N 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 16675 and Murder Reference No 1075
OP Sharma and M section Dhillon for the Appellant
RK Jain for Respondents Nos 1 and 3 to 6
RK 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 PW 2 who claims to be an eyewitness of the occurrence runs as follows
Resham Singh PW2 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
On August 4 1973 at about 330 pm Resham Singh PW2
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 PW2 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 PW 2 and Bachan Singh PW 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 PW 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 exhibit PE at 430 pm
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 FIR at 630 pm on the same day
While running away from the spot Resham Singh PW 2 had left behind his shoe exhibit P 1 near the scene of murders
Sub Inspector Bashambar Lal reached the scene of occurrence at 530 pm 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 exhibit 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 exhibit 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 am
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 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 PW2 and Bachan Singh PW3
Examined under Section 342 Cr
PC 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 PW3 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 UP 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 PW 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 deceased
The trial Judge further held that the FIR 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 PW 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 exhibit 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 PW 2 and Bachan Singh PW 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 PW 2 on the other has not been examined by the prosecution
c There was no mention about this earlier incident in the statement of Bachan Singh PW 3 before the police during investigation
iii Both Resham Singh and Bachan Singh PWs
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 PWs
 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 PW 2 had left their behak hamlet
From the statement of Resham Singh PW 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 PW 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 PW 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 PW 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 PW 13 does not inspire confidence
a The evidence relating to the recovery of empty cartridges vide exhibit PG and pair of shoes from the spot near the dead body of Hazara Singh was not reliable because PW 13 did not mention about the presence of these articles in the inquest report exhibit 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 exhibit P7 when it was recovered cannot be considered improbable
ix On arrival at the scene of the incident PW 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 pm 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 FIR 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 PW 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 PWs 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 FIR lodged by PW 2
It is emphasised that the circumstance that the FIR 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 FIR 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 PW 2 was not an eye witness of these murders are utterly unsustainable
The mere fact that Resham Singh PW 2 had succeeded in escaping unhurt or that there are discrepancies in the statements of Resham Singh PW 2 and Bachan Singh PW 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 PW 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 Resham Singh PW 2 and Bachan Singh PW 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 PW2 was never cross examined by the defence regarding his whereabouts and that of Hazara Singh deceased on the previous night
The mere fact that PW 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
PW 3 is the brother and PW 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 SinghPW 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 PW 2 and PW 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 PW 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 PW 2 that he was an eye witness of the occurrence
It is that the FIR exhibit PE 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 PW 2 and Sub Inspector Bishamber Lal PW 13 who was then Station House Officer Valtoha to the effect that the FIR exhibit PE was recorded in the Police Station at 430 pm Police Station Valtoha is three miles from Bus Stand Amarkot
According to Resham Singh the occurrence took place at about 330 pm 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 PW 2 his motor cycle was lying at a shop in Amarkot
He picked up his motor cycle from there and drove to the Police Station Valtoha and without loss of time lodged the first information there
The endorsement on exhibit 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 630 pm
This circumstance assures the truth of the prosecution evidence on the point that the First Information Report was made by Resham Singh PW 2 at the Police Station at 430 pm 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 FIR 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 PW 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 PW 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 PW 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 PW 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 PW 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 PW 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 pm when Resham Singh PW 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 FIR 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 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 PW 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 PW2 at the spot
630 Dr Gursharan Kaur PW 1 who performed the post mortem examination of the dead bodies of Resham Singh and Hazara Singh on August 4 1973 between 8 am and 9 am 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 pm on August 4 1973
The opinion of the medical witness thus corroborated the version of Resham Singh PW 2 in as much as the latter has testified that the murders took place at about 330 pm
This means that the statement of Resham Singh PW 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 PW 2 and Dalip Bachan Singh PW 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 PW2 and PW3 against each of the accused
Excepting the immaterial discrepancies considered earlier the evidence of PW 2 and PW 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 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 12 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 PW 2 and Bachan Singh PW 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 PW2 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 PW 2 on the other
This story finds particular mention in the FIR exhibit PE which was lodged by PW 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 PW3 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 PW2 in regard to this incident
Resham Singh s consistent testimony on this point corroborated by the FIR exhibit 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 PW2 and Bachan Singh PW3 and strengthens the inference of guilt against the said accused also
It is in the evidence of Sub Inspector Bishamber Lal PW13 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 exhibit 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 discovered the rifle exhibit P7 and the cartridges exhibit P8 to 12 therefrom
The Sub Inspector prepared the sketch of the rifle and the memo exhibit 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 PW 10
PW 13 has also stated that he had on August 4 1973 on inspecting the scene of murders found two empty cartridges exhibit
P3 and exhibit 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 exhibit 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 PW4 who is an attesting witness of the memo ExPG
The witness is a resident of village Cheema
In cross examination he revealed that these two fired cartridges were lying at a distance of 15 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 exhibit PG it is mentioned that these fired cartridges were of 303 bore rifle
633 Ajit Singh Moharrir Head Constable PW11 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 PW 9 and Natha Singh Moharir Head Constable showing that on September 24 1973 the sealed parcels containing the rifle exhibit P7 and the five live cartridges were sent through PW 9 to the Forensic Science Laboratory Chandigarh who delivered the same in the said Laboratory with seals intact
The evidence of PW 13 regarding the discovery of the rifle exhibit P7 from Mukhtar Singh accused was fully corroborated by Constable Sardul Singh PW 12
His cross examination reveals that Mukhtar Singh was interrogated in the Police Station at 4 5 AM when he made the statement exhibit PL leading to the discovery of the rifle exhibit P7
Sub Inspector Bishamber Lal PW 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 exhibit 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 exhibit P7 and the live cartridges recovered from Mukhtar Singh accused
In the Report exhibit PQ of the Ballistic Expert L A 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 exhibit P7
In cross examination the defence suggested to PW 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 exhibit P7
The oblique suggestion was that the cartridge marked C1 which in the opinion of the Ballistic Expert had been fired through the rifle exhibit 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 PW 13 that the rifle exhibit 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 PW 13
634 The learned trial Judge discarded this evidence relating to the discovery of the rifle exhibit 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 PW 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 exhibit PL made by Mukhtar Singh and to witness the sub sequent discovery of the rifle exhibit 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 PW 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 exhibit 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 exhibit 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 PW 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 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 exhibit P7 at his instance and the opinion exhibit PQ of the Ballistic Expert was put to this accused in his examination under Section 342 Cr
PC The circumstance of the recovery of the rifle exhibit 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 exhibit 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 PW 2 and PW 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 PW 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 PW 13 made a fraudulent insertion in the zimini to help Joginder Singh accused it cannot be said that the version of PW 13 to the effect that when he went to the scene of murders at 530 PM he found Joginder Singh irrigating his nearby fields at a distance of about 100 yards therefrom and he PW 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
PW 2 and PW 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 PW 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 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
NVK Appeal partly allowed


Summary:
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 PW 2 PW 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 PW 2 and 3 ran and escaped unhurt
PW 2 reached the bus stand picked up his motor cycle parked at a shop and drove to the nearest police station to lodge the FIR
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 FIR was lodged by PW 2 with the utmost promptitude furnished valuable corroboration of his evidence and also disbelieved the evidence of the police Sub Inspector PW 13
In the result he convicted all the six accused under section 302 read with section 149 IPC 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
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 PW 2 and PW 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 PW 2 had left the hamlet and that the investigation of the case conducted by the Sub Inspector PW 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 FIR was lodged by PW 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  1i 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 PW 2 and PW 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 PW 2 was not an eye witness of these two murders are utterly unsustainable
The reason that PW 2 had succeeded in escaping unhurt or that there are discrepancies in the statements of PW 2 and PW 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 PW 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 PW 2 and PW 3 were examined at the trial on December 27 1974 ie seventeen months after the incident
The trial court has rightly observed that PW 2 was never cross examined by the defence regarding his whereabouts and those of the deceased on the previous night
The mere fact that PW 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
PW 3 is the brother and PW 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 PW 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 PW 2 and PW 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 PW 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 PW 2 regarding his owning and going on a motor cycle to the Police Station was manifestly unsound
The Sub Inspector PW 13 was not questioned in cross examination as to whether or not PW 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 PW 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 PW 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 PW 13 indicates that he was not favourably disposed to the deceased and PW 2
A suggestion was also put to PW 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 PW 13 would be least disposed to join hands with PW 2 informant in preparing the First Information Report after deliberation with PW 2 at the spot
629F H 7
The opinion of the medical witness PW 1 corroborates the version of PW 2 in as much as the latter has testified that the murders took place at about 330 pm
This means that the statement of PW 2 in the FIR 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 PW 2 and PW 3 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
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 PW 2 and PW 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 PW 2 and PW 3 and strengthens the inference of guilt against the said accused also
PW 2 s consistent testimony corroborated by the FIR 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 PW 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 PW 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 exhibit 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 PW 13 made a fraudulent insertion in the zamini to help Joginder Singh accused it cannot be said that the version of PW 13 that when he went to the scene of murders at 530 pm 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
PW 2 and PW 3 have stated that they started 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 PW2 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