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PETITIONER: TORI SINGH

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 12/09/1961

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1962 AIR  399            1962 SCR  (3) 589

ACT: Criminal   Trial-Sketch   Map-Marks  placed  on   basis   of statements  of witnesses to  sub-Inspector-Admissibility  of Code of Criminal Procedure, 1898. (V of 1898), s. 162. Murder-Sentence-Son   killing  at  instigation   of   father Sentence of death, if inappropriate.

HEADNOTE: The deceased was going to his field and passed by a platform on  which  T  and his father B were sitting,  T  carrying  a pistol with him.  As he passed by the platform B  instigated T  to shoot the deceased down and T shot him.  T and B  were tried for the murder and were convicted on the basis of  the testimony  of  eye witnesses and the  dying  declaration  of -’the  deceased.  B was sentenced to imprisonment  for  life and T was sentenced to death.  The appellant contended  that if the deceased was at the spot marked by the  Sub-Inspector on the sketch map he could not have received the injuries as stated by the eye witnesses.  It was further urged that  the sentence of T should be reduced to imprisonment for life  as he had acted under the influence of his father. Held,  that,  the marks made on the sketch map by  the  Sub- Inspector on the basis of statements made by witness" to him were  inadmissible under s. 162 Code of  Criminal  Procedure and  the appellant could not use them to found any  argument as  to  the improbability of the deceased being hit  in  the manner  stated  by the witnesses if he was standing  at  the spot marked on the sketch map, 581 Bhagirathi Chowdhury v. King Emperor, A.I.R. 1926 Cal.  550, Ibra Akanda v. Emperor, A.I.R. 1944 Cal. 339 and Santa Singh v. The State of Punjab, A.I.R. 1956 S. C. 526,referred to. Held,  further, that there was no reason to  interfere  with the sentence of death passed on T. T was a mature man of  25 and  he  was  sitting armed with a pistol  along  with  his father obviously having planned the murder with his  father. though  he shot at the instigation of his father,  he  could not  be  considered  a  young  boy  in  his  teens  who  was completely under the influence of his father.

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal- No. 38 of 1961. Appeal  by special leave from the judgment and  order  dated October  28,  1960 of the Allahabad High Court  in  Criminal Appeals  Nos. 1310 and 1389 of 1960 and Referred No.  80  of 60. C.   B. Agarwala and K. P. Gupta, for the appellants. G.   C. Mathur and C. P. Lal, for the respondent. 1961.   September  12.   The  Judgment  of  the  Court   was delivered by WANCHOO,  J.-This is an appeal by special leave against  the judgment  of the Allahabad High Court.  The  appellants  are father  and son and live in village Patrasi.   The  deceased Sohanlal also lived in the same village.  He is said to have been murdered on the morning of December 2, 1959, after sun- rise.   About two years before the incident one  Sunder  had filed  a criminal case against the deceased.  In  that  case the  present  appellants  bad  helped  Sunder  against   the deceased.   The deceased was acquitted.  One Chetram  was  a witness  for  the deceased, in that case.   Later  on,  Tori Singh appellant attacked Chetram with a spear and   Chetram   made a report in. that connection against Tori Singh.  Sohanlal was  helping him in that matter, and in,  consequence  there was  enmity between Tori Singh and his father  Budhi  Singh, appellants, and the deceased. 582 It  is  said that on the morning of December  2,  1959,  the deceased  was  going to the fields outside  the  village  in order to ease himself.  He passed by, a platform which is on a cross-road in the village.  The appellants were sitting on the platform, Tori Singh carrying a pistol with him.  As the deceased passed by the platform, Budhi Singh instigated Tori Singh  to  shoot  him  down.Thereupon  Tori  Singh   shotgun Sohanlal who was hit in the lumbar region. Sohanlal then ran towards  his  house  while the two  appellants  fled  away. Sohanlal was thereafter taken to the police station where he made  a  report  against the appellants.   He  also  made  a statement  before  the investigating officer and  his  dying declaration was recorded by a magistrate.  Sohanlal died  on December  3,  1959.   The appellants  had  absconded  during investigation.  They were prosecuted after their arrest. The  appellants  did not dispute that there, was  bad  blood between  them and the deceased but their case was that  they were not responsible for this murder and had nothing to  do with it. The  main evidence against the appellants consisted  of  the statements  of  four witnesses, namely,  Babunath,  Chhannu, It warm and Khamani, and the dying declarations made by  the deceased  before his death.  The Additional  Sessions  Judge who  tried  the  case relied on the  evidence  of  Babunath, Itwari  and Khamani and on the dying declarations ;  he  did not,  however, place reliance on the statement  of  Chhannu. He found the two appellants guilty under s. 302 read with s. 34  of  the Indian Penal Code and sentenced  Tori  Singh  to death  as be was the man who had shot at Sohanlal and  Budhi Singh to imprisonment for life. There  were  two  appeals to the High.   Court  by  the  two appellants  and the learned Judge also made a reference  for confirmation  of the sentence of death.  A  suggestion  ’was made  during’  the  course of trial  that  one  Chhiddu  was responsible for                             583 the  murder,  particularly  as he was said to  have  made  a

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confession.   Chhiddu  was, however, ’not  examined  by  the trial court.  The High Court, therefore, in the interest  of justice,  examined  Chhiddu  and  took  his  statement  into consideration alongwith the prosecution evidence in order to judge  the guilt of the appellants.  The High  Court  agreed with  the  trial  court in  its  conclusion  that  Babunath, Khamani  and  Itwari were credible  witnesses  and  reliance could  be  placed  on the dying  declarations  made  by  the deceased.  It further accepted the evidence of Chhannu which had not been relied upon by the trial court.  It  considered the evidence of Chhiddu and was of opinion that evidence was false.  It therefore dismissed the appeals and confirmed the sentence’ of death passed on Tori Singh after making  slight modification  in  the sections under which  the  convictions were recorded.  The application of the appellants for  leave to appeal having been dismissed, they obtained special leave from  this  Court ; and that is how the matter has  come  up before us. The  main point urged on behalf of the appellants before  us is  that if one looks at the sketch map Ex.  Ka-9  on  which the  place  where the deceased is said to have been  hit  is marked   and  compares  it  with  the  statements   of   the prosecution witnesses and the medical evidence, it would  be extremely  improbable for the injury which was  received  by the  deceased to have been caused on that part of  the  body where  it has been actually caused, if the deceased  was  at the  place marked on the map.  It has also been  urged  that according to the medical evidence, the wound of exit was  at a  higher  level than the wound of entry  showing  that  the bullet  hit obliquely and that it was  extremely  improbable that  the bullet should have passed from down below  upwards through  the  body,  Considering that Tori Singh  was  on  a platform and thus at a higher level than the deceased. 584 We  are of opinion that neither of these arguments  has  any force.   Let us first take the contention that it  was  most unlikely that the deceased would be hit on that part of  the body  where the injury was actually received by him,  if  he was  at the spot marked in Ex.  Ka-9.  The validity of  this argument depends mainly on the spot which has been marked on the  sketch-map  Ex.  Ka-9 as the place where  the  deceased received  his injuries.  In the first place, the map  itself is  not to scale but is merely a rough sketch and  therefore one  cannot postulate that the spot marked on the map is  in exact  relation to the platform.  In the second  place,  the mark on the sketch-map was put by the Sub-inspector who  was obviously not an eyewitness. to the incident.  He could only have  put  it there after taking the statements of  the  eye witnesses.   The  marking of the spot on the  sketch-map  is really  bringing  on  record the conclusion  of  ’.the  Sub- inspector  on  the  basis  of the  statements  made  by  the witnesses  to  him.   This  in  our  opinion  would  not  be admissible  in view of the provisions of s. 162 of the  Code of  Criminal Procedure., for it is in effect  nothing  more, than  the  statement  of  the  Subinspector  that  the  eye- witnesses  told him that the deceased was at such  and  such place at the time when he was hit.  The sketch-map would  be admissible so far as it indicates all that the Sub-inspector saw  himself at the spot; but any mark put on  the  sketch.. map  based  on the statements made by the witnesses  to  the Sub-inspector  would be inadmissible. in view of  the  clear provisions of s. 162 of the Code of Criminal Procedure as it will  be no more than a statement made to the police  during investigation.    We  may  in  this  connection   refer   to Bhagirathi  Chowdhury v. King Emperor,(1), where it was  ob-

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served  that  placing of maps before  the  jury.  containing statements  of witnesses or of information received  by  the investigating officer preparing the map from ’Other  persons was improper, and that the (1)  A. I. R. 1926 Cal. 550. 585 investigating  officer  who made a map in  a  criminal  case ought  not  to  pat  anything more than  what  he  had  seen himself.  The same view was expressed by the ’Calcutta  High Court  again in, [bra A kanda v. Emperor (1), where  if  was held  that  any information derived  from  witnesses  during police  investigation,  and recorded in the index to  a  map must  be  proved by the witnesses concerned and not  by  the investigating  officer,  and  that if  such  information  is sought  to be proved by the evidence of the  investigating officer,  it would manifestly offend against s. 162  of  the Code of Criminal Procedure. This  Court had occasion to consider the admissibility of  a plan   drawn  to  scale  by  a  draftsman  in  which   after ascertaining from the witnesses where exactly the assailants and  the  victims  stood at the time of  the  commission  of offence,  the draftsman put down the places in the  map,  in Santa  Singh v. The‘ State of Punjab (2).  It Was hold  that such  a  plan drawn to scale was admissible if  the  witness corroborated the statement of the draftsman that they showed him  the places ’and would not be hit by s. 162 of the  Code of Criminal Procedure. In. that raw there was another sketch prepared  by  the  Sub-inspector  which  was  ruled  out  as inadmissible  under s. 162.  The sketch-map in  the  present case has been prepared by the.’ Sub-inspector and the  place where  the  deceased was hit and also the places  where  the witnesses were at the time of the. incident were,  obviously marked  by  him on the map on, the basis of  the  statements made  to him by the witnesses.  In the  circumstances  these marks  on the map based on the statements  made to  the Sub- iuspector  are  inadmissible  under s. 162 of  the  Code  of criminal Procedure and cannot be used to found any  argument as  to the improbability of the deceased being hit  on  that part  of the body where be was actually injured, if  he  was standing at the spot marked on the- sketch-map. (1)  A. X. P.      944  Cal. 939. (2) A. I. R.   C. 526. 586 We  have however still to examine the argument on behalf  of the  appellants  that’ it was extremely  unlikely  that  the deceased  would.  have been hit on that part of  the body, leaving out of account the sketch-map and spots marked on it by the Sub-inspector.  The argument is that the evidence  of the   witnesses  was  that  the  deceased  was   facing   or going  to  wards east when be was hit and therefore  it  was most unlikely that he would, be hit on the left side of  the lumbar’ region where he was actually hit.  There is no doubt that  if the deceased was towards the west or north-west  of the  platform when he was hit, the chances of his being  bit on the left side of the lumbar region would be very  slight; but  if he was to the east or north-east of the platform  it would  only be a matter of chance if he was hit on the  left side  of  the lumbar region or on the right side,  ’and  the argument,  would lose all force if he was  slightly  towards the  east or north-east of the platform.  Let  us  therefore look  at the evidence of the witnesses in  this  connection. Babunath stated that the deceased’ was at a distance of 5 or 6  paces from the platform towards the east and  was  facing towards  the  east while the appellants were  towards the’ west  of  Sohanlal.  If that is so it is only  a  matter  of

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chance whether the deceased would be hit on the left side of the lumbar region or the right side. Chhannu stated that the deceased  had passed the platform and had gone 5 or 6  paces beyond when he was shot and that he was towards the east  at the time The sketch-map shows that there was a pond  towards the east and’ the deceased was obviously going towards that pond.   The  evidence of Chhannu therefore  shows  that  the deceased  was in all probability towards north-east  of  the platform when the shot.,was fired and if so be could have’ been  on  either side of the number region.   Itwari  stated that the deceased was going the platform and was hit when he had  gone  some: distance beyond the platform.  He  did  not which way  the deceased 587 was  going  whether north or east.  His  evidence  therefore cannot be used to show that the deceased could not have been struck  on  the  left side of the  lumbar  region.   Khamani stated  that the deceased bad gone 5 or 6 paces  beyond  the platform and was towards the east of the assailant.  If that is  so  there would be nothing improbable if  the  shot  hit towards  the  left  side of the lumbar  region.   There’  is nothing  therefore  in the evidence of the  witnesses  which would show that it was next to impossible for the shot fired from the platform to have bit the deceased on the left  side of the lumbar region.  The whole argument on this aspect  of the  matter therefore based as it was on the spot marked  on the map must fail, for the evidence of the witnesses  which we  have noticed above, does not show that the  position  of the deceased was such that he could not have been hit on the left side of the lumbar region. The other contention in this connection is that the  medical evidence  shows that the wound of exit was higher  than  the wound  of  entry, and this means that the bullet  must  have traveled  from  down below upwards.  The witnesses  are  not quite  consistent as to whether the shot was fired  by  Tori Singh while he was sitting on the platform or while he stood on the platform or after he got down from the platform.  The High  Court has accepted that the shot was fired while  Tori Singh  was sitting on the, platform and therefore  according to  the  High Court the chances were that the  bullet  would travcl upwards through the body.  But apart from this,  the medical  evidence  is  not that the  bullet  traveled  in  a straightline through the body.  If the medical evidence  bad been that the bullet travelled in a straightline through the body from the wound of entry to the wound of exit, it  might have been said that the course of the bullet was from  down below upwards.  However, the evidence of the doctor is  that the movement of the bullet through the body was very zigzag. Therefore, it cannot be said that                             588 the  shot  must necessarily have been fired  from’  a  lower position than where it hit the body of the’ deceased.   This is  apart from the fact that the course of a bullet  may  be deflected  on  entering the body because of  the  resistance from  tissues and more particularly from bones if  it  meets any bone on the way.  Therefore the position from which  the shot  was  fired cannot be said to have much  importance  in this  case and the discrepancies which have been noticed  by the High Court would not in our opinion affect the value  of the evidence given by the witnesses. It  was also urged that the witnesses should not  have  been believed because they were partisan or chance witnesses;  in particular it was stressed that the High Court has not given convincing  reasons for believing Chhannu who had  not  been relied upon by the trial court.  Leaving out the evidence of

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Chhannu, we have still the evidence of three other witnesses belonging  to  this very village who gave reasons  why  they were. present near the spot though they live some  distance away.   These  three witnesses. have been  believed  by  the trial  court  as  well as by the High Court and  we  see  no reason  to disagree with the estimate of their  evidence  by the  two courts; nor (lo we see any reason to disagree  with the  estimate  by the two courts of the value of  the  dying declarations in this case. As  for the evidence of Chhiddu, we agree with the  estimate of  the High Court that he being A cousin of Tori Singh  was prevailed upon to make a confession.  He could do so  almost with impunity, because the, prosecution case definitely  was that the assailants were only the two appellants and no  one else.   The  only  evidence that. was referred  to  in  this connection  is the statement of the deceased, in  the  dying declaration  that Chhiddu was a cousin of Tori  Singh  (vide Ex.  Ka-8).It is not clear why the deceased said so; but  in any  case it cannot be inferred from this that the  deceased was naming him because he was the man who had shot him.  589 In the circumstances when both the courts have accepted  the evidence  of  three  of the eye-  witnesses  and  the  dying declarations   there  is  in  our  opinion  no-:cause for interference  with their conclusion that the  incident  took place  in  the  manner  alleged  by  the  prosecution.   The conviction of the appellants must therefore be upheld. Lastly,  it  was urged that we might consider  reducing  the sentence  of  Tori  Singh to imprisonment for  life  on  the ground  that he acted as he- did under the influence of  his father.   There  is  no doubt that Tori Singh  shot  at  the deceased  at  the  instigation of his father; but  he  is  a mature man of 25 and the evidence shows that he was  sitting with the pistol along with his father.  Obviously  therefore \murder  must have been planned between the father  and  the son,  as  they were apparently expecting that  the  deceased would   pass  that  way  in  connection  with  his   morning ablutions.   Tori Singh cannot be considered to be  a  young boy in his teens who would be completely under the influence of his father, and in the circumstances we see no reason  to interfere "With the sentence of death passed on him by  the. trial  court and confirmed by the High Court.   ’The  appeal fails and is hereby dismissed. Appeal dismissed. 590