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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: WASSON SINGH AND FIVE OTHERS

DATE OF JUDGMENT15/01/1981

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH VENKATARAMIAH, E.S. (J)

CITATION:  1981 AIR  697            1981 SCR  (2) 615  1981 SCC  (2)   1        1981 SCALE  (1)146  CITATOR INFO :  R          1989 SC1966  (9)

ACT:      Criminal Procedure  Code 1973,  S. 154  & Indian  Penal Code, S.  302-Trial for murder-Accused convicted by Sessions Court-Acquitted by High Court-Interference by Supreme Court.      F.I.R.-Promptness in lodging-Evidentiary value of.      Eye-witnesses-Related   to    deceased-Antecedents   of questionable   nature-Scrutiny   of   evidence   by   Court- Methodology to be adopted.      Investigation  Officer-Failure   to  join   respectable persons of  locality to  witness recovery  of M.O.-Value  of such evidence.

HEADNOTE:      The  prosecution   case   against   the   six   accused (Respondents) was  that prior  to the  incident in question, there was  an altercation  between the  two deceased  on one side and  the six  accused on  the other  over  trespass  of cattle of  the accused  persons on the land of the deceased, which damaged  his cotton  crop. On  the day of the incident when P.W.  2, P.W.  3 and  the two  deceased were going by a foot path,  the six  accused suddenly emerged out of a field and fired.  The two  deceased fell  dead, while P.W. 2 and 3 ran and escaped unhurt. P.W. 2 reached the bus stand, picked up his motor cycle parked at a shop and drove to the nearest police station to lodge the F.I.R.      The Additional  Sessions Judge  found that  one of  the accused had  a strong  motive to  murder one of the deceased because of an old feud and that on account of this ill will, some of  the accused  had a  strong motive  in joining hands with the  others to  murder the deceased, but that no motive could be  established for  murdering the second deceased. He also found  that the fact that the F.I.R. was lodged by P.W. 2   with   the   utmost   promptitude   furnished   valuable corroboration of  his  evidence  and  also  disbelieved  the evidence of  the police  Sub-Inspector  (P.W.  13).  In  the result he  convicted all  the six  accused under section 302 read with  section 149  I.P.C. for  murder  of  one  of  the deceased and  sentenced them to imprisonment. In the case of first accused  however, he  was sentenced  to death  for the murder of one of the deceased.

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    All the  accused appealed  against their conviction and sentence to  the High  Court which  allowed the  appeal  and rejected the reference. It rejected the evidence of the eye- witnesses, P.W.  2 and  P.W. 3  on  the  ground  that  these witnesses were closely related to the first deceased who was the principal target of the accused and that it had not been satisfactory established  by the  prosecution that the other five accused  had  any  motive  to  commit  the  murders  in question. It  found that  the prosecution  story was  highly unnatural and  that the  presence of  the two  eye witnesses alongwith the deceased persons was un- 616 likely. It  further held there was material inconsistency in their testimony,  as to  when the  first deceased and P.W. 2 had left  the hamlet, and that the investigation of the case conducted by  the Sub-Inspector  (P.W. 13)  did not  inspire confidence.      In the  appeal by  the  State  to  this  Court  it  was contended on  behalf of  the State that the reasoning of the High Court  was manifestly  unsound, if not wholly perverse. The fact  that the  F.I.R. was  lodged by P.W. 2 with utmost promptitude and  all the  material facts including the names of the  accused and  of the  witnesses having been mentioned therein, indicated that there was no time to concoct a false story.      On behalf  of the respondents it was submitted that the acquittal could  not be  disturbed, as  the reasons given by the High Court could not be called perverse. ^      HELD :  1(i) The  acquittal of  respondent Nos. 1 and 2 are set  aside and they are convicted under section 302 read with section  34 Indian  Penal Code  for the  murder of  the first deceased  and sentenced  to imprisonment for life. The benefit of  doubt to  the rest  of the accused (respondents) and their acquittal on all the counts maintained. [636 C-D]      (ii) Sufficient  assurance of  the testimony  of P.W. 2 and P.W.  3 was  avail able from the circumstantial evidence regarding the  participation of respondents Wasson Singh and Mukhtar Singh  in the  murder of  deceased Hazara Singh. The evidence of  the eye  witnesses therefore,  could safely  be acted upon  for convicting  these respondents  for the  said murder. [635 C-D]      2. The reasons given by the High Court for holding that P.W. 2  was not  an eye  witness of  these two  murders  are utterly unsustainable.  The reason that P.W. 2 had succeeded in escaping  unhurt, or  that there are discrepancies in the statements of  P.W. 2 and P.W. 3 as to whether they had gone with the  deceased on  the very  day of  occurrence or a day earlier was no ground for the conclusion that P.W. 2 was not in the  company of  the deceased  or near about the scene of occurrence when the two deceased were shot dead. [626 F-G]      3. Discrepancies  in regard to collateral or subsidiary facts or  matters of  detail occur even in the statements of truthful witnesses,  particularly when  they are examined to depose  to   events  which   happened  long   before   their examination. Such  discrepancies  are  hardly  a  ground  to reject the  evidence of  the witnesses when there is general agreement and consistency in regard to the substratum of the prosecution case. [626H-627A]      In the instant case the occurrence took place on August 4, 1973,  while P.W. 2 and P.W. 3 were examined at the trial on  December  27,  1974  i.e.  seventeen  months  after  the incident. The  trial court  has rightly observed that P.W. 2 was  never  cross-examined  by  the  defence  regarding  his whereabouts and those of the deceased on the previous night.

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The mere  fact that  P.W. 2  did not  make any  purchase  at Amarkot could  hardly be  a reason to hold that his being in the company  of  the  deceased  at  the  material  time  was improbable. [626G, 627B]      4. P.W.  3 is  the brother  and P.W.  2 relation of the deceased. All  three were living together in the same hamlet in the fields. It is in the evidence of 617 these witnesses  that the  other  accused  are  partymen  of respondent No.  1. It  is further  in evidence that sometime before the  occurrence both  the deceased  and P.W.  2  were arrested and  handcuffed by  a police  Sub-Inspector on  the allegation that  they were  indulging in smuggling and would be liquidated.  It was,  therefore, not improbable that this trio consisting of first deceased, P.W. 2 and P.W. 3 were as usual moving about or carrying on their activities together. Moreover the  deceased must have known that Respondent No. 1 who was  inimically disposed  towards him  was at  large  on bail. This  was an  added   reason for  this troika  to move about for  their security,  if not for anything else, in the company of each other. [627C-F]      5. (i)  The High Court has not all dealt with the First Information Report  or the  promptitude with  which  it  was made. [628D]      (ii) The towering circumstance which lends assurance to the claim  of P.W.  2 that  he was  an  eye-witness  of  the occurrence is  that the  First Information Report was lodged by him  at the  Police  Station  so  promptly  that  he  had practically no  time to  spin out  a false story. The reason employed by  the High  Court for disbelieving the version of P.W. 2  regarding his  owning and  going on a motor cycle to the Police Station was manifestly unsound. The Sub-Inspector P.W. 13  was not  questioned  in  cross  examination  as  to whether or  not P.W.  2 had  come to the Police Station on a motor  cycle.   He  was,  however,  questioned  as  to  what transport he  had used  for going from the Police Station to the scene  of murders. The witness replied that he went on a motor cycle  upto Amarkot and from there went on foot to the scene of  occurrence. This  explanation of  P.W. 2 regarding the kacha  path from  Amarkot to  the scene  of  occurrence, being non-motorable  on  the  day  of  occurrence,  receives inferential support  from the fact appearing in the evidence of P.W.  13 that  he had  to cover  the distance  from  Adda Amarkot to  the place  of occurrence,  on foot. [627H, 629E, 628G-629A]      6. The  conduct of  the Investigation Officer (P.W. 13) indicates  that  he  was  not  favourably  disposed  to  the deceased and P.W. 2. A suggestion was also put to P.W. 13 by the Public  Prosecutor  that  he  had  been  unfair  in  the investigation of  the case  and tried  to favour the 3rd and 4th respondent.  The High  Court found  that the note in the zimini was a fraudulent insertion. This being the case, Sub- Inspector (P.W.  13) would  be least  disposed to join hands with P.W.  2 informant  in preparing  the First  Information Report, after deliberation with P.W. 2 at the spot. [629F-H]      7.  The   opinion  of   the  medical   witness  P.W.  1 corroborates the  version of P.W. 2 in as much as the latter has testified that the murders took place at about 3.30 p.m. This means  that the  statement of  P.W. 2 in the F.I.R. was made without  undue delay,  and,  as  such,  furnished  very valuable corroboration  of his testimony at the trial in all material particulars. [630B-C]      8. (i)  Both P.W.  2 and  P.W. 3  are  related  to  the deceased,  and  as  such  are  interested  witnesses.  Their antecedents, also,  are of  a questionable nature. But their

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antecedents or mere interestedness was not a valid ground to reject their  evidence. All that was necessary for the Court was to  scrutinise their  evidence with  more than  ordinary care and  circumspection with  reference to the part or role assigned to  each of the accused. An effort should have been made to  sift the  grain from  the  chaff;  to  accept  what appeared to be true and to reject the 618 rest. The  High Court  did not  adopt  this  methodology  in appreciating their  evidence. Instead  it took a shortcut to disposal and  rejected their evidence whole-sale against all the accused  for reasons  which  are  manifestly  untenable. [630E-G]      (ii)  Excepting   for  immaterial   discrepancies   the evidence of  P.W. 2  and P.W.  3 was  consistent  and  their presence at the time and place of murders was probable. Even so, as  a matter  of abundant caution it will be safe to act on their  interested evidence  to the  extent to  which some assurance is  coming forth from surrounding circumstances or other evidence. [630H-631A]      9. The prosecution has proved that the respondent No. 2 had also a motive to participate in the murder of the second deceased. This  lends assurance  to the  testimony of P.W. 2 and P.W.  3 and  strengthens the  inference of guilt against the  said   accused  also.  P.W.  2’s  consistent  testimony corroborated by  the F.I.R. was sufficient to establish this fact beyond doubt. [631H-632A]      10.  It   had  been   clearly  proved  that  two  fired cartridges were picked up from the scene of crime and sealed into parcels which were later deposited with seals intact in the Police  Station. On  the memo it is mentioned that these fired cartridges were of 303 bore rifle. [632H]      11. There was substance in the observation of the trial Judge that  the investigation  was biased  in favour  of the accused. If that was so, the failure of P.W. 13 to join with him respectables of the locality was by itself no ground for ruling out  the evidence  of the  discovery  of  the  rifle, altogether. The  partiality of  P.W. 13 towards the defence, rather assures  the genuineness  of the  discovery.  He  was least  disposed  to  ’collaborate’  or  cooperate  with  the relations of  the deceased  to procure  this rifle from some other source  and then foist it on respondent Mukhtar Singh. The omission  on the  part of  this Investigating Officer to join with  him some  independent persons  or respectables of the locality  to witness the recovery devalues that evidence but does not render it inadmissible. [634D-F, H]      12. The  circumstance of the recovery of the rifle (Ex. P. 7) and the opinion of the Ballistic Expert that the empty cartridge (C1)  had been  fired  through  the  rifle  though feeble it  might be-was  relevant and  furnished  a  further pointer  to  the  participation  of  Mukhtar  Singh  in  the commission of Hazara Singh’s murder by rifle-fire. [635B]      13. Although the investigation betrays a tilt in favour of the  accused, and  P.W. 13 made a fraudulent insertion in the zamini to help Joginder Singh accused, it cannot be said that the  version of P.W. 13, that when he went to the scene of murders  at 5.30  p.m. he found Joginder Singh irrigating his nearby fields at a distance of about 100 yards therefrom and he  interrogated him there and then but did not think it necessary to arrest him-is necessarily false. The absence of motive and  the presence of Joginder Singh near the scene of crime  shortly   after  the   murders,  engaged   in  normal agricultural  activities   does  cast   a  doubt  about  his participation in the commission of these murders. [635 F-G]      14. P.W.  2 and  P.W. 3  have stated  that they started

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running away  from  the  spot,  immediately  after  deceased Hazara Singh  was shot  dead. The surrounding circumstances, natural probabilities and the normal course of human conduct 619 also suggest  the same inference, that immediately on seeing Hazara Singh  being   shot down,  these witnesses  who  were following him ran fast for their lives. Had they tarried for a while  at the  scene of the murder, it would have been too late for  them to  escape unhurt.  In such a situation, when they were  being pursued  by persons  armed with  fire-arms, they could if at all they turned and looked behind have only a fleeting  glimpse in  the distance  of the  assailants  of Resham Singh  deceased. That  is why P.W.2 is not consistent in his  statements as  to which  of the accused had fired at him when  he was  running away for his life. Moreover it has not been  established that  any of  the six  accused had any motive, whatever  to murder  Resham Singh  deceased.  [635H- 636C]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 499 of 1976.      Appeal by  Special Leave  from the  Judgment and  Order dated 22-7-1975  of the  Punjab  &  Haryana  High  Court  in Criminal Appeal No. 166/75 and Murder Reference No. 10/75.      O.P. Sharma and M. S. Dhillon for the Appellant.      R.K. Jain for Respondents Nos. 1 and 3 to 6.      R.K. Kohli and R. C. Kohli for the complainant.      The Judgment of the Court was delivered by      SARKARIA, J.-  This appeal  by the  State of  Punjab is directed against  a judgment,  dated July  22, 1975,  of the High Court  of Punjab and Haryana, whereby the appeal of the respondents (hereinafter  referred to  as the  accused)  was accepted and they were acquitted of the double-murder charge against them. The prosecution story narrated by Resham Singh (P.W. 2),  who claims to be an eyewitness of the occurrence, runs as follows.      Resham Singh  (P.W.2) used to live with his brother-in- law, Hazara  Singh deceased,  in  a  hamlet  in  the  fields outside the  habitation of village Cheema. One Ajit Singh of village Dhual was murdered, and Wassan Singh accused and his party-men were  tried therefor.  At the  trial, Hazara Singh deceased appeared as an eyewitness of that murder. The trial court convicted  Wasson Singh  and his  companions  in  that case. They  went in  appeal to  the High  Court. Pending the appeal the High Court enlarged Wasson Singh accused on bail. The occurrence  now in  question in  the instant  case  took place when Wasson Singh was on bail.      The lands  of Avtar  Singh, Mukhtar Singh and Harbhajan Singh accused (respondents) adjoin the lands of Hazara Singh deceased. Three  or four  days  prior  to  the  incident  in question, the  cattle of these accused persons trespassed on the land  of Hazara  Singh  and  damaged  his  cotton  crop. Thereupon, a sharp altercation took place 620 between Hazara  Singh and  Resham  Singh  on  one  side  and Harbhajan Singh  and Mukhthar  Singh on  the  other.  Gajjan Singh son  of Gopal Singh resident of the village interceded and pacified  the parties. Joginder Singh accused respondent is the  brother of  Mukhtar Singh  accused respondent  while Harbhajan Singh  Respondent is  their first  cousin. Mukhtar Singh and Harbhajan Singh accused are alleged to be partyman of Wasson Singh.

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    On August  4, 1973  at about  3.30 p.m.,  Resham  Singh (P.W.2). Resham Singh (deceased) son of another Hazara Singh and Hazara  Singh deceased  were proceeding by the foot-path from the  Bus Stand  Amarkot to  their hamlet.  On  the  way Bachan  Singh,   brother  of  Hazara  Singh,  met  them  and proceeded along with them. When they reached near the fields of  Jarmaj  Singh  Sarpanch  of  Mahmoodpura,  all  the  six accused,  namely,  Wasson  Singh,  Baj  Singh,  Meja  Singh, Joginder Singh,  Mukhtar Singh  and Harbhajan  Singh emerged from the  sann crop and came to the bank of the watercourse. Baj Singh was armed with a pistol and the other five accused were armed  with rifles.  Wasson Singh,  Joginder Singh  and Mukhtar Singh  fired their rifles at Hazara Singh. The rifle shots hit  Hazara Singh on the left side of his head, and he dropped dead.  Resham Singh (P.W.2), Bachan Singh and Resham Singh deceased  started running towards the ploughed fields. Meja Singh,  Harbhajan Singh and Baj Singh chased them. Meja Singh and  Harbhajan Singh  encircled Resham  Singh deceased and shot  him dead with rifle-shots. Baj Singh chased Resham Singh (P.W.  2) and  Bachan Singh (P.W. 3) and fired at them with his pistol. When these two were running away, the other two accused  also fired  at them.  Resham Singh  and  Bachan Singh, however,  succeeded in  escaping unhurt. Resham Singh (P.W. 2)  immediately reached  the Bus Stand Amarkot, picked up his motor-cycle which was lying there at a shop and drove fast to  Police Station  Valtoha, where  he lodged the First Information  Report  (Ex.  PE)  at  4.30  p.m.  Police  Sub- Inspector Bishambar  Lal recorded the report of Resham Singh and sent  a copy  of the  same as  a special  report to  the superior officers,  including the Judicial Magistrate, First Class at  Patti, who received the copy of the F.I.R. at 6.30 p.m., on  the same  day. While  running away  from the  spot Resham Singh  (P.W. 2)  had left  behind his  shoe (Ex. P-1) near the scene of murders.      Sub-Inspector  Bashambar   Lal  reached  the  scene  of occurrence  at  5.30  p.m.  and  started  investigation.  He prepared the  inquest reports regarding the deaths of Hazara Singh and  Resham Singh  deceased persons. He also took into possession blood-stained earth 621 and other  relevant articles lying near the two dead-bodies. He found  two empty  cartridge cases  at the scene of Hazara Singh’s murder. He took them into possession and sealed them into a  parcel. He  also seized  two pairs of shoes lying at the spot.      After   his   arrest,   Mukhtar   Singh   accused   was interrogated by  the Investigating  Officer  on  August  31, 1973. After  making a  statement, Mukhtar  Singh accused, in the presence  of witnesses,  led the police to the discovery of the  rifle (Ex.  P-7) and some live cartridges. The rifle and the empty cartridges earlier found at the scene of crime were sent  to  the  ballistic  expert  for  examination  and opinion. After  examination, the  ballistic  expert  of  the Forensic Science  Laboratory, Chandigarh, reported (vide Ex. P. 9) that the 303 fired cartridge, marked C, had been fired through the  303 rifle  marked ‘A’  by him.  But no definite opinion could  be given  regarding the  linkage of the fired cartridge marked  C, with  the 303  rifle marked  ‘A’ due to lack of sufficient individual characteristic marks on C2.      Joginder Singh  accused was arrested on August 24, 1973 and Baj  Singh accused on December 18, 1973. The post mortem examination of  the dead-body  of Resham Singh was performed by Dr. Gursharan Kaur on August 5, 1973 at 8 a.m. The Doctor found five  gun-shot injuries on his body. Two of these were wounds of  entry, with  everted margins  on the  back of the

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left chest. No charring was present on any of these gun-shot wounds. The  death in  the opinion  of the Doctor was due to shock and  haemorrhage resulting  from gun-shot  injuries on the chest  which were  sufficient  to  cause  death  in  the ordinary course of nature.      On the  same day,  Dr.  Gursharan  Kaur  conducted  the autopsy on  the dead-body  of Hazara  Singh and  found  four fire-arm injuries, two of which were wounds of entry and two were wounds  of exit.  All these injuries were on the skull. They involved fracture of the skull and damage to the brain. These  injuries  had  been  caused  with  firearm  and  were sufficient to  cause death  instantaneously, in the ordinary course of nature.      At the  trial, the main-stay of the prosecution was the testimony of the two eye-witnesses, Resham Singh (P.W.2) and Bachan Singh (P.W.3).      Examined  under  Section  342,  Cr.P.C.,  Wasson  Singh accused admitted that he along with others was tried for the murder of  Ajit Singh  of village  Dhual  and  Hazara  Singh deceased had  appeared against  him as  eye-witness of  that murder; and  that he  (Wasson Singh)  was convicted  by  the Court of Session, but had been released on bail 622 pending his  appeal in the High Court. He denied the rest of the prosecution  case and  stated that  he had  been falsely implicated by  the  relations  of  Ajit  Singh  deceased  on suspicion; and that on the day of occurrence, he was working as a Conductor on a truck at Muzaffarnagar.      The plea  of Baj  Singh was  one of plain denial of the prosecution case.  He stated that his brothers Punjab Singh, Narinder Singh and Bagicha Singh had been prosecuted for the murder of one Puran Singh who was a relation of Bachan Singh (P.W.3); that Punjab Singh and his companions were acquitted in that case. Baj Singh added that he used to look after the defence of  the accused  in Puran  Singh’s murder  case; and that on  account of this, he had been falsely implicated. He further stated  that at  the  time  of  occurrence,  he  was residing in U.P.      Meja Singh  accused, also, denied the prosecution case. He stated  that one  Balkar Singh  of Village  Wan had  been murdered. He  (Meja Singh) used to look after the defence of Jarnail Singh  (his wife’s  brother, who was being tried for the murder  of Balkar  Singh; that  on account  of this, the relation of  the said  Balkar Singh  had, in connivance with the complainant party, falsely implicated him in the instant case. The  remaining accused, also, denied the circumstances appearing in evidence against them.      The learned  Additional Sessions  Judge, Amritsar,  who tried the case against these six accused persons, found that Wasson Singh  had a  strong motive  to murder  Hazara  Singh deceased, because  the latter had appeared as an eye-witness against Wasson  Singh in Ajit Singh’s murder case. The trial Judge further accepted the prosecution evidence in regard to the fact that a few days before this occurrence in question, there was  a: quarrel  between  Hazara  Singh  deceased  and Resham Singh  (P.W. 2)  on one  side and  Mukhtar Singh, and Harbhajan Singh accused on the other, when the cattle of the accused had  trespassed on  the land  of  the  deceased  and damaged his  cotton crop;  and that  on account of this ill- will, Joginder  Singh, Mukhtar  Singh  and  Harbhajan  Singh accused had  a sufficient  motive to  join hands with Wasson Singh accused  to murder  Hazara Singh  deceased. The  trial Judge further  found that  the  prosecution  had  failed  to establish the  exact nature  of the  motive which might have actuated Meja  Singh and  Baj Singh  to murder  Resham Singh

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deceased. The trial Judge further held that the F.I.R. which had been  lodged by  Resham Singh  with great promptitude at Police Station Valtoha, which was about three miles from the place of occurrence, furnished valuable corroboration of the evidence of Resham Singh (P.W. 2). 623 He accepted  the evidence  of Resham Singh and Bachan Singh. He further  found that Sub-Inspector Bishambar Lal had tried to favour  Joginder Singh  accused by  fabricating a note in his zimini  at some  subsequent stage.  This note  is to the effect, that Joginder Singh was, in fact, present irrigating his nearby  fields and he joined the police investigation on the very  day of occurrence and had remained with the police till the  investigation  by  the  Deputy  Superintendent  of Police. The trial Judge disbelieved the plea of alibi set up by  Meja  Singh  accused.  In  the  absence  of  independent evidence, the  trial Judge  was unable to hold from the bare testimony of  Bishamber Lal,  Sub-Inspector, that  the rifle (Ex. P-7) had been recovered from Mukhtar Singh accused. He, however, criticised  the conduct  of Sub-Inspector Bishamber Lal in not sending the empty cartridges found at the spot to the ballistic expert of the Forensic Laboratory, Chandigarh, with due  promptitude. In  the result,  the trial Judge held that Wasson  Singh, Joginder Singh and Mukhtar Singh accused had fired  their rifles  at Hazara  Singh deceased,  and had caused  his  death.  He  therefore,  convicted  these  three accused for the substantive offence under Section 302, Penal Code. He further held that the common object of the unlawful assembly constituted by the six accused was to murder Hazara Singh deceased.  He therefore, further convicted all the six accused under Section 302 read with Section 149, Penal Code, for the  murder of  Hazara Singh. The trial Judge found that the murder  of Resham  Singh did  not appear  to  have  been caused in  prosecution of  the common  object  of  the  said unlawful assembly.  He therefore,  convicted Baj Singh, Meja Singh and  Harbhajan Singh  accused only  under Section  302 read with  Section 34,  Penal Code, for the murder of Resham Singh deceased  and sentenced  each of  them to imprisonment for life  and a  fine of Rs. 200/-. In respect of the murder of Hazara  Singh, Wasson Singh was sentenced to death, while each  of   the  other   five  accused   were  sentenced   to imprisonment for life and a fine.      The trial Judge referred the case to the High Court for confirmation of  the death sentence of Wasson Singh. All the accused,  also   appealed  against   their  conviction   and sentences. The  High Court  allowed the appeal, declined the reference and  rejected the  evidence of  the eye-witnesses, Resham Singh  (P.W. 2)  and Bachan Singh (P.W. 3), for these reasons:      (i) Both  these witnesses  are closely  related to  the deceased Hazara  Singh, who  was the principal target of the accused.      (ii) (a)  Excepting in the case of Wasson Singh who had undoubtedly a  grudge against  Hazara Singh deceased, it has not been 624 satisfactory established  by the  prosecution that the other five accused  had  any  motive  to  commit  the  murders  in question.      (b) Gajjan  Singh, who  is said  to have interceded and pacified both the parties at the time of the alleged quarrel over cattle  trespass, three  or  four  days  prior  to  the occurrence, between Mukhtar Singh and Harbhajan Singh on one hand and  Hazara Singh deceased and Resham Singh (P.W. 2) on the other, has not been examined by the prosecution.

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    (c) There was no mention about this earlier incident in the statement  of Bachan  Singh (P.W.  3) before  the police during investigation.      (iii) Both  Resham Singh  and Bachan  Singh, P.Ws.  had earlier been  involved in cases of serious crime, and Bachan Singh was  admittedly registered as a bad character with the Police. On  account of  their antecedents,  Resham Singh and Bachan Singh do not appear to be reliable people.      (iv) The  prosecution story  is highly  unnatural.  The presence of  these two eye-witnesses along with the deceased persons was  unlikely. Had  these witnesses been with Hazara Singh deceased,  they would  have been  the target of attack after Hazara  Singh was killed and not Resham Singh deceased against whom the accused had no grudge.      (v) Hazara  Singh deceased,  Bachan  Singh  and  Resham Singh, P.Ws.,  all admittedly reside in the hamlet of Hazara Singh deceased,  and if they had to go to Amarkot for making purchases, they would have in all probability gone together. Bachan Singh’s  version, that he had gone to Amarkot to make enquiries regarding  the availability  of diesel  and on his return journey in the way, met and joined the company of his brother Hazara  Singh deceased,  and his companions, was not believable, because  there was  no need  for Bachan Singh to have gone  to Amarkot for the purchase of diesel as he could have asked Hazara Singh to make the necessary enquiries.      (vi) There is a material inconsistency in the testimony of the  two eye-witnesses  as to  when Hazara Singh deceased and Resham  Singh (P.W.  2) had  left their  behak (hamlet). From the statement of Resham Singh (P.W. 2), it appears that from their  behak they had gone to Amarkot that very day for purchasing cloth  and on  the return journey they met Bachan Singh. As  against this,  the story  told by Bachan Singh is that a  day earlier  Hazara Singh deceased and Resham Singh, P.W. had  left their  behak for some unknown destination and that a  day later  they had met him at the adda, after their departure from  the behak  the previous  day.  This  version completely belies  the version of Resham Singh (P.W. 2) that they had left their behak 625 in order to make purchases of cloth and other articles.      (vii) Another odd feature brought out from the evidence of Resham  Singh (P.W.  2) is the presence of motor-cycle at Amarkot on  that day.  It is surprising that he could afford to maintain  a motorcycle  from the  meagre income  that  he would  have  got  from  his  5  or  6  acres  of  land.  His explanation as to why he left the motor-cycle at Amarkot, is also not convincing.      (viii) The  investigation of  the case conducted by the Sub-Inspector Bishamber  Lal  (P.W.  13)  does  not  inspire confidence.      (a) The  evidence relating  to the  recovery  of  empty cartridges (vide  Ex. P.G.)  and pair of shoes from the spot near the  dead-body  of  Hazara  Singh,  was  not  reliable, because P.W.  13 did not mention about the presence of these articles in the inquest report (Ex. PDZ).      (b) Though  the empty (crime) cartridges recovered from the spot  were sent  to the  ballistic expert  earlier, they were returned  to the  Police Station  on the  plea that the test cartridges  had not been sent along with those empties. "Even if  it was  so, there was no need of sending the crime cartridges to  the Police  Station, as  the test  cartridges could be  sent  for  through  a  separate  letter.  In  this situation, the  suggestion that the crime cartridge had been later on  fired through rifle (Ex. P7) when it was recovered cannot be considered improbable".

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    (ix) "On  arrival at the scene of the incident, P.W. 13 found Joginder  Singh accused  at a  distance of  about  100 yards irrigating  his field.  According to Bishamber Lal, he interrogated Joginder  Singh there  and then,  but  did  not arrest him.  If Joginder  Singh accused  had been found near the scene  of the  crime within a short time, engaged in his normal activities,  his participation  in the crime would be highly improbable".      Learned counsel  for the  appellant vehemently contends that the  reasoning of the High Court is manifestly unsound, if not  wholly perverse. Great emphasis has been laid on the fact that  the First  Information Report,  in this  case was lodged by  Resham Singh  (PW 2) with utmost promptitude, and even its  copy had reached the Magistrate at about 6 or 6-30 p.m. at  Patti, on  the same  day. In  the First Information Report,  proceeds  the  argument,  all  the  material  facts including the names of the accused and of the witnesses have been mentioned  It is  submitted that  since this F.I.R. was made without  delay in  circumstances in which the informant had no  time to concoct a false story, it furnished valuable corroboration of  the evidence of Resham Singh (P.W. 2), and made his evidence safe enough to be 626 accepted. It  is further maintained that in the first place, the  prosecution   had  established   that  Mukhtar   Singh, Harbhajan Singh and Joginder Singh had also a motive to join hands with Wasson Singh to murder Hazara Singh deceased, and that even if it was held that such motive on the part of the companions  of   Wasson   Singh   accused   had   not   been substantiated-as the  High Court has held-then P.Ws. 2 and 3 had also  no motive  or animus  to falsely  implicate  them. Counsel have  criticised the  failure of  the High  Court to discuss the value and effect of the F.I.R. lodged by P.W. 2. It is  emphasised that  the circumstance that the F.I.R. was made  without   delay  was   a  circumstance   of  paramount importance  in   evaluating  Resham   Singh’s  evidence   in particular and  the prosecution  evidence in  general. It is argued that  the omission  on the  part of the High Court to deal  with   and  discuss  the  F.I.R.  has  caused  serious aberration in  its approach and vitiated its appreciation of the evidence of the eye-witnesses.      On the other hand, Shri R. K. Jain, learned counsel for the respondents,  has submitted that since the reasons given by the High Court in support of the acquittal of the accused cannot be called perverse, this Court should not, in keeping with its  practice, disturb  the acquittal  even if it feels inclined to  hold that the view of the evidence taken by the trial court  is also reasonable. Shri Jain has further tried to support the reasoning of the High Court.      We have  carefully considered the contentions canvassed on both sides. We are also not unmindful of the fact that we are dealing  with an appeal against an order of acquittal in a double-murder  case. Even  so, we  find that  the  reasons given by  the High Court for holding that Resham Singh (P.W. 2) was  not an  eye-witness of  these murders,  are  utterly unsustainable. The  mere fact that Resham Singh (P.W. 2) had succeeded  in   escaping   unhurt,   or   that   there   are discrepancies in the statements of Resham Singh (P.W. 2) and Bachan Singh  (P.W. 3),  as to  whether  they  had  gone  to Amarkot with  Hazara Singh  deceased  on  the  very  day  of occurrence or  a day  earlier, was  no ground for jumping to the conclusion  that P.W.  2 was  not in  the company of the deceased or  nearabout the  scene of  occurrence when Hazara Singh and Resham Singh were shot dead.      The occurrence  took place  on August  4,  1973,  While

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Resham Singh  (P.W.  2)  and  Bachan  Singh  (P.W.  3)  were examined at  the trial on December 27, 1974, that is to say, 17 months  after the  incident. Such discrepancies in regard to collateral or subsidiary facts or matters of detail occur even in  the statements  of truthful witnesses, particularly when they  are examined  to depose  to events which happened long before their examination. Such discrepancies are 627 hardly a ground to reject the evidence of the witnesses when there is  general agreement and consistency in regard to the substratum of  the prosecution  case. As rightly observed by the trial  court, Resham  Singh  (P.W.2)  was  never  cross- examined by  the defence  regarding his whereabouts and that of Hazara  Singh deceased  on the  previous night.  The mere fact that P.W. 2 did not make any purchases at Amarkot could hardly be  a reason to hold that his being in the company of Hazara Singh deceased at the material time, was improbable.      It is common ground that there was no love-lost between Wassan Singh  appellant and  Hazara Singh  deceased.  Wassan Singh, though convicted by the trial court for the murder of Ajit Singh,  was released  on bail by the High Court pending his appeal.  P.W. 3  is the brother and P.W. 2 a relation of the deceased.  All these  three were  living together in the same hamlet  in the  fields. It  is in the evidence of these witnesses that  the other  accused are  partymen  of  Wasson Singh. It  is further  in evidence  that sometime before the occurrence both  Hazara Singh and Resham Singh,(P.W. 2) were arrested  and  handcuffed  by  Darshan  Singh,  Police  Sub- Inspector on  the allegation  that they  were  indulging  in smuggling and  would be  liquidated. Both  of them  however, escaped and  appeared with  handcuffs on  before the  Deputy Home  Minister   and  complained  against  the  Police  Sub- Inspector. Both  were prosecuted  for smuggling betel leaves across the  border. It  was therefore,  not improbable  that this trio  consisting of  Hazara Singh  deceased, P.W. 2 and P.W. 3  was, as  usual, moving  about or  carrying on  their activities together.  Moreover, the  deceased  Hazara  Singh must have known that Wasson Singh accused who was inimically disposed towards  him, was  at large  on bail.  This was  an added reason  for  this  troika  to  move  about  for  their security, if  not for  anything else, in the company of each other.      Nor could  P.W. Bachan Singh’s presence at the scene of crime be discounted and his evidence discarded merely on the score that  there was  no necessity for him to go to Amarkot for enquiring about the availability of diesel.      There is  one towering  circumstance which  goes a long way to  lend assurance to the claim of P.W. 2 that he was an eye-witness of  the occurrence.  It is  that the F.I.R. (Ex. P.E.) was  lodged by  him  at  Police  Station  Valtoha,  so promptly that he had practically no time to spin out a false story. 628      The learned  trial Judge  has accepted, and rightly so, the sworn  testimony of  Resham  Singh  (P.W.  2)  and  Sub- Inspector Bishamber  Lal (P.W.  13), who  was  then  Station House Officer,  Valtoha, to the effect, that the F.I.R. (Ex. P.E.), was  recorded in  the Police  Station  at  4.30  p.m. Police  Station  Valtoha  is  three  miles  from  Bus  Stand Amarkot. According  to Resham  Singh,  the  occurrence  took place at  about 3.30 p.m. On seeing the occurrence and after eluding the  pursuit, Resham  Singh, as he says, ran to Adda Amarkot through  the fields covering a distance of about one kilometre. According to P.W. 2, his motor-cycle was lying at a shop  in Amarkot.  He picked up his motor-cycle from there

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and drove to the Police Station, Valtoha and without loss of time lodged the first information, there. The endorsement on Ex. PE, bears out that the copy of the First Information was in the  hands of Shri K. K. Garg, Judicial Magistrate, First Class, Patti,  at 6.30  p.m. This  circumstance assures  the truth of  the prosecution  evidence on  the point  that  the First Information  Report was  made by Resham Singh (P.W. 2) at the Police Station at 4.30 p.m., that is within two hours of the occurrence without undue delay. The learned Judges of the High  Court have not at all dealt with the F.I.R. or the promptitude with  which it  was made.  They  doubted  Resham Singh’s version  that from Amarkot he went on his own motor- cycle to  Valtoha Police  Station. The  argument employed by the High  Court is that Resham Singh owned only four or five killas of  land, and could not acquire and maintain a motor- cycle from  the income  of his  petty holding. However, this was not  the defence case. In cross-examination, the defence themselves, brought  out and  tried to establish that he was earning by  smuggling betel  or other  things  to  Pakistan. Thus, according  to the  own showing  of the defence, P.W. 2 had a  source of  income other than his agricultural income. It was,  therefore, nothing improbable if Resham Singh owned a motor-cycle.      Sub-Inspector  Bishamber   Lal  (P.W.   13)   was   not questioned in  cross-examination as to whether or not Resham Singh had  come to  the Police  Station on a motor-cycle. He (P.W. 13)  was however,  questioned as  to what transport he had used  for going  from the Police Station to the scene of murders. The  witness replied  that he went on a motor-cycle upto Amarkot  and from  there went  on foot  to the scene of occurrence. Resham  Singh stated  that since it had recently rained, the  kacha path  from Amarkot  to  their  hamlet  in village Ban, had became muddy and unsafe for riding a motor- cycle because  of the  high risk  of skidding. That was why, the witness  had left the motor-cycle at Adda Amarkot with a shopkeeper. 629 It may  be noted that the occurrence took place on August 4, 1973 when  the rainy  season would  be in  full swing.  This explanation of  Resham Singh  (P.W. 2)  regarding the  kacha path from  Amarkot to  the scene  of occurrence,  being non- motorable on  the day  of occurrence,  receives  inferential support from the fact appearing in the evidence of Bishamber Lal (P.W.  13), that  he had to cover the distance from Adda Amarkot to  the place  of occurrence,  on  foot.  Thus,  the reason employed  by the  High  Court  for  disbelieving  the version of  Resham Singh  (P.W. 2)  regarding his owning and going on  a  motor-cycle  from  Amarkot  to  Police  Station Valtoha was manifestly unsound.      It was  argued before  the trial court on behalf of the accused that  the occurrence might have taken place at about 2 p.m. when Resham Singh (P.W. 2) was about 400 or 500 yards away in  his hamlet,  and that on hearing the report of gun- fire he  was attracted  to the scene of crime, and he having seen the dead-bodies lying there, went home, took his motor- cycle and  then drove  to the  Police  Station  Valtoha  and brought  Sub-Inspector   Bishamber  Lal   to  the  scene  of occurrence and  the Sub-Inspector prepared the F.I.R. at the spot after  deliberation with  Resham Singh and others. This contention was  rightly rejected  by  the  trial  court.  As observed earlier,  since it  had rained  a day  prior to the occurrence, the  kacha path  from Amarkot  to the  scene  of occurrence and  to the hamlet of the deceased must have been muddy and slippery. Therefore, the very suggestion that from village Ban  to Amarkot  and thereafter  to Valtoha,  Resham

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Singh went on his motor-cycle, was improbable.      Moreover,  from   the  conduct   of  the  Investigating Officer,  Bishamber   Lal,  it   appears  that  he  was  not favourably disposed  towards the deceased and the informant. Indeed, a  suggestion was  put to Bishamber Lal (P.W. 13) by the Public  Prosecutor, that  he  has  been  unfair  in  the investigation of the case and tried to favour Joginder Singh and Meja  Singh accused.  The learned trial Judge found that the investigation  conducted by  Sub-Inspector Bishamber Lal was biased  in favour  of  Joginder  Singh  and  Meja  Singh accused  persons,  and  that  the  Sub-Inspector  fraudently interpolated a  note in  his zimini  to help  Joginder Singh accused. The  High Court  has, also, found that this note in the zimini  was a fraudulent insertion. This being the case, Sub-Inspector Bishamber  Lal would be least disposed to join hands with  Resham Singh  informant in  preparing the  First Information Report,  after deliberation  with him (P.W.2) at the spot. 630      Dr. Gursharan  Kaur (P.W.  1) who  performed the  post- mortem examination  of the  dead-bodies of  Resham Singh and Hazara Singh  on August  4, 1973  between 8  a.m. and 9 a.m. respectively, opined  that the  time which  elapsed  between these deaths  and their post-mortem examination was about 18 hours. Thus,  according to  the Doctor’s  opinion, also, the deaths took  place at  about 2  or 3 p.m. on August 4, 1973. The opinion  of the  medical witness  thus corroborated  the version of  Resham Singh  (P.W. 2)  in as much as the latter has testified that the murders took place at about 3.30 p.m. This means,  that the  statement of Resham Singh (P.W. 2) in the First  Information Report  was made without undue delay, and, as  such, furnished  very valuable corroboration of his testimony at the trial, in all material particular.      If the  presence of  Resham Singh  (P.W. 2)  and  Dalip Bachan Singh  (P.W. 3)  at the time and place of murders was probable the  further  question  would  be,  how  far  their evidence could  be  safely  accepted  against  each  of  the accused persons ?      It is true that both these witnesses are related to the deceased, and,  as such,  are  interested  witnesses.  Their antecedents, also,  are of  a questionable nature. But their antecedents or mere interestedness was not a valid ground to reject their evidence. Persons with such antecedents are not necessarily untruthful  witness. Nor  mere relationship with the  deceased   was  a  good  ground  for  discarding  their testimony, when,  as we have already held, their presence at the scene of occurrence was probable. All that was necessary was to  scrutinise their  evidence with  more than  ordinary care and  circumspection with  reference to the part or role assigned to  each or the accused. An effort should have been made to  sift the  grain from  the  chaff;  to  accept  what appeared to  be true  and to reject the rest. The High Court did  not   adopt  this  methodology  in  appreciating  their evidence. Instead,  it took  a short-cut  to  disposal,  and rejected their  evidence whole-sale against all the accused, for reasons  which, as  already  discussed,  are  manifestly untenable.      Keeping  the   principle  enunciated   above,  we  have scrutinised the  entire material  on record  with particular focus on  the evidence  of P.W.2  and P.W.3, against each of the  accused.   Excepting   the   immaterial   discrepancies considered earlier,  the evidence  of P.W.  2 and P.W. 3 was consistent, and  their presence as already mentioned, at the time and place of murders was probable. Even so, as a matter of abundant  caution, it  will  be  safe  to  act  on  their

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interested evidence 631 to the  extent to  which some assurance is coming forth from surrounding circumstances or other evidence.      The story  narrated by  the eye-witnesses, Resham Singh and Bachan  Singh is  that Wasson  Singh, Mukhtar  Singh and Joginder Singh first fired a volley of rifle shots at Hazara Singh deceased  as a  result of which he dropped dead at the spot. The  evidence of  the Doctor who performed the autopsy on the dead-body of Hazara Singh is to the effect that there were two  bullet wounds  of entry  on the  left side  of the head. These  wounds were located at a distance of 2-1/2 cms. from each  other. There  were two  corresponding  wounds  of exit. There  was no  blackening  or  charring  around  these wounds of  entry. This  indicates that  these injuries  were caused by  bullets  fired  almost  simultaneously  from  two separate rifles from a distance beyond 6 feet. This means at least the rifles fired by two of the three aforesaid accused did find  their mark,  causing instantaneous  death  of  the deceased. Now, both the courts below have concurrently found that Wasson Singh had a strong motive to murder Hazara Singh deceased. This  circumstance, by  itself, is  sufficient  to lend the necessary assurance to the evidence of Resham Singh (P.W. 2)  and Bachan Singh (P.W. 3) and make it a safe basis for convicting Wasson Singh accused for the murder of Hazara Singh.      The trial  court had  accepted the  evidence of  Resham Singh (P.W.2)  in regard to the quarrel over cattle trespass that took  place 3  or 4 days prior to these murders between Mukhtar Singh  and Harbhajan  Singh accused on one side, and Hazara Singh  deceased and  P.W. 2  on the other. This story finds particular  mention in  the F.I.R.  (Ex. PE) which was lodged by  P.W. 2  without undue  delay. The  High Court has rejected this  story about  this  previous  quarrel  on  the three-fold ground,  namely: (a)  Gajjan Singh who interceded and pacified  the parties  has not  been  examined,  (b)  No evidence of  the extent of damage done to the crop or of any complaint made  to village  Panchayat has been produced, (c) Bachan Singh  (P.W.3), did  not mention  about this  earlier incident in  his police  statement. In  our opinion, none of these was  a valid  ground for  rejecting  the  evidence  of Resham Singh  (P.W.2) in  regard to  this  incident.  Resham Singh’s consistent  testimony on  this point corroborated by the F.I.R.  (Ex. PE)  was sufficient  to establish this fact beyond doubt.  Thus, it  was proved  by the prosecution that Mukhtar Singh accused had also a motive to join Wasson Singh accused in  killing  Hazara  Singh.  The  circumstance  that Mukhtar Singh had also a motive to participate in the murder of Hazar Singh deceased lends assurance to the 632 testimony of  Resham Singh (P.W.2) and Bachan Singh (P.W.3), and strengthens  the inference  of guilt  against  the  said accused, also.      It is  in the  evidence of  Sub-Inspector Bishamber Lal (P.W.13) that  Mukhtar Singh was arrested on August 18, 1973 and on  August 31,  1973 Mukhtar Singh accused, whilst under Police custody,  made a disclosure statement in the presence of Ajit  Singh and Sardul Singh Constables, that he had kept concealed a  303 rifle  with 5 cartridges wrapped in a piece on cloth  in a bundle of reeds lying inside the courtyard of his house  at village  Thathiwala and  he could get the same discovered. P.  W. 13  recorded that  statement (Ex.  P  1). Thereafter, the  accused was  taken  to  village  Thathiwala where he  led the  Sub-Inspector in  the presence  of Sardul Singh and  Ajit Singh  Constables, to  that bundle  and  got

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discovered the  rifle (Ex. P7) and the cartridges (Ex. P8 to 12) therefrom.  The Sub-Inspector prepared the sketch of the rifle and  the memo  (Ex. PM)  which  was  attested  by  the aforesaid Constables.  The rifle  and  the  cartridges  were sealed  into   parcels  and  were  thereafter  sent  through Constable Ajit  Singh, with  seals  intact,  to  the  Police Station where  they  were  received  by  the  Moharrir  Head Constable Natha Singh (P.W. 10).      P.W. 13  has also, stated that he had on August 4, 1973 on  inspecting   the  scene  of  murders,  found  two  empty cartridges (Ex.P3  and Ex.  P4) from  near the  dead-body of Hazara Singh.  The witness  took them  into  possession  and sealed them into a parcel in the presence of Anokh Singh and Gajjan Singh  witnesses, and prepared the memo (Ex. PG). The parcel containing  the empties  was later  deposited by  the Sub-Inspector, with  seals in  tact, in  the Malkhana of the Police Station.      The  evidence  of  Sub-Inspector  Bishamber  Lal,  with regard to  the seizure  of the empty (crime) cartridges from the scene  of occurrence on August 4, was supported by Anokh Singh (P.W.4)  who is  an attesting  witness  of  the  memo, Ex.PG. The  witness is  a resident  of  village  Cheema.  In cross-examination,  he   revealed  that   these  two   fired cartridges were  lying at  a distance  of 1.5 karams (8 or 9 feet) from  the  dead-body  of  Hazara  Singh.  Nothing  was brought out  in cross-examination  to show  that the witness was in  any way interested in the prosecution or was related to the deceased or had any animus against the accused. Thus, it has  been clearly  proved that  two fired cartridges were picked up  from the  scene of  crime and sealed into parcels which were  later deposited  with seals intact in the Police Station. In  the memo  (Ex. PG),  it is mentioned that these fired cartridges were of 303 bore rifle. 633      Ajit Singh  Moharrir Head  Constable (P.W.11)  swore in his affidavit that on August 4, 1973, he received the sealed parcel of  2 empty  cartridges from  Sub-Inspector Bishamber Lal. The  seals on the parcel remained intact so long as the parcel remained in his custody.      Then, there are the affidavits of Avtar Singh Constable (P.W. 9) and Natha Singh Moharir Head Constable showing that on September  24, 1973,  the sealed  parcels containing  the rifle (Ex.  P7) and  the  five  live  cartridges  were  sent through  P.W.   9  to   the  Forensic   Science   Laboratory Chandigarh, who  delivered the  same in  the said Laboratory with seals intact.      The evidence  of P.W. 13 regarding the discovery of the rifle  (Ex.   P7)  from  Mukhtar  Singh  accused  was  fully corroborated by Constable Sardul Singh (P.W. 12). His cross- examination reveals  that Mukhtar  Singh was interrogated in the Police  Station at  4-5 A.M.  when he made the statement (Ex. PL),  leading to  the discovery  of the rifle (Ex. P7). Sub-Inspector Bishamber  Lal (P.W.  13) has  stated that the sealed parcel containing the empty cartridges, that had been found at  the scene  of crime,  was  sent  to  the  Forensic Science Laboratory Chandigarh at a date earlier than the one on which  the parcel  containing the  rifle (Ex. P7) and the five live cartridges was sent to the said Laboratory, but it was returned  with the  objection that  it should  have been sent along  with the  test  cartridges.  Consequently,  this parcel containing the empties was again sent to the Forensic Laboratory along with the sealed parcel containing the rifle (Ex. P7)  and the  live cartridges  recovered  from  Mukhtar Singh accused.      In the  Report (Ex.  PQ) of the Ballistic Expert (L. A.

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Kumar) which  was tendered  in evidence and admitted without objection, it  is opined  that the  empty (crime) cartridge, marked C1, had been fired through the rifle (Ex. P7).      In cross-examination, the defence suggested to P.W. 13, that he  had purposely  recalled the  parcel containing  the empty cartridges  from the  Forensic Science  Laboratory for creating evidence  against the  accused and  he  did  so  by firing one cartridge through the rifle (Ex. P7). The oblique suggestion was  that the  cartridge, marked  C1 which in the opinion of  the Ballistic  Expert had been fired through the rifle (Ex.  P7)  was  substituted  for  the  original  empty cartridge that  had been  found at  the scene of murder. The Sub-Inspector emphatically  denied the  suggestion.  It  was further suggested to P.W. 13 that the rifle (Ex. P7) had, in fact, been handed over to the Police by the relations of the deceased after  procuring it from some source. This was also stoutly denied by P.W. 13. 634      The  learned   trial  Judge   discarded  this  evidence relating to  the discovery  of the  rifle (Ex.  P7)  at  the instance of  the accused, Mukhtar Singh, for the reason that Sub-Inspector Bishamber  Lal, for no good reason, had failed to  join   respectables  of  the  locality  to  witness  the discovery of  the rifle, and that he (P.W. 13) "has tried to be a defence witness rather than the investigating officer". The trial  Judge accepted  Anokh Singh’s statement regarding the recovery  of the  two fired cartridges from the scene of Hazara  Singh’s   murder  on  August  4,  but  he  adversely commented on  the conduct  of Bishamber  Lal in delaying the despatch of  those crime  cartridges to the Forensic Science Laboratory Chandigarh  till after the recovery of the rifle. He observed:  "In all  probability, Sub-Inspector  Bishamber Lal wanted  to help  the accused  by creating suspicion with respect to  the identity  of the firing impressions" (on the empties). For this reason, according to the trial Judge, the ballistic evidence  "will not  be corroborative evidence for the prosecution."      We agree  with the  trial Court  that the investigating officer did  not deliberately  join with him respectables of the locality  to attest  the statements  (Ex.  PL)  made  by Mukhtar Singh,  and to  witness the sub-sequent discovery of the rifle  (Ex. P7)  at the instance of Mukhtar Singh. There was substance in the observation of the trial Judge that the investigation was  biased in  favour of the accused. If that was so,  the failure of Bishamber Lal (P.W. 13) to join with him respectables  of the  locality was, by itself, no ground for ruling  out the  evidence of the discovery of the rifle, altogether. The  partiality of  Bishamber  Lal  towards  the defence, rather  assures the genuineness of the discovery He was least  disposed to ’collaborate’ or ’cooperate’ with the relations of  the deceased  to procure  this rifle  (Ex. P7) from some  other source  and then foist it on Mukhtar Singh. For the  same reason,  it is  not possible  to hold  that he recalled the  sealed parcel  containing  the  fired  (crime) cartridges  from   the   Laboratory   at   Chandigarh,   for substituting a cartridge fired through the rifle (Ex. P7) or for fabricating  evidence in  support  of  the  prosecution. Moreover, the  parcel containing  the two  empties must have been returned  by the Director of the Forensic Laboratory on his own  initiative and  not at  the instance  of  the  Sub- Inspector (P.W. 13).      The omission  on the part of this investigating officer to join with him some independent persons or respectables of the locality  to witness the recovery devalues that evidence but does  not render  it inadmissible. Although a suggestion

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of "planting" the rifle, and fabricating the evidence of the empty cartridge  (C1) was put to Sub-Inspector Bishamber Lal in cross-examination, no such allegation was 635 made, nor  any such plea was set up by Mukhtar Singh accused when the  evidence relating  to  the  recovery  of  the  two empties from  the spot,  the discovery of the rifle (Ex. P7) at his  instance and  the opinion  (Ex. PQ) of the Ballistic Expert was  put to  this accused  in his  examination  under Section 342,  Cr. P.C.  The circumstance  of the recovery of the rifle  (Ex. P7)  and the opinion of the Ballistic Expert that the  empty cartridge (marked C1) (found on August 4, at the scene  of murder)  had been fired through the rifle (Ex. P7),- though feeble it might be-was relevant and furnished a further pointer to the participation of Mukhtar Singh in the commission of Hazara Singh’s murder by rifle-fire.      In sum, sufficient assurance of the testimony of P.W. 2 and P.W.  3, was  available from the circumstantial evidence discussed above, regarding the participation of Wasson Singh and Mukhtar Singh accused in the murder of Hazara Singh. The evidence of  the eyewitnesses  therefore,  could  safely  be acted upon  for convicting  Wasson Singh  and Mukhtar  Singh accused-respondents for the murder of Hazara Singh.      But  such   assurance  of   the   evidence   of   these eyewitnesses was not available against the remaining accused regarding either  of the murders in question. Joginder Singh accused admittedly  was not  present when  the quarrel  over cattle trespass took place between Hazara Singh deceased and P.W. 2  on one  side, and  Mukhtar Singh and Harbhajan Singh accused on the other. It has neither been alleged nor proved that Joginder  Singh had  any motive  of his  own to  murder Hazara Singh deceased. Although, the investigation betrays a tilt in favour of the accused, and P.W. 13 made a fraudulent insertion in  the zimini  to help Joginder Singh accused, it cannot be  said that  the version  of P.W. 13 to the effect- that when  he went  to the scene of murders at 5.30 P.M., he found Joginder  Singh irrigating  his  nearby  fields  at  a distance of  about 100  yards therefrom  and  he  (P.W.  13) interrogated him  there and  then,  but  did  not  think  it necessary to  arrest him,-is  necessarily false. The absence of motive, and the presence of Joginder Singh near the scene of crime  shortly  after  the  murders,  engaged  in  normal agricultural  activities   does  cast   a  doubt  about  his participation in the commission of these murders.      P.W. 2 and P.W. 3 have stated that they started running away from  the spot, immediately after Hazara Singh was shot dead. The  surrounding circumstances,  natural probabilities and the normal course of human conduct also suggest the same inference, that 636 immediately on  seeing Hazara  Singh being  shot down, these witnesses who  were following  Hazara Singh,  ran  fast  for their lives.  Had they  tarried for  a while at the scene of Hazara Singh’s  murder, it would have been too late for them to escape  unhurt. In such a situation, when they were being pursued by  persons armed  with fire-arms, they could, if at all they  turned and  looked behind  have  only  a  fleeting glimpse in  the distance  of the  assailants of Resham Singh deceased. That  is why, Resham (P.W. 2) is not consistent in his statements  as to  which of the accused had fired at him when he  was running away for his life. Moreover, it has not been established that any of the six accused had any motive, whatever, to murder Resham Singh deceased.      For the  foregoing reasons, we partly allow this appeal by the  State, set  aside the  acquittal of Wassan Singh and

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Mukhtar Singh  accused (respondents)  and convict them under Section 302  read with Section 34, Penal Code for the murder of Hazara  Singh deceased  and  sentence  each  of  them  to imprisonment for life. We would, however, accord the benefit of doubt  to the  rest  of  the  accused  (respondents)  and maintain their acquittal on all the counts. Wasson Singh and Mukhtar Singh  shall surrender  to their bail-bonds to serve out the sentences inflicted on them. N.V.K.                                Appeal partly allowed. 637