Madhya Pradesh High Court
Santokh Singh And Ors. vs State Of Madhya Pradesh on 14 December, 1987
Equivalent citations: 1988CRILJ1583
JUDGMENT Ram Murti Rustogi, J.
1. This judgment shall also govern the disposal of Criminal Appeal No. 36 of 1979,Darshan Singh v.State of Madhya Pradesh, as both the appeals arise i out of the same incident.
2. The four appellants Santokh Singh, Bahadur Singh, Nirmal Singh and Darshan Singh, have come up in appeal against their conviction and sentences awarded by the learned Additional Sessions Judge, Bhind, by his judgment, dated 31-1- 1979, in Sessions Trial No. 65/1978, whereby the appellant Darshan Singh has been sentenced under Section 302, Penal Code, to surfer life imprisonment for the murder of Tek Singh. The four appellants have been sentenced to suffer five years' rigorous imprisonment under Section 307/34, IPC, for attempting to murder Charan Singh (P.W. 13). Appellant Darshan Singh has also been sentenced to undergo rigorous imprisonment for one year under Section 25(l)(a) of the Arms Act. All the sentences are to run concurrently. The three appellants Santokh Singh, Bahadur Singh and Nirmal Singh have been acquitted of the charge under Section 302/34, IPC. Co-accused Preetam Singh and Kabul Singh have been acquitted of the charge under Section 25(l)(b) of the Arms Act.
3. Some notable facts of the case are that co-accused. Preetam Singh and Kabul Singh (who have since been acquitted) are real brothers. Appellants Santokh Singh and Darshan Singh are the sons of Preetam Singh whereas appellants Bahadur Singh and Nirmal Singh are that of Kabul Singh. Preetam Singh and Kabul Singh had also a third brother Fakhar Singh who is since long dead. Fakhar Singh's widow Harbans Kaur had re-married Preetam Singh and they lived peaceably for 20 years as husband and wife, begetting four children. About a year before the incident (which took place on 8-4-1978) Mst. Harbans Kaur had gone over to Charan Singh (P.W. 13) and started cohabiting with him as his wife. Charan Singh (PW. 13) holds a power-of-attorney for Mst. Harbans Kaur and manages her land which came to her share from her first husband. Over the dispute of land, there is no love lost between Charan Singh (P.W. 13) and the family of Harbans Kaur's first husband's brothers.
4. The whole prosecution case rests on two pieces of evidence: (i) the testimony of two eye-witnesses Autar Singh (P.W. 1) and Charan Singh (P.W. 13) and (ii) the recovery of an empty cartridge (Art.C) from the place of occurrence (seizure memo Ext. P-21), which is said to have been fired from the gun (Art. A) alleged to be recovered from Preetam Singh (since acquitted) at the instance of appellant Darshan Singh (seizure memo, Ext.P-26). Both these items of evidence are wholly unreliable and do not sustain the prosecution case. The two eye-witnesses Autar Singh (P.W. 1) and Charan Singh (PW. 13) did not, in fact, know who the assailants were and who had shot the deceased Tek Singh dead. Similarly, the recovery of the empty cartridge (Art. C) allegedly from the place of occurrence is not free from doubt and suspicion.
5. The prosecution case, to put shortly, is that on 8-4-1978 at about 8 p.m. Autar Singh (P.W. 1), Charan Singh (P.W. 13) and the deceased Tek Singh were going on a tractor from Jastpur to Fatehpur. Autar Singh (P.W. 1) was driving the tractor, with Charan Singh (P.W. 13) sitting by his side and the deceased Tek Singh sitting behind the back of Autar Singh (P.W. 1), with their backs facing each other. The tractor was running along a straight road. When the tractor had just by passed the crossing for village Amarpura the four appellants were seen standing by the road-side. Appellant Darshan Singh was armed with a 12-bore gun and Bahadur Singh with a mouzer-gun, with the other two appellants Santokh Singh and Nirmal Singh armed with spears. Appellant Darshan Singh fired from his gun and the pellets hit the deceased Tek Singh and Charan Charan Singh (PW. 13). Instead of using his own gun, appellant Bahadur Singh took over the gun from appellant Darshan Singh and fired from that gun at deceased Tek Singh and Charan singh (PW. 13). Both of them were injured. Deceased Tek Singh had fallen down on the road. He was lifted from the foad and put on the tractor. Autar Singh (PW. 1) took both the injured deceased Tek Singh and Charan Singh (PW. 13), to' Amarpura to the house of Bhagwan Singh (PW. 15). Leaving both the injured deceased Tek Singh and Charan Singh (PW. 13) there, Autar Singh (PW. 1), accompanied by Bhagwan Singh (PW. 15), went to Jastpur to lodge report with the investigating officer 'Bhagat Singh (PW. 20) who was camping at Jaipur. On returning from Jastpur, Autar Singh,(PW. 1) took the injured - deceased Tek Singh and Charan Singh (PW. 13) to the hospital at Gohad which was at a distance of ' about 7 miles from village Amarpura.
6. It was dark at the time of the incident. This is admitted by Autar Singh (PW. 1) (para 18 of his testimony). Ext.P-1 is the written report lodged by Autar Singh (PW. 1) and it is mentioned therein that the firing had been done from his back side. So Autar Singh (PW. 1) and Charan S ingh (PW. 13) just could not have seen who had fired the shots. This conclusion is reinforced by the fact that they never told the deceased Tek Singh as to who had shot him. This fact is admitted by Autar Singh (PW. 1) in para 37 of his deposition and by Charan Singh (PW. 13) in para 19 of i his deposition. When Autar Singh (PW. 1) had taken deceased Tek Singh and Charan Singh (PW 13) to Bhagwan Singh (PW. 15) at village Amarpura, Bhagwan Singh (PW. 15) was also not told by them as to who had shot deceased Tek Singh and Charan Singh (PW. 13) (para 2 of the deposition of Bhagwan Singh (PW. 15)).
7. At 11.50 in the night the same day in the hospital at Gohad, Dr. Garg (PW. 11) had recorded the dying declaration of the deceased Tek Singh as per Ext. P-18. Therein; deceased Tek Singh had made a very clear statement that somebody had shot him, he was struck on his chest and he did not know who had shot him. Not only that, Munshi Singh (PW. 19) is the uncle of deceased Tek Singh. Deceased Tek Singh had been taken to the Medical College Hospital, Gwalior, oh 9-4-1978 by Autar Singh (PW. 1) for treatment,, and Munshi Singh (PW. 19) had attended on him in the hospital at Gwalior. When deceased Tek Singh succumbed to his injuries in the Gwalior hospital on 15-4-1978, Munshi Singh (PW. 19) had gone to the police station and lodged report as per ExtP 37, dated 15-4-1978. Therein Munshi Singh (PW. 19) also had stated that somebody had shot the deceased Tek Singh on 8-4-1978. To repeat,. it was Autar Singh (PW. 1) who had brought the deceased Tek Singh to the Gwalior Hospital and there also Munshi Singh (PW. 19) was not told by him the name of the assailants.;
8. There was absolutely no reason why Autar Singh (PW. 1) and Charan Singh (PW. 13) did not tell the deceased Tek Singh as to who had shot him. If, in fact, they had seen the assailant firing at Tek Singh, they would not have withheld back the assailant's name. They also did not tell the name of the assailant to Bhagwan Singh (PW. 15), nor to Munshi Singh (PW. 19). All this is against normal human conduct. It positively shows that they had not seen as to who had fired at deceased Tek Singh. As mentioned above, it was darkat the time of the incident. Deceased Tek Singh was struck in the chest. This meant that the assailant was firing from his front direction, and even deceased Tek Singh could not see who had fired at him.
9. The veracity of the first information report is also in doubt. It is said that when Autar Singh (PW. 1) approached investigating officer Bhagat Singh (PW. 20) in the village Jastpura after the incident, the former was asked to lodge a written report. According to Autar Singh (PW. 1), a young boy was available there and that boy wrote down the report to his dictation as per Ext.P-1 and that was submitted to the investigating officer Bhagat Singh (PW. 20). The scribe of report, (Ext.P-1) is not known who he was and he had not been examined.
10. There is also the improvement and embellishment in the prosecution case as unfolded before the Court. In their testimony Autar Singh (PW. 1) and Charan Singh; (PW. 13) stated that appellant Darshan Singh after having himself fired, gave over his gun to appellant Bahadur Singh who, in his turn, fired at the deceased and Charan Singh, (PW. 13) from that gun. Such a story is missing from the first information report (Ext.P-1). It is clearly stated in the first information report (Ext.P-1) that firing had been done from the; back of the tractor-driver Autar S ingh (PW. 1), j yet Autar Singh (PW. 1) denied it and asserted' in the Court that that was wrong and that the firing had been done from his side-way. It is also worth noting that no blood was found at, the place of occurrence, as admitted by Autar Singh in para 33 of his deposition.
11. We now come to the second item of the evidence. The case of the prosecution is that the 12-bore gun, Art. A, (which is the licensed gun of co-accused Preetam Singh), was used by the appellant Darshan Singh. This gun is said to have been recovered from Preetam Singh at the instance of the appellant Darshan Singh, vide disclosure statement, Ext.P-24, and the seizure memo, Ext.P-26. Prosecution's further case is that empty cartridge, Art. C, was found lying on the place of occurrence and was seized by the investigating officer BhagatSingh(PW. 2) on 9-4-1978, vide seizure memo, Ext.P-21. The; gun (ArtA) and the empty cartridge (Art.C) were sent to the ballistic expert J.K. Agrawal (PW. 17) who gave his opinion, vide Ext.P-32, that the empty cartridge (Art.C) was fired by that gun (Art.A). This evidence is thus sought to incriminate the appellant Darshan Singh. But there are various features which render it highly unsafe to be acted upon for founding the conviction of the appellant. It is in the evidence of Autar Singh (PW.l) (para 33 of the deposition) that on the night of the incident itself, the investigating officer had gone to the place of occurrence along with him. But at that time no empty cartridge was noticed lying there. Ext.P-2 is the site-plan prepared by the investigating officer Bhagat Singh (PW. 20). At space A to A on Ext.P-2 is mentioned "Xo Par Khokha Pada Hai." The recital at A to A is a clear interpolation. It has been added to column 1 and is out of context there. It is in different ink and in different hand from what is written in column 1. The recovery of the empty cartridge (Art.C) from the place of occurrence has been fabricated.
12. One more feature in this connection also deserves to be mentioned. The gun, Art. A, was recovered on 10-4-1978 (vide seizure memo, Ext.P-26) but it was sent to the ballistic expert only on 20-6-1978 (Para 20 of the deposition of investigating officer Bhagat Singh (PW. 20)). No explanation is offered why the gun was kept detained with the Police for two months and 10 days.
13. The learned defence counsel Shri Arun Mishra has strongly submitted that with this inordinate delay the possibility cannot be ruled out that the Police fired a cartridge from the gun and used that empty cartridge for sending to the ballistic expert. This possibility cannot altogether be ruled out, especially in the face of suspicious recovery of the empty cartridge, Art.C. Shri Mishra placed reliance on Santa Singh's case and Modon Singh's case AIR 1978 SC 1511 : 1978 CriLJ 1531. In Santa Singh's case (supra), the gun said to have been used in the incident was recovered on 26-9-1954 and it was sent to ballistic expert only on 11-10-1954. It was held that this inordinate delay raised a suspicion against the fairness of the investigation and that evidence was discarded In Modon Singh's case (supra), the empty cartridge was recovered on 23-121966 and it was sent to the ballistic expert on 6-2-1967, with the prosecution having failed to explain; in whose custody the empty cartridge was lying in the intervening period, it was held that investigation did not inspire confidence and the evidence relating to it was rejected.
14. No doubt, the ballistic expert J.K.: Agrawal (PW. 17) has stated that the empty cartridge, Art.C, has been fired from the gun, Art.A (vide his report Ext.P-32), but he stated no reasons for his opinion. The opinion was dogmatic rather than explanatory. In view of Adam's case, 1971 Cri App Rep 349 (SC), such dogmatic opinion of the ballistic expert has to be discarded. That apart, the fact that, the recovery of the empty cartridge, Art. C, is highly suspicious and that the gun, Art.A,' before being sent to the ballistic expert, was kept in Police custody for a long period for two months and 10 days, make this evidence very unreliable. Hence fit to be ignored
15. In view of the discussion aforesaid, it is clear that the alleged eye-witnesses Autar Singh (PW. 1) and Charan Singh (PW. 13) had not actually seen who had fired at the deceased Tek Singh and Charan Singh (PW. 13). Their evidence is of no avail to the prosecution. The evidence relating to the recovery of the empty cartridge (Art.C) and its use by the gun (Art. A) by appellant Darshan Singh is bristling with infirmities and has to be rejected outright. The prosecution has thus absolutely failed to prove its case against the four appellants. They have to be acquitted.
16. In the result, both the appeals succeed and are allowed. The conviction and sentences awarded to the four appellants Santosh Singh, Bahadur Singh, Nirmal Singh and Darshan Singh on various counts are set aside and all the four of them are acquitted of the charges lev elled against them. Their bail-bonds are discharged.