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PETITIONER: DATAR SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT19/12/1973

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.

CITATION:  1974 AIR 1193            1974 SCR  (2) 808  1975 SCC  (4) 272  CITATOR INFO :  RF         1981 SC 631  (11)

ACT: Indian Penal Code-S. 302 read with Ss. 25 and 27 of the Arms Act-Appellant    convicted    for    murdering    his    own father--Concurrent finding of facts-Whether can be  reviewed when  there  is  indication  of  a  serious  miscarriage  of justice.

HEADNOTE: The appellant was convicted u/s. 302 I.P.C. by the Sessions’ Judge for murdering his father and sentenced to death.   The High  Court  accepted the death sentence and  dismissed  his appeal.   He  was  also convicted  for  an  alleged  illegal possession of a 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  a wealthy  landlord whose sister was the Maharani of  Patiala. He had executed a will 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 a place called Dhuri, probably because P.W. 1,  a friend of the deceased, was the Sub  Registrar  there. The deceased also alienated some property to a minor son  of P.W.  1  sometime  before  the murder.   The  elder  son  of deceased had filed a suit to preempt this sale and the  suit was pending hi it the time of the occurrence.  The  relation between the deceased, s wife and 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 deceased 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 a gun. Before this Court, the appellant raised several questions of law  and  contended  that there has been  a  miscarriage  of justice because the Courts below have ignored certain  basic defects in the prosecution version and misread the evidence. Allowing the appeal, HELD : (i) It is not the practice of this Court in appeal by special leave to disturb concurrent findings of fact  unless the case discloses some exceptional features indicating that

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a serious miscarriage of justice has taken place. [809 G-H] (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 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 against a person accused of the  very reprehensible crime of patricide.  If the pieces of evidence on  which  the prosecution closes to rest its  case  are  so brittle  that they crumble easily, the superstructure  built on such insecure foundations also collapses. [810E] (iii)Ile 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 too unnatural to be accepted. (iv)P.W.  1  gave  a false explanation to  accept  for  his presence  at  the house of the deceased on  the  evening  of 22-2-1970.   He  admitted, at the trial that he  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 give evidence in the prosecution case against  the  appellant.   If, as he had  admitted,  he  was capable of making a false statement under such pressure,  it is  not  possible  to describe this  witness  as  thoroughly reliable.   It is also difficult to believe that  an  S.D.O. will put pressure upon a Naib Tehsildar working under him to commit perjury.  Therefore, the testimony of the witness  is inherently unreliable.  He was both a chance witness and one who admitted having committed, perjury. 809 (v)It  is also difficult to believe that P.W.  2,  another eye-witness,  who  came  to, the house of  the  deceased  by chance,  was really present at the time of  the  occurrence. Although  this witness did not tell a deliberate lie but  he had written a letter, exhibit ’X’, wherein he stated that he had not witnessed the murder at all, and that the police was harassing him to make a false statement.  The handwriting 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  on  these points.   Balbir Singh, P.W. 2. had written this  letter  he was  shown to have done, he could not be relied upon at  all when he stated that he witnessed the murder. (vi)Conflicting  statements  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.R.  was  written  up   carefully afterwards.   Under  the circumstances, the  conviction  and sentence cannot be sustained.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 4 & 5 of 1973. Appeals Nos. 1020 and 1021 of 1971 and Murder Reference  No. 48  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,

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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  High  Court  had  accepted  the  death reference  and dismissed his appeal.  He was also  convicted in a connected trial, for an alleged illegal possession of a gun,  and  his  convictions  and  sentences  of  two  years’ rigorous imprisonment and three years’ rigorous imprisonment under  Sections 25 p and 27 of Arms’ Act were upheld by  the High  Court.   The appellant’s  applications  under  Article 134(1)  (c) under the Constitution 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 to disturb concurrent findings of fact unless the case discloses  some  exceptional  features  indicating  that   a serious miscarriage of justice has taken place.  It has been contended  on  behalf  of the appellant  that  such  a  mis- carriage of justice has resulted in this case because Courts ignored certain basic defects in the prosecution version and misread evidence.  Several questions of law were also sought to be raised before us.  These are : (1)Whether the prosecution had failed to produce  material witnesses  in  the case so that a  presumption  against  the veracity  of any, part of the prosecution version arose  due to this non-production ? 810 (2)Whether  there  had  been a violation  of  Section  157 Criminal  ’Procedure  Code, and, if so, what is  its  effect upon the prosecution case? (3)Whether  there had been a 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 infringement  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 gun said to have been used by the appellant  for  the commission of murder  examined  for  the appellant’s  finger  prints nor was a 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 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 against a person accused of the  very reprehensible crimp, of patricide.  They cannot even act  on some conviction that an accused person has committed a crime

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unless his offence is proved by satisfactory evidence of  it on  record.   If  the  pieces  of  evidence  on  which   the prosecution closes to rest its case are so brittle that they crumble 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 a 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 the testimony of two  alleged eye-witnesses  whose evidence is not only of  an  inherently unreliable nature but the artificial and incredible 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, cannot be a  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 811 mentioned above in the course of an examination of  evidence the credibility of which is assailed. Thakar  Singh, deceased was a wealthy landlord whose  sister was  the  Maharani of Patiala.  He had executed  a  will  in favour of his wife and two sons Avtar Singh, and Datar Singh 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 Dhuri probably  because  Joginder  Singh, P.W.1.,  a friend of his, was the Sub Registrar there.   The deceased  Thakar Singh had also alienated some  property  in favour of Jasvinder Singh, minor, aged about 10 or 11 years, a  son  of Joginder Singh, P.W.1, about a year  and  a  half before  the  murder.  Avtar Singh, the elder son  of  Thakar Singh, had filed a suit to preempt this sale.  The suit  was pending  at  the time of the occurrence.  The  relations  of Thakar  Singh  deceased  with his  wife  and  children  were strained.   This background was said to provide  the  motive for murder.  If Balbir Singh, P.W.2, could be believed,  the wife  of  Thakar  Singh  had  described  her  husband  as  a 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 appear as the cause of the murder  of  22-2-1970  in so melodramatic  a  style  as  the alleged eye witnesses would have us believe.  Moreover, if a former will had been cancelled and another will executed  in favour  of a 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  a 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 a sufficient motive for the murder it is  difficult to understand why Datar Singh rather than his elder  brother Avtar Singh could have a 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 a violent quarrel or  dispute  with  his father  preceding the murder which could have  unhinged  his mind.   If,  as was suggested repeatedly on  behalf  of  the prosecution, the members of the family of Thakar Singh  were

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really influential, it was much easier for them to hire some individual  to  murder  Thakar Singh,  assuming  that  their 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 witnesses  as  Datar Singh  is alleged to have done.  On the whole, the  evidence of  alleged motive and of Thakar Singh’s  unhappy  relations with  his wife and children, all said to be living  together in  the  Naru House with Thakar Singh, hinders  rather  than helps  us in accepting the prosecution version that  it  was Datar  Singh who had committed the murder of his  father  in the  reckless  manner  set up and not  somebody  else  in  a different  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 a 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. 812 The  evidence of Joginder Singh, P.W.1, 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,  that  he  was  also,  according  to  his   own admissions, capable of making any statements at any time  to suit  his own purposes.  This is clear from the web of  lies in which he is shown to have entangled himself in trying  to accountfor  his presence at Naru House in the company  of Thakar Singh atthe    time   of   murder,   and    the, contradictory and different excuses he gaveon      various occasions, such as when applying for leave for absencefrom Sunday on 22-2-1970.  He stated in cross-examination that he had  left Sunam, where he was posted as Naib  Tehsildar,  at 2.45 or3 p.m., reaching Patiala by 4 or 5p.m. An order of the  Sub Divisional Officer dated 26-2-1970 (ex.  DM)  shows that  an explanation was called for from Joginder Singh  for leaving  Sunam oil election day as he had sent a  wire  from Patiala  asking for leave.  In his explanation  (ex.DE),  he had  stated that he had received a 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, lie admitted that false explanation was given by him but  pleaded that this 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  the 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 a false statement under such pressure,  so as  to  make a deliberately false statement  to  damage  the prosecution  case,  it  is not  possible  to  describe  this witness  as  thoroughly reliable whose  testimony  could  be accepted without demur or satisfactory corroboration.  It is difficult to believe that a sub Divisional officer, who is a Magistrate,  will  put  pressure  upon  the  Naib  Tehsildar working  under  him to commit perjury:  His  statement  also shows  that  he had no hesitation in  giving  different  and contradictory excuses at different times 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  improper  or

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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 be, after meeting Thakar Singh by chance in  the course of a walk, at about 8 p.m., so that he was invited to sit and after that to dine with Thakar Singh, and is said to have sat there till about 9 or 9.30 p.m., when the appellant suddenly appeared in the well lit room with a double  barrel gun and shot his father twice after shouting "Thakar  Singh" at  him, yet, he did not remember a single thing  about  the talk  be  had with ThakarSingh 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 really present  at the time of the occurrence. 813 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  a 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 damaging declaration in a 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 harassing him to make  a  false statement.   He had denied his handwriting and signature  on this  letter.   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.1, a handwriting expert who  had  given  a detailed report for coming to the conclusion that the  hand- writing  on the letter (Ex.  ’X’) tallied with the  admitted hand-writing  of Balbir Singh, P.W.2. We have  gone  through the  report and examined the writings ourselves.  We see  no reason  to discard the evidence of the hand-writing  expert. We are sorry to observe that the High Court had misread  the evidence  in holding that this letter was not put to  Balbir Singh  at  all.  It was put to him both  in  the  Committing Court  and  in the Trial Court.  In both the Courts  he  had 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 he had witnessed the murder. It was also contended 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 bad deposed that  he  had made  up with Thakar Singh’s since then so much so  that  he had prepared Thakar Singhs’Income-tax   and    wealth-tax returns, yet, Balbir Singh’s angry lettershowed that  he did not have a high opinion of Thakar Singh deceasedwho is  said  to have disliked Balbir Singh’s  association  with this  daughter-in-law called "Bibi", for whom  Balbir  Singh had expressed great admiration in this letter.  Balbir Singh had   admitted   writing  this  letter   but   had   refused deliberately  to explain some of its contents.  He  admitted

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that  he had been convicted under Section 409 I.P.C. but  he asserted that he was acquitted by the Sessions’ Court.   The judgment of the Punjab High Court dated 16th February, 1966, in Criminal Appeal No. 610 of 1964 (Ex.  DM) shows that  the order  of  acquittal passed by the Sessions’ 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 to 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.I.R. which was shown as lodged at Police Station, Civil Lines, Patiala, on  22-2- 1970, as early as 9.55 p.m. 814 We  have examined a carbon copy of the very  neatly  written F.I.R. at Police Station, Civil Lines 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 a  F.I.R.  could have been written up so soon.  It  is  more likely  that  if Joginder Singh returned so  soon  with  the Police,  the  F.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 dispatch of the  report from  the Police Station to a 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 whom the report was alleged to have been sent, but we could 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 the Investigating Officer Tej Ram, P.W.  19. If  so,  the copy handed over to the  Investigating  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 prosecution to show what happened  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 showing when   it  was  sent  to   the Magistrate concerned may be due to the fact  that the First Information Report was lodged, as learned Counselfor    the appellant  contends,  much later than 9.55  p.m.  and  after Joginder Singh had convinced the police that the murder  was committed  by the appellant.  We cannot conclude from  facts proved, as the High Court had 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 dispatch of information to a magistrate in the column  of the  F.I.R. meant for it.  This omission seems to us  to  be quite  significant  in the light of other  facts  indicating that  the F.I.R. must have been drawn up much later than  it is actually shown to have been. Here  we may refer to the contradictory  and  irreconcilable statements made by Joginder Singh and Balbir Singh about the time at which shooting took place.  Joginder Singh said that he  was  passing near the Naru House at 8 p.m.  when  Thakar Singh  met him on the’ road side where they‘ stood for  some

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time,.   After that, Thakar Singh is said to have taken  him to  his  house  and into a room called Chowbara  used  as  a 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 Committing Magistrate’s Court that Datar  Singh,  appellant,  came  at 8  p.m.  with  a  double barreled gun with which he shot                             815 Thakar Singh.  The statement in the Committing  Magistrate’s Court seems to have been brought in as evidence at the trial under  Section. 288 of the Criminal Procedure 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 the shooting took place.  And, in that case, the whole story of a long chat between 8  p.m. &  9 p.m. or 9.30 p.m. would collapse.  Probably,  this  was the  reason  for the change of time by this witness  at  the trial for the entry of the appellant into the 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.,  without giving any reason why he should  go  there 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  Nara House as 8.15 p.m. and said that he had sat in  the company of Thakar Singh and Joginder Singh for about one  or one  hour and a half before the appellant entered  the  room suddenly with a double barrelled gun. if Balbir Singh  could have  made  a correct assessment of the time  which  elapsed between  his arrival and the time of murder, as one  to  one hour  and a half, the murder could have taken place  between 9.15 and 9.45 p.m. It is evident that, if this was  correct, it would make it very difficult to believe that an F.I.R was neatly written out and then copied out at the Police Station within a few minutes even though the Police Station was only one furlong away. The  most melodramatic part of the prosecution version,  put forward  both by Joginder Singh and Balbir Singh,  consisted of  the  allegation that Datar  Singh,  appellant,  actually entered  the room, Should ’Thakar 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 a "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 possession by the Investigating  Officer who  took  the  gun  left outside  the  Chowbara  and  other objects, such as the blood stained cloth on the sofa and the sofa  itself  on which Thakar Singh was  sitting,  into  his possession. If  we  assume,  for the sake of argument,  that  there  was actually  a "chick" hanging outside the’ room, it  would  be evident  that  only a person 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 a good aim at a fairly  close  range  at Thakar  Singh  sitting right in front  in  blazing  electric light  so that the assailant’s face and body  are  concealed behind the wall adjoining the entrance.  Perhaps that is bow the  shooting took place.  At that time, the sofa  on  which Thakar Singh was said to be siting, was quite near the  door and  almost facing anyone who would try to look in from  the side of the chick farthest removed from the sofa.  There  is

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nothing  on  the  record  to show  that  the  appellant  was suddenly  so incensed and gripped by a passion to shoot  his father  as to have become oblivious to the  consequences  of revealing his identity by rushing into the Chowbara to shoot at Thakar Singh.  If he did so he would risk being caught by the two 12-L748SupCI/74 816 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 bad been  invited to dine or not, had, nevertheless, stayed on. Both Joginder Singh and Balbir Singh stated that they  tried to  run after the appellant and "over-power" him.   It  they had  really  tried to over-power him they could  have  shown some  evidence of the attempt to over-power such as the  gun snatched  from the appellant or a button wrenched  from  the clothing.  Perhaps they realised this, and, therefore,  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 a cluttering sound  when  the gun was dropped on a bench from which they inferred that the particular  gun,  the weapon found 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  a distance of 2 ft. when Thakar Sing was fired  at.   If the  gun  was fired from a 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 a  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  a  line  across  the entrance,  that  is to say, in the middle of  the  doorstep. That would not be evidence of where the murderer shot  from. But,  we mention it to indicate the shifting of  prosecution version  on  the point.  Balbir Singh had  stated  that  the murderer was neither inside nor outside the door.  According to  this witness. one foot of the appellant was  inside  and the other was outside the threshold, probably because it was felt  that  a shooting after entry into the  Chowbara  would conflict  with  medical  evidence.  The  position  given  by Balbir  Singh destroys the whole account of  a  melodramatic entry  of  Datar Singh into the Chowbara  itself  to  murder Thakar Singh by shooting at a very close range.  Could  this be the state of evidence if these were really  eye-witnesses ? Another difficulty which arises in imagining a 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  a position,  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.  Tile 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 enable 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  a cumbersome  procedure would be adopted by a murderer out  to shoot  hastily and then to run way when he could  have  shot

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more  easily and effectively by inserting the barrel of  the gun  from a side of the "chick".  The witnesses do not  give any such account of the shooting which could make it  appear credible.                             817 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 well shoot  at  Thakar Singh  from outside without revealing his identity by  being seen.   It appears to us that the "chick"  was  deliberately introduced  to  show  that the murderer  had  to  enter  the Chowbara  and  be seen shooting as alleged by  the  two  eye witnesses  to conceal the truth that the shooting had  taken place from the dark outside in circumstances in which it was impossible or very difficult to make out the identity of the actual murderer. It may be mentioned here that tile site 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 a Draftsman, Bakshi Singh, P.W. 10, on 24-2-1970, at a 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 a statement could  be  admitted  in evidence.   More,over,  even if we assume, for the  sake  of argument, that this distance was 7 feet and, also that there was  a  "chick", as deposed by the witnesses,  the  shooting could  easily  take  place  from a 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  performed  the  postmortem  examination,  said,   after looking  at, the injuries of Thakar Singh : "These  injuries were caused when the nozzle of the gun was at a distance  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 gun 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  a diameter of 2 inches from  the  main               hole.   In  the present case there  are  three               separate openings adjacent to injury No. 1 and               there  were  four small  openings  around  the               second  injury.   I have not noted  the  exact               distance  of the various openings with  regard               to injuries Nos. 1 and 2. Up to a distance  of               3 feet the pellets do not spread.  My  opinion               is based on Modi’s Medical Jurisprudence".               The following injuries were found on the  body               of Thakar Singh               "One circular wound about 2" in diameter  with               lacerated  margins on the front of the  chest,               slightly on the right side of the middle line.               There  were  three  small  separate   openings               adjacent to the main wound.               One  circular wound about 1-1/2"  in  diameter               with  lacerated margin over the left  shoulder               joint.    There  were  four   small   openings               adjacent to main wound". There  injuries show that Thakar Singh’s bark  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

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other injury is on the front of the 818 chest  on  the right side.  If the  assailant  had  actually entered  the  room and shouted Thakar Singh"  and  shot  the injuries would be right in frontIn that case, there could have  been no injury on the left shoulder joint.  It may  be mentioned here that the F.I.R. lodged by Joginder 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 blackening, tatooing,  scorching,  chaffing or synging around  the  main wounds.   It  was, therefore, contended before us  that  the shooting must have taken place from a distance of more  than 3  feet.   The  High  Court had  explained  the  absence  of blackening  and  charring by observing  that  the  cartridge inside  the gun bore the word "smoke-less" and  opined  that the shooting need not have been from a 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  a  kind which would not cause blackening or chaffing or synging  and that  these were the very cartridges used by  the  murderer. The requirements of a technically proper proof were  wanting on this point.  The ballistic expert, called in as a defence witness, was not even questioned on the point, Here, we may refer to the evidence of Ballistic expert  Shri J.  K. Sinha, D-W. 10.  Assistant Director of  the  Forensic Science Laboratory, who was not produced by the  prosecution probably  because he had made a report showing that  it  was not  possible 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 the prosecution case, members of the family  of Thakar Singh, strangely appeared on the scene only after the police had arrived.  By then Joginder Singh is said to  have already lodged his F.I.R. If their alleged conduct was meant to suggest that members of the family had conspired with the appellant,  it may also indicate that another member of  the family could commit the murder. Peareylal  (D.W. 8), the domestic servant of  Thakar  Singh, who  asserted that he was the first to come to the  Chowbara from the kitchen after the murder deposed that he saw nobody in the Chowbara where the dead body of Thakar Singh lay.  He denied the presence of the two alleged eye-witnesses  there. He  stated,  under  cross-examination,  that  no  chick  was hanging  outside the door of the Chowbara.  He  also  stated that  the name of the murderer could not be known at  night. Furthermore,  his  statement  showed  that,  although  Avtar Singh,  the brother of the appellant, as well as the  mother of  the  appellant, were in Naru House at the  time  of  the murder, the appellant was not there.  This may have directed suspicion towards                             819 the appellant.  Pyarelal was disbelieved by the Trial  Court and  the  High  Court  because  he  was  abandoned  by   the prosecution on the ground that he had been won over.  We  do

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not think that his evidence could, for this reason, be  said to be so completely unreliable as that of Joginder Singh and Balbir  Singh.   At  any rate, his  statement  that  he  and Joginder, another servant, and Mohan, who kept a tall at the back  of  the house, and Joti, a shopkeeper who kept  a  tea stall nearby, came to the Chowbara after the murder, appears more natural than the evidence of Joginder Singh, (P.W.  1), and  Balbir Singh, (P.W. 2), that no one came  there  before the police arrived.  Ile 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 night 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 prosecution.  It is rightly pointed out that this looked like  a 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  a 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 quite 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 had 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, would raise  the  presumption  that Datar  Singh was actually at the Sarai at Delhi, as he  said he was, at 8-30 p.m. on 22-2-1970.  This evidence,  however, does not appear to us to be strong enough to establish  that the  appellant  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 learned Counsel  for the  State on the fact that the appellant was not  traceable or  was  absconding until he surrendered in  a  Magistrate’s court nearly a year after the murder. it was contended  that the family of the appellant was Very influential so that its members would have moved heaven and earth if Joginder  Singh had  merely  appeared  on  the scene  later  and  taken  the responsibility for lodging the F.I.R. and started  directing the 820 investigation  unless the case was true.  It was urged  that the  fact  that  the  relations of  the  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  absconding 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  appellant

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could  possibly prove the guilt of the  appellant.   Indeed, the complaint of the prosecution, which is inconsistent 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  a  year. Reliance  was placed by the appellant’s Counsel  on  Prakash Mahadeo  Godse v. State of Maharashtra(1), to  contend  that conduct of the accused such as hiding after the offence,  by itself,  does  not conclude matters.  Even though  the  acts 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 alleged illegal possession of the gun and we direct that he be released forthwith from custody unless wanted in  some other connection. S.C. Appeal allowed. (1) [1969](3) S.C.C. 741. 821