6 1 &

STATE OF PUNJAB

v .

WASSON SINGH AND FIVE OTHERS

January 1 5, 1981

[R. S. SARKARIA AND E. S. VENKATARAMIAH, JJ.J

' .

Ctinti11al Procedure Code 1973. S. 154 & Indian Penal Code, S. 302-

Trial fot n1urdrr-Ar.:cused convic:ted by Sessions Court-Acquitted by High

l'ourt-lnterfercnce by Supreme Court.

F.I.R.-Pro111ptness i11 lodging-Evidentiary value of,

Eye-wit11eJ.H'.\-Uelated to d:eceascd-Antecedents of questionable nature ʤʥiu1i11y of: ӣvi; hnc"e by Court-A1ethodology to be adopted.

lnvestjgatio11 O.fljcer--Faflure to join respectable persons of locality to

witr;:c.\'S recovery of i"W.0.-Value of such evidence.

The prosecution case 'against the six Uccused (Respondents) was that prior

to the incident in question, there was Ml altercation between the tWo deceased

on one side and the six accused on the other ovei tTespasS of cattle of the

accused personsom the land of the deceased, whith dairuiged his cotton crop.

On the day of the incident when P.¥.'. 2, P.W. 3 and the two deceased were

going by a foot path, the six accused suddenly emerged out of a field and

fired.

The two deceased fell dead, while P.W. 2 and 3 ran and escaped unhurt.

P.W. 2 reached the bus stand, picked up his motor cycle parked at a shop and

drove to the ne<irest police station to lodge the F.I.R.

The Additional Sessidns Judge found that one of the accused. had a strong motiye to inutdcr on . e oi _the deceased because of. an. oki_ fued a_nd that on ;Ӣccount of this ill v.ri1J, Some of the accused had ' a strong motive in joining

h<'lnds with thi.:: .others to, murder .the deceased, but that ..no motive could be

established. for murdering the second deceased.

He also found that the fact

that the F.I.R. was lodged by P.W. 2 with the utmost promptitude furnished

valuable conoboration of his evidence and also disbelieved the evideace of the police Sub-Inspector (P.VV. 13); fn the result he convicted all the six

accused under section 302 read with section 149 I.P.C. for murder of one of

the deceased  nd sentenced them to in1prisonment.

Jn the case of first accused however. he. was pentenced to death' for the murder of one of the deceased.

All the necu.;; cd appealed against their conviction alld sentence to the High Court \(hich aliowea ihe appeal and rejected the relference.

It rejected the

evidence of the eye-witnesses, P.\V. 2 and P.\V. 3 on the ground that these \Vitnesses were closely related to the. first deceased who was the principal target

of the accuc; ed and that it had not been satisfactorily established by the prose¿

cution that the other five accused had any motive to commit the 111urders in question .

It found that the prosecution story was highly unnatural and that \he presence of \he two eye witnesses alongwith the deceased persong was unlikely.

It further held there was material inconsistency in their testimony, as to when the first deceased and P.\V. 2 had left the hamlet, and that the inves tig.ition of the Ca"e conducted by the Sub-Inspector (P.W. 13) did not inspire confidence.

In the appeal by the State to this Court it was contended on behalf of the State that the reasoning of the High Court was manifestly unsound, if not wholly perverse. The fact that the F.I.R, was lodged by P.W. 2 with utmost promptitude and aJI 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 : l(i) The acquittal of respondent Nos. I 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 bcnelit of doubt to the rest of the accused (responctents) and their acquittal on all the counts maintained. [636 C-D]

D (iiJ Sufficient assurance of the testimony of P.W. 2 and P.W. 3 was availahie from the circumstantial evidence regarding the participation of respondents Wasson Singh and Mukhtar Singh in the murder of deceased Hazara Singh.

The evidence of the eye witnesses therefore, could safely be acted upon for convicting these respondents for the said murder. [635 C-D]

2. The reasons given by the High Court for holding that P.W. 2 was not 'E <'Ill eye witness of these two murders are utterly unsustainable.

The reason that P.W. 2 had succeeded in escaping unhurt, or that there are discrepancies in the statcmeuts of P.\V. 2 and P.W. 3 as to whether they had gone with the deceased on tbe very day of occurrence or a day earlier was no ground for the conclusion that P.W. 2 was not in the company of the decesed or near aloout the scene of occurrence when the two deceased were shot dead. [626 F-GJ

3. Discrepancies in rega.rd to collateral or subsidiary facts or matters of detail occur even in the statements of truthful witn.sses, particularly when they are examined to depose to events which happened long before thefr exami .. nation. 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-627 A]

In the instant case the occurrence took place on August 4, 1973, while P.W. 2 and P.W. 3 were examined at the trial oni December 27, 1974 i.e. seventeen months after the incident. The trial court has rightly observed that P.\V. 2 wa~ nf'Vl"r crossexamined by the defence regarding his whereabouts and those of the deceased on the previous night. The mere fact that P.W. 2 did not IP..ake any purchase at Amarkot could hardly be a reason to hold that his heini;: in the company of the deceased at the material time was improbable.

[626G. 627B]

4. P.W. 3 is the brother a.nd P.W. 2 relation of the deceased. All three 1, vere livin!! together in the same hamlet in the fields.

It is in the evidence of

PUNJAB V. WASSON SINGH 617

these witnesses that the other accused are partymen of respondent No. 1. It is A further in evidence that sometime before the occurrence both the deceased and P.W. 2 were arrested and handcuffed by a police Sub-Inspector on the a!legatio1\ that they were indulging in smuggling and \\'ould be liquidated. lti was, there-_

fore, not improbable that this trio consisting of first deceased, P.\V. Z :ind P.W. 3 'vere as usual moving about or carrying on their activities together.

Moreover the deceased must have known that Respondent No. 1 who was inin1ically disposed to\vards him was at large on bail. This was an added

B.. 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 lleport or the promptitude with which it was made.

[628D]

(ii) The towering circumstance which lends assurance to the claim of P.W.

C- 2 that he was an eye-\vitncss of the occurrence is that the First Infonnation Report was lcxiged by him at the Police Station so promptly that he had practi .. cally no time to spin out a false story. The reason employed by the High Court for disbelieving the version of P.W. 2 regarding his owning and going on a motor cycle to the Police Station was manifestly unsound. The Sub-Inspector P.\V. 13 \Vas not questioned in cross examination as to whether or not P.W. 2 had come to the Police Station on a motor cycle. He was, however, questioned

D .... as to \vha-t 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 fro1n there \vent on foot to the scene of occurrence. This explanation of P.\V. 2 regarding the kacha path from Amarkot to the scene of occurrence, being non-motorable on the day of occurrence, receives inferential support from the fact appearing in the evidence of P.W. 13 that he had to cover the distance trotn Adda Amarkot to the place of occurrence, on foot.

E l627H, 629E, 628G-629AJ

6. The conduct of the Investigation Officer (P.W. 13) indicates that he was not favourably disposed to the deceased and P.W. 2.

A suggestion was also put to P.W. 13 by the Public Prosecutor that he had been, unf<l'ir in the investigation of the case and tried to favour the 3rd and 4th responde111.t.

The High Court found that the note iti the zimini was a fraudulent insertion. This being the case, Sub-Inspector (P.W. 13) would be least disposed to join hands with

P.W. 2 informant in preparing the First Information Report, after deliberation with P.W. 2 at the spot.

[629F-HJ

7. The opinion of the medical witness P.W. 1 corroborates the version of P.\V. 2 in as much as the latter has testified that the murders took place at about 3.30 p.m. This means that the statement of P.W. 2 in the F.I.R.

Wll6 made \vithout undue delay, and, as such, furnished very valuable corroboration of his testimony at the trial in all material particulars. [630B-C]

8. (i) Both P.W. 2 aad P.W. 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 pat -'lr I\ 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

rest. The ligh Court did not udopt this methodology in appreciating their evidence.

Tnstead, it took a shortcut to disposal and rejccled their evidence whole-sale against a!J the accused for reasons which arc maJ:1ifestly untenable.

[630E-G]

(ii) Excepting for immaterial. discrepancies the evidence of P.W. 2 and P.W. J was consistent and their presence aot 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 10 the extent to Which son1e 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 p<llrticipatc in the murder of the socond deceased.

This lends assurance to the testimony of P.\V. 2 and P.\V. 3 and strengthens the inference of guilt against the said accused also.

P.W. 2's con'li'ltent testimony corroborated by the F.I.R. was sufficient to establish this fact beyond doubt. [63JH-632A]

JO. It had been clearly proved that two fired cartridges were picked up from the scene of crime and sealed into parcels \vhich were later deposited with sea16 intact in the Police Station.

On the memo it is mentioned th.it these fired cartridges were of 303 bore rifle.

[632H]

11. There was substance in the observation of the trial Judge that the investigation \VilS biased in favour of the accused.

If that was so, the failure of P.W. 13 to join \\'Ith hiln respectables of the locality was by itself no ground for ruling out the evidence of the discovery of the rifle, altogether. The partiality of P.W. 13 towards the defence, rather assures the genuineness of the discovery.

He was least disposed to 'coJlaborate' or cooperate with the rela- E tions 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 \vith him some independent persons or respectables of the locality to witness the recovery devalues that e\'idence but does not render it inadn1issible.

[6340-F, HJ

12. The circun1stance of the recovery of the rifle (Ex. P. 7) and the opinion of the Ballistic Expert that the empty cartiridge (CI) 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.

[635BJ

13. Although the investigation betrays a tilt in favour of the accused, and P.W. 13 made a fradulent insertion in the zamini to help Joginder Singh accused, it cannot be said that the version of P.W. 13, that when he went to the scene of murders at 5.30 p.m. he found Joginder Singh irrigating Ws 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 1nurders, engaged in normal agricultural acti.vities does cast a doubt about his participation in the commission of these murders.

[635 FGJ

14. P.W. 2 and P.W. 3 have stated that they started running away from the spot, immediately after deceased Hazara Singh was shot dead. The surround ing circumstances, natural probabilities and the nonnal course of human conduct

> •

')..

PUNJAB v. WASSON Sll'GH (Sarkaria, J.) 619

also sugge:st the :s; u11e inference, that in1mediately on seeing Hazara Singh beina A !Shot down, these \\fitnesses who were follov.-ing him ran fast for their lives. llaU they tarried for a while at the scene of the murder, it ¥.roul<l have been too late for then1 to escape unhurt.

In such ;1 situation, when they were being pursued by person.-.. nrmed with fire-arms, they \.'.ould if at alJ they turned and looked behind have only a fleeting glimp .... e in the distance of the a6sailants of Resha1n Singh deceased.

That is why P.\\'. 2 is not consistent 1n his statements as to \l.hich of lhc accused had fired at him when he was running away for his B life.

Moreover it has not been establishe<l that any of the :six accused had any motive, whatever to murder Reshan1 Singh deceased.

[635H--636C] ·

CRIMINAL APPELLATE JURISDICTJON : Criminal Appeal No. 499 ef 1976.

Appeal by Special Leave from the Judgment and Order dated C 22-7-1975 of the Punjab & Haryamt High Court in Criminal Appeal No. 166175 and Murder Reference No. 10175.

0. P. Sharma and M. S. Dhillon for the Appellant.

R. K . .loin for Respondents Nos. I and 3 to 6.

R. K. Kohlt and R. C. Kohli for the complainant.

The Judgment of the Court was delivered by

SARKARIA, J.-This appeal by the State of Punjab is directed against a judgment, dated July 22, 1975, of the High Court of Punjab and Haryana, whereby the appeal Of the respondents (hereinafter referred to as the accused) was accepted and they were acquitted of the double-murder charge against them.

The prosecution story narrated by Resham Singh (P.W. 2), who claims to be an eyewitness of the occurrence, runs as follows.

F Resham Singh (P.W.2) used to live with his brother-in-law, Hazara Singh deceased, in a hamlet in the fields outside the habitation of village Cheema.

One Ajit Singh of village Dhual was murdered, ~~ and Wassan Singh accused and his party-men were tried therefor. At

the trial, Hazara Singh deceased appeared as an eyewitness of that murder.

The trial court convicted Wasson Singh and his companions in that case. They went in appeal to the High Court.

Pending the appeal the High Court enlarged Wasson Singh accusetl 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 Siugh and Hnrbhajan Singh accused (respondents) adjoin the lands of Hazara Singh deceased.

Three or four days prior to the incident in question, the cattle of II these accused persons trespassed on the land of Hazara Singh and damaged his cotton crop.

Thereupon, a sharp altercation took place

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 cousion. Mukhtar Singh and Harbhajan Singh accused are alleged to be partyman of Wasson Singh.

On August 4, 1973 at about 3.30 p.m., Resham Singh (P.W.2) ..

Resham Singh (deceased) son of another Hazara Singh and Hazara Singh deceased were proceeding by the foot-path from the Bus Stand Amarkot to their hamlet. On the way Bachan Singh, brother of Hazara Singh, met them and proceeded along with them. When they reached near the fields of Jarmaj Singh Sarpanch of Mahmoodpura, all the six accused, namely, Wasson Singh, Baj Singh, Meja Singh, Joginder Singh, Mukhtar Singh and Harbhajan Singh emerged from the sann crop and came to the bank of the watercourse.

Baj Singh was armed with a pistol and the other five accused were armed with rifles. Wasson Singh, Joginder Singh and Mukhtar Singh fired their rifles at Hazara Singh. The rifle shots hit Hazara Singh on the left side of his head, and he dropped dead.

Resham Singh (P.W.2), Bachan Singh and Resham Singh deceased started running towards the ploughed fields.

Meja Singh, Harbhajan Singh and Baj Singh chased them.

Meja Singh and Harbhajan Singh encircled Resham Singh deceased and shot him dead with rifle-shots.

Baj Singh chased Resham Singh (P.W. 2) and Bachan Singh (P.W. 3) and fired at them with bis pistol.

When these two were running away, the other two accused also fired at them.

Resham Singh and Bachan Singh, however, succeeded m escaping unhurt. Resbam Singh (P.W. 2) immediately reached the Bus Stand Amarkot, picked up his motor-cycle which was lying there at a shop and drove fast to Police Station Valtoha, where he lodged the First Information Report (Ex. PE) at 4.30 p.m. Police Sub-Inspector Bishambar Lal recorded the report of Resham Singh and sent a copy of the same as a special report to the superior officers, including the Judicial Magistrate, Frrst Class at Patti, who received the copy of the F.I.R. at 6.30 p.m., on the same day.

While running away from the spot Resham Singh (P.W. 2) had left behind his shoe (Ex. P"l) near the scene of murders.

Sub-Inspector Bashambar Lal reached the scene of occurrence at ,.

H 5.30 p.m. and started investigation.

He prepared the inquest reports regarding the deaths of Hazara Singh and Resham Singh dece:ased persons. He also took into possession blood-stained earth

• and other relevant articles lying near the two dead-bodies. He found A 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, B Mukhtar Singh accused, in the presence of witnesses, fed the police to the discovery of the riJ!e (Ex. P-7) and some live cartridges.

The riJ!e and the empty cartridges earlier found at the scene of crime were sent to the ballistic expert for examination and opinion. After examination, the ballistic expert of the Forensic Science Laboratory,

')>...

Chandigarh, reported (vide Ex. P. 9) that the 303 fired cartridge, C marked 0, 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 C2 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 D Baj Singh accused on Decembr 18, 1973.

The post mortem examination of the dead-body of Resham Singh was perfonned by Dr.

Gursharan Kaur on August 5, 1973 at 8 a.m.

The Doctor found five gun-shot injuries on his body. Two of these were wounds of entry, with everted margins on the back of the left chest. No charring was present on any of these gun-shot wounds.

The death in E 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 fonr fire-arm injuries, two of F which were wounds of entry and two were wounds of exit.

Al! these injuries were on the skull.

They involved fracture of the skull and j.,4amage to the brain. These injuries had been caused with fire- - arm and were sufficient to cause death instantaneously, in the ordinary -'" course of nature.

At the. trial, the main-stay of the prosecution was the testimony of the two eye-witnesses, Resham Singh (P.W.2) and Bachan Singh

(P.W.3).

Examined under Section 342, Cr.P.C., Wasson Singh accused admitted that he along with others was tried for the murder of Ajit Singh

, of village Dhual and Hazara Singh dec&ased had appeared against him H as eye-witness of that murder; and that he (Wasson Singh) was convicted by the Court of Sessi_on, but had been released on bail

7-152 SCI/81

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 relation! of Aj; t Singh deceased on suspicion; and that on the day of occurence, 1'e was working as a Conductor on a truck at Muzaffarnagar.

The plea of Baj Singh wa! one of plain denial of the prooecution case.

He stated that his brothers Punjab Singh, Narinder Singh and Bagicha Singh had been prosecuted for the murder of one Puran Singh who was a relation of Bachan Singh (P.W.3); that Punjab Singh and his companions were acquitted in that case.

Baj Singh added that he used to look after the defence of the accused in Puran Singh's murder case; and that on account of this, he had been falsely impli- /....._ cated. He further stated that at the time of occurrence, he was resi- .- ding in U. P.

Meja Singh accused, also, denied the prosecution case.

He stated that one Balkar Singh of Village Wan had been murdered. He (Meja Singh) used to look after the defence of Jarnail Singh (his wife's brother, who was being tried for the murder of Balkar Singh; that on account of this, the relation of the said Balkar Singh had, in connivance with the complainant party, falsely implicated him in the instant case.

The remaining accused, also, denied the circumstances appearing in evidence against them.

The learned Additional Sessions Judge, Amritsar, who tried the case against these six accused persons, found that Wasson Singh had a strong motive to murder Hazara Singh decea&'...d, because the latter had appeared as an eye-witness against Wasson Singh in Ajit Singh's murder case.

The trial Judge further accepted the prosecution evidence in regard to the fact that a few days before this occurrence in question, there was a : quarrel between Hazara Singh deceased and Resham Singh (P.W. 2) on one side and Mukhtar Singh, and Harbhajan Singh accused on the other, when the cattle of the accused~ .. had trespassed on the land of the deceased and damaged his cotton -- crop; and that on account of this ill-will, Joginder Singh, Mukhtar Singh and Harbhajan Singh accused had a sufficient motive to join hands with Wasson Singh accused to murder Hazara Singh deceased.

The trial Judge further found that the prosecution had failed to establish the exact nature of the motive which might have actuated Meja Singh and Baj Singh to murder Resham Singh deceased.

The trial Judg; o further held that the F.I.R. which had been lodged by Resham Singh with great promptitude at Police Statio'n Valtoha, which was about three miles from the place of occnrrence, furnished valuable corroboration of the evidence of Resham Singh (P .W. 2). '

• He accepted the evidence of Resham Singh and Bachan Singh.

He further found that Snb-Inspector Bishambar Lal had tried to favour J oginder Singh accused by fabricating a note in his zimini at some subsequent stage.

This note is to the effect, that Joginder Sinch was, in fact, present irri!ating his nearby fields and he joined the police investigation on the very day of occurrence and had remained with the police till the investit; ation by the Deputy Superintendent of Police. The trial Judge disbelieved the plea of alibi set up by Meja Singh accused. In the absence of independent evidence, the trial Judge was unable to hold from the bare testimony of Bishamber Lal, Sub-Inspector, that the rifle (Ex. P-7) had been recovered from Mukhtar Singh accused.

He, however, criticised th~ conduct or Sub- Inspector Bishamber Lal in not s.ending the empty cartridges found at the spot to the ballistic expert of th~ Forensic Laboratory, Chandi1arh,

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 cffence 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 mnrder of Reshilm 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 accusd were sentenced to imprisonment for life . and a fine . .. i.~

The trial Judge referred the case to the High Court for confir mation of the death sentence of Wasson Singh. All the accused, also

appealed against their conviction and sentences.

The Hi&h Court G

allowed the appeal, declined the roference and rejected the evidence of the eye-witnesses, Rcsham Singh (P.W. 2) and Bachan Sinjh (P.W.

3) , for these reasons :

(i) Both these witnesses are closely related to the deceased Hazara Singh, who was the prfncipal target of the accused.

(ii) (a) Excepting in the case of Wasson Singh who had undoubtedly a grudge against Hazara Sinh deceased, it has not been

satisfactory established by the prosecution that the other five accused had any motive to commit the murders in question.

(b) Gajjan Singh, who is said to have interceded and pacified both the parties at the time of the alleged quarrel over cattle trespass, three or four days prior to the occurrence, between Mukhtar Singh and Harbhajan Singh on one hand and Hazara Singh deceased and Resham Singh (P-W. 2) on the other, has not been examined by the prosecution.

(c) There was no mention about this earlier incident in the statement of Bachan Singh (P.W. 3) before the police during investigation.

(iii) Both Resham Singh and Bachan Singh, P.Ws. had earlier been invol'."cd in cases of serious crime, and Bachan Singh was admittedly registered as a bad character with the Police.

O'n account of their antecedents, Resham Singh and Bachan Singh do not appear to be reliable people.

(iv) The prose9ution 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 Si"ngh was killed and r, ot Resham Singh deocased against whom the accused had no grudge.

( v) Hazara Singh deceased, Bachan Singh and Resham Singh, E P.Ws., all admittedly reside in the hamlet of Hazara Singh deceased, and if they had to go to Amarkot for making purchases, they would have in all probability gone together. Bachan Singh's version, that he had gone to Amarkot to make e'nquiries regarding the availability of diesel and on his return journey in the way, met and joined the

F company of his brother Hazara Singh deceased, and his companions, was not believable, becanse there was no need for Bachan Singh to have gone to Amarkot for the purchase of diesel as he could have asked Hazara Si'ngh 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 G (P.W. 2) had left their beliak (hamlet).

From the statement of Resham Singh (P.W. 2), it appears that from their behck they had gone to Amarkot that very day for purchasing cloth and on the return journey they met Bachan Singh.

As against this, the story told by Bachan Singh is that a day earlier Hazara Singh deceased and Resham Singh, P.W. had left their beliak for some unknown destination and 0 that a day later they had met him at the adda, after !heir departure from the behak the previous day.

This V'crsion completely belies the version of Resham Singh (P.W. 2) that they had left their behak

m order to make purchases of c:oth and other articles,

(vii) Another odd feature brought out from the evidence of Resham Singh (P.W. 2) is the presence of motor-cycle at Amarkot o'n that day, It is surprising that he could afford to maintain a motorcycle from the meagre income that he wonld 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 Bish amber Lal (P.W. 13) does not inspire confidence.

(a) The evidence relating to the recovery of empty cartridges (vide Ex. P.G.) and pair of shoes from the spot near the dead-body of Hazara Singh, was not reliab'.e, because P.W. 13 did not mention about the pre&e11cc of tbese articles in the inquest report (Ex. PDZ),

(b) Though the empty (crime) cartridges recovered from the spot were sent to the ballistic expert earJi.er, 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 cartridgecs to the Police Station, as the test cartridges could be sent for through a separate letter.

Jn htis situation, the suggestion that the crime cartridge had been later on fired through rifle (Ex. P7) when it was recovered cannot be considered improbable",

(ix) "On arrival at !hoe scene of the incident,

P.W. 13 fonnd Joginder Singh accused at a distance of abont 100 yards irrigating his field.

According to Bishamber Lal, he interrogated Joginder Singh there and then, bnt 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 F improbable".

J - Learned counsel for the appellant vehemently contends that the r'Oasoning of the High Court is manifestly unsound, if not wholly perverse.

Great emphasis has bee'n laid on the fact that the First Information Report, in this case was lodged by Rcsham Singh (PW 2) G with utmost promptitude, and .even its copy had reacho"d the Magistrate at about 6 or 6-30 p.m. at Patti, on the same day.

In the First Information Report, proceeds the argument, all the material facts including the names of th•" accused and of the witnesses have been mentioned. It is submitted that si'nce this FJ.R. was made without delay in circumstances in which the informant had no time to concoct H a false story, it furnished valuable corroboration of the evidence of Rcsham Singh (P.W. 2), and made his evidence safe enough to be

626 SUPJU!ME COUl!.T REPORTS [1981] 2 s.c.R.

accepted.

It is further maintained that in the first place, the prrn; ecutio'n had established that Mukhtar Singh, Harbhajan Singh and Joiinder Singh had also a motive to join hands with Wasson Singh to murder Hzara Singh deceased, and that even if it was held that such motive on the part of the companions of Wasson Singh accused had not been substantiated-as the High Court has held-then P.Ws. 2 and 3 had also 'no motive or animus to falsely implicate them.

Counsel have criticised the failure of the High Court to discuss the value and effect of the F.I.R. lodged by P.W. 2.

It is emphasis•od that the circumstance that the FI.R. was made without delay was a circumstance of paramount importance in evaluating Resham Singh's evidence in particular and the prosecution evidence in general.

It is argued that the omission on the part of the High Court to deal with and discuss the F.I.R. has caused •erious aberration in its approach and viti•, ted its apprec]!; tion of the evidence of the eyo-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 •upport 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 fuels inclined to hold that the view of the evidence taken by the trial court is also reasonable. Shri Jain has further

triecl to oupport the reasonini;: of the High Court.

We have carefully considered the contentions canvassed on both siues.

We are also not unmindful of the fact that we are dealing with an appeal against an order of acquittal i'n a double-murder case.

Even so, we find that tho reasons given by the High Court for bo:ding that Resham Singh (P.W. 2) was not an eye-witness of these murders, are utterly unsustainable. The mere fact that Resham Singh (P.W. 2) had succeeded in escaping unhurt, or that there arc discrepancies i'n the statements of Resham Singh (P.W. 2) and Bachan Singh (P.W. 3), as to whether they had gone to Amarkot with Hazara Singh' deceased on the very day of occurrence or a day earlier, was no ground for jumping to the conclusion that P.W. 2 was not in the company of the deceased or nearabout the scene of occurrence when Hazara Singh and Resham Singh were shot dead.

The occurrence took place on August 4, 1973, while Resham Singh (P.W. 2) and Bachan Singh (P.W. 3) were examined at the trial on December 27, 1974, that is to say, 17 months after the incident.

Such discrepancies in regard to collateral or •ubsidiary facts or H 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 rnbstratum of the prosecutirn1 case.

As rightly observed by the trial court, Resham Singh (P.W.2) was never cross-examined by the defence regarding his whereabouts and that of Hazara Singh deceased on the previous night.

The mere fact that P.W. 2 did not make any purchases at Amarkot could hardly be a reason to hold that his being in the company of Hazara Singh deceased at the material time, was improbable.

It is common ground that there was no love-lost between Wassan Singh appellant and Hazara Singh deceased. Wassan Singh, though convicted by the trial court for the murder of Ajit Singh, was released on bail by the High Court pending his appeal.

P.W. 3 is the brother and P.W. 2 a relation of the deceased.

All these three were living together in the same hamlet in the fields.

It is in the evidence of these witnesses that the other accused are partymen of Wasson Singh. It is further in evidence that sometime before the occurrence both Hazara Singh and Resham Singh (P.W. 2) were arrested and handcuffed by Darshan Singh, Police Sub-Inspector on the allegation that they were indulging in smuggling and would be liquidated.

Both of them however, escaped and appeared with handcuffs on before the Deputy Home Minister and complained against the Police Sub-Inspector. Both were prosecuted for smuggling betel leaves across the border. It was therefore, not improbable that this trio consisting of Hazara Singh deceased, P.W. 2 and P .W. 3 was, as usual, moving about or carrying on their activities together.

Moreover, the deceased Hazara Singh must have known that Wasson Singh accused who was inimically disposed towards him, was at large on bail.

This was an added reason for this troika _.1' -to move about for their security, if not for anything else, in the company of each other.

Nor could P.W. Bachan Singh's presence at the scene of crime

be discounted and his evidence discarded merely on the score that G there was no necessity for him to go to Amarkot for enquiring about the availability of diesel.

There is one towering circumstance which goes a long way to lend assurance to the claim of P.W. 2 that he was an eye-witness of the occurrence.

It is that the F.I.R. (Ex. P.E.) was lodged by him B a! Police Station Valtoha, so promptly that he had practically no time to spin out a false story.

The learned trial Judge has accepted, and rightly so, the sworn testimony of Resham Singh (P.W. 2) and Sub-Inspector Bishamber Lal (P.W. 13), who was then Station House Officer, Valtoha, to the effect, that the F.I.R. (Ex. P.E.), was recorded in the Police

Station at 4.30 p.m. Police Station Valtoha is three miles from Bus Stand Amarkot.

According to Resham Singh, the occurrence took place at about 3.30 p.m.

On seeing the occurrence and after eluding the pursuit, Resh am Singh, as he says, ran to Adda Amarkot through the fields covering a distance of about one kilometre.

According to P.W. 2, his motor-cycle was lying at a shop in Amarkot.

He picked up his motor-cycle from there and drove to the Police Station, Valtoha and without loss of time lodged the first information, there.

The endorsement on Ex. PE, bears out that the copy of the First Information was in the hands of Shri K. K. Garg, Judicial Magistrate, First Class, Patti, at 6.30 p.m.

This circumstance assures the truth of the prosecution evidence on the point that the First Information Report was made by Resham Singh (P.W.

2) at the Police Station at 4.30 p.m., that is within two hours of the occurrence, without undue delay.

The learned Judges of the High Court have not at all dealt with the F.I.R. or the promptitude with which it was made.

They doubted Resham Singh's version that from Amarkot he went on bis own motor-cycle to Valtoha Police

Station.

The argument employed by the High Court is that Resham Singh owned only four or five killas of land, and could not acquire and maintain a motor-cycle from the income of his petty holding.

However, this was not the defence case. In cross-examination, the defence themselves, brought out and tried to establish that he was earning by smuggling betel or other things to Pakistan. Thus, according to the own showing of the defence, P.W. 2 had a source of income other than his agricultural income. It was, therefore, nothing improbable if Resham Singh owned a motor-cycle.

Sub-Inspector Bishamber I.al (P.W. 13) was not questioned in cross-examination as to whether or not Resham Singh bad come to the Police Station on a motor-cycle.

He (P.W. 13) was however, questioned as to what transport he had used for going from the Police Station to the scene of murders.

The witness replied that he went on a motor-cycle upto Amarkot and from there went on foot to the scene of occurrence. Resham Singh stated that since it had recently rained, the kacha path from Amarkot to their hamlet in village Ban, had become muddy and unsafe for riding a motorcycle because of the high risk of skidding. That was why, the witness had left the motor-cycle at Adda Amarkot with a shopkeeper.

-~ -

It may be noted that the occurrence took place on August 4, 1973 when the rainy season would be in full swing. This explanation of Resham Singh (P.W. 2) regarding the kacha path from Amarkot to the scene of occurrence, being non-motorable on the day of occurrence, receives inferential support from the fact appearing in the evi- -Oence of Bishamber Lal (P.W. 13), that he had to cover the distance from Adda Amarkot to the place of occurrence, on foot. Thus, the reason employed by the High Court for disbelieving the version of Resham Singh (P.W. 2) regarding his owning and going on a motor-cycle from Amarkot to Police Station Valtoha was manifestly unsound.

It was argued before the trial court on behalf of the accused that the occurrence might have taken place at about 2 p.m. when Resham Singh (P.W. 2) was about 400 or 500 yards away in his hamlet, and that on hearing the report of gun-fire he was attracted to the scene of crime, and he having seen the dead-bodies lying there, went home, took his motor-cycle and. then drove to the Police Station Valtoha and brought Sub-Inspector Bishamber Lal to the scene of occurrence and the Sub-Inspector prepared the F.I.R. at the spot after deliberation with Resham Singh and others.

This c_onte_ntion 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 markot and thereafter to Valtoha, Resham Singh went on his motor-cycle, was improbable. -

Moreover, from the conduct of the Investigating Officer, Bisham- F ber Lal, it appears that he was not favourably disposed towards the deceased and the informant.

Indeed, a suggestion was put to Bishamber Lal (P.W. 13) by the Public Prosecutor, that he has been unfair in the investigation of the case a!ld tried to favour Joginder Singh and Meja Singh accused.

The learned trial Judge found that the investigation conducted by Sub-Inspector Bishamber Lal was G biased in favour of Joginder Singh and Meja Singh accused persons, and that the Sub-fnpector 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 H Information Report, after deliberation with him (P.W.2) at the '.Spot.

630 SUPREME COURT llEPO!lTS

[198!) 2 S.C.R.

Dr. Gursharan Kaur (P.W. 1) who performed the post-mOf"tem examination of the dead-bodies of Resham Singh and Hazara Singh on August 4, 1973 between 8 a.m. and 9 a.m. respectively, opined that the time which elapsed between these deaths and their post-mortem examination was about 18 hours.

Thus, according to the Doctor'• opinion, also, the deaths took place at about 2 or 3 p.111. on August 4, 1973.

The opinion of the medical witness thus corroborated tbe version of Resham Singh (P.W. 2) in as much as the latter has testified that tbe murders took place at about 3.30 p.m.

This means, that the statement of Resham Singh (P.W. 2) in the First Information Report was made without undue delay, and, as such, furnished very valuable corroboration of his testimony at the trial, in all material particular.

If the presence of Resham Singh (P.W. 2) and Dalip Bachan Singh (P.W. 3) at the time and place of murders was probable the further question would be, how far their evidence could be safely accepted D against each of the accused persons ?

It is true that both these witnesse• are relavd 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 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 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, [or reasons wl1icl1, as already discussed, are manifestly untenable.

Keeping the principle enunciated above, we have scrutinised the entire material on record with particular focus on the evidence of P.W.2 and P.W.3, against each of the accused. Excepting the inunaterial di•crepancies considered earlier, the evidence of P.W. 2 and P.W. 3 wai; 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

............

to the extent to which some assurance is coming forth from surrounding circumstunces or other ev; dence .

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 ritleshots 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 2t ems. 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 decea>ed. Now, both the courts below have concurrently found that Was•on Singh had a strong motive to murder Hazara Singh deceased. This circumstance, by itself, is sufficient to lend the necessary assurance to the evidence of Resham Singh (P.W. 2) and Bachan Sinah (P.W. 3) and make it a safe basis for convicting Was•on Singh accused for the murder of Hazara Singh.

The trial court had accepted the evidence of Resham Singh IP.W.2) in regard to the quarrel over cattk trespass that took place 3 or 4 days prior to these murders between Mukhtar Singh a'nd Harbhajan Singh accused on one side, and Hazara Singh deceased and P.W. 2 on the other.

This story finds particular mention in the F.1.R. (Ex. PE) which was lodged by P.W. 2 without undue delay.

The High Court has rejected this story about this previous quarrel on the three-fold ground, namely: (a) Gajjan Singh who interceded and pacified the parties has not been examined, (b) No evidence of the extent of damage done to the crop or of any complaint made to village Panchayat has been produced, (c) Bachan Singh (P.W.3), did not mention about this earlier incident in his police statement. ln our opinion, none of these was a valid ground for re, iecting the evidence of Resham Singh (P.W.2) in regard to this incident. Resham Singh's consistent testimony on this point corroborated by the F.I.R. (Ex. PE) was sufficient to establish this fact beyond doubt. Thus, it was proved by the prosecution that Mukhtar Singh accused had also a motive to join Wasson Singh accused in ki!ling Hazara Singh.

The circumstance that Mukhtar Singh had also a motive to participate in the murder of Hazara Singh deceased lends assurance to the

testimony of Resham Singh (P.W.2) and Bachan Singh (P.W.3), and strengthens the inference of guilt against the said accused, also.

It is in the evidence of Sub-Inspector Bishamber Lal (P.W.13) that Mukhtar Singh was arrested on August 18, 1973 and on August 31, 1973 Mukhtar Singh accused, whilst under Police custody, made a disclosure statement in the presence of Ajit Singh and Sardul !:iingh Co'nstables. that he had kept concealed a 303 rifle with 5 cartridges wrapped in a piece on cloth in a bundle of reeds lying inside the courtyard of his house at village Thathiwala and he could get the same discovered. P. W. 13 recorded that statement (Ex. P 1). Thereafter, the accused was taken to village Thathiwala where he led the Sub-Inspector in the presence of Sardul Singh and Ajit Singh Constables, to that bundle and got discovered the rifle (Ex. P7) and the

cartridges (Ex. PS to 12) there!rom.

The Sub-Inspector prepared the sketch of the rifle and the memo (Ex. PM) which was attested by the aforesaid Constables. The rifle and the cartridges were sealed into parcels and were thereafter sent through Constable Ajit Si'ngh, with seals intact, to the Police Station where they were received by the Moharrir Head Constable Natha Singh (P.W. 10).

P, W. 13 has also, stated that he had on August 4, 1973 on inspecting the scene of murders, found two empty cartridges (Ex. P3 and Ex. P4) from near the dead-body of Hazara Singh.

The witness took them into possession and sealed them into a parcel in the presence of Anokh Singh and Gajjan Singh witnesses. and prepared the memo (Ex. PG). The parcel containing the empties was later deposited by the Snb-Inspector, with seals in tact, in the Malkhana of the Police Sta.lion.

The evidence of Sub-Inspector Bishamber Lal, with regard to the seizure of the empty (crime) cartridges from the scene of occurrence on August 4, was supported by Anokh Singh (P.W.4) who is an """"""" attesting witness of the memo, Ex.PG. The witness is a resident of village Cheema.

In cross-examination, he revealed that these two fired cartridg:es were lying at a distance of H karams (8 or 9 feet) from the dead-body of Hazara Singh.

Nothing was brought out in cross-exan1ination 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 ,,, aled into parcels which were later deposited with seals intact in the Police Sta· lion.

Tn the memo (Ex. PG), il is mentioned that these fired cartridges were of 3G3 bore rifle.

Ajit Singh M:oharrir Head Constable (P.W.11) swore in his affi- /If. davit that on August 4, 1973, he received the sealed parcel of 2 empty cartridges from Sub-Inspector Bishamber Lal.

The seals on the parcel remained intact so long as the parcel remained in his custody.

Then, there are the affidavits of Avtar Singh Constable \P.W. 9) B and Natha Singh Moharir Head Constable showing that on September 24, 1973, the sealed parcels containing the rifle (Ex. P7) and the five live cartridges were sent through P.W. 9 to the Forensic Science

Laboratory Chandigarh, who delivered the same in the said Laboratory with seals intact.

The evidence of P.W. 13 regarding the discovery of the rifle (Ex.

P7) from Mukhtar Singh accused was fully corroborated by Constable Sardul Singh (P.W. 12). His cross-examination reveals that Mukhtar Singh was interrogated in the Police Station at 4-5 A.M. when he made the statement (Ex. PL), leading to the discovery of the rifle (Ex. P7).

Sub-Inspector Bishamber Lal (P .W. 13) has slated that the sealed parcel containing the empty cartridges, that had been found at the scene of crime, was sent to the Fo"ensic Science Laboratory Chandigarh at a dale earlier than the one on which the parcel containing the rifle (Ex. P7) and the five live cartridges was sent to the said Laboratory, but it was returned with the objection that it should have been

sent along with the test cartridges. Consequently, this parcel containing the empties was again sent to the Forensic Laboratory along with the sealed parcel containing the rifle (Ex. P7) and the live cartridges recovered from Mukhtar Singh accused.

In the Report (Ex. PQ) of the Ballistic Expert (L. A. Kumar) which was tendered in evidence and admitted without objection, it is opined that the empty (crime) cartridge, marked C,, had been fired through the rifle (Ex. P7) . .. - In cross-examination, the defence suggested to P.W. 13, that he had purposely recalled the parcel containing the empty cartridges from

the Forensic Science Laboratory for creating evidence against the accused and he did so by firing one cartridge through the rifte (Ex.

G P7). The oblique suggestion was that the cartridge, marked C1 which in the opinion of the Ballistic Expert had been fired through the rifle (Ex. P7) was substituted for the original empty cartridge that l1ad been found at the scene of murder.

The Sub-Inspctor emphatically denied the suggestion. It was further suggested to PW. 13 that the rifle (Ex. P7) had, in fact, been handed over to the Police by the IJ relations of the deceased after procuring it from some source.

This was also stoutly denied by P.W. 13.

The learned trial J u.dge discarded this evidence relating to the discovery of the rifle (Ex. P7) at the instance of the accused, Mukhtar Singh, for the reason that Sub-Inspector Bishamber Lal, for no good reason, had failed lo join respectables of the locality to witness the discovery of the rifle, and that he (P.W. 13) "has tried to be a defence witness rather than the investigating officer". The trial Judge accepted Anokh Singh's statement regarding the rewvery 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 wilh the trial Court that the investigating officer did not deliberately join with him respectables of the locality to attest the statements (Ex. PL) made by Mukhtar Singh, and to witness the subsequent discovery of the rifle (Ex. P7) at the instance of Mukhtar Singh. There was substance in the observation of the trial Judge that the investigation was biased in favour of the accused.

If that was E so, the failure of Bishamber Lal (P.W. 13) to join with him respectables of !he locality was, by itself, no ground for ruling out the evidence of the discovery of the rifle, altogether. The partiality of Bishamber Lal towards the defence, rather assures the genuineness of the discovery He was least disposed to 'collaborate' or 'cooperate' with the relations of the deceased to procure this rifle (Ex. P7) from ome other source and then foist it on Mukhtar Singh. For the same reason, it is not possible to hold that he recalled the sealed parcel containing the fired

(crime) cartridges from the Laboratory at Chandigarh, for substituting a cartridge fired through the rifle (Ex. P7) or for fabricating evidence in support of the prosecution.

Moreover, the parcel containing the

G two empties must have been returned by the Director of the Forensic Laboratory on his own initiative and not at the instanco of the Sub- Inc.pector (P.W. 13).

The omission on the part of this investigating officer to join with him some independent persons or respectables of the locality to witness the recovery devalues that evidence but does not render it inad- H missible.

Although a suggestion of "planting" the rifle, and fabricating the evidence of the empty cartridge (Ci) was put to Sub- Inspector Bishamber Lal in cross-examination, no such allegation was

made, nor any such plea was set up by Mukhtar Singh accused when the evidence relating to the recovery of the two empties from the spot, the discovery of the rifle (Ex. P7) at his instance and the opinion (Ex. PQ) of the Ballistic Expert was put to this accused in his examination under Section 342, Cr. P.C. The circumstance of the recovery of the rifle (Ex. P7) and the opinion of the Ballistic Expert that the empty cartridge (marked 0) (found on August 4, at the scene of murder) had been fired through the rifle (Ex. P7),-though feeble it might was relevant and furnished a further pointer to the participation of Mukhtar Singh in the commission of Hazarn Singh's murder by rifle-fire.

In sum, sufficient assurance of the testimony of P .W. 2 and P.W. 3, was available from the circumstantial evidence discussed above, regarding the participation of Wasson Singh and Mukhtar Singh accused in the murder of Hazara Singh. The evidence 0£

the eyewitnesses therefore, could safely be acted upon for convicting Wasson Singh and Mukhtar Singh accused-resporclents for the murder of Hazara Singh.

But such assurance of the evidence of these eyewitnesses waQ not available against the remaining accused regarding either of the murders in question.

Joginder Singh accused admittedly was not present when the quarrel over cattle trespass took place between Hazara Singh deceased and P.W. 2 on one side, and Mukhtar Singh

and Harbhajan Singh accused on the other.

It has neither been alleged nor proved that Joginder Singh had any motive of his own to murder Hazara Singh deceased.

Although, the investigation l:etrays a tilt in favour of the accused, and P.W. 13 made a fraudulent "¥isertion in the zimini to help Joginder Singh accused, it cannot be said that the version of P.W. 13 to the effect-that when, he went to the scene of murders at 5.30 P.M., he found Joginder Singh irrigating his nearby fields at a distance of about 100 yards therefrom and he (P.W. 13) interrogated him there and theu, 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, enaged in normal agricultural activities does cast a doubt about his participation in the commission of these murders.

P.W. 2 and P.W. 3 have stated that they started running away from the spot, immediately after Hazara Singh was shot dead. The surrounding circumstances, natural probabilities and the normal course of human conduct also sugget the same inference, that

immediately on seeing Hazara Singh being shot down, these witnesses who were following Hazara Singh, ran fast for their lives.

Had they tarried for a while at the scene of Hazara Singh's murder, it would have been too late for them to escape unhurt.

In such a. situation, when they were being pursued by persons armed with fire-arms, they could, if at all they turned and looked behind have only a fleeting glimpse in the distance of the assailants of Resham Singh deceased.

That is why, Resham (P.W. 2) is not consistent in his statements as to which of the accused had fired at him when he was running away for his life.

Moreover, it has not been established that any of the six accused had any motive, whatever, to murder Resham Singh deceased.

For the foregoing reasons, we partly allow this appeal by the State, set aside the acquittal of Wassan Singh and Mukhtar Singh accused (respondents) and comic! them under Section 302 read with Section 34, Penal Code for the murder of Hazara Singh dl7ceased and sentence each of them to imprisonment for life.

We would, however, accord the benefit of doubt to the rest of the accused (respondents) and maintain their acquittal on all the counts.

Wasson Singh and Mukhtar Singh shall surrender to their bail-bonds to serve out the sentences inflicted on them.

N.V.K.

Appeal partly allowed.

. ~-