Singh is a chance witness. We have not found him a trustworthy witness having noticed material contradictions in his statement. The circumstance that the appellant took the deceased to the hospital in his car does not go against him. On the contrary, the possibility cannot be ruled out that some body else fired at Sardara Singh and the appellant Hakam Singh hearing the gun shot fire came out of the house and in order to save, took him to the hospital. Even as a matter of prudence a person after having caused fire arm injuries would not take him to the hospital so that if he survives he may be the star witness against him.
20. As regards, evidence of recovery, the appellant was arrested vide Ex.P48 on 9.10.2000. While in custody he gave information vide Ex.P49 to the Investigating Officer P.W.13 Ram Pratap to the effect that he can get the Double Barrel Gun (12- 315 Bore over & under barrel) and 4 live cartridges of 12-Bore and 3 empty cartridges from his residential house concealed in a box. In pursuance of the said information he got the gun and cartridges recovered vide Ex.PI5. In presence of the motbirs P.W.8 Jogendra Singh and Niranjan Singh the gun and the cartridge were seized and packed on the spot in two different packets. The packets were deposited by the Investigating Officer with the Malkhana Incharge P.W.11 Chet Ram. The articles were sent to the Forensic Science Laboratory with the special messenger. The Ballistic Expert gave opinion by FSL report Ex.P53. It would be convenient to extract the description of the articles and the result of the analysis as follows:--
DESCRIPTION OF ARTICLES Packet 'A' contained:-- (i) One red colour paper tube of 12-bore cartridge case, (SPECIAL), marked C/1.
(ii) Fifteen (15) lead pellets.
(iii) Twenty One (21) wads/wad pieces, marked D/1 to D21.
(iv) Cement-plastic material
(Wt. =3,5090 gms)
Packet 'J' contained:-- (i) Seventeen (17) lead pellets.
(ii) One wad piece, marked D/22.
Packet 'K' contained:-- One D.B.B.L. Gun (Over & under barreled)
No. 1126 (MADE IN GERMANY), marked W/l.
Packet 'L' contained:-- (i) Three 12-bore K.F. Special cartridge
cases, marked C/2 to C/4.
(ii) Four 12-bore "POWER EXPRESS'
cartridges (No. 1), marked L/l to L/4.
RESULT OF ANALYSIS
(1) The over and under barrels of or\e D.B.B.L. Gun (W/l) from packet 'K' can chamber and fire 12-bore and 30-30/.32-40 ammunition respectively.
(2) The examination of barrels residues indicate that submitted D.B.B.L. Gun (W/1) had been fired. However, the definite time of its last fire could not be ascertained.
(3) Based on stereo and comparison miscroscopic examination, it is the opinion that:--
(i) Three 12-bore cartridge cases (C/2 to C/4) from packet 'L' have been fired from submitted D.B.B.L. Gun (W/l) from packet 'K',
(ii) It has not been possible to give opinion on one paper tube of 12-bore cartridge case (C/1) in order to link with submitted D.B.B.L. Gun (W/1) due to lack of evidence, (4) Fifteen lead pellets & twenty one wads/wad pieces (D/1 to D/21) from packet 'A' and seventeen lead pellets & one wad piece (D/22) from packet 'J' are normally used in 12-bore ammunition. These could have been fired from submitted D.B.B.L. Gun (W/l) from packet 'K'.
(5) Four 12-bore cartridges (L/1 to L/4) from packet 'L' are fireworthy ammunition. Three 12-bore cartridges (L/l to L/3) were also test fired in the laboratory.
In the opinion of the Ballistic Expert the 15 lead pellets and 21 wads/wad pieces (D/l to D/21) from Packet 'A' and 17 lead pellets and one lead piece (D/22) from Packet 'J' are normally used in 12-Bore ammunition. It was further opined that this could have been fired from submitted D.B.B.L. Gun (W/l), packet 'K'. It does not appear from Ex.P15 that the recovered gun was packed in the Packet 'K'. Be that as it may, the evidence is sufficient to link the pellets and wad recovered from the spot with the recovered gun.
21. It is vigorously argued by the learned Counsel for the appellant that the alleged recovery of the gun on face appears to be planted. In the chain of events there was no occasion for the appellant to quietly put the recovered gun and the live and empty cartridges in separate plastic bags and then conceal them in a box, as after commission of offence he proceeded to hospital with deceased Sardara Singh from where he was arrested. It is also to be noticed that his own muzzle loaded gun has been recovered from the Maruti Car, The licence of the recovered gun stands in favour of the co-accused Dalip Singh. The situation is sought to be explained by Mr. Kharlia learned Counsel for the complainant. It is submitted that the appellant being a clever man, after accomplishing the crime went inside the house, changed his clothes, concealed the gun and then took the injured Sardara Singh to the hospital in his Maruti Car. The explanation given by the learned Counsel for the complainant is quiet ingenious but appears to be contrary to the ordinary human conduct and as such improbable. We are of the view that the recovery of the gun being of suspicious nature, it is not safe to rely upon it.
22. It is significant to notice that there was no reason for the appellant to kill Sardara Singh. In other words there was no motive. It is well established that motive is a relevant factor, whether based on the testimony of ocular evidence of occurrence or circumstantial evidence. However, when the participation of accused is established by evidence of an eye witness, absence of motive becomes insignificant. Thus, absence of motive, however, puts the courts on guard to scrutinize the circumstances more carefully to ensure that suspicion and conjecture does not take place of legal proof. Reference be made to Kishore Chand v. State of Himachal Pradesh . The motive suggested in the case to the effect that appellant killed his own man Sardara Singh to falsely implicate, the persons like P. W.4 Tara Singh and P.W.5 Hardeo Singh, with whom his relations were hostile, on face appears to be absurd. On the contrary In view of the admitted hostility between the appellant and the prosecution witnesses, the possibility of Falsely implicating the appellant, more particularly when appellant cannot be attributed a rational motive to kill deceased and there Is total absence of ocular evidence of the occurrence or circumstantial evidence of clinching nature, cannot be ruled out. Thus, taking in view totality of entire evidence, considering the preponderance of probabilities, it is clear that prosecution has failed to prove case against the appellant beyond reasonable doubt, as such we do not consider it safe to uphold the conviction of the appellant on the charge of murder of Sardara Singh.
23. Consequently, the appeal is allowed. The appellant is acquitted of charges levelled against him. He is in jail. He shall be released forthwith, if not required in any other case.