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TMI Blog1978 (8) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... agar for causing the death of one Prithvi Singh on 16-12-1966, and were acquitted. 2. The case for the prosecution may be briefly stated. Jugraj Singh, P.W. 1 was a resident of the village of Banwala and was Sarpanch of Gram Panchayat of the village. On the evening preceding the night of the occurrence, Prithvi Singh, the deceased came to P.W.1's house and requested him to provide accommodation for the night. P.W. 1 allowed him to stay in an outer room of his house. While P.W. 1 was talking with others, the two accused, Sampuran Singh and Modan Singh, Appellant herein, came there with Mewa Singh, P. W 10, belonging to Banwala. At that time, the Appellant, Modan Singh had a pistol container and a bandolier on his shoulder. Sampuran Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused, the deceased and P.W. 10 were together. According to the prosecution, in his statement, P.W. 10 stated that when he took leave, the two accused and the deceased bolted their room and were together. The two witnesses were examined for the purpose of establishing that the accused and the deceased were found together on that night. It is not disputed that when in the morning, P.W. 1 came to his outer room, he saw the deceased lying dead with injuries. 4. Apart from these two witnesses, the prosecution relied on the evidence of the recovery of a fired cartridge. Ex. 9 which was recovered from the scene of occurrence and Ex. 8, a pistol which was recovered from the person of the Appellant, Modan Singh, when he was arrested at the Polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een established beyond doubt. The High Court accepted the prosecution story that Ex. 9, the fired cartridge and pistol Ex. 8, were properly recovered from the scene and the person of Modan Singh respectively, and that it was established from the evidence of P.W. 9, the Ballistic expert that the cartridge was fired from the pistol belonging to Modan Singh. It also found the evidence of P.Ws. 1 and 10 that the accused were last seen in the company of the deceased in the outer room of P.W. 1. 6. The case for the prosecution as already stated, rests on the evidence of P.Ws. 1 and 10 and the circumstantial evidence relating to the recovery of Exs. 8 and 9 and the deposition of ballistic expert, P.W. 9. 7. The evidence as to the two accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewa Singh. Mewa Singh was also treated as hostile in the Sessions Court as he stated that on the night he along with the two accused left P.W. 1's baithak at 9 P.M. and later left the two accused at Banwala station where they boarded a train for Sadulshahar and he returned to his house. It was put to the witness that he stated in his 162 statement that when he left, both the accused persons and the deceased were together and that they bolted the door from inside, but the statement which he made during the investigation, to the Police cannot be treated as substantive evidence. Therefore, there is no evidence to prove that on that night the two accused and the deceased were alone seen together. 8. The only other material on which the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial messenger. The investigating officer would only say that the material objects were kept sealed upto 14-12-1966. The prosecution is silent as to in whose custody the material objects were till 6-2-1967. Added to all these infirmities, we find that the ballistic expert. P.W. 9 had in his report, Ex. P. 25, stated as follows:-- The fired cartridge has been marked C/1 by me. It had been fired from the pistol under reference. The barrel of the pistol is loose for 303 bullets and hence, reliable markings on the test bullets could not be obtained. Therefore, the bullets mentioned above could not be identified in respect of the weapon under reference. In the evidence, no doubt, the ballistic expert stated that he fired test cartridges stu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used were last seen in the company of the deceased in the house of P.W. 1 as there is no evidence to that effect. Equally unsustainable is the conclusion arrived at by the High Court that the evidence of the ballistic expert has established that the cartridge, Ex. 9, was fired from Ex. 8 and that the pistol belonged to the Appellant, Modan Singh. The High Court has also failed to consider the fact that the Appellant, Modan Singh, as well as the acquitted accused were both armed with pistols and it cannot, with certainty be said that the Appellant fired the pistol. We are satisfied on the perusal of the records that there is hardly any evidence to hold that the accused and the deceased were alone last seen left (together) on the night of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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