Indian Kanoon - Search engine for Indian Law

The first item of collection relates to the recovery of Rs. 2000/from Avtar Singh (P. W. 10) at Malout on June 17, 1974. Avtar Singh has stated that he had taken a loan from the Co-opcrative Society of his village and had been asked by the deceased to repay it. He promised to make the repayment at Malout Mandi. He took his wheat there on June 17, 1974, and asked his commission agent to pay Rs. 2000/- to the deceased. Rs. 2000/- were accordingly paid by his commission agent to the deceased. He has further stated that one Atma Singh (P. W. 12) paid Rs. 623/- in his presence to Nishan Chand. Avtar Singh however did not obtain a receipt for the payment from Nishan Chand. The High Court has disbelieved the payment because the name of the commission agent was not disclosed by Avtar Singh and he" did not take. any receipt or the signature of Nishan Chand in his bahi in token of the payment. The prosecution examined Behari Lal (P. W. 26) as the commission agent who had made the payment of Rs. 2000/- on behalf of Avtar Singh to the deceased. The witness produced his bahi entry Ex. P. W. 26/A in respect of the payment, but the High Court rejected the evidence because the signature of Nishan Chand Was not obtained by Behari Lal. As it was possible for the High Court to take that view. we would leave it at that Atma Singh (P. W. 12) has stated that he paid Rs. 623/- to the deceased on June 17, 1974, at 2 p.m. after obtaining the money from the firm of Shadi Ram Amar Nath of Malout. Avtar Singh (P. W. 10) has also stated about the making of that payment by Atma Singh in his presence, but the High Court has rejected the evidence for want of Nishan Chand's receipt for the payment, and the failure to examine someone on behalf of the firm which had made the payment. Here again, it cannot be said that the view taken by the High Court was not possible, and we would therefore not disturb its finding in this respect also. The prosecution, however, examined Balli Singh (P. W. 1 1) who stated that he paid Rs. 856/- to the deceased on June 17, 1974, vide receipt Ex. PS at Malout at 2 p.m. after obtaining the money from his commission agent. It was stated in the receipt that the payment had been made by way of recovery of the loan from Balli Singh. It was not disputed that the receipt was signed by Nishan Chand, and it is not disputed before us that the name has wrongly been printed as Nishan Singh in the paper book. The High Court however rejected the evidence on the ground that Balli Singh did not state who wrote the receipt Ex. PS and that it bore the signature of Nishan Chand. We have gone through the statement of Balli Singh and we have no doubt that it shows that the payment of Rs. 856/- was made to the deceased vide receipt Ex. PS. There was as such no justification for insisting on the disclosure of the name of, the scribe of the receipt, or the production of other evidence to prove the signature of Nishan Chand thereon. There was also no justification for the High Court to reject the evidence merely because of the failure to examine a witness from the shop of the commission agent who had made the payment. It has to be appreciated that there was in fact no cross- examination worth the name regarding Balli Singh's statement about his liability to pay Rs. 856/- to the, Co-operative Society, and the payment of that money by him to the deceased against receipt Ex. PS. The prosecution has, all the same, relied on the statement of Inspector Gurdev Singh (P.W. 14) who was Inspector of Co- operative Societies at Lambi, to prove the signature of the deceased on receipt Ex. PS. The High Court has rejected his evidence to this effect on the ground that the witness did not state that he had seen Nishan Chand signing and writing, and could identify his signature, and also because he did not state that "in the ordinary course of business documents purported to be written by Nishan Chand had been habitually submitted to him." We have gone through the statement of Gurdev Singh (P.W. 14). He was the Inspector of Co-operative 'Societies, Lambi, and Nishan Chand was the Secretary of two Cooperative Societies within his area. The witness was therefore in a position to state that receipt Ex. PS was in the hand writing of Nishan Chand and he in fact made a clear statement to that effect in the trial court. If the defence had any reason to think that he was not a competent witness for the purpose of expressing an opinion under section 47 of the Evidence Act, it was open to it to cross-examine him on the point. The fact however remains that this was not done.

While dealing with the evidence that the deceased was last seen in the company of the respondent, the High Court has made a reference to the statement of Mohan Lal (P.W. 5) and to the respondent's admission that he had gone with the deceased, on his bicycle, to Malout, on June 17, 1974. The prosecution has examined Darshan Lal (P.W. 6) in regard to their movements at about 6 p.m. in Lambi and has placed reliance on the statement of Prita Singh (P.W. 9) about their movements within a short distance of village Roranwali. We think that the view taken by the High Court in regard to the evidence of these two witnesses is justified and does not call for interference. But the High Court went wrong in finding that there was no evidence to prove that the accused was seen with the deceased "before or after the occurrence." There could possibly be no evidence to prove that the respondent was seen with the deceased "after" the occurrence i.e. after his death and the prosecution cannot be blamed for its inability to produce any such evidence. The prosecution has however led its evidence to prove that the deceased was last seen in the company of the respondent, and it will be enough to refer to two basic facts in this respect. Firstly, the respondent has admitted in his statement in the trial court that he and Nishan Chand first went to Lambi on June 17, 1974; and he did not deny that they went there on Nishan Chand's bicycle at about 7.30 a.m. He has also admitted that he was with Nishan Chand at Malout upto 10 a.m. He claimed that he went to village Ferozepur thereafter to meet his elder brother, but that was a matter for him to prove, and thereby establish a good defence. The fact however remains that he did not do so and his leaned counsel has not thought it possible to explain why he could not examine his own brother to establish that plea, or to invite our attention to any other evidence that may have been led in that behalf. Secondly, the High. Court lost sight of the fact that Inspector Gurdev Singh (P. W. 14) of the Co- operative Societies. Department had clearly stated that he went to Malout on June 17, 1974 to attend the meeting which had been called by the Joint Registrar of Co-operative Societies and that the respondent and the deceased met him there after 3 p.m. in the Central Co-operative Bank. He has further stated that the deceased asked him to get the sum of Rs. 2,000/- deposited in the bank, but that could not be done as the cash had been closed. The witness has stated that a meeting was actually held in the Rest House that day and that he had gone to the Bank to- collect the figures of recovery for purposes of that meeting. The presence of the deceased and the respondent was therefore quite natural as it explains their anxiety to make as much recovery as possible before the meeting. As has been shown, there was no reason for disbelieving the statement of Gurdev Singh, and the High Court clearly misread the record in respect of a material particular in holding that there was no evidence to prove that the respondent was last seen in the company of the deceased.

It would thus appear that the High Court committed the aforesaid serious errors in reading the evidence on the record and very often based its findings on mere conjectures. Its finding that the prosecution had failed to "connect the accused with the commission of the crime" is quite incorrect and must be set aside".

The evidence against the respondent in this case is circumstantial. We have discussed a part of it while examining the findings of the High Court, and it will be enough to mention those facts and circumstances which have been established against the respondent beyond any doubt. It has been stated by Mohan Lal (P.W. 5) that his son Nishan Chand and the respondent had good relations with each other and that they left for Malout on June 17, 1974, together, on Nishan Chand's bicycle. This has in fact not been disputed before us. We have examined the evidence regarding the collection of at least Rs. 1523/- by Nishan Chand from Balli Singh (P.W. 11) and Budh Singh and have given our reasons for the finding that the deceased had at least that much money with him when he and the respondent met Inspector Gurdev Singh (P.W. 14) at Malout. The prosecution has in fact led its evidence to prove that the deceased bad collected Rs. 4156/- on that day, but as a matter of abundant caution we have leftout two of those collections in holding that at least Rs. 1523/- bad been collected by him. We have also made a mention of Gurdev Singh's statement that the deceased asked him to get a sum of more than Rs. 2000/- deposited in the Central Co-operative Bank at Malout in the presence of the respondent and his inability to do so. as the cash had been closed. The allegation of the prosecution that the respondent committed the murder of Nishan Chand for the purpose of robbing him of the money has been established by the fact that Rs. 4142/- were actually recovered at the instance of the respondent. in pursuance of the information furnished by him in Ex. P. O. on June 23, 1974, and at his instance within two days of his arrest.

The respondent has himself admitted that he and the deceased went to village Lambi on June 17, 1974, at 7.30 a.m. and then went to Malout. Inspector Gurdev Singh (P.W. 14) has, stated that his aforesaid talk with Nishan Chand in the presence of the respondent took place when they met him at Malout after 3 p.m. on June 17, 1974. The respondent stated in the trial court that he left Nishan Chand at Malout at 10 a.m. He did not however lead any evidence to prove his contention, which has in fact been disproved by the statement of Inspector Gurdev Singh that they were together with him until some time after 3 p.m. that day. The deceased was not seen alive after he had met Inspector Gurdev Singh in the company of the respondent and the categorical statement of the Inspector Gurdev Singh that they both went away leaves no room for doubt that was the last occasion when they were, seen together. Mohan Lal (P.W. 5) has stated that neither his son Nishan Chand nor the respondent returned to the village in the evening, and the next day his son's bicycle was found lying on the "pakka" road going from Roranwali to Sikhanwala and Nishan Chand's dead body was also found nearby.