SWARAN SINGH ETC. ETC.

STATE OF PUNJAB

APRIL 26, 2000

[D.P. WADHWAAND RUMA PAL, JJ.]

Penal Code, 1860-Sectlon 302-Murder by gunshots-Appreciation of evidence-Testimony of eye witnesses regarding accused persons, involvement not only consistent but duly convborated by material evidence-Motive for C c1ime established-FIR p1vmptly lodged-Accused's presence at the scene of occurrence with double barrel gun admitted-Deceased persons in drunken state refuted by chemical examination report-Site plan, photographs showing position of dead bodies and other mate1ials collected from the spot supporting prosecution case-Conviction & sentence-Upheld.

D Criminal Trial:

Appreciation of evidence-Non-acceptance of eye-witness account regarding involvement of co-accused-Effect of-Held : merely because one portion of evidence of eye-witnesses is disbelieved does not mean that Court is bound to reject all of it.

Frequent adjournment-Causing delay in trial and harassment to witnesses-Remedies-Suggested.

Criminal Procedure Code, 1973-Section 304(3)-Amendmifnt to eliminate evil of perjury-Suggested.

Appellants were prosecuted for offences under Section 302/34 of Penal Code. The Prosecution case was that 'S', 'A', PW-3 and PW-4 were returning from a village in a car. On their way, a truck started continuously blowing horn from behind. PW-3 stopped the car and 'S' got down to identify the driver of the truck. The driver of the truck brought the truck alongside the car. Accused 'SS' opened the left window of the truck and shot 'S' in the chest with his 12 bore double barrel gun. 'S' died on the spot. On hearing the shot 'A' got down from the car went to the back of the truck. Accused 'S' and 'M' fired at 'A' hitting him in his chest. 'A' also succumbed to his injuries on the spot PW-3 and PW-4 raised an alarm whereupon the assailants fled away from the spot. Subsequently, accused 572

S. SINGH ETC. ETC. v. STATE 573

~ 'SS' surrendered before the Magistrate and handed over the double barrel A gun. Trial Court while acquitting accused 'A' and 'M', convicted and sentenced accused 'SS' and the driver of the truck for offences under Section 302/34 Penal Code. On appeal High Court affirmed the findings of the trial Court. Hence the present appeals.

On behalf of the appellants, it was contended that both the Courts B

below had erred in relying on the eye-witnesses, namely, PW-3 and PW-4 as their evidence regarding the incident in so far as it related to 'M' had been disbelieved by both the courts; that the evidence of the eye-witnesses that the deceased had not drunk alcohol was belied by the Report of the FSL; that the Investigating Officer's evidence was inconsistent with the c

evidence on record; that there was a delay of 5-1/2 hours in lodging of the complaint during which time the alleged eye-witnesses had concocted the

). ... story of involvement of the accused •

Dismissing the appeals, the Court D

Held : Per Ruma Pal, J

1.1. The eye-witnesses' accounts of the accused persons' involvement

~ in the crime are not only consistent but were duly corroborated by mate- E rial evidence. The enmity between the accused and deceased was established. Thus, Courts below were justified in convicting and sentencing the accused-appellants. [581-G; 582-B]

1.2. Accused 'SS' has admitted his presence at the scene of occurrence with loaded double barrel gun and a cartridge belt. His defence that F he had not fired by any shots and the deceased in a drunken State were the aggressors cannot be accepted in view of the medical evidence. According to the Chemical Examiner's report, the alcohol concentration found in the viscera of deceased neither showed that it had been consumed immediately prior to the occurrence nor was it sufficient to make the deceased inebri- G ated. [ 582-C]

---=-..t --

2. The site plan, photographs showing position of deceased persons and the blood stained earth collected from the spot supports the prosecution case that the deceased were killed at the spot next to the truck and not near accused SS's house as claimed by him. H indeed the deceased were H

shooting indiscriminately as alleged by the accused there would have been some pellets on the walls ofSS's house. It was not even suggested to any of the -witnesses in the prosecution that there were pellets or pellet marks near SS's house. Thus, both the Trial Court and High Court rightly rejected the story of accused to explain the presence of the truck at the scene of occurrence. Further, the fact that the hitting was at close range supports the evidence of the eye-witnesses and runs contrary to the defence account of the incident. [58lG-H; 582-A]

.forensic Science in Criminal Investigation. & Trials (3rd Edn.).P. 280; Fisher, SveTJ, Sson and Wendel's Techniques of Crime Scene lnvestigati9n (4th C Edn. P. 296), referred to.

3. Merely ecause one portion of the evidence of eye-witnesses is disbeiieved does not mean that tlie Courts were bound to reject all or'it.

Thus, non-acceptance of evidence of PW-3 and PW-4 by Courts below regarding the involvement of 'M' will not render their evidence regarding D involvement of appellants unbelievable. (583-D]

4. PW-1, Doctor has stated in his cross-examination that both the deceased could have met their death at about 4 P.M. on the fateful day, but this does not by itself establish the fact that the deceased were killed at 4 P.M. The evidence of PW 1, in chief was.that the death could have been eaused within 24 hours prior to the post-mortems. Therefore, PW-l's evidence is equally consistent with the case of the prosecution that the incident took place at 7.45 P.M. (583-H]

5. Minor discrepancies in the testimony Qf PW-5, Investigating Officer, are not sufficient to discard the case of the prosecution or to throw doubt on the eye-tnesses' testimony. Furthermore, the Trial commenced about three yars after the incident and it is not unlikely that the Investigating Officer c':luld ot remember the details of the investigation. [ 584-G)

Per Wadhwa, J. (Supplementing) :

1. A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that witnesses are required whether it is direct evidence or cireumstantial. evidence. Here are the witnesses who are a harassed lot. A witness in a criminal trial may come-from a far-off place to find the case adjourned; He has to come to the court many times and at H what cost to his own self and his family is not difficult to fathom. R has

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S. SINGH ETC. ETC. v. STATE 575

become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only that a witness is threatened; he is abducted; . he is maimed; he is done away with; or even bribed. There is no protection for him. Then appropriate diet money for a witness is a far cry. Proper diet money must be paid immediately to the witness and even sent to him and he should not be left to be harassed by the subordinate staff. If the criminal justice system is to be put on a proper pedestal, the system <:annot be left in the hands of unscrupulous lawyers and the sluggish State machinery. All the subordinate courts, should be linked to the High Court with a computer and a proper check is made on the adjournments and recording of evidence. [585-G-H; 586-A-D]

2. Perjury has also become a way of life in the law courts. A trial judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340(3) of the Code of Criminal Procedure in this respect as the High Court can direct any officer to file a complaint.

To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure. [586-F-G]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 721 of 1993.

From the Judgment and Order dated 18.9.92 of the Punjab and Haryana F High Court in Cd.A. No .. 315-DB of 1991.

WITII

Criminal Appeal No. 720 of 1993.

From the Judgment and Order dated 18.9.92 of the Punjab and Haryana G High Court in Cd.A. No. 204-DB of 199L

U.R. Lalit, Ujagar Singh, H.K. Puri, S.K. Puri, Ms. Naresh Bakshi, R.S.

Suri, Devender Verma, Rajiv Dutta, Uday Kumar, Rajesh Srivastava, Ujjawal Banerjee, Ms. Enakshi Kulshreshtha and Kapil Sharma for the appearing parties.

A The Judgment of the Court were delivered by

RUMA PAL, J. These appeals have been preferred from the decision of the Punjab & Haryana High Court holding the appellants guilty under Section 302 and Section 302/34 9f the lildian Penal Code (IPC) in connection with the death of Shamsher Singh and Amar Singh. The Additional Sessions Judge, Ludhiana as well as the High Court accepted the case of the prosecution and found the guilt of the appellants was established beyond reasonable doubt.

The case of the prosecution was that on 24th April, 1986 at about 7.30 p.m., Kamail Singh (PW3) was chiving a car with Gurmel Singh (PW 4) sitting next to him and Shamsher Singh and Amar Singh seated in the rear. All of them had been to village Bharthala to inquire about 'purbias' (labourers) from Dilbagh Singh. They did not find Dilbagh Singh nor any 'purbia' and were on their way back to Samrala when a truck started continuously blowing its horn behind the car. Shamsher Singh asked PW 3 to stop the car which PW 3 did. Shamsher Singh got down from the car and started looking at the truck to identify who the driver was. Jagjit Singh who was driving the truck, brought the truck along side the car. Jagjit Singh' s son Mittar Pal ( also known as Lovely) and Swaran Singh were seated next to Jagjit Singh in the front cabin of the truck. Swaran Singh opened the left window of the truck and shot Shamsher Singh. in the chest with his 12 Bore Double Barrel Gun.

Shamsher Singh died on the spot.

On hearing the shot, Amar Singh got down from the car and went to the back of the truck. Then Jagjit Singh, his son Lovely as well as one Amrik Singh got out of the truck. Jagjit Singh fired at Amar Singh hitting Amar Singh in the chest. Amrik Singh told Jagjit Singh to fire more shots at Amar Singh. Whereupon Lovely took the 12 Bore Double Barrel Gun from Jagjit Singh and fired two more shots at Amar Singh, one of which hit Amar Singh in the neck and the other in the stomach. The assailants fired more shots at Amar Singh. Amar Singh died on the spot. While the assailants were firing shots, Satish_ Kumar, who got down from back of the truck also received a shot. PW 3 and PW 4 both raised an alarm whereupon the assailants fled away firing shots in the air as they ran.

The motive for the crime alleged by the prosecution was that Swaran H Singh' s truck had been de-listed from the Truck Union of Samrala by

Shamsher Singh who was the President of the Truck Union, Samrala. It was also alleged that there was rivalry between Jagjit Singh and Shamsher Singh because of the forthcoming elections to the Presidents' Office of the truck union which was to be held about a week later.

On 24th April 1986 at 9.30 p.m. Kamail Singh (PW 3) lodged a First Information Report at the Police Station, Samrala. SI Kamail Singh, S.H.O.

P.S. Samrala (PW 5) went to the site and took possession of the truck, the car, the registration papers, the blood stained earth from near the dead bodies of the deceased, two empty cartridges from the cabin of the truck and four empty caruidges from near the dead body of Amar Singh. According to the

PW 5 he found Satish Kumar who had been wounded at the spot and sent C him to the Civil Hospital, Samrala. He then prepared an inquest report and sent the dead bodies for post mortem to the Civil Hospital, Samrala.

As far as Shamsher Singh was concerned the post mortem was performed at 10.30 A.M. on 25th April, 1986. The post mortem of Amar Singh was done the same day at 12.40 P.M. Both post mortems had been performed by Dr.Rajiv Bhalla, Medical Officer, Civil Hospital Samrala (PW 1). According to the post mortem report Shamsher Singh had the following injuries:-

There was a wound 2 ems in diameter on the right side of the chest with corresponding injury on the shirt and banian. The margins were blackened and rolled inwards with clots present. The wound was present in the 2nd and 3rd intercostal space in the mid clavicular line.

The remnant of cartridge and pellets were removed from the wound and sealed".

In the opinion of PW 1 the cause of death was fire arm injury leading to the rupture of the right lung and left lung leading to haemorrhage, shock and death. It was also stated that the death was instantaneous and injuries were ante mortem in nature and were sufficient to cause death in the normal course.

The following six• wounds were found on Amar Singh by PW 1:-

Worind 3.5 ems diameter on the left side of chest with blackened margins with rolled in ends. The shirt was blackened with corresponding injury on the shirt. The left strip of banian was missing. The wound was 10 cm deep and in the area of Ist and H

second intercostal space. The remnant of cartridge was seen in the wound and it was removed and sealed.

Wound 3 cm diameter in the middle of the chest in the anterior triangle of the neck. The wound was 7 cm in depth with remnant of cartridge and pellets removed and sealed.

Wound 3 cm diameter on the abdomen in the right upper guadrant with intestine protruding out of it 8 cm deep with margin rolled in and surroundings blackened. The intestines were ruptured and there was corresponding cut on the shirt and banian with margins blackened. The pellets were removed from injury and sealed.

A penetrating wound 2.5 ems diameter on the posterior aspect of the left leg in the popli to:> gal fossa 2 cm above the knee joint line with rolled in margins and blackened ends. TI1e wound was bone deep with remnants of cartridges and pellets embodied in the femur. TI1ere was fracture of the lower and of femur. The pellets were removed and sealed. There was corresponding cut in the pajama with margins blackened.

A penetrating wound 2.5 cm diameter in the left leg 3 cm below the knee joint with rolled in margins and blackened ends with corresponding cut on the pajama. The injury was bone deep and there was fracture of the upper end of tibia.

Penetrating wound 2 cm diameter on the left leg rolled in margins and blackened end 3 cm below injury No. 5 pellet removed and sealed.

In the opinion of PW 1 the cause of death was due to the injuries which were ante mortem in nature and sufficient to cause death in the ordinary cour.se.

The various itei:nS''colleted by PW 5 from the site as well as parts of the viscera of the deceased which had been removed during the post mortem were sent to the Forensic Science Laboratory (FSL) by the police for chemical analysis. On 26th April, 1986 Swaran Singh surrendered and handed over a 12 Bore Double Barrel Gun (Ex. P-22) before the Judicial Magistrate, Samrala (PW 6), who gave it on the same day to PW 5. Three months later

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on 26th July, 1986 Gajja Singh father of Jagjit Singh produced a 12 Bore A Double Barrel Gun (Ex. P 23) which was the licenced gun of Jagjit Singh before PW 5. After six weeks after that, the Sarpanch produced another 12 Bore Double Barrel Gun which was the licensed gun of Shamsher Singh (Ex.

P 24). Three other 12 Bore Double Barrelled Guns were produced by other witnesses on 27th October, 1986 (Ex. P25, Ex. P26 and Ex. P27).

Surprisingly, although Jagjit Singh was named in the FIR he was not arrested but the case was taken up for investigation by Shri Mohinder Singh, DSP, Shri Baldev Sharma, DSP, Shri Sanjeev Gupta, SP and Shri B.P.Tiwari, DIG, Crime, Chandigarh all of whom "found" that Jagjit Singh was innocent.

The police accordingly only chailaned Swaran Singh. Being aggrieved, PW C 3 filed a complaint on 1st December, 1986 against Jagjit Singh, Mittar Pal Singh ( alias Lovely) and Amrik Singh. All the four accused Were committed to trial on 22nd September, 1988. The objection of the accused that the complaint case and the challan case could not be clubbed was rejected by the Trial Court on 8th February, 1989 and the trial commenced on 18th D February, 1989.

The Additional Sessions Judge, Ludhiana charged Swaran Singh and Jagjit Singh under Section 302134 IPC and Amrik Singh and Mittar Pal Singh under Section 302/34 IPC. All four accused were also charged under Section

307/34 IPC.

Apart from tendering the formal evidence of Constable Dev Bharath, AMHC Jai Singh, Constables Hazurn Singh and Jagtar Singh on affidavits (as these witnesses were not required by the defence for crossexamination), the prosecution examined seven witnesses in support of the charges, namely, Dr. Rajiv Bhalla (PW 1), Ashok Kumar, Draftsman (PW 2), Kamail Singh (PW 3), Gurmel Singh (PW 4), Kamail Singh, SHO PS Samrala (PW 5), K.S.

Bhullar, Judicial Magistrate, Sarnrala (PW 6) and Randhir Singh (PW 7).

Swaran Singh in his defence stated that he was a member of the Truck Union and was actively helping Jagjit Singh, the co-accused who was a rival candidate of Shamsher Singh, the deceased in the election to the Presidentship of the Truck Union which was to take place on 3.5.86. According to Swaran Singh, both the deceased with the intention of scaring away the helpers of Jagjit Singh came anned to the front of the house of Swaran Singh on 24.4.86.

When Swaran Singh reached his house in his truck at 4.00 p.m. along with

A his cleaner, Satish, he found the deceased in a drunken state, shouting and using abusive language. The deceased allegedly were also firing indiscriminately Swaran Singh claimed that he ran away leaving his licenced loaded gun, the cartridges along with the belt and his cleaner behind in the truck.

He further stated that the cleaner, Satish received gun shots at the hands of B the deceased. He claimed that the eye witnesses were procured.

Jagjit Singh's defence was that he had been falsely implicated because of his rivalry with Jagjit Singh in relation to the truck union.

Amrik Singh and Mittar Pal Singh's defence was that they were not C present at the spot at all. They examined three witnesses, namely, the Ahlmad, the Clerk (Complaints) and the Clerk (Records) of the Deputy Commissioner's office of Ludhiana to prove that they had moved an application before the concerned authorities for having been falsely implicated in the case.

The Trial Court acquitted Amrik Singh and Mittar Pal Singh on the ground that the prosecution had not been able to establish their guilt. The Trial Court. however, convicted Swaran Singh under Section 302 IPC for the murder of Shamsher Singh and under Section 302/34 IPC for the murder of Amar Singh. Jagjit Singh was convicted under Section 302 JPC for the murder of Amar Singh and under Section 302/34 1PC for the murder of Shamsher Singh. Both the accused were sentenced to life imprisonment and to pay a fine of Rs.5,000 or in default to furthe~ undergo rigorous imprisonment for one year in respect of each of the offences. The amount of fine, if recovered, was directed to be paid to the next kin of Shamsher Singh and Amar Singh as compensation. The sentences were directed to run concurrently.

Three appeals were preferred before the High Court of Punjab and Haryana. The first appeal was filed by Swaran Singh against his conviction, (Criminal Appeal No. 315/DB of 1991), the second appeal was preferred by Jagjit Singh against his conviction, (Criminal Appeal No. 204/DB of 1991), and the third appeal was preferred by the State of Punjab ( Criminal Appeal No. 270/DB of 1992) against the acquittal of Mittar Pal Singh. The High Court disposed of all the appeals by a common judgment dated 18th September 1992. The High Court dismissed the State's appeal against the acquittal of Mittar Pal Singh but affirmed the findings of the Trial Court in respect of Jagjit Singh and Swaran Singh. However, the sentences were altered by setting aside the sentences of fine imposed.

Being aggrieved by the decision of the High Court, Swaran Singh and Jagjit Singh have preferred appeals before this Court. It is contended before us by both the appellants that both the Courts had erred in relying on the eye witnesses, namely, PW 3 and PW 4 as their account of the incident in so far as it related to Mittar Pal Singh had been disbelieved by both the courts.

It is further submitted that the evidence of the eye witnesses that the deceased had not drunk alcohol was belied by the Report of the FSL. It is also pointed out that Dilbagh Singh from whom inquiries regarding purbias were allegedly sought to be made by the deceased had not been examined as a witness. It is further contended that the investigating officer's evidence was inconsistent with the evidence on record. The appellants' claim that the incident in fact had taken pla£e in front of Swaran Singh's house at 4.00 p.m. and that this was supported by the evidence of PW 1, both as regards the deceased as well . as Satish, cleaner of the truck. It is further claimed that there was as such a delay in lodging of the complaint by 5-112 hours during which time the alleged eye witnesses had concocted the story of involvement of the accused.

It is claimed that they had no motive, nor was there any evidence led by the prosecution as to their motive for killing Amar Singh. Finally, as far as Jagjit

Singh is concerned, it is stated that apart from the eye witnesses' account there was nothing to connect Jagjit Singh with the crime. It is pointed out that the ballistic expert's report clearly showed that the cartridges recovered from the spot could not be linked to the licensed gun of Jagjit Singh.

In our view, both the appellants were rightly found guilty by both the Comts. The evidence against them is conclusive. That there was enmity between the accused and Sharnsher Singh was admitted. Amar Singh was the deceased's associate and had the misfortune not only to have been present when Sharnsher Singh was killed but also to have made himself visible to F the accused then.

Both the eye witnesses' accounts of the deceased' s involvement are not only consistent but were corroborated by the material evidence. The site plan proved by PW 2 showed that the truck was parked towards the right rear end of the car in which the deceased was travelling. If the deceased were firing G indiscriminately, it is hardly likely that the appellants would park the truck • next to the car. The photographs which were tendered as Exts. P9 and PIO show the position of Sharnsher Singh's body next to the truck on the road on the left of the truck and Amar Singh' s body at the rear of the truck. Tue blood stained earth which was collected from the spot where the deceased's H

A bodies were found supports the position that the deceased were killed at the spot next to the truck and not near Swaran Singh's house as claimed by the accused. Both the Trial Court as well as the High Court rightly rejected the story of Swaran Singh to explain the presence at the truck at the scene of the crime.

That Swaran Singh was present at the scene and was carrying a loaded double barrel gun and a cartridge belt has been admitted by him. His defence was that he had not fired any shots. and that the deceased in a drunken state were the aggressors. The appellants' allegation that the deceased were drunk does not appear to be borne out by the medical evidence. According to the Chemical Examiner's report (Ext. PV/ 3) the alcohol concentration found in the viscera of the deceased (Ext. Nos. 1,2, and 4) was 74.75 i; ig/100 mis. This does not show either that the alcohol had been consumed immediately prior to the occurrence as was suggested to the eye witnesses nor can it be said that the alcohol content was sufficient to make the deceased inebriated.

It was also correctly noted by both the Courts below that if indeed the deceased had been shooting indiscriminately as alleged by him, there would have been some pellets on the walls of Swaran Singh' s house. The High Court also noticed that it was not even suggested to any of the witnesses in the prosecution that there were pellets or pellet marks near Swaran Singh' s house.

The evidence of PWl and the post-mortem reports were to the effect that the single wound on the right side of the chest of Shamsher Singh and several wounds on Amar Singh were blackened. 'Blackening is caused by smoke deposit. Smoke particles are light. They do not travel far. Therefore, F smoke deposit, i.e., blackening is limited to a small range'. See Forensic Science in Criminal Invesigation & Trials (3rd Edn.) P. 280; Fisher, Svenssoll, and Wendel's Techniques of Crime Scene Investigation (4th Edn. p.296). The fact that the firing was at close range supports the evidence of the eye witnesses and runs contrary to the defence account of the incident. The situs of the wounds found by PW 1 on the deceased also bear out the eye G witnesses' testimony of the incident.

As far as Swaran Singh is concerned. the gun which was handed over by him bearing No. 8395/5391/A-7 (Ext.22) to PW 6 was tested by the Forensic Science Laboratory at Chandigarh. The report ( Ext. P-7) showed H that three of the cartridges collected from inside the truck and the site had

...

been fired from the right barrel of Ext.22 and another cartridge had been fired A from the left barrel of the same gun. Both the eye witnesses said Jagjit was driving the truck. He alighted from the driver's side of the truck viz. the right of the truck. Amar Singh' s body was found shot at close range near the right rear end of the truck. The wounds found on Amar Singh' s body by PW I thus sustain the eye witnesses' version.

No doubt, the particular empty cartridge cases found could not be related to Jagjit Singh' s licensed gun which had been handed over to the police by his father, three months after the incident, but there was evidence that the gun had been fired.

The appellants contention that because the eye witnesses' account of the involvement of Mittar Pal was not accepted by either of the Courts, therefore their evidence was suspect, is a non-sequitur. Merely because one portion of the evidence of PW 3 and PW 4 is disbelieved does not mean that the Courts were bound to reject all of it. Besides Mittar Pal's acquittal by the Trial Court is unsupported by any reason. The High Court, in its turn, held that it was unlikely that the eye witnesses would have remained on the spot after Jagjit Singh had shot Amar Singh killing him instantaneously. The High Court also said that "their version that Mittar Pal Singh alias Lovely accused had snatched the gun of his father and fired two gun shots is not believable being highly un-natural because if Jagjit Singh accused was bold enough to fire first gun shot hitting the neck of Amar Singh deceased, then there was no question of his not repeating gun shots, especially when the medical evidence shows that the injuries on the dead body of Amar Singh were caused with gun shOt from close range. Thus, it cannot be said that the medical evidence corroborates the participation of Mittar Pal Singh alias Lovely accused in this occurrence".

It is not necessary for us to question this reasoning as no appeal has been preferred against Mittar Pal's acquittal but in the case of the accused the medical evidence corroborates their participation.

Regarding the time of the occurrence, it may be that PW I has stated in cross-examination that both the deceased could have met their death at ..)ll about 4.00 P.M. on 24.4.86, but this does not by itself establish the fact that the deceased were killed at 4.00 P.M. The evidence of PW 1 in-chief was

that the deaths could have been caused within 24 hours prior to the post- H

A mortems. Therefore, PWl's evidence is equally consistent with the case of the prosecution that the incident took place at 7.45 P.M. PW l's evidence regarding Satish Kumar in fact supports the prosecution's case. Satish Kumar was examined on 24.4.1986 at 11.20 P.M. In cross-examination he said that the injury had been caused " within six hours". This statement means that B the injury did not take place at 4.00 P.M. Besides, if Satish Kumar had been injured at 4.00 P.M., as claimed by the accused, there is no explanation why he should have been admitted to the hospital at 9.20 P.M. more than five hours later and that too by the police. The chronology of the series of occurrences shows that the crime had taken place at about 7 .30 p.m. as

c claimed by the prosecution and testified to by the eye witnesses. That being so, the lodgment of the F.l.R by PW 3 promptly with a detailed account of the incident, renders improbable the possibility of the fabrication of the involvement of the appellants.

Given these unambiguous confirmatory circumstances, we see no rea- D son to interfere with the reliance placed by both the Courts on PWs 3 and 4's direct evidence of the part placed by the appellants in the perpetration of the crime. On the other hand, the appellants' version of the incident has not been substantiated at all ..

I The fact that the deceased had gone to make inquiries about the E employmen~ of purbias from Dilbagh Singh is peripheral to the case and the credibility of the eye witnesses' account of the incident can in no way be affected by Dilbagh Singh not being produced in support of the prosecution

I j

case. In any event, as recorded by the Trial Court, "Dilbagh Singh PW had ~

been given up as he was won over by the accused. For similar reasons, the P.P. for the State could not produced Dilbagh Singh' s mother". The appellants also conte!lded that the evidence of PW 5 was discrepant. The appellants have emphasised that PW 5 had incorrectly stated that he had not gone out of the police station prior to recording of the FIR. He had also incorrectly stated that he had found Satish at the scene of the crime at 11.45 p.m. and sent him to the hospital whereas Satish had in fact already been taken to the hospital by some other police personnel at 9.20 p.m. None of the discrepancies are sufficient to discard the case of the prosecution or to throw doubt on the eye witnesses' testimony. Furthermore the trial commenced about three years after the incident. In the meanwhile PW 5 bad been transferred in April 1987 from Samrala. PW 5 was called to give evidence in 1990. In the circumstances it is not unlikely that he would not remember the details of the investigation.

S. SINGH ETC. ETC. v. STATE [D.P. WADHWA, J.] 585

These are the adverse effects of a delayed trial. This aspect has been dealt with at length by my Learned Brother and I am in respectful agreement with his opinions' on the matter.

Having found no lacunae in the reasoning of the High Court either on facts or law, we dismiss the appeals. If the accused are on bail, they shall be taken into custody forthwith to serve out the sentences imposed on them.

D.P. WADHWA, J. I agree with the judgment pronounced by my noble and learned sister Ruma Pal, J. I however, wish to add a few lines.

The First Information Report was lodged within 2~ hours of the occurrence and the case registered against four persons, namely, Shamsher Singh, Jagjit Singh, Amrik Singh Mittarpal Singh @ Lovely. These four accused were named in the FIR. While Shamsher Singh surrendered a day following the lodging of the FIR, no steps were taken to apprehend other named accused. The case was not only investigated by Sub-inspector Kamai} Singh, S.H.O. of the Police Station concerned but also by Mohinder Singh, DSP, Baldev Singh, DSP Sanjiv Gupta SP (Detective) and B.P. Tiwari, DIG (Crime). When challan was put up, it was only against Shamsher Singh. A criminal complaint was filed by the complainant and all the accused were committed to stand their trial in the Court of Sessions for various offences.

In the course of the trial, more than 50 prosecution witnesses were given up having been won over and the case hinged on the statements of seven witnesses which led to the conviction of Shamsher Singh and Jagjit Singh by the trial couit, upheld by the High Court and now affirmed by this Court.

The questions that arise for consideration are as to why the Police did not challan the accused Jagjit Singh and why over 50 witnesses should have been given up. It only shows that the criminal justice system is in doldrums. There has to be honest investigation uninfluenced by any political or other pressure.

A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that witnesses are required whether it is direct evidence or circumstantial evidence. Here are the witness<; s who are a harassed lot. A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the court many times and at what cost to his own self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness

A tires and he gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired.

Not only that a witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no protection for him. In adjourning the matter without any valid cause a court unwittingly becomes party to

miscarriage of justice. A witness is then not treated with respect in the court.

He is pushed out from the crowded courtroom by the peon. He waits for the whole day and then he finds that the matter adjourned. He has no place to sit and no place even to have a glass of water. And when he does appear in Court, he is subjected to unchecked and prolonged, examination and crossexamination and finds himself in a hapless situation. For all these reasons and others a person abhors becoming a witness. It is the administration of justice that suffers. Then appropriate diet money for a witness is a far cry. Here again the process of harassment starts and he decides not to get the diet money at all. High Courts have to be vigilant in these matters. Proper diet money must be paid immediately to the witness (not only when he is examined but for every adjourned hearing) and even sent to him and he should not be left to be harassed by the subordinate staff. If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish State machinery. Each triai should be properly monitored. Time has come that all the courts, district courts, subordinate courts are linked to the High Court with a computer and a proper check is made on the adjournments and recording of evidence. The Bar Council of India and the State Bar Councils must play their part and lend their support to put the criminal system back on its trial. Perjury has also become a way of life in the law courts. A trial judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not ' wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint.

Perhaps law needs amendment to clause (b) of Section 340(3) of the Code of Criminal Procedure in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the court should resort . to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure.

S.V.K.

Appeals dismissed.

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