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PETITIONER: CHARAN SINGH & ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT26/07/1974

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ CHANDRACHUD, Y.V.

CITATION:  1975 AIR  246            1975 SCR  (1) 561  1975 SCC  (3)  39

ACT: Criminal    Practice    and    Procedure--Appreciation    of evidence--Reference  under  s. 374 Cr.   P.C--Duty  of  High Court  to reappraise evidence--Extent to which  evidence  in one case could be used in another.

HEADNOTE: Four  appellants were convicted and sentenced to  death  for the murder of them two deceased; two accused for the  murder of  one of the deceased and the other two, accused  for  the murder  of the second deceased.  On appeal, the High  Court, without  a  detailed discussion of the evidence of  the  eye witnesses, merely observed that their evidence inspired full confidence and affirmed the judgment of the trial court. On  further  appeal to this Court the  appellants  contended that  had the witnesses. been present, the assailants  would not have spared them. Dismissing  the appeal of two accused and allowing  that  of the other two: HELD  :  (1) This Court does not normally, in an  appeal  by Special Leave, go afresh into the question of credibility of witnesses and reappraise the evidence.  In the present case, however,  there was hardly any discussion worth the name  of the  evidence of eye witnesses in the judgment of  the  High Court.   As  the  High Court was dealing with  not  only  an appeal filed by the appellants but also a reference under s. 374  Cr.   P. C. for confirming the death sentence,  it  was essential  for it to, have reappraised the evidence  adduced in  the case and come to an independent  conclusion  whether the  guilt  of the accused had been proved  or  not.   While dealings  with a reference under s. 374 Cr.  P. C. the  High Court  should consider the proceedings in all their  aspects and  come  to an independent conclusion on the  material  on record.   In view of this infirmity, the evidence bad to  be examined by this Court. [568E-569B] Jumman  & Ors. v. The State of Punjab, A. I. R. 1957  S.  C. 469 and Bhupendra Singh v. The State of Punjab, [1968] 3  S. C. R. 404. referred to. (2)  The  question  of credibility of a witness  has  to  be decided  by referring to his evidence and finding out as  to how  the  witness has fared in  cross-examination  and  what impression  is created by his evidence taken in the  context

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of  the  other facts of the case.  Decided cases can  be  of help  if  there be a question of law like  admissibility  of evidence  but reference to decided cases is hardly  apposite when  the question before the court is whether the  evidence of  a particular witness should or should not  be  accepted. [574B-D] (3)  In  the instant case there appears to be no  sufficient ground  for  disbelieving  the evidence  of  the  three  eye witnesses.   The  witnesses  had  taken  shelter  and   thus remained  unhurt.   As  the  ocular  evidence  consists   of persons,  two  of  whom  were close  relatives  of  the  two deceased,  it  is not likely that the  eye  witnesses  would spare.  the  real  assailants.   The  evidence  of  the  eye witnesses as with regard to the part played  by   the    two accused, whose conviction is upheld in respect of the murder of one of the  deceased  is  also  in  conformity  with  the medical evidence. [570E] (4)  As regards the other two accused, the evidence does not establish  their  complicity in the murder of  the  deceased beyond  reasonable doubt and it is extremely  unlikely  that the appellants ’would have- associated an old man with  them in the assault, who, on account of his age, would be more of a  handicap and a burden to them especially at the  time  of escaping after the occurrence. [572D-F]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 152 of 1973. 562 Appeal by Special Leave from the Judgment & Order dated  the 4th April, 1973 of the Punjab & Haryana High Court in Crl. Appeal No. 906 of 1972 and Murder Ref.  No. 55 of 1972. Frank Anthony and R. L. Kohli, for the Appellants. A.  N.  Mulla,  H.  S. Marwah and  D.  P.  Sharma,  for  the Respondents. The Judgment of the Court was delivered by KHANNA,  J. Karam Singh (60) and his son Sukhdev Singh  (38) were  shot  dead  in  their field in  the  area  of  village Dhandari  at a distance of seven miles from  police  station Sadar Ludhiana on August 5, 1971.  Four persons Charan Singh (65),  Mukhtiar Singh (50), Gurdev Singh (40)  and  Paramjit Singh (24) were tried in connection with that occurrence  in the  court  of  the Sessions Judge  Ludhiana.   The  learned ’Sessions  Judge convicted Charan Singh and  Mukhtiar  Singh under section 302 Indian Penal Code for the murder of  Karam Singh  and ,sentenced each of them to death.   Charan  Singh and  Mukhtiar  Singh were also convicted under  section  302 read  with  section 34 Indian Penal Code for  the  death  of Sukhdev  Singh  and each of them was  sentenced  to  undergo imprisonment  for  life  on that count.   Gurdev  Singh  and Parmjit Singh were convicted under section 302 Indian  Penal Code  for the murder of Sukhdev Singh and each of  them  was sentenced to death on that score.  Gurdev Singh and Paramjit Singh  were  further convicted under section 302  read  with section  34 Indian Penal Code for the death of  Karam  Singh and  each of them was sentenced to undergo imprisonment  for life  on  that account.  Charan ’Singh, Mukhtiar  Singh  and Gurdev  Singh were also convicted under section 27 Arms  Act and  each  one  of them was sentenced  to  undergo  rigorous imprisonment  for a period of four years on that count.   On appeal  and  reference  the Punjab and  Haryana  High  Court affirmed the judgment of the trial court.  The four  accused thereafter filed this appeal by special leave.

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Charan  Singh  accused is the real brother  of  Karam  Singh deceased.  Paramjit Singh accused is the grandson of  Charan Singh.   Gurdev Singh accused is the brother of the wife  of Charan  Singh, while Mukhtiar Singh accused is a  friend  of Gurdev  Singh.  The two deceased persons as well  as  Charan Singh  and  Paramjit  Singh accused  are  the  residents  of village  Dhandari.   Gurdev Singh is a resident  of  village Bhutari,  at  a distance of about 15  miles  from  Dhandari, while  Mukhtiar  Singh  is  a  resident  of  village  Khatra Chaharan.   Charan  Singh accused and Karam  Singh  deceased were  the  sons of Sardara Singh.  Sardara Singh  had  three other  brothers.   One of the brothers was  Niranjan  Singh. Niranjan  Singh  was issueless and without a  wife.   Hazara Singh  was another brother of Sardara Singh.  Mann Dass  (PW 4), who lodged the first information report, is the grandson of  Hazara Singh.  Apart from Sukhdev Singh who  was  killed along with Karam Singh deceased, the latter had another  son Gurdial  Singh (PW 8) who has appeared as an eye witness  of the occurrence. The prosecution case is that on September 28, 1966  Niranjan Singh,  uncle  of  Charan  Singh  accused  and  Karam  Singh deceased, 563 executed  a will in favour of Charan Singh  bequeathing  all his  movable  and’ immovable property in  favour  of  Charan Singh  accused.  on March 18, 1971 Niranjan  Singh  executed another  document cancelling the will which he  had  earlier executed  in  favour  of Charan Singh.  It  is  stated  that Niranjan Singh revoked the will in favour of Charan Singh at the  instance  of  Karam Singh deceased and  Mann  Dass  PW. Niranjan  Singh thereafter got back possession of  his  land from  Charan Singh.  On June 15, 1971 Niranjan Singh  leased out half of his land in favour of Mann Dass for a period  of ten  years.   The  remaining half of the land  was  sold  by Niranjan Singh in two equal shares, one in favour of  Garcha Poultry  Farm  and  the other in  favour  of  Sukhdev  Singh deceased and Gurdial Singh PW, sons of Karam Singh deceased. Charan  Singh  accused felt aggrieved  against  Karam  Singh deceased  on  account  of  being deprived  of  the  land  of Niranjan Singh. About  a month before the present occurrence, it is  stated, Mann Dass and Sukhdev Singh were going to their lands  which they had obtained from Niranjan Singh.  Near a well Paramjit Singh and Gurdev Singh accused fired shots from a rifle  and gun at Sukhdev Singh deceased.  The shots, however, did  not hit Sukhdev Singh.  The matter was then reported by  Sukhdev Singh at police station Sadar Ludhiana.  On July 8, 1971 the Gram  Panchayat  intervened in the  dispute  between  Charan Singh  and Karam Singh.  A compromise was got recorded.   It was stated in the compromise that Charan Singh had left  the possession of the land.  The compromise was signed by Charan Singh, Karam Singh and Sukhdev Singh. On  August 5, 1971 at about 5 p.m., it is stated, Mann  Dass PW and Kamikkar Singh (PW 18) were hoeing maize crop in  the land which Mann Dass had taken on lease from Niranjan Singh, Kamikkar  Singh who belongs to village Paddi is a friend  of Mann  Dass and had come to village Dhandari two days  before the  present occurrence.  Karam Singh and his  sons  Sukhdev Singh and Gurdial Singh were also at that time hoeing  maize crop  in  the  adjoining land which had  been  purchased  by Sukhdev  Singh and Gurdial Singh from Niranjan  Singh.   The four  accused then emerged from a nearby sugarcane field  of Charan  Singh  accused.   Paramjit Singh was  armed  with  a rifle.   Mukhtiar Singh and Gurdev Singh had single.  barrel guns,  while  Charan Singh had a country-made  pistol.   The

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accused  raised  challenging shouts.  When they  were  at  a distance  of  65 to 70 Karams from Sukhdev  Singh,  Paramjit Singh  fired  a  shot from his rifle towards  the  field  of Sukhdev Singh.  Sukhdev Singh then crawled towards the Kotha of the tube-well installed in that field.  Karam Singh  also did  the  same  thing.  Mann Dass  and  Kamikkar  Singh  ran towards a Khal (water course).  The four accused fired shots from  their  respective weapons at Sukhdev Singh  and  Karam Singh.   Kamikkar Singh, who had a weak leg and  was  within the  firing  range, received bullet injuries  on  his  back. Mann  Dass  took  shelter behind the  Khal.   Sukhdev  Singh deceased  had a licensed gun in the Kotha.  He then  started firing  from his gun in reply to the firing by the  accused. All 564 the four accused then proceeded towards the tubewell  Kotha. Gurdev Singh and Paramjit Singh fired from their  respective weapons when they were at a distance of 15 or 20 yards  from the  tubewell  Kotha towards Sukhdev Singh.   Sukhdev  Singh then came out of the Kotha and ran towards the eastern side. Paramjit  Singh  and Gurdev Singh came in front  of  Sukhdev Singh  and  fired  with their  respective  weapons  at  him. Sukhdev  Singh fell down on receipt of those shots from  the fire-arms.  Karam Singh who was taking shelter at a distance of  about two karams from the tubewell Kotha then  tried  to run away.  Charan Singh and Mukhtiar Singh accused, however, came  in  front of Karam Singh and fired shots at  him  from their fire-arms, as a result of which Karam Singh fell down. As  Karam Singh was lying injured, Paramjit Singh went  near him and fired two or three shots at him with his rifle.  The four  accused  then  went  towards-the  railway  line.   The occurrence  was  witnessed by Mann Dass, Kamikkar  Singh  as well  as by Gurdial Singh, who had continued to stay in  the field where he was working. After  the  departure of the accused,  Mann  Dass,  Kamikkar Singh  and  Gurdial Singh went to Karam  Singh  and  Sukhdev Singh  found  that both were lying  dead.   Leaving  Gurdial Singh  and  Kamikkar Singh near the dead bodies,  Mann  Dass proceeded  towards  the police station.  Mann Dass  met  ASI Amrik Singh near railway station Dhandari and made statement PH  to  him  at  6.15 p.m.  A.S.I.  Amrik  Singh  then  sent statement  PH through a (constable to police  station  Sadar Ludhiana.  The statement was received at the police  station at  6.45  p.m.  Formal first information report  PH  /2  was prepared  on the basis of the said statement and a case  was registered against the accused. Raghbir  Singh student (PW 13) at the time of firing, it  is alleged,  was present at his well at a distance of about  80 or  100 karams from the place of occurrence,  Raghbir  Singh heard  the  reports of the gun fires and  about  10  minutes after  the  firing  had stopped, he went  to  the  place  of occurrence.   He found the dead bodies of the  two  deceased persons  lying there guarded by Gurdial Singh  and  Kamikkar Singh  PWs.   On enquiry Raghbir Singh was  told  about  the occurrence  by  Gurdial  Singh  and-  Kamikkar  Singh   PWs. Raghbir  Singh was further told that Mann Dass had  gone  to the  police station to lodge the report.  Raghbir Singh  was asked  also the join to Mann Dass.  Raghbir Singh then  went towards the road but could not catch a bus. ASI  Amrik Singh after sending report to the police  station preceded  to the place of occurrence along with  Mann  Dass. The Assistant Sub Inspector found the dead bodies of Sukhdev Singh  and Karam Singh lying there being guarded by  Gurdial Singh  and  Kamikkar  Singh.  The  Assistant  Sub  Inspector prepared  the  inquest  reports relating  to  the  two  dead

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bodies.  Eleven empty cartridges of 12 bore were taken  into possession from the place of occurrence by the Assistant Sub Inspector  and  were put into a sealed  parcel.   One  empty rifle  cartridge  was also found there and  was  taken  into possession.  The licensed gun P-7 of Sukhdev Singh  deceased along  with a bag containing his licence was found near  the dead  body  of Sukhdev Singh.  The Assistant  Sub  Inspector took that gun and the bag into possession. 565 Four  .12 bore empty cartridges were recovered  from  inside the  tubewell Kotha.  Three Khurpas were found in  the  main field  of  Sukhdev Singh deceased, while  two  Khurpas  were found  in the maize field of Mann Dass.  These  Khurpas  too were taken into possession. Post  mortem  examination on the two dead  bodies  of  Karam Singh  and Sukhdev Singh deceased was performed by Dr.  Ajit Singh  in  Civil Hospital Ludhiana at 4 p.m.  on  August  6, 1971.  Earlier on that day at 4 a.m. Dr. Ajit Singh examined Kamikkar Singh and found four simple injuries consisting  of lacerated  wounds on the back of the elbow, leg and neck  of Kamikkar Singh. The  four  accused,  it  is  stated,  absconded  after   the occurrence.  Charan Singh accused was arrested on receipt of secret information by A.S.I. Amrik Singh on August 17,  1971 on Grand Trunk Road near Samrala.  Mukhtiar Singh and Gurdev Singh  accused surrendered on the same day, i.e. August  17, 1971  in the court of Shri Bakhsish Singh magistrate  Sunam. Paramjit Singh accused was arrested on April 11, 1972 by Sub Inspector Ajit Singh. Gurdev Singh accused, according to the prosecution, was  in- terrogated  by  Sub Inspector Ajit Singh (PW 19)  on  August 20,1971.   Gurdev  Singh  then disclosed that  he  had  kept concealed  his  licensed single-barrel gun  along  with  its licence  in a heap of chaff lying in his house and  that  he could get the same recovered.  Statement PS of Gurdev  Singh was then recorded by the Sub-Inspector and was  thumb-marked by  Gurdev  Singh.   Sub  Inspector  Ajit  Singh  thereafter started  interrogation  of Mukhtiar Singh  accused  Mukhtiar Singh made disclosure statement PJ to the effect that he had kept  concealed his licensed gun along with the  licence  in the  Turi lying in the entrance room of his  house.   Gurdev Singh  then led the Sub Inspector and the witnesses  to  his house  and from there got recovered gun P-2 and its  licence P-5.  The gun and the licence were taken into possession  as per  memo  Ex. PU.  The gun was put into  a  sealed  parcel. Mukhtiar Singh accused thereafter led the police party to Ws Deodi  and from there got recovered his gun Ex.   P3:  along with  its  licence P-6.  The gun put into a  sealed  parcel. AST Amrik Singh interrogated Charan Singh accused on  August 22,  1971.   Charan  Singh  disclosed  that  he  had  buried country-made  pistol  in  a  ditch  near  a  rubber  factory situated  on  the  Grand  Trunk Road  and  railway  line  at Dhandari and that he could get the same recovered.  Memo PTD with  regard to the statement of Charan Singh was  prepared. Charan Singh then led the police party to that place and got recovered  pistol  P-4.   The pistol, was then  put  into  a sealed parcel. The  two sealed parcels, one containing II empty .1  2  bore cartridges   and  the  other  containing  one  empty   rifle cartridge, were sent to the office of the Director, Forensic Science  Laboratory, Chandigarh on August 11, 1971.   Sealed parcels containing guns P-2 and P-3 and pistol P-4 were also later sent to the said Director, Shri J. K. Sinha, Assistant Director, Forensic Science Laboratory (PW 14) found that two of  the empty cartridges which were recovered from the  spot

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had 4-M 185SupCI/75 566 been  fired from pistol- P-4.  Three other empty  cartridges which were recovered from the spot were found by Shri  Sinha to have been fired from gun P-2 of Gurdev Singh  Gun P-3  of Mukhtiar  Singh was found by Shri Sinha to be not in  proper working condition.  The cocking portion, i.e. hammer, of the gun was found to be jammed.  As such, it was not possible to find  whether  any  of  the  empty  cartridges  which   were recovered from the spot had been fired from gun P-3. At  the  trial the four accused in  their  statements  under section  342  of the Code of Criminal Procedure  denied  the prosecution allegations regarding their participation in the occurrence.   Charan Singh admitted that the will which  had been  made by Niranjan Singh in his favour was  subsequently revoked.   According to Charan Singh, the possession of  the land of Niranjan Singh., however, remained with him.  Charan Singh denied that he absconded after the occurrence or  that he got recovered pistol P-4.  According to Charan Singh,  he was  all along with-the police.  Mukhtiar Singh stated  that he  had  surrendered himself in court on  August  17,  1971. According  to  Mukhtiar  Singh, the  police  had  taken  the licence  of his gun from his house about four or  five  days earlier.   Gurdev Singh stated that he never made  any  dis- closure statement about gun P-2 and that the recovery of the gun  had  been  foisted upon him.   Paramjit  Singh  in  his statement before the committing magistrate when asked  about the  occurrence stated he had already sold away  his  rifle. Paramjit  Singh denied that he had remained absconding  till his  arrest on April 17, 1972.  No evidence was produced  in defence. "The   trial  court  accepted  the  prosecution   case   and accordingly  convinced and sentenced the accused  as  above. On appeal and reference the high Court affirmed the judgment of the trial court. It  cannot be disputed that Charan Singh and  Sukhdev  Singh were shot dead on August 5,1971 in the fields in the area of village  Zhhandari.   Assistant Sub  Inspector  Amrik  Singh found  the  two dead bodies lying in those  fields  when  he arrived  there on the evening of that day.  Dr. Akjit  Singh who performed post mortem examination on the two dead bodies found  the  following seven injuries on the  body  of  Karam Singh               "1.   Abrasion 5/8" on the left side of nose.               2.    Lacerated wound 2" x 3/4" x bone deep on               the left side of               forehead  including the. middle part  of  left               eye   brow.   The  margins  were   black   and               inverted.  It was oblique in direction.               3.    Lacerated  wound 1" x 1/2"’ x bone  deep               on  right temopral region.  The  margins  were               black and oblique in direction.               4.    Lacerated wound 4" x 4-1/4" muscle  deep               on inner side upper part of right forearm, the               margins were black.               5.    Abrasion  3  in number 1/2"  x  1/2"  on               inner side middle               right forearm.               6.    Lacerated wound 1" x 1/2"x chest  cavity               deep  on the back of chest in the  left  lower               part.   The margins were black  and  inverted.               The direction as inwards-upwards and forwards.               567               7.    Lacerated  wound 4-1/2" x 2" chest  deep

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             on front of right side of chest, 2" above  the               right  nipple.   Margin  were  lacerated   and               everted.   Heart duly pierced  was  protruding               out."               The  following 12 injuries were found  by  the               doctor on the body of Sukhdev Singh :               "1.  Lacerated wound 1/4" x 1/4" bone deep  on               front  of right leg upper part, 2"  below  the               knee-joint.  The margins were black.               2.    Lacerated wound 1" x 1/2" x 1/2" on  the               inner  side of right knee.  The  margins  were               black and oblique in direction.               3.    Lacerated   wound  1-1/4"x1/2"x1/8"   on               upper part of penis. Margins were black.               4.    Lacerated wound 1/4" x 1/4" x 3" deep on               the  upper  part of left  mid-inguinal  point.               The  margins  were black  and  inverted.   The               direction  was above outwards  and  backwards.               One  small metallic piece was recovered  under               the injury.               5.    Abrasion  1/2" x 1/4" on front  of  left               chest, I" above left nipple.               6.    Lacerated wound with black and  inverted               margins 3/4"x 1/4"x 2" deep on the left  front               of anterior axillary line.  The direction  was               backwards  and outwards with a wound  of  exit               3/4 x 1/2 on the mid axillary line of the left               side.  The margins were everted.               7.    Lacerated wound with black and  inverted               margins  I’  x I’ x more than 6" deep  on  the               front  of  right side of chest, 3"  above  the               right  nipple.   The  direction  was  upwards,               outwards and backwards with a wound of exit 3-               1/2"x 2" on the back of right shoulder  joint,               with lacerated and everted margins.  The right               scapula was fractured.               S.    Lacerated wound 1/4"x 1/4"x bone deep on               front of right side of chest in lower part  4"               below  right nipple, 1-1/2" outer to  midline.               The  margins  were  black  and  inverted   and               metallic piece was recovered under the skin.               9.    Lacerated wound with black and  inverted               margins 2"x 1-1/2"x chest cavity deep on front               of  right  chest  2" inner  to  right  nipple.               There was black abraded area around it  4"x4".               The wound was directed backwards and  slightly               upwards  with  a wound of exit 2"x 2"  on  the               back  in-between the scapulae and  the  spinal               cord underneath was fractured at the back. 3rd               and  4th ribs on right side were fractured  in               front.               10.  Lacerated wound 1/4" x 1/4" x  skin  deep               with  black and inverted margins, in front  of               right chest 1-1/2" inner to, injury No. 9. One               metallic piece was recovered underneath.               568               11.   Lacerated wound with black and  inverted               margins  1-1/4"x 1-1/4"x more than 6" deep  on               right side of back at lumbar regions, directed               inwards, upwards and forwards, piercing  upper               part of right kidney and omentum. 13  metallic               irregular  pieces  were  recovered  from  left               pleural cavity and diaphragm.               12.   Lacerated wound 72 in number with  black               and inverted margins each 1/8"x1/8" bone  deep

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             on  the sacral region and upper part  of  both               the  buttocks. 35 small metallic  pieces  were               recovered  under  it.  Left  pelvic  bone  was               fractured underneath." The cause of death of Karam Singh was shock and  haemorrhage as  a result of injuries to heart and lungs.  The  cause  of death of Sukhdev Singh was shock and haemorrhage as a result of  injuries  to  the right lung under  injury  No.  9.  The injuries  in the case of both Karam Singh and  Sukhdev-Singh were  sufficient in the ordinary course of nature  to  cause death. In  order  to  bring the charge home  to  the  accused,  the prosecution examined Mann Dass (PW 4), Gurdial Singh (PW  8) and  Kamikkar  Singh  (PW  18)  as  eye  witnesses  of   the occurrence and they supported the prosecution case. This  Court does not normally in an appeal by special  leave go afresh into the question of the credibility of  witnesses and reappraise the evidence.  In the present case,  however, we find that there was hardly any discussion worth the  name of the evidence of the eye witnesses in the judgment of  the High  Court.   The  High  Court  has  made  only  a  general reference  to  the  evidence of the eye  witnesses  and  has observed that all the witnesses examined by the  prosecution inspire full confidence.  As the High Court was dealing with not  only  the  appeal filed by the appellants  but  also  a reference  under  section  374  of  the  Code  of   Criminal Procedure for confirming the death sentence, it was, in  our opinion,  essential for the High Court to  have  reappraised the evidence adduced in the case and come to an  independent conclusion  as to whether the guilt of the accused had  been proved  or  not.  Ordinarily in a  criminal  appeal  against conviction the appellate court can dismiss the appeal if the court  is of the opinion that there is no sufficient  ground for  interference after examining the various grounds  urged before it for challenging the correctness of the decision of the  trial  court.  It is not necessary  for  the  appellate court  to  examine  the entire record  for  the  purpose  of arriving  at  an  independent  conclusion.   The   position, however-, is different where in addition to an appeal  filed by an accused who is sentenced to death, the High Court  has to  dispose of the reference for confirmation of  the  death sentence   under  section  374  of  the  Code  of   Criminal Procedure.   While dealing with a reference the  High  Court should  consider  the proceedings in all their  aspects  and come to an independent conclusion on the material on  record apart from the view expressed by the Sessions Judge.  In  so doing,  the  High  Court will be  assisted  by  the  opinion expressed by the Sessions Judge, but under the provisions of the- law above-mentioned                             569 it  is  for  the  High  Court  to  come  to  an  independent conclusion  of  its own (see Jumman & Ors. v. The  State  of Punjab(1) and Bhupendra Singh v. The State of Punjab(2).  In view  of  the infirmity noted above in the judgment  of  the High  Court,  we have considered it proper  to  examine  the evidence adduced in the case ourselves instead of  remanding the case and thus delaying the matter further. Mann  Dass,  Gurdial Singh and Kamikkar Singh  have  deposed that  at the time of the present occurrence, Mann  Dass  and Kamikkar Singh were present in the field which Mann Dass had taken  on  lease from Niranjan Singh for  hoeing  the  maize crop,  while Gurdial Singh PW was present along  with  Karam Singh  and Sukhdev Singh for the same purpose in  the  field which had been purchased by Sukhdev Singh and Gurdial  Singh from  ’Niranjan  Singh.  There appears to be  no  sufficient

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ground  for  disbelieving  the evidence  of  the  three  eye witnesses that they were present at the scene of occurrence. Kamikkar  Singh received injuries during the course  of  the present  occurrence  and  as such there can  be  hardly  any manner  of  doubt  regarding his presence at  the  scene  of occurrence.   It  is in the evidence of Kamikkar  Singh  and Mann  Dass that Kamikkar Singh who is a friend of Mann  Dass and had come two days before the present occurrence from his village,  was  engaged with Mann Dass in  hoeing  the  maize crop.   Mann  Dass would not normally throw  the  burden  of hoeing  the  maize crop on his friend alone and  it  is  but natural that Mann Dass would be with him for the purpose  of hoeing  the  maize crop.  There also appears to  be  nothing improbable in the statement of Gurdial Singh PW that he  was engaged  with  his father Karam Singh  and  brother  Sukhdev Singh in hoeing the maize crop. The  first information report about the  present  occurrence was lodged promptly and this is apparent from the fact  that a  copy of the first information report was received by  the judicial magistrate concerned at Ludhiana at 8. 12 p.m.  the same  evening.  We are not impressed by the suggestion  that the  occurrence took place not at 5 p.m. but  much  earlier. According  to  the  post  mortem  examination  reports,  the stomach of each one of the two deceased persons was empty at the  time  of  the  post  mortem  examination.-  Normally  a vegetable diet containing mostly farinaceous food as usually taken  by  an Indian does not leave the  stomach  completely within six to seven hours after its ingestion (see page  151 of  Modi’s Medical Jurisprudence and  Toxicology,  Sixteenth Edition).  If the occurrence-had taken place at 2 or 3  p.m. as  suggested on behalf of the accused-appellants, the  mid- day  meals usually taken by the villagers at about  11  a.m. would still be in their stomach and the same would not  have been empty at the time of the post mortem examination.   The fact  that the stomach of each of the deceased  parsons  was empty  lends assurance to the prosecution version  that  the occurrence took place at about 5 p.m. Another  argument which has been put forth on behalf of  the accused-appellants  is  that the assailants would  not  have spared  Mann  Dass if he had been present at  the  scene  of occurrence.  From the (1) A.I.R. 1957 S.C. 469.      (2) [1968] 3 S.C.R. 404. 570 mere fact that there were no injuries on the person of  Mann Dass  it does not necessarily follow, in our  opinion,  that Mann  Dass  was not present at the scene of  occurrence  and that  his evidence as such should be thrown out.   As  would appear  from the resume of facts given above, Sukhdev  Singh deceased and Karam Singh crawled towards the tubewell  Kotha when the assailants appeared on the scene of occurrence  and a  shot  was  fired  towards the  field  of  Sukhdev  Singh. Sukhdev  Singh had his gun in that kotha and he fired  shots from that gun.  It is but natural that the attention of  the assailants  would  be first focussed upon Sukhdev  Singh  so that he might be liquidated and be not in a position to fire at them.  The assailants after killing Sukhdev Singh  killed Karam  Singh,  who  was also present  near  the  spot  where Sukhdev  Singh  was killed.  Mann Dass who had  before  that taken  shelter behind a khal in his own field thus seems  to have  remained  unhurt.   The  same also  seems  to  be  the explanation  for Gurdial Singh P.W not being injured at  the time  of the present occurrence.  In any case there  can  be hardly  any  doubt,  as  already  mentioned,  regarding  the presence of Kamikkar Singh at the place of occurrence. The  case  of  the prosecution is that  Paramjit  Singh  and

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Gurdev  Singh  accused killed Sukhdev Singh  and  thereafter Charan Singh and mukhtiar Singh killed Karam Singh.  As  the ocular  evidence consists of persons two of whom were  close relatives of the two deceased persons, it is not likely that the  eye witnesses would spare the real assailants.  At  the same  time  we  have to guard  against  the  possibility  of implication  of  an innocent person along  with  the  actual culprits.  The need of this precaution becomes all the  more obvious when it is kept in view that the ocular evidence  is of a partisan nature.  It is in such a situation that a duty is cast upon the court to separate the grain from the chaff. After  having been taken through the evidence on record,  we have no doubt regarding the complicity of Paramjit Singh and Gurdev Singh.  Paramjit Singh, according to the testimony of the  eye witnesses, was armed with a rifle and Gurdev  Singh with  a  gun.  Paramjit Singh in his  statement  before  the committing  magistrate  admitted that he had a  rifle,  but, according  to  him,  he  had already  sold  that  thus    in conformity   with the away.  Gurdev Singh undoubtedly  owned licensed  gun  P-2.  According to the evidence of  Dr.  Ajit Singh  who performed post mortem examination on the body  of Sukhdev  Singh,  Sukhdev  Singh  had  a  number  of   bullet injuries.   Sukhdev  singh  had also a  number  of  injuries caused by gun shots.  The evidence of the eye witnesses with regard to the part played by Paramjit Singh and Gurdev Singh is  Although  Paramjit medical evidence.  Singh  played  the leading part in the assault on the two deceased persons, his rifle  could  not  be recovered as he  absconded  after  the occurrence and remained absconding for a period of more than eight  months  till his arrest on April  11,  1972.   Gurdev Singh   surrendered  himself  in  the  court   of   judicial magistrate Sunam on August 17, 1971.  It is in the testimony of  Shri J. K. Sinha, Assistant Director,  Forensic  Science Laboratory  that  three of the crime cartridges  which  were received in the laboratory on August 11, 1971 had been fired from  licensed  gun P-2 of Gurdev Singh.  According  to  the evidence of Sub-Inspector Ajit Singh 571 (PW19)  and  Mann Dass (PW4) gun P-2 was recovered  in  pur- suance   of  the  disclosure  statement  of   Gurdev   Singh subsequent to his surrender in court.  There is no  material to  warrant  the inference that gun P-2 was secured  by  the police  before Gurdev Singh surrendered in court  on  August 17,1971.   ASI  Amrik  Singh  (PW20)  has  deposed  that  he recovered  a  number of empty cartridges from the  place  of occurrence.  Out of those empty cartridges, three were found by  Shri  Sinha to have been fired from gun  P-2  of  Gurdev Singh.  There could, in our opinion, be hardly any doubt  on the  point that the three cartridges fired from the  gun  of Gurdev  Singh  were found at the spot  because  those  empty cartridges  were sent to the ballistics expert  long  before the arrest of Gurdev Singh and the recovery of his gun.   It is significant that gun P-2 of Gurdev Singh is his  licensed gun.   No  question of foisting a licensed gun  upon  Gurdev Singh could possibly arise in the very nature of things.  It was also not possible to falsely show the recovery of  three empty cartridges which had been fired from that gun  because at  the time those three empty cartridges were sent  to  the Forensic   Science  Laboratory,  the  police  was   not   in possession of gun P-2 of Gurdev Singh.  The dispatch of  the three  empty  cartridges  which  had  been  fired  from  the licensed  gun  P-2 of Gurdev Singh lends  assurance  to  the evidence  about recovery of those cartridges from the  place of occurrence.  The fact that three of the cartridges  fired from  the  gun of Gurdev Singh were found at  the  place  of

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occurrence  goes a long way to corroborate the testimony  of the  three eye witnesses regarding the complicity of  Gurdev Singh. We  may  now  consider the case  against  Charan  Singh  and Mukhtiar  Singh.   It is the case of  the  prosecution  that Charan  Singh  and  Mukhtiar  Singh  fired  at  Karam  Singh deceased   with  country  made  pistol  P-4  and   gun   P-3 respectively  and  as such, killed him.  There  is  however, discrepancy  in the evidence of the eye witnesses  regarding the exact manner in which Karam Singh was killed.  According to  Mann Dass PW when Paramjit Singh and Gurdev Singh  fired at  Sukhdev Singh and the latter fell down, Karam Singh  who was taking shelter behind a Chapacha at a distance of  about two  karams  from  the tubewell Kotha  tried  to  run  away. Charan  Singh and Mukhtiar Singh then came in front  of  him and fired shots from their respective fire-arms as a  result of  which  Karam Singh also fell down.  As Karam  Singh  was lying injured, Paramjit Singh went near him and fired two or three shots from his rifle at Wm.  The evidence of Mann Dass would  thus  show that Karam Singh deceased was shot  at  by Charan Singh and Mukhtiar Singh when the deceased was in the act  of  running away.  As against that, Gurdial  Singh  and Kamikkar  Singh have deposed that Charan Singh and  Mukhtiar Singh  fired shots at Karam Singh deceased while the  latter was sitting and taking shelter behind the Chapacha. The  evidence  of Dr. Ajit Singh who performed  post  mortem examination  on  the  dead body of Karam  Singh  shows  that injuries Nos. 3, 6 and 7 on the body of Karam Singh had been caused  by bullets.  As regards injuries 2 and 4 which  were the  only two other injuries caused by fire-arm on the  body of Karam Singh, Dr. Ajit Singh has 572 deposed  that each of those injuries could have been  caused either  by a ballet fired from a rifle or by a pellet  fired from  a gun.  The evidence of Dr. Ajit Singh thus  tends  to show  that  the  only two injuries which  were  ascribed  to Charan Singh and Mukkhtiar Singh accused could as well  have been  caused  by shots from the rifle  with  Paramjit  Singh accused.   The medical evidence is thus consistent with  the stand  taken  on behalf of Charan Singh and  Mukhtiar  Singh that they did not cause any injury to Karam Singh. Another circumstance which creates doubt about the  veracity of  the  evidence  of  Gardial  Singh  and  Kamikkar   Singh regarding the part played by Charan Singh and Mukhtiar Singh is that injury No. 4 on .the dead body of Karam Singh  could be the result of grazing either by a bullet or pellet  shot. If  Karam Singh deceased was sitting as has been deposed  by Gardial  Singh and Kamikkar Singh PWs and Charan  Singh  and Mukhtiar Singh fired at him from a close range, it is diffi- cult  to believe that the pellet shot by these  two  accused would  only  graze  at the point of injury  No.  4.  On  the contrary, if the version of Gurdial Singh and Kamikkar Singh PWs were to be accepted, a number of pellets would have  hit Karam Singh de.-eased. It is the prosecution case that the assailants escaped after the  occurrence.  It is, in our opinion, extremely  unlikely that  Paramjit Singh and Gurdev Singh would have  associated an  old  man like Charan Singh with them in the  assault  as Charan Singh because of his age, would be more of a handicap and  a  burden to them especially at the  time  of  escaping after the occurrence.  It may be mentioned that although the prosecution  case is that Charan Singh  remained  absconding after the occurrence till his arrest on August 17, 1971, the version of Charan Singh  in his statement under section  342 of  the Code of Criminal Procedure is that he was  with  the

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police from the very start. The circumstances referred to above, in our opinion,  create considerable doubt regarding the complicity of Charan  Singh and Mukhtiar Singh. Regarding the alleged recovery of pistol at the instance  of Charan Singh accused, we find no reassuring circumstance  as may  furnish corroboration to the evidence of  the  recovery which has been adduced in the case. As regards Mukhtiar Singh we find that it is in the evidence of  Shri  Sinha that gun P-3 of Mukhtiar Singh  was  not  in proper working condition.  As such, no test could be held to find  out if any of the empty cartridges which were  alleged to have been recovered from the place of occurrence had been fired from that gun. We  have  already referred to above while dealing  with  the case of each accused, the evidence regarding the recovery of fire-arms and cartridges.  We may in the above context refer to  some other material facts.  There was no mention in  the first  information  report  of the  presence  of  any  empty cartridges  at the spot.  In the inquest report PB  relating to the dead body of Karam Singh, there was mention of only 573 four  empty.  12 bore cartridges in the  tubewell  Kotha  of Sukhdev Singh.  These cartridges were apparently those which had  been  fired by Sukhdev Singh from  inside  that  Kotha. There was, however, no mention in this inquest report of the presence  of  11 empty cartridges.  In the  inquest  report. The  relating  to the dead body of Sukhdev Singh  there  was reference  to  the  presence  also  of  II  empty  12   bore cartridges  and one empty brass cartridge of a rifle at  the spot besides four empty cartridges which were recovered from the  tubewell Kotha.  According to the evidence of Dr.  Ajit Singh,  the.  dead bodies of Karam Singh and  Sukhdev  Singh were  brought to the mortuary in the hospital at 6 a. m.  on August  6, 1971, while the inquest reports were  brought  as late as 3  20 p. m. on that day. The prosecution evidence about the recovery of the fire arms and the empty cartridges consists, besides the testimony  of the  investigating  officer, of that of Mann  Dass  who  has signed as many as 15 recovery memos.  Regarding the recovery of  the country-made pistol at the instance of Charan  Singh accused,  the  evidence consists of the  statements  of  the investigating  officer  and Mohinder Singh (PW 15),  who  is son-in-law  of Karam Singh deceased.  In view of  the  three circumstances, viz., the non-mention of the presence of  the empty  cartridges  at the place of occurrence in  the  first information  report and the inquest report relating  to  the dead  body of Karam Singh, the delay in the receipt  of  the inquest  reports  by the doctor who ’performed  post  mortem examination  on  the  dead  bodies and  the  fact  that  the witnesses  of  recovery  were  not  disinterested,  we  have applied  a rule of caution dictated by prudence  of  seeking some   reassurance  before  acting  upon  the  evidence   of recovery. The  prosecution has also led the evidence of Raghbir  Singh (PW  13), according to whom he heard fire shots when he  was present in his field.  About 10 minutes after the firing had stopped, the witness left his field and came to the place of occurrence.  The witness has deposed that he was  thereafter told  about  the occurrence by Gurdial  Singh  and  Kamikkar Singh  PWs.  In our opinion, not much value can be  attached to the testimony of Raghbir Singh.  Raghbir Singh’s name  in the  very  nature of things could not be  mentioned  in  the first  information  report  because, according  to  him,  he arrived at the scene of occurrence after Mann Dass had  left

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that  place  for making a report to the police.   There  was also  no mention of the name of Raghbir Singh in  either  of the  two inquest reports.  Raghbir Singh did not  deny  that his maternal grandmother was the sister of the father-in-law of Karam Singh deceased and merely pleaded ignorance on  the point.  Raghbir Singh, however, admitted that his father had a   double   relationship   with  Karam   Singh.    In   the circumstances, we are of the opinion that the deposition  of Raghbir Singh cannot be of much avail for corroborating  the testimony of Gurdial Singh and Kamikkar Singh PWs  regarding the actual occurrence and that the said testimony would have to be judged otherwise on its own merits. In  the  context  of what value should be  attached  to  the statements  of  the  witnesses examined in  this  case,  our attention has been invited by 574 the  learned  counsel  for the appellants  to  a  number  of authorities.   We  have refrained from  referring  to  those authorities  because,  in our opinion,  reference  to  those authorities  is rather misplaced.  The fate of  the  present case like that of every other criminal case depends upon its own facts and the intrinsic worth of the evidence adduced in the  case  rather than what was said about the  evidence  of witnesses in other decided cases in the context of facts  of those  cases.  The question of credibility of a witness  has primarily  to  be decided by referring to his  evidence  and finding  out  as  to how the witness  has  fared  in  cross- examination  and what impression is created by his  evidence taken  in  the  context  of the other  facts  of  the  case. Criminal  cases  cannot be put in a strait  jacket.   Though there  may  be similarity between the facts of  some  cases, there  would always be shades of difference and quite  often that difference may prove to be crucial.  The same can  also be  said  about the evidence adduced in one  case  and  that produced in another.  Decided cases can be of help if  there be  a  question of law like the admissibility  of  evidence. Likewise,  decided cases can be of help if the  question  be about the applicability of some general rule of evidence, e. g.,  the weight to be attached to the evidence of an  accom- plice.  This apart, reference to decided cases hardly  seems apposite  when the question before the court is whether  the evidence  of  a particular witness should or should  not  be accepted. As  a  result  of the above, we uphold  the  conviction  and sentence of Gurdev Singh and Paramjit Singh and dismiss  the appeal  in  so  far as it relates to them.   The  appeal  in respect  of  Charan  Singh and Mukhtiar  Singh  is  accepted because  the case against them is not free  from  reasonable doubt  and they are entitled to the benefit thereof.   Their conviction   and  sentence  are  set  aside  and  they   are acquitted. P. B. R.               Appeal Partly allowed. 575