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TMI Blog1956 (2) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the baths were over, all the four were proceeding to their houses. The deceased was at some distance ahead of the rest. After a short while, the appellant met them and there was again an exchange of words between him and the deceased. The appellant, who had a rifle with him, shot at Labh Singh from behind his back as he was attempting to run away. Labh Singh died on the spot. The small intestines were torn up and the left kidney was found smashed. Uttam Singh (P. W. 16) brother of the deceased, Mohinder Singh (P. W. 17) and Khem Singh (P. W. 18) are the eye-witnesses. Their evidence was accepted by the Sessions Judge and by the High Court. Ordinarily if there were no special circumstances, this Court would not interfere with the conviction. There are, however, some features in this case which make it unsafe in our opinion to uphold the conclusion of guilt. The circular wound of entry at the back of the deceased, 1/4 in diameter, had burnt inverted margins according to the doctor who conducted the postmortem examination. The ballistic expert, Dr. Goyle, examined as P. W. 11, said that if there were burnt edges of the wound, the distance between the muzzle and the victim would o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived from statements made to him as investigating officer. The case -- 'Kalia v. Emperor' : AIR1925Cal959 (B), contains no specific reference to Section 162 of the Criminal Procedure Code. The relevant passage is in these terms:-- Then comes the fourth point, Exhibit 5. It is true that the map does contain upon it certain things which must have been supplied to the Police Officer by some person, for instance there appear on the map against the letter S these words: 'This is the position of the witness Daulat' and so on. Now strictly speaking the map should not have been admitted in this form unless there had been the evidence of Daulat as to what he said to the officer and the evidence of the Police Officer as to what Daulat told him which would have made it evidence. In 'Bhagirathi Chowdhury v. King-Emperor' AIR 1926 Cal 550 (C), the map had been prepared by the Sub-Inspector. It is no doubt true that in the absence of the witnesses who gave the information the remark of the Sub-Inspector would be hearsay; but in the present case we are not concerned with the Sub-Inspector's site sketch but with the plan prepared by a draftsman who derived information f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the draftsman by the eye-witnesses, the rifle was fired from a range of about 25 feet. In the judgment of the High Court this difficulty is sought to be surmounted by the observation that it might not be safe to act on the pointing out of the places four days after the occurrence; but this attempt is not of much avail as they were not giving an estimate of the distance but showed to the draftsman the particular spots where the appellant and the deceased stood at the time of firing. There is another element in the case which creates even greater difficulty. An empty cartridge case is alleged to have been recovered from the place of occurrence by the police on the 10th of September when they went there for investigation after receipt of the first information from Uttam Singh (P. W. 16); so also some blood-stained earth. They were carefully packed and sealed in two separate packets and despatched to the Police Station. The sealed parcel of the earth was sent to the Chemical Examiner at Kasauli on the 11th October, 1954, and the sealed parcel of the empty cartridge case was sent to Dr. Goyle as late as the 27th October, 1954. Even if we accept the explanation given by the Sub-Inspecto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21st September, 1954, was not interrogated by the Sub-Inspector till the 26th September, 1954, The above suspicious features 2 and 3 throw doubt on the bona fides of the investigation. This being a case involving death sentence and in view of the inclination of our learned brethren that, in a case of this kind where there are strong suspicious features relating to investigation, it is unsafe to go merely by partisan oral evidence, we do not consider it necessary to differ from the order of acquittal. But we would base our agreement with the result, only on grounds 2 and 3 above mentioned. These two features -- and in particular ground No. 2 -- have been specifically brought out in the cross-examination of the prosecution witnesses and have been made the subject-matter of attack before the trial court and the appellate court. But it is somewhat surprising that neither court has dealt with these two features in its judgment. If, as has been suggested by the defence in cross-examination of the Assistant Sub-Inspector, P. W. 20, the empty cartridge case sent to the ballistic expert was not the one recovered from the scene of occurrence but one fired at the police station from out of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as in the presence of the police officer and in the course of investigation by him. This point has been dealt with specifically at pages 114 and 115 of the report of that case. The evidence relating to the pointing out of the distances in the present case is as follows. The Assistant Sub-Inspector, P. W. 20, who conducted the investigation stated as follows: I prepared the rough site plan, Ex. P-J and also got the plan Ex. P-A prepared by Des Raj draftsman. The draftsman, Des Raj, who is P. W. 10 says as follows: The plan, Ex. P-A, was prepared by me on 14th September, 1954 to a scale of ten Karams to an inch at the instance of the police and on the pointing out of witnesses Khem Singh, Mohinder Singh and Uttam Singh. The marginal notes were recorded by me and were correct. He does not say on what date the pointing out was done by the witnesses and whether or not the police were there at the time. But the eye-witnesses themselves have given evidence on this matter which leaves no room for doubt. Of the three eye-witnesses who have been examined as P. Ws. 16, 17 and 18 respectively, P. W. 17 does not support the draftsman. P. W. 16 says as follows in his chief-examination. I came wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate distances. If the distances, so spoken to, are very much less than about 25 feet, the previous statements made by the witnesses to the police and the draftsman, in the course of the investigation should have been specifically brought home to them and the contradiction elicited. This may be a rather elaborate process. But in a matter so important in its use as falsifying the direct evidence of the prosecution witnesses, it appears to us, with respect, that no shortcut can be entertained. The responsibility is as much on the accused as on the prosecution to place on record legal evidence in a legally permissible way. It appears to us that this is the reason why the High Court did not accept this evidence of distance when it said no question was put to Uttam Singh, P. W. 16, and Khem Singh, P. W. 18, to ascertain the distance between Labh Singh and Santa Singh at the time of firing. Sitting in an appeal on special leave we can find no particular reason for ignoring the categorical finding of the High Court that it is not proved that Santa Singh fired at Labh Singh from a distance of 25 feet. We are, therefore, unable to agree that in this case any permissible contradiction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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