dedol-hf/india-case-legal-rag huggingface dataset:
duty of the prosecution to prove by expert evidence that  it
was  likely  or at least possible for the injuries  to  have
been caused with the weapon with which, and in the manner in
which, they are have been caused.
  Where  in a case of murder, the prosecution case was  that
the  accused shot the deceased with a gun, but  it  appeared
likely that the injuries on the deceased were inflicted by a
rifle  and there was no evidence of a duly qualified  expert
to  prove  that the injuries were caused by a gun,  and  the
nature  of the inajuries was also such that the  shots  must
have  been  fired  by more than one person and  not  by  one
person only, and the prosection had no evidence to show that
another person also shot, and the High Court, though realis-
ing  that there was thus a gap in the prosecution  evidence,
convicted the accused placing reliance on the oral  evidence
of 3 witnesses which was not, disinterested:
Held,  that, the present case fell within the rule  laid
down in Pritam Singh v. The State ([1959] S-C R. 453)  inas-
much as the appellant had been convicted notwithstanding the
fact   that evidence was wanting on a most material part  of
the prosecution case, and the conviction could not therefore
be upheld,
822
    Held also, that the standard of proof which is  required
in  regard  to  the plea of alibi must be the  same  as  the
standard which is applied to the prosecution evidence and in
both cases it should be a reasonable standard.
JUDGMENT:
APPELLATE JURISDICTION: Criminal Appeal No. 10 of 1950.
   Appeal  by  special leave from a judgment  of  the  High
Court of Punjab (Falshaw and Soni JJ.) dated 30th  December,
1949,  upholding the conviction of the appellant  under  ss.
302  and  307 read with s. 34 of the Indian Penal  Code  and
confirming  the sentence of death passed against him by  the
Sessions  Judge  of Ferozepore on the 20th  July,  1949,  in
Criminal Appeal Case No. 325 of 1949.
    Jai  Gopal Sethi (R. L. Kohli, with him) for the  appel-
lant.
    B.K.  Khanna,  Advocate. General of the Punjab,  (S.  M.
Sikri, with him) for the respondent.
    1950. October 17.  The judgment of the court was  deliv-
ered by
FAZL ALI J.--This is an appeal by special leave from the
judgment  of the High Court of Punjab upholding the  convic-
tion  of the appellant.  Mohinder Singh, under sections  302
and  307 read with section 34 of the Indian Penal Code,  and
confirming  the sentence of death passed against him by  the
Sessions Judge of Ferozepore.
    The case for the prosecution which has been substantial-
ly accepted by the trial Judge and the High Court is briefly
as follows.  Sometime in January, 1949, one Bachittar Singh,
brother  of Dalip Singh who is said, to have been  murdered,
lodged  a complaint before the NaibTehsildar at Zira to  the
effect  that a tree belonging to him had been cut by 7  per-
sons  including Mohinder Singh, the appellant.  On the  28th
February, 1949, which was the date fixed for the hearing  of
the  case  before the Naib TehsiIdar, Jita Singh  and  Dalip
Singh, the two brothers of Bachittar Singh, were attacked by
the  appellant  and one Gurnam Singh, a lad of  17,  near  a
Gurdwara at about mid-day, when
     823
they  were returning from their field.  Jita Singh was  then
carrying a load of fodder on his head while Dalip Singh  had
sickles  in  his hand.  Jita Singh was the first to  be  at-
tacked  near a tailor's shop by Mohinder Singh who fired  at
him  from behind hitting him on the neck whereupon  he  fell
down  together with the bundle of fodder.  Dalip Singh,  who
was  following  Jita Singh, then ran backwards  and  he  was
chased  by Gurnam Singh round the outer boundary of  a  tank
which was close by.  Mohinder Singh ran on the other side of
the  tank in the opposite direction and confronted  him  and
shot  him  with a gun on the chest whereupon he  fell  down.
Meanwhile,  Gurnam  Singh had also reached the spot  and  he
fired  with his rifle from a distance of about 4 or  5  feet
near  about Dalip Singh's ear while he was  lying  sideways.
The injuries proved fatal and Dalip Singh died on the spot.
    The  same day at 3 p.m., Jita Singh went to  the  police
station at Dharamkot, which is at a distance of 3 miles from
village  Augar,  where the occurrence had taken  place,  and
lodged a first information report, charging Mohinder  Singh,
with  having  caused injury to him, and Mohinder  Singh  and
Gurnam Singh with the murder of Dalip Singh; and the  police
after investigating the case sent up a charge-sheet  against
the two accused persons.  Thereafter they were tried by  the
Sessions Judge of Ferozepore under sections 302 and 307 read
with section 34 of the Indian Penal Code. The appellant  was
sentenced  to death under section 302 and Gurnam  Singh  was
sentenced  to transportation for life under that section  in
view  of  his youth. They were also sentenced  to  3  years'
rigorous  imprisonment  each  under section  307  read  with
section 34 of the Indian Penal Code.
    It  appears that Dalip Singh had 6  injuries  altogether
which  are described by the doctor who performed  the  post-
mortem on his body in these words:-
"  1.  An irregularly round gun shot wound on  the  left
temporal region, 1" diameter.  The wound is 22" behind outer
canthus  of left eye, its upper portion is at a  level  with
the top of the pinna of the left ear,
824
 behind it commences at the cartilages of the ear which  are
broken.  Brain is visible in the gap of the wound. An area 4
" x 4 " is blackened, the wound being situated in the middle
of this area.
     2.  A gun shot wound 3/4" X 1/2" on the back  of  right
mastoid region, upper end of the wound is 1" behind the root
of  the  right ear.  Direction is  vertically  oblique.   On
dissection  the  left temporal bone under injury No.  1  is,
hole  and its petrous portion shattered. A  linear  fracture
extends  upwards and backwards, from the hole into the  left
parietal  and  occipital bones. After piercing  through  the
left  temporal lobe of the brain the projectile has  pierced
through  the  brainstem, and emerged out as  injury  No.  2,
holding the mastoid region of the skull on the right side.
     3.  A  gun shot wound 3/4" X 5/8" on the left  side  of
chest 21/2" above and behind the left nipple and 1/2" behind
the  anterior  axillary fold as area 1" below the  wound  is
bruised.
     4.   A gun shot wound 1/2"X 3/4" on the right  side  of
chest  in the mid axillary line. The top of the wound  being
1-3/4"  from the apex of right axilla and 4-3/4"  above  and
behind the right nipple.
5.  A gun shot wound 1/2"x 1/4" on the inner aspect  of
the right arm, upper end of the wound is 11/4" from the  top
of the anterior axillary fold.
6.   A  gun shot wound 3/4"X 1/2" on the front  of  the
right  arm.  Its upper end being 21/2" from the top  of  the
anterior  axillary  fold.  Its distance from  injury  No.  5
being  1" and it is inter-connected with injury No. 5  under
the skin."
     The  doctor has stated in his evidence that in all  two
projectiles  appeared to have hit Dalip Singh, and  injuries
Nos. 1 and 2 were caused by one of them, injury No. 1  being
the  wound of entrance and injury No. 2 being the  wound  of
exit,  With regard to the other 4 injuries, his evidence  is
as follows :-
     "Injury  No.  3  is the wound of  entrance  of  another
projectile and No. 4 is the wound of its exit.  Wound
825
No.  5 is the wound of its re-entrance and wound No.  6  the
wound of its final exit from the body."
Jita  Singh  had 4 slight injuries on the back of  the  neck
which are said to have been caused by pellets and two  abra-
sions below the right elbow and right knee said to have been
caused by blunt weapons.
    It may be stated here that when the investigating police
officer  arrived  at the scene of occurrence,  he  found  an
empty  cartridge case at the place where Jita Singh is  said
to  have  been fired at, and 2 empty cartridge cases  and  a
blood-stained  cap of a cartridge case near the place  where
the  dead  body of Dalip Singh  was   lying.   Later,   when
Mohinder  Singh  appeared before the police,  he  was  asked
whether he possessed  a  gun and he produced a  12 bore  gun
(exhibit P-16) for which he  held a licence.  The gun    and
the  empty   cartridges were  thereupon sent to  Dr.  Goyle,
Director of the C.I.D. Laboratory, Phillaur, and the opinion
that he submitted may be summed up as follows :--The gun had
signs of having been fired but he could not say when it  was
fired  last.  The cartridge cases P-10 and P-15  could  have
been fired through the gun P-16, but he could not say wheth-
er  they were actually fired from that particular gun  or  a
similar  gun  or guns.  He did not make  any  experiment  by
firing any cartridge from  the gun P-16, nor did he  compare
the markings on the empty cartridges P-10 and P-15.
    A notable feature of the case is that the occurrence  is
said to have taken place in the vicinity  of a Gurdwara  and
some houses, but in spite of this fact, not a single  person
of  the locality has been cited or examined as a witness  by
the  prosecution. The whole case rests on the evidence of  3
witnesses,  viz., Jita Singh, Harnam Singh and  Buta  Singh.
Jita Singh, who had been shot at from behind, claims to have
seen  the two accused firing at his brother.   Harnam  Singh
admittedly lives at a considerable  distance from the  place
of occurrence but has stated that he was coming from another
village  where  he had gone to fetch some medicine  for  his
maternal cousin, when he
826
    saw  the  occurrence.   Buta  Singh,  who  is  a   tonga
driver,  belongs  to  a  distant  village  and  is  somewhat
remotely  related  to  Harnam Singh, and  accounts  for  his
presence near the scene of occurrence by saying that he  had
come to see Harnarn Singh the evening before.  Harnam  Singh
admitted  in his evidence that there was a  dispute  between
him and Mohinder Singh nearly a month before the  occurrence
about  a wall, but he also says that the dispute ' had  been
amicably settled by the panchayat".  There is nothing before
us  to show what the award of the panchayat was and  whether
or  not it left any ill-feeling behind.  But, on  the  argu-
ments of the counsel and the  apparently trivial motive  for
which  Dalip Singh is said to have been murdered,  it  would
appear  that  among the class of persons with which  we  are
concerned petty quarrels give rise to enmity which does  not
die soon or easily.
After  the close of prosecution evidence  in  the  Ses-
sions Court, the appellant was examined under section 342 of
the Criminal Procedure Code, and he denied that he had fired
at  Jita  Singh and Dalip Singh with the gun P-16  and  that
Gurnam Singh had fired at Dalip Singh with a rifle. He added
that he was not present in village Augur at the time of  the
alleged  occurrence but had gone to Zira to attend the  Naib
Tehsildar's  court.   To  establish his plea  of  alibi,  he
examined 3 witnesses in the court of the Sessions Judge. The
first  witness was the Naib Tehsildar before whom  Bachittar
Singh had lodged the complaint, and he stated that when  the
case  was called on the 28th February, 1949, 6 or 7  persons
appeared  in  court.  He also proved an  application  for  a
taccavi loan which purports to have been filed by the appel-
lant on the 28th February, 1949, and bears his thumb impres-
sion.  He further stated in his evidence that he had  passed
orders  on that application on the 28th February but he  did
not know Mohinder Singh and therefore could not say who  had
produced  that  application before him on  that  date.   The
second  witness  for the appellant was  his  brother-in-law,
Jogindar  Singh, who had written the  application.   exhibit
D-C.  He has stated that
      827
Mohinder Singh himself was present in the court of the  Naib
Tehsildar on the 28th February, 1949, that he had signed the
application  (exhibit D-C) and that he was also one  of  the
persons who had appeared before the Tehsildar when Bachittar
Singh's case was called out.  The third defence witness is a
hand-writing and fingerprint expert. He has proved that  the
application (exhibit D-C) alleged to have been presented  to
the  Naib  Tehsildar  on the 28th February  bore  the  thumb
impression of the appellant, and he has also given  evidence
to  show  that certain handwritings which he  was  asked  to
compare did not tally. The evidence given by him with regard
to these handwritings has a bearing on the assertion made by
the  appellant  in a petition filed  before  the  committing
Magistrate to the effect that the original service report of
the process peon showing that the appellant also was one  of
the persons served for appearance before the Naib  Tehsildar
on the 28th February, 1949, had been suppressed and  another
report  with forged handwriting had been substituted in  its
place.
    Both  the courts below have held that the alibi has  not
been  proved by satisfactory evidence and that  the  charges
against the appellant have been made 'out.
    It seems that the learned Judges of the High Court  were
not at all impressed by the evidence of Dr. Goyle which they
characterized  as  unsatisfactory  and they  were  not  also
confident  that  the  gun, exhibit P-16, had  been  used  in
causing  the injuries to Dalip Singh. This appears from  the
folio.wing observations made by them in their judgment:--
    "The  gun P-16 was identified by Jita Singh as  the  gun
with  which Mohinder Singh fired at him and Dalip Singh  but
he  identified the gun because of a brass plate at its  butt
end.  We have seen the gun. Its brass plate could be  of  no
use for the identification of the gun."
Again,  commenting  on the nature of the  injuries,  the
learned Judges observed as follows :--
828
"Another  difficulty  which is created in this case  is  the
nature of injuries found on the body of Dalip Singh   ......
What  kind of bullet it was which, though it  had  blackened
the area where it entered the brain showing that it had been
fired from not far away, did not shatter the brain we do not
know. What kind of projectile it was which entered the  body
(which if the evidence as to be believed was fired at from a
few feet at Dalip Singh) and passed through the body without
shattering  the  inside of the chest  or  causing  extensive
damage therein is also not known. Mr. Sethi (counsel for the
accused)  quoted Taylor's book on medical jurisprudence  and
Hateher's   book  on ballistics and argued that  the  firing
must have been from a place between 600 and 1,200 yards away
in  order that the projectile may  pass through and  through
the  body and not shatter it.  That of  course  pre-supposes
that  the  barrel  of the gun, using the word  'gun'  m'   a
generic  sense, is grooved which causes a projectile  to  go
forward with a rotatory motion of something under a  quarter
of a million revolutions a minute and travelling at the rate
of   about   2,000  miles  an  hour  when  it   leaves   the
gun   .........  We do not know whether the barrel  of  this
gun  (exhibit P-16) is grooved or not. It. is a single  bar-
relled gun and is country made.  The likelihood is that  the
barrel is not grooved."
    On  a careful reading of the judgment under  appeal,  it
appears  that the learned Judges of the High Court  strongly
felt  that  they  had no adequate explanation  in  the  oral
evidence  before them for certain puzzling features  of  the
injuries on Dalip Singh.  This is exactly what we also  feel
in this case, and it seems to us that the evidence which has
been adduced falls short of proof in regard to a very  mate-
rial part of the prosecution case.  in a case where death is
due to injuries or wounds caused by a lethal weapon, it  has
always been considered to be the duty of the prosecution  to
prove  by  expert evidence that it was likely  or  at  least
possible  for  the  injuries to have been  caused  with  the
weapon  with which and in the manner in which they  are  al-
leged to have been caused.  It is
     829
elementary  that  where the prosecution has  a  definite  or
positive case, it must prove the whole of that case. In  the
present case, it is doubtful whether the injuries  which are
attributed  to the appellant were caused by  a gun or  by  a
rifle.  Indeed, it seems more likely that  they were  caused
by a rifle than by a gun, and yet the case for the  prosecu-
tion is that the appellant was armed with a gun and, in  his
examination, it was definitely put to him that he was  armed
with  the  gun P-16.  It is only by the evidence of  a  duly
qualified expert that it could have been ascertained whether
the  injuries attributed to the appellant were caused  by  a
gun  or by a rifle and such evidence alone could settle  the
controversy  as  to whether they could  possibly  have  been
caused by a fire-arm being used at such a close range as  is
suggested in the evidence.  It is clear, and it is also  the
prosecution  case,  that only 2 shots were  fired  at  Dalip
Singh  and one of the crucial points which  the  prosecution
had to prove was that these shots were fired by two  persons
and  not by one man, and both the shots were fired  in  such
manner  and  from  such distance as is alleged  by  the  eye
witnesses.  There is, in our opinion, a gap in the  prosecu-
tion  evidence  on a most fundamental point  and  the  error
which  has been committed by the courts below is  to  ignore
the gap and decide the case merely upon the oral evidence of
3  witnesses, two of whom are mere chance witnesses and  not
altogether  independent  persons, and the  evidence  of  the
third  witness  is open to criticism on the  ground  of  his
partisanship as well as the improbability of his having been
able  to see the firing at his brother after he had  himself
been  shot at the back of the neck.  The learned  Judges  of
the  High Court, after commenting upon the entire  evidence,
say in their judgment:-
"  We are thus left with the evidence of the three  wit-
nesses of the prosecution together with the state of  wounds
as  shown  by  the medical evidence  and  an  unsatisfactory
statement of Dr. Goyle."
    106
830
They  reject the evidence of Dr. Goyle and they     consider
the nature of the wounds to have created a serious dificulty
in the case.  Having arrived at these conclusions, it was  a
serious thing to rest the appellant's conviction wholly upon
the oral testimony in the case which has remained  unchecked
and  unconfirmed by expert evidence. The real  position  ap-
pears  to be that the prosecution case cannot be said to  be
wholly proved but only partly proved if it is permissible to
use  such an expression.  This Court, as was pointed out  in
Pritam Singh v. The State (1), will not entertain a criminal
appeal  except in special and exceptional cases where it  is
manifest  that by a disregard of the forms of legal  process
or  by a violation of the principles of natural  justice  or
otherwise substantial and grave injustice has been done.  It
seems to us that the present case comes within the rule laid
down, because the appellant has been convicted notwithstand-
ing the fact that the evidence is wanting on a most.material
part of the prosecution case.
This  is  enough to dispose of this appeal, but  we  are
constrained  to say that we are not altogether  happy  about
the  manner  in which the plea of alibi put forward  by  the
appellant  has been disposed of by the courts below.   Ordi-
narily tiffs court will not look beyond the findings of fact
arrived  at  by the courts below, but we find  that  in  the
present  case  the decision on the plea of  alibi  has  been
arrived  at in disregard of the principle that the  standard
of  proof which is required in regard to that plea  must  be
the same as the standard which is applied to the prosecution
evidence and in both cases it should be a reasonable  stand-
ard.  It is common ground in this appeal that the  appellant
was summoned to appear before the Naib Tehsildar on the 28th
February,  1949, which was the date fixed for  dealing  with
Bachittar Singh's complaint.  Ordinarily and without looking
at anything else, there should have been nothing  improbable
about his appearance before the Naib Tehsildar on that date,
but in the present case there is positive
(1) [1950] S.C.R. 463.
831
evidence that an application for a taccavi loan bearing that
date and also bearing the thumb impression the appellant was
put up before the Naib Tehsildar and that was dealt with  by
him on that very day. There is also affirmative evidence  of
a  witness  to prove that the appellant was present  in  the
Naib Tehsildar's court.  This witness is undoubtedly closely
related  to the appellant but his evidence is  supported  by
probability  and  a  written document.  One  of  the  points
raised  by the prosecution was that the summons for  appear-
ance  on  the  28th February was not  served  upon  Mohinder
Singh,  but such evidence as there is on the record  bearing
on  this point has certain peculiar features.  The  prosecu-
tion  having cited the Naib Tehsildar and the Ahlmad  (Bench
Clerk) as witnesses in the case gave them up and stated that
the former had been won over by the appellant.  This allega-
tion  could have been substantiated   in the  cross-examina-
tion of the Naib Tehsildar who    was examined as a  defence
witness, but nothing was  elicited from him to support  such
a  charge.   From  the evidence of the  Naib  Tehsildar,  it
appears  that on the 5th July, 1949, the  Public  Prosecutor
showed  him  exhibit P.S. (which is an order  directing  the
appearance  of  the seven persons  including  the  appellant
mentioned  by Bachittar Singh in his complaint,  before  the
Naib Tehsildar on the 28th February, 1949). and that he told
the  Public Prosecutor that 6 or 7 persons appeared  in  his
court. on that date.  After this incident, on the 6th  July,
1949, the Public Prosecutor informed the Court that he would
"give up the Naib Tehsildar as he has been won over ".   The
evidence  of  the process peon is of a  somewhat  suspicious
character,  because  he  has  conveniently  forgotten  every
material  detail. The appellant asserted at the  trial  that
the original report of the process peon had been  suppressed
and  another report had been fabricated and  substituted  in
its  place.  An application to this effect was made  by  him
before  the  committing Magistrate, and he also  examined  a
handwriting expert to prove some of his allegations. Neither
of the courts below has dealt with the evidence
832
of this expert.  The evidence of the Investigating   Officer
as  recorded  by  the Sessions Judge is  to  the   following
effect :--
    "P.B.  and P.C. were obtained by me from  the  headquar-
ters.  Along  with P.B. and P.C. the Parvana P.S.  was  also
received by me.  After going through the zimnis, the witness
states that the aforesaid documents P.B., P.C. and P.S. were
summoned by the committing Magistrate and were not sent  for
by  the witness.  On 16th March, 1949, a Foot Constable  was
certainly  sent to Zira to bring the said file.   But  since
the  file had been sent to the headquarters, therefore,  the
said  constable  returned quite  blank.  I  never  inspected
this file at the headquarters."
    The most material document with which we are  concerned
is P.S. which should have contained an endorsement of  serv-
ice  of summons on the persons against whom Bachittar  Singh
had  complained.   It is clear from the first  part  of  the
evidence  of the Investigating Officer that he had  received
the  report  of the process peon which was endorsed  on  the
back of P.S., from the headquarters, but he says later  that
the  papers  were sent for but they did not arrive.   It  is
surprising  that when a document was the subject of so  much
controversy  he  should  have said by mistake  that  he  had
received  it. One of the comments made by the  learned  Ses-
sions Judge in dealing with the application alleged to  have
been made by the appellant on the 28th February, 1949, for a
taccavi loan is that after producing the application  before
the  Naib Tehsildar on that date, Mohinder Singh could  have
reached  his  village by noon time, but on  this  point  the
learned  Sessions  Judge seems to have wholly   ignored  the