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PETITIONER: RAJINDER SINGH & KADA

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT21/04/1992

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. JEEVAN REDDY, B.P. (J)

CITATION:  1992 AIR 1433            1992 SCR  (2) 574  1992 SCC  Supl.  (3)  13 JT 1992 (2)   575  1992 SCALE  (1)822

ACT:                        : Criminal Law :  Indian  Penal Code, 1860-Section 302-Offence  of  Murder- Presence  of  eye witnesses at the scene of  occurrence  not free  from  doubt-Investigation  in  doubt  as  to  culprit- Introduction  of second dying declaration with names of  eye witnesses-Despatch  of FIR after recording of  second  dying declaration-Contradictions in two dying  declarations-Inves- tigation  not free from taint-Material  witnesses-Not  exam- ined-Whether High Court justified in reversing trial court’s decision acquitting the accused-Absconding of accused-Wheth- er  per  se establishes guilt-Whether  accused  entitled  to benefit of doubt.

HEADNOTE:                  : The appellant was alleged to have fired a shot  from his pistol hitting the left flank of one ‘C’  who rushed  inside PW.3’s house and hid himself by chaining  the door from inside. PW.3 and another person raised alarm,  but the appellant escaped from the place of occurrence with  his pistol. PW.4 who had also arrived at the spot saw the occur- rence.  While  PW.3 went to the village Police  Station  and lodged the First Information Report, two other persons  took the  injured person to the City Civil Hospital,  where  PW.2 the doctor, attended on the injured person, who remained  in the hospital for about 13 days, and ultimately succumbed  to the injury. PW.2, who performed the autopsy of the deceased, opined that the death was due to toxemia and shock resulting from  peritonitis,  as a consequence of fire arm  injury  in which  the  small gut was injured, and that the  injury  was sufficient to cause death in the ordinary course of nature.      The  appellant  was charged under Section 302  IPC  and Section  27  of the Arms Act, 1959, for the murder  and  for making  use  of  a  pistol  for  an  unlawful  purpose.  The appellant  was declared absconder. He was arrested  when  in possession of a pistol 40 months after the incident.      The prosecution supported its case by production of two eye wit-                                                    575 nesses, PWs 3 and 4. It also introduced  two dying  declara- tions, one recorded by PW.14, the then Executive Magistrate,

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and the second recorded by PW.15 the S.I. of Police  Station of  the village in which the incident took  place.  Besides, the fact of accused’s absconding after the incident was also pressed into service. The Sessions Judge, placed no reliance either  of the occular version or the dying declarations and acquitted  the appellant. However, on appeal, by the  State, the  High  Court set aside the acquittal and  convicted  the appellant  under Section 302 IPC and Section 27 of the  Arms Act,  and sentenced him to life imprisonment and a  fine  of Rs.2,000  and,  in default, a further period of  one  year’s rigorous imprisonment and also one year’s rigorous imprison- ment respectively.      Allowing  the appeal of the accused, by giving  benefit of doubt, this court,      HELD: 1.1  The presence of the two witnesses, PWs.3 and 4,  at the scene of occurrence is not free from  doubt.  The investigation  was in doubt as to who was the culprit. As  a first  step, the theory of the first dying  declaration  was introduced  without  taking somebody independent,  like  the doctor, into confidence. The investigation later  introduced the  story of another dying declaration. This one  was  with the aid of the doctor, but this brought in the names of  the two  eye-witnesses to figure at a time when  everything  was manageable from the official point of view in reporting  the matter  to  the Magistrate. The investigation also,  in  the instant  case, therefore, is not free from taint.  The  High Court,  therefore, was not right in setting aside the  trial court’s decision and conviction the appellant.                                             [584 F-H, 585 A]      1.2  There  are contrasting features in the  two  dying declarations. The presence of PW.3 and PW.4 at the scene  of occurrence had not been mentioned specifically in the  first dying  declaration. However, their names got  introduced  in the  second dying declaration. Besides, the brother  of  the appellant  had been introduced in the second dying  declara- tion  as a coculprit. Though the City Police was present  in attendance  at the hospital, after it had been  informed  of the  arrival  of the injured there, it was not  prepared  to carry the burden of getting recorded a dying declaration. In this situation, it is rather dramatic that PW.14 should jump into the fray without having been asked by anyone  official- ly,  under proper documents, to record the statement of  the injured at 6.45 p.m. and without complying with the                                                 576 essential  formalities  of  making  an  application  to  the doctor,  disclosing his identity, seeking his opinion as  to the  fitness  of  the injured to make a  statement,  and  if permitted, having recorded the statement, the injured in the presence  of  the  doctor. The role of PW.14,  even  if  the suspicion entertained by the Sessions Judge on his  veracity on  the basis of his judicial career is left aside, is  sug- gestive of an overdoing, shared by the police to not let  go a  crime  against their fellow policeman unpunished.  It  is also  plain  that while introducing  the  expression  "other persons" to be present in the first dying declaration it was like drawing a blank cheque to be filled in at a later stage conveniently,  in order to plug in convenient witnesses,  if the ones mentioned already were not prepared to support  the prosecution. The effort in that regard was to say the  least naive, if not clumsy. [582 F-G;583 A-D]      The  dying declaration recorded by PW.15, S.I.  of  the village  Police  Station  on  the  following  morning   also demonstrates that by that time PWs.3 and 4 had been tied  up as willing witnesses.[583 D]      1.3  PW.3, one of the two eye-witnesses has  said  that

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the reason for his being at the spot was that he had gone to the house of his friend for taking a plough. He lives in the east  of  the  village whereas the house of  the  friend  is towards  the west of the village. He appears to be a  chance witness  altogether. There could be plenty of ploughs to  be borrowed in his own neighbourhood. So far as the second eye- witness, PW.4 is concerned his house is towards the south of the  place  of  occurrence and there  intervened  about  150 houses between the two places. He too is a chance witness.                                                    [584 B-C]      1.4  Nobody  from  the locality  was  examined  by  the prosecution.  Material witnesses, who were claimed  to  have seen the occurrence and removed the injured to the  hospital in  their jeep, were not examined by the prosecution. It  is due  to the second dying declaration recorded by  PW.15  the S.I.  of the Village Police Station that the names of  these two  i.e. PWs.3 and 4 came in the forefront, and  on  accom- plishing such a fiat, the F.I.R. was written thereafter  and the  report  despatched  the next day at 8.00  p.m.  to  the Magistrate afterwards. There was, in the interval, plenty of time to withhold the despatch of F.I.R. till the story could be woven, concerning as it was, a fellow policeman.[584 D-E]           1.5 The First Information Report was shown to have recorded  on  the  day of the incident at  6.15  p.m.  under section 307/34 IPC and under                                                     577 section 25/27/54/59 of the Arms Act, 1959 and despatched  to the  Magistrate the following day at 8.00 p.m.,  much  after recording  of the second dying declaration, and received  by the  Magistrate  still  two days later  at  10.05  a.m.  The investigation  stretched  its timings. The version  was  im- proved.  It  was  said that after the  occurrence  when  the appellant  ran away with his pistol, he was joined near  the Kikar  trees by his brother, who too is a Constable  in  the police. He is suggested to have been waiting for the  appel- lant  as  an aide. Then both of them are said to  have  fled away. Since the appellant was shown to have been absconding, the brother of the appellant was hurriedly put up for  trial for  offence under section 302/34 IPC. The  Sessions  Judge, however,  discharged  the  brother of  the  appellant.  This apparently was an attempt to try the appellant in  absentia, but the effort failed. [583 E-H]      1.6 The abscondence of the accused is not a determining factor, and not one which could outweigh the  other material appearing on the record. It by itself does not establish the guilt of the appellant beyond reasonable doubt. [585 B]      1.7 In the circumstances, the appellant is extended the benefit of doubt and acquitted. [585 C]

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION: Criminal  Appeal  No. 531 of 1981.      From  the  judgment and Order dated  11.3.1981  of  the Punjab and Haryana High Court in Criminal Appeal No. 1044 of 1979.      A.N. Mulla, T.L. Garg and N.D. Garg for the Appellant.      Ranbir   Singh  Yadav  and  R.S.  Suri(N.P.)  for   the Respondent.      The judgment of the Court was delivered by      PUNCHHI,  J.  This  appeal under  section  379  of  the Criminal  Procedure Code is directed against  the  judgement and  order  dated March 11, 1981 of the Punjab  and  Haryana High Court at Chandigarh in Criminal Appeal No.1044 of 1979.

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    The appellant herein, Rajinder Singh, was charged under section  302  IPC and under section 27 of the Arms  Act  for causing the murder of Chamkaur Singh and for making use of a pistol for an unlawful purpose,                                                     578 before  the Sessions Judge, Ferozepur. He was  acquitted  by the  learned  Sessions Judge on February 9. 1979.  On  State appeal to the High Court the acquittal was set aside and the appellant  was convicted under section 302 IPC and was  sen- tenced to life imprisonment as also to pay a fine of Rs.2000 or  in default further rigorous imprisonment for  one  year. The  fine, if realised, was ordered to be paid to the  heirs of  Chamkaur  Singh deceased. He was  also  convicted  under section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for one year.      The  prosecution  case is that  Chamkaur  Singh,  since deceased, and the appellant herein belonged to village Ghall Khurd. The deceased had four brothers. One of them,  namely, Thana  Singh,  had  died 20 days before  the  occurrence  on account  of taking liquor. The deceased suspected  that  the appellant has administered poison to Thana Singh in  liquor. On December 20, 1974, just before sunset, the deceased  came from the side of the bus stand to his village. Harbans Singh P.W.3 was standing in front of the house of one Jagtar Singh for taking a plough and he beckoned the deceased to come  to him.  At  the moment, the appellant is stated to  have  come from  the side of the lane and made Chamkaur Singh  deceased stop,  accusing  him that he had talked ill to him  to  some shopkeeper but Chamkaur Singh denied having done so.  There- upon Chamkaur Singh moved forward towards his house accompa- nied  by  one Darbara Singh. The appellant at  the  juncture took out his pistol from underneath the blanket, with  which he  had wrapped himself, and fired a shot hitting  the  left flank  of Chamkaur Singh. After receiving the shot  Chamkaur Singh rushed inside the house of Harbans Singh Sansi and hid himself  by  chaining the door from  inside.  Harbans  Singh P.W.3  and Darbara Singh raised alarm saying "do  not  kill" "do  not kill" but the appellant escaped from the  place  of occurrence  with  his pistol. Hakam Singh,  P.W.4  had  also arrived at the spot from the side of his fields and saw  the occurrence. Two others, Mohinder Singh and Gura Singh,  took Chamkaur Singh to the Civil Hospital Ferozepur while Harbans Singh  to P.W.3 went to the Police Station Ghall  Khurd,  in the  same village, and lodged the First Information  Report. On arrival at the hospital Dr. S.I.S. Sandhu P.W.2  attended to him. Chamkaur Singh remained in the hospital for about 13 days  till January 2, 1975 when he died. It fell to the  lot of Dr. Sandhu again to perform the autopsy of the  deceased. In the opinion of Dr. Sandhu the death of Chamkaur Singh was due  to  toxemia and shock as a result of peritonitis  as  a consequence  of fire arm injury in which the small  gut  was injured. According to the                                                      579 doctor  the  injury  was sufficient to cause  death  in  the ordinary course of nature.      The  prosecution  further alleges  that  the  appellant could  not be arrested and was declared an absconder. It  is only  on April 12, 1978, about 40 months later, that he  was arrested at a check-post in another part of district Feroze- pur  and at that time he was holding a pistol. It was  taken into  possession  as  well as the ammunition  found  on  his person.      When the case we sent up for trial after completion  of investigation,   the  prosecution  supported  its  case   by production  of  two eye witnesses, Harbans Singh  P.W.3  and

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Hakam  Singh  P.W.4  to give the occular  version.  It  also introduced  in  evidence  two  dying  declarations  of   the deceased. One was said to have been made on December 20,1974 to  Shamsher  Singh,  P.W.14 who  then  posted  as  Judicial Magistrate,  First  Class,  Ferozepur.  He  was  no  more  a Magistrate when his statement was recorded at the trial. The other  one was of December 21,1975 recorded by  S.I.  Vasdev P.W.15.Besides, the absocondence of the accused was  pressed into  service. The learned Sessions Judge however placed  no reliance on either the ocular version or the dying  declara- tion and acquitted the appellant, but he was reversed by the High Court. The exercise in the instant appeal is to examine whether  the High Court was justified in interfering in  the acquittal of the appellant.      As  said before, Chamkaur Singh had been taken  to  the Civil  Hospital,  Ferozepur  the same  day,  i.e.,  December 20,1974.  On his arrival, Dr. S.I.S. Sandhu,  Surgical  Spe- cialist,  Civil Hospital, Ferozepur sent message Ex.P.B.  at 6.00  p.m.  to  the S.H.O. police  Station  Ferozepur  city, intimating the arrival of the injured. The Hospital and  the Police Station are opposite each other. Another message  Ex. P.C. was sent likewise at 6.20 p.m. suggesting recording  of dying declaration of Chamkaur Singh since his condition  was serious.  At 10.30 p.m. vide application Ex.PD  S.I.  Vasdev asked  the opinion of Dr. Sandhu whether Chamkaur Singh  was fit  to make statement, but the doctor opined that  the  in- jured was not fit to make a statement. Then on the next  day on  21.12.1974,  again opinion was sought by the  Police  to that  effect  at  11.00 a.m. and then  the  doctor  declared Chamkaur  Singh fit to make a statement. Dr. Sandhu  claimed to have ordered giving pethedin injection to the injured  by way of sedation on the arrival of the injured in the  Hospi- tal, and another injection on 21-12-74 at                                                        580 4.00 p.m. That was the reason that on the earlier day,  i.e. on 20-12-1974, When his opinion was sought about the ability of  the injured to make a statement, he had opined  that  he was unfit to make a statement due to sedation. It is  worthy of notice at this stage that it was Vasdev S.I. attached  to Police  Station  Ghall Khurd who responded to  the  need  of recording  a dying declaration and not the police of  Police Station  Ferozepur  City.  It is also worthy  to  note  that Chamkaur Singh himself was a constable serving in the office of S.P. Ferozepur City. From the medical report Ex.P.J., Dr. Sandhu, when called again as a court witness, explained that Chamkaur Singh was conscious when he was brought for  exami- nation  at 6.15 p.m. and at that time he was fit to  make  a statement  although  his condition was serious.  He  however went  on to say that he had ordered a pethedin injection  to be  given  to the patient so that he goes  to  sleep,  which injection should have had its effect after half an hour.      The  first dying  declaration of the deceased, as  said before, was recorded by Shamasher Singh P.W.14.According  to Shamsher  Singh P.W.14 he received a police  application  on the  basis  of  which he went to the Hospital  in  order  or record  the dying declaration of the deceased at  6.45  p.m. Having  reached there he obtained the opinion of Dr.  Sandhu regarding  fitness  of Chamkaur Singh to be fit  to  make  a statement. Noticeably no document was prepared by P.W.14  in that regard. He claimed to have prepared his own proceedings in  the form of a memorandum Ex.P.N. and noted therein  that Dr. Sandhu had certified Chamkaur Singh to be fit to make  a statement and that on his pointing out Chamkaur Singh he had recorded the dying declaration of the deceased. The memoran- dum  Ex.P.N. itself contains the dying declaration of  Cham-

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kaur  Singh which is pointed as Ex.P.N.2 P.W.14 claims  that it  was recorded on the dictation of the injured, which  was read out to him after recording and to which injured put his signatures.  This  dying  declaration is  to  the  following effect:      "My  brother  Thana  Singh had  died  earlier.  He  was poisoned  in liquor. Now I have come to know as to  who  had done  it.  Earlier I did not know. I wanted to  go  from  my headquarters after taking leave but could not get an  oppor- tunity.  Today, I got down at Ghall Khurd Bus Stop.  Darbara Singh  member Panchayat was with me. Rajinder Singh  accused came there. He said that I had talked something about him to some shopkeeper. I replied in the negative. I proceeded  and then saw                                                        581 back that the accused took out a pistol from underneath  his blanket.  He  fired,  which hit me on the left  side  of  my flank. I entered some one’s house but the accused ran  away. Jagat  Singh,Jagtar  Singh,  Darbara Singh  and  many  other people had come there".      P.W.14  further stated that the dying  declaration  was sent  by  him to the Area Magistrate but  corrected  himself that Police Station Ghall Khurd fell within his jurisdiction and stood shifted to another Magistrate. He also stated that he had resigned from the post of Judicial Magistrate,  First Class,  Ferozepur.  He while giving his  evidence  described himself  as a practising advocate at Kharar, a tehsil  town. In  his memorandum Ex. P.N. besides his version  and  narra- tion,  there is no signature of Dr. Sandhu even  though  his name prominently  figures in it. Even after recording it Dr. Sandhu was not asked to certify the recording of it. Accord- ing  to P.W.14 there was no necessity for it because he  was himself  satisfied  that Chamkaur Singh was fit  to  make  a statement  all through. Memorandum Ex. P.N. was not  put  to Dr.  Sandhu  or he even apprised to  know  its  contents.The prosecution  dare not risk it. Dr. Sandhu may  have  totally denied  his involvement in the recording of the first  dying declaration.  Another significant factor emerging  from  the first  dying declaration is that the names of the  two  eye- witnesses Harbans singh P.W..3 and Hakam Singh P.W.4 do  not find mentioned as persons who had seen the occurrence. Other were so named.      The  second dying declaration is claimed to  have  been recorded  by  S.I. Vasdev, P.W.15 of  Police  Station  Ghall Khurd.  As he says, on 20-12-1974 at 6.15 p.m.  he  recorded the   First  Information report at the instance  of  Harbans Singh  P.W.3.  After recording it he went to  the  spot  and recovered  therefrom  an empty cartridge.  He  recorded  the statements of Hakam Singh P.W. 4 at that time. He then  went to Civil Hospital , Ferozepur reaching there at 9.30P.M.  He then made application Ex. P.D. at 10.30 P.M. enquiring  from the  doctor  about the fitness of Chamkaur Singh to  make  a statement. The opinion being negative, he ventured again  on the  next day at 11.00 a.m. This time the  doctor’s  opinion was positive and then he recorded the dying declaration  Ex. P.O.  The  dying declaration recorded by P.W.15  reads  like thus:      "I  am a constable in the police, on 20-12-1974 I  came on leave                                                     582 to Ghall Khurd. I came by bus, Darbara Singh was with me. He  and  I  came in front of the house of  Harbans  Singh  . Accused  Rajinder  Singh came from the front  side.  he  was having a blanket around. He said that I had talked to a shop keeper about him. I told him that some-one had misled him. I

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Proceeded forward and looked backwards. The accused took out his pistol and fired towards me. After that I started  rais- ing raula. The shot fired by accused hit me on my left flank and  I got injured. Out of fear I entered the house of  Har- bans  Singh  Sansi. I bolted the door  from  inside.  Jagtar Singh  son  of Joginder Singh, Harbans Singh  son  of  Sawan Singh   Jats,  Hakam singh son of Isher Singh had  seen  the occurrence.  Rajinder singh fled away with the  pistol  from the  spot.  He ran towards Kikar trees.  Where  Kewal  Singh brother,  was waiting for him. They both ran away. They  had both connived to kill me. The cause of enmity is that on 21- 12-1974  my  borther Thana singh died by  taking  liquor.  I later  on came to know that Rajinder Singh had poisoned  him in  liquor due to which the death occurred. As I  could  not know  earlier. I could not proceed further. On Diwali  night my brother Balam Singh and Rajinder Singh gambled.  Rajinder Singh  won some money. I had got that amount  returned  from Rajinder Singh . While I was injured state, Gurnam Singh son of  Hari   Singh and Mohinder Singh son of  Arjan  Singh  of Ghall  Khurd  took me in a jeep and got me admitted  in  the hospital".      As is evident there are contrasting features in the two dying declarations. The presence of Harbans singh P.W.3  and Hakam  singh P.W.4, as said before, had not  been  mentioned specifically  in the first dying declaration. In the  second dying  declaration,  the names of those  two  witnesses  got introduced.  It is yet to be seen whether Harbans Singh  and hakam  singh,  P.W.s can be said to  be  reliable  witnesses whose  presence at the spot could be taken  as  established. besides  in the second dying declaration the brother of  the appellant,  by the name of Kewal singh, had been  introduced as  a  co-culprit.  Though it is the admitted  case  of  the prosecution  that Police Station city stood informed of  the arrival of the injured at the Hospital, and that ASI Rajind- er Kumar of City Police Station had come there with  consta- ble  Ashok kumar to be given the bag of clothes of  the  in- jured  on 20-12-1974,it indicates that even though the  Fer- ozepur                                                      583 police was there in attendance, it was not prepared to carry the burden of getting recorded a dying declaration. In  this situation, it is rather dramatic that Shamsher singh, P.W.14 should  jump  into  the fray without having  been  asked  by anyone  officially,  under proper documents, to  record  the statement of the injured at 6.45 p.m. and without  complying with the essential formalities of making an application   to the doctor, disclosing his identity, seeking his opinion  as to  the fitness of the injured to make a statement,  and  if permitted  having recorded the statement of the  injured  in the  presence  of  the doctor. The role  of  Shamsher  Singh P.W.14, even if we leave aside the suspicion entertained  by the  Sessions  Judge  on his veracity on the  basis  of  his judical    career,   seems   to   us   suggestive   of    an overdoing,shared by the police to not let go a crime against their  fellow  policeman unpunished. It is also  plain  that while  introducing  the  expression "other  Persons"  to  be present in the first dying declaration it was like drawing a blank cheque to be filled in at a later stage  conveniently, in  order to plug in convenient witnesses, if the ones  men- tioned already were not Prepared to support the Prosecution. The effort in that regard was to say the least naive, if not clumsy.  The dying declaration recorded by SI Vasdev on  the following  morning also demonstrates that by that time  Har- bans  Singh  and  Hakam singh had been tied  up  as  willing witnesses.

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    The  first  Information Report was shown to  have  been recorded on 20-12-1974 at 6.15 p.m. under section 307/34 IPC and  under section 25/27/54/59 of the Arms Act. It is  shown to have been despatched to the magistrate the following  day on 21.12-1974  at 8.00 p.m. much after the recording of  the second dying declaration. It is shown to have been  received by  the  Magistrate still two days later  on  23-12-1974  at 10.05  a.m.  The investigation stretched  its  timings.  The version was improved. It was said that after the  occurrence when  the appellant ran away with his pistol, he was  joined near the kikar trees by his brother Kewal Singh, who too  is a  constable  in the Police . He is suggested to  have  been waiting for the appellant as an aide. Then both of them  are said  to  have fled away. Since the appellant was  shown  to have  been absconding, Kewal Singh brother of the  appellant was  hurriedly  put up for trial for offence  under  section 302/34 IPC. The learned Sessions Judge, Ferozepur,  however, discharged  the  accused Kewal singh on  9-9-1975  vide  his decision in Sessions Case No.66 of 1975. This apparently was an attempt to try the appellant in absentia, but the  effort failed.                                                      584      We have also gone through the evidence of  the two  eye witnesses.  Harbans singh P.W.3 when detailing  the  version said  that  after talking to the appellant,  Chamkaur  singh along  with Darbara singh moved forward towards their  house and  when  Chamkaur Singh turned back he was hit  by  pistol shot  fired  by the appellant. His reason for being  at  the spot  was that he had gone to the house of one  Jagir  Singh for  taking  a plough. He lives in the east of  the  village where as the house of Jagir Singh is towards the west of the village.  Though  he says that his house and that  of  Jagir Singh was about 20 houses apart, the defence suggestion  was that  about 200 houses intervene. He appears to be a  chance witness altogether . There could be plenty of ploughs to  be borrowed  in  his own neighbourhood. So far as  Hakam  singh P.W.4  is concerned, his house is towards the south  of  the place  of occurrence and there intervened about  150  houses between  his house and the place of occurrence. He too is  a chance witness. Nobody from the locality was examined by the prosecution.  Material witnesses like Darbara  Singh,  Jagat singh  and Jagtar singh, as well as Guna Singh and  Mohinder Sigh,  who  were  claimed to have seen  the  occurrence  and removed the injured to the hospital in their jeep, were  not examined  by the prosecution. It is due to the second  dying declaration recorded by SI Vasdev P.W.15, that the names  of these  two i.e., Harbans Singh and Hakam singh came  in  the forefront,  and  on accomplishing such a  fiat,  the  F.I.R. seems  to have been written thereafter and the  report  des- patched on 21-12-1974 at 8.00 p.m. to the Magistrate  after- wards. There was in the interval plenty of time to  withhold the  despath of F.I.R. till the story could be  woven,  con- cerning as it was, to a fellow policeman.      Thus  it appears to us that the presence of  these  two witnesses  Harbans  Singh and Hakam Singh at  the  scene  of occurrence  is not free from doubt.The investigation was  in doubt as who was the culprit. As a first step, the theory of the  first dying declaration was introduced  without  taking somebody independent, like Dr. Sandhu, into confidence.  The investigation  later introduced the story of  another  dying declaration.  This one was with the aid of Dr.  Sandhu,  but this brought in the names of the two eye witnesses to figure at  a time when everything was manageable from the  official point of view in reporting the matter to the Magistrate. The investigation also in the instance case therefore appears to

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us  to  be  not free from taint. The views  of  the  learned Sessions  Judge,Ferozepur  in acquitting  the  appellant  as compared  to  those expressed by the High  Court  have  been weighed again by us with the evidence on record, and we tend to                                                   585 agree  with the learned Session judge, disagreeing with  the views  expressed  by  the High Court, so as  to  acquit  the appellant.      The abscondence of the accused relied upon by the  High Court  remains of no consequence. In the first place  it  is not  a determining factor and not one which  could  outweigh the  other  matarial appearing on the record. It  by  itself does  not establish the guilt of  the appellant beyond  rea- sonable doubt.      For the views afore-expressed, we find it difficult  to sustain  the conviction of the appellant. Accordingly he  is extended  the benefit of doubt and acquitted. The appeal  is accordingly allowed. N.P.V.                                     Appeal Allowed.                                                     586