Indian Kanoon - Search engine for Indian Law

5. Soon after the making of the report by Khima, the appellant was arrested by the police there and then. His jeep-car was also kept in the Police Station during the night. Next morning, the Sub-Inspector formally seized the jeep under a Panchnama. Subsequently, the investigation was taken over from Mr. Deol by the Police Sub-Inspector, C I. D, and the appellant was sent before a Magistrate under a charge-sheet who committed him to the Court of Session for trial on a charge raider Section 302, Penal Code. In his examination under Section 342, Criminal Procedure Code, the appellant gave a counter version. It will be useful to extract in full in his own words as follows:

(iv) The accused himself carried his revolver and cartridges to the Police Station and surrendered the same to the Police who however, formally seized it later in the morning under a Panchnama. But Deol (P. W. 11) has admitted that the revolver and the cartridges were with the accused throughout when he was in the Police Station even prior to their formal attachment, under the Panchnama, Ex. 48.

18. We may now turn to two other material facts which have been alleged by the accused but were denied by the prosecution witnesses concerned when they were put to them by the defence in cross-examination. They are: (a) pelting the jeep with stones and (b) blocking or barricading the road by which the accused was proceeding to Bhuj.

(v) No copy of the Panchnama which was prepared first in point of time, with regard to the seizure of the jeep and the marks of damage found on it, has been produced on the records of this case; but it appears that this "Panchnama has been produced in the cross-case filed by the accused against some of the prosecution witnesses and other".

(vi) The accused has not examined Jay-anti and Shaktidan, who according to him, were also with him in the jeep at the time of occurrence.

21. In our opinion, none of these reasons enumerated above justifies a positive and emphatic finding, such as the High Court has recorded, that "the two-fold theory of 'barricade' and stone-throwing advanced by the accused is absolutely false and an afterthought" Reasons (i) and (ii) are not of a definite tendency. The scene of occurrence was inspected on the following day at 9.15 a.m. The villagers had ample time to remove the stones and glass-splinters, if any, from the scene of offence. Nos. (i) and (ii) lose their significance when we keep in mind that the scene of occurrence was inspected by the investigator on the following day about twelve hours after the occurrence. The deceased was not only a village dignitary, being the elected Up-Sarpanch, but also the first cousin of the Police Patel, Khima who is the star witness of the prosecution. Naturally, therefore, the entire village was deeply interested in the success of the prosecution case against the accused, who in their eyes was an undesirable "outsider". Khima is not an unsophisticated rustic as he poses to be. Being a Police Patel, he was supposed to be fully aware of the significance of the presence of stones and like tell-tale evidence at the spot, which might proclaim him and his companions to be the aggressOrs. Indication of the fact that during the period of twelve hours after the occurrence and before the inspection, the villagers were active in removing such circumstantial evidence from the spot is available from the Panchnama Ex. 41, itself wherein the investigating officer who inspected the scene of crime has noted: "some grass and a crop had been sown in the field where the incident had taken place. The blood mark appears on the earth about 15 paces away in the southern side from the scene of the incident....The fields are situated towards," the east north and so(sic) side . The foot-prints/marks of many people who were doing the digging work are seen there at the said place of the incident". The crucial sentence is that which has now been underlined. The significance of this "digging on the boundary of field of occurrence" becomes clear when we recall the statement of the accused and the cross-examination of the prosecution witnesses on the point. The accused has stated that "some people were running in the field along the hedge: they were running towards me Then. I reversed my vehicle". The accused tried to establish in cross-examination of prosecution witnesses, the fact that some persons, including the deceased were waiting in ambush behind that hedge in the field of Vira Momaya, where the deceased fell on receiving the fatal shot. That was why Khima (P. W. 2), Rata Sava (P.W. 5) Jasang Sava (P. W. 6) and Jakhu (P. W. 8) pointedly cross-examined about the presence of this hedge along the road on the boundary of the field of occurrence. Although all these witnesses denied the presence of hedge, they admitted this much that the field was under Moth crop which was hardly one inch high. Rata Sava first conceded: "From Malshi's Vada till the point of the incident, there is a hedge. It is to the left if one proceeds from the Vada of Malshi to the scene of the incident." In the next breath, perhaps when he realised the significance of the question, he said: "It is not true that similarly, there was a hedge on the right side, and that after this incident, the hedge was removed." Normally, when a field under crop abuts on a public road, one would expect a fencing or hedge to protect it from damage by stray cattle and human- beings, particularly when such a field lies in the proximity of village habitation.

25. The failure of the accused or his counsel to bring on the record the first Panchnama which was prepared with regard to the attachment of the jeep, cannot give rise to an adverse inference against the accused, particularly when the Sub-Inspector Luxman Singh Deol himself admitted in cross-examination that there were marks of violence and dents on the jeep car when he saw it in the morning. This Panchnama was a material document prepared by the investigating officer. It was primarily the duty of the prosecution to bring it or its copy on the records of this case, also. The prosecution therefore, cannot be allowed to take advantage of its own lapse,