C.G. Suri, J.
1. Mohinder Singh aged 25 years, a military sepoy, resident of village Chalopur h_as filed this appeal against his conviction and life sentence Under Section 302, Indian Penal Code, for the murder of Thakur Singh of his village on the night intervening 10th and 11th of May, 1969.
2. Thakur Singh deceased had retired as a major in the Indian Army and had settled down in the village. The plan. Exhibit D. W. 7/1, prepared at the appellant's instance shows that the deceased owned two houses shown by red colour in this plan. One of these houses has extensive lawns and a garrage attached. The deceased was. however, living separately from the rest of . the family in a smaller house which is at a distance of about a furlong from his main family house., His brother Sadhu Singh P. W, lives on the back of that smaller house of the deceased.
3. In August, 1965. Major Thakur Singh (deceased) had lodged a report with the police Under Sections 307. 326 and 452, Indian Penal Code, against three brothers of the appellant, including Jogin-der Singh. The police had not filed any challan in that case but the deceased had filed a civil suit for recovery of Rupees 10,000/- as damages for the injuries sustained by him. The copy of the plaint dated 22-8-1966 is Exhibit P. S. This civil suit was still pending on the. date of the occurrence (10/11-5-1969) in the present case. Four or five days before this occurrence, the deceased had gone to the District Headquarters at Hoshiarpur to get a complaint, Exhibit P. H., dated 4-5-1969 drafted from a petition-writer.. This complaint was addressed to the Superintendent of Police.' It had been alleged therein that the 'deceased had been making reports at frequent intervals against the appellant, his brothers and some others from time to time and that the police which was colluding with these persons had not been taking any action on these complaints and that the deceased apprehended great danger to his life. Amongst other things, it had been alleged that during the preceding night, a party of hoodlums under the leadership of Mohinder Singh appellant and his brother Jogind'er Singh had come armed with fire-arms outside the complainant's house and had threatened and challenged him and that he had saved his life by staying indoors and keeping the doors closed-In spite of his cries for help, nobody had come to his rescue as all the neighbours were afraid of these desperate characters. It is mentioned that Mohinder Singh appellant was armed with a pistol at the time and that his brother Joginder Singh was carrying a ' revolver. These two brothers were said to have been ac companied by three or four others similarly armed with dangerous weapons or fire-arms. The relevancy of this complaint, Exhibit PH, has been objected to by Shri Kaushal, the learned Counsel for the appellant, and the objection would be dealt with and discussed further on in this judgment.
4. On the night of occurrence, the deceas'ed had gone to sleep inside a room of his smaller house. He had put bed near a window which had been kept open apparently because of the hot summer season. The window frame was fitted with iron bars so that nobody could have access or agress through the window.
5. Sadhu Singh P.W. was sleeping in the courtyard of his house adjoining that of the smaller house of the deceased. At about midnight, he got up to urinate when he heard the' report of gun-fire coming from the side of deceased's house. He came up the roof of the house and raised an alarm as he had heard the deceased crying 'Mar Gai, (I am dead, I am de,ad). Mewa Singh and Kewal Singh P. Ws. who are the sons of the deceased happened to be returning at that time after watering their fields. They had also heard the report of- gunfire and the alarm 'raised by their uncle Sadhu Singh P- W. They had also gone towards the smaller house of the deceased and with the light of a torch. Exhibit P. 1, that they were carrying at the time, they saw Mohinder Singh aDpellant coming out of the outer door of the house of the deceased with a pistol in hand. Sadhu Singh also identified the appellant in the torch light. These persons entered the house and found that the door of the room in which the deceased was sleeping had been bolted from inside. From the open window, they saw that Major Tha-kur Singh was lying on a cot placed near the window inside the room.
These persons broke open the door, of the room and found that their father was lying dead with gun-shot injuries on his chest and left arm. Shankar Singh Sarpanch, who is also the Lambardar of the village, was immediately informed about the occurrence. Nobody dared come out of the house to lodge a report at the police station because of fear. Early the following morning Mewa Singh came in the company of the Sarpanch Shankar Singh to -notice station Hariana which is at a distance of about ten miles from the village. JJe lodged1 the report Exhibit P. A. at 7 >A. M. on .11-5-1969 in the presence of Shankar Singh Sarpach. The special report reached the Chief Judicial Magistrate at Hoshiarpur at 9 A. M. the same morning. The postmortem examination of the dead body was carried out at about 3 P. M. the same day.
6. The post-mortem examination of the dead body revealed three gun-shot injuries which could be the result of one fire. Injury No. 1 was the wound of entry while injury No. 2 was the wound of exit. The gun-shot wounds on the left upper arm of the deceased had blackening at the margins. In the doctor's opinion, the shot may have been fired from a distance of two to three feet though the doctor could/not form a definite opinion about the exact distance from which the shot could have been fired. The possibili ty of two shots having been fired could not be ruled out.
7. S. I, Vikram Singh, Station House Officer of police station Hariana, reached the spot at about 9 A. M- after he had recorded Mewa Singh's statement, Exhibit P. A. at the police station. From the wooden frame of the cot on which the dead body was lying, he recovered a lead bullet. Exhibit P. 4, which was embedded on one side of the wooden frame of the cot. Mewa Singh P.W. produced his torch, Exhibit P. 1. The appellant was arrested from his army unit in Jammu on 19-71969, that is to say, more than two months after the occurrence, The weapon of offence could not be recovered but a Ballistic Expert has been examined in this Court with regard to the bullet, Exhibit P. 4, which was found embedded in the wooden frame of the cot on which the dead body was lying. According to his report, the bullet under reference is a .303 fired bullet and had been fired from a factory-made rifled barrel. It is. however, possible for a skilled mechanic to manufacture a country-made pistol having a rifled barrel cut and attached to the country-made pistol. The possibility of the bullet, Exhibit P. 4, having been fired from a country-made pistol cannot therefore, be ruled out if the barrel of the .303 rifle is cut and used for manufacturing a country-made pistol. The appellant is himself in service in the army, and other persons with necessary skill are also known to be operating in the countryside who can make a pistol out of a sawn of rifled barrel. The Ballistic Expert, Shri Sinha, has. during his twelve years experience -as a Ballistic Expert, come across a number of country-made pistols which have been manufactured just like factory-made weapons provided with extractors, ejectors etc, as in regular factory-made fire-arms.
8. Mewa Singh and Kewal Singh P. Ws., the eons and Sadhu Singh P.W., . the brother of the deceased have been examined at the trial. They had first narrated the incident to Shankar Singh Sarpanch-cum-Lambardar of their village during the night of occurrence but the Sarpanch has not been cited as a witness in the prosecution calendar- The reason appears to be that Shankar Singh had had criminal litigation and security proceedings with the deceased. In this connection, the judgment dated 8-6-1962 of a Magistrate, copy Exhibit P. R., has been produced by the prosecution. The incident had to be reported to the Sarpanch during the night in view of the important offices that he holds but it was felt all the same that he was not likely to support the prosecution at the trial. The first information report, Exhibit P. A., had, however, been lodged in his presence by Mewa Singh P.W. at the police station- He had participated in the police investigations up to the stage of inquest at the spot and had not raised any objection about the correctness of the first information report or the inquest report.
9. The three eye-witnesses have given us a very consistent account of the occurrence that night. Shri Kaushal, the learned Counsel for the appellant, has strenuously argued that these witnesses could not have been there at the time of the occurrence and that they could not have seen anything in the darkness of the night. There was no moon shining in the sky that night and if there was no torch, it was doubtful whether the next-door neighbour Sadhu Singh could have seen anything. If Mewa Singh and Kewal Singh had heard the report of gunfire and the alarm raised by the deceased and Sadhu Singh, then it was quite natural on their part to have proceeded that side to their father's help. In view of the civil and criminal litigation in the past between the deceased on the one side and the appellant's brothers and others from the other side, these family members would have been on the alert and were sure to have responded to the alarm raised by their father and uncle from a house which was after all not so very far away from the main family house. Shri Kaushal further argued that the deceased had made a will, copy Exhibit D. W. 5/1. dated 10-6-1967 about two years before the occurrence whereby he had disinherited his son Kewal Singh and that Kewal Singh could also have a motive for doing away with the old man-Kewal Singh had, however, continued living in the main family house even after this will and his share in the deceased's property, had been devised in favour of his sons. For all practical purposes, therefore, there was no exclusion of Kewal Singh from inheritance and the will could at the most be described as an expression of the deceased's displeasure against one. of the sons for some supposed offence which had not . been serious enough to entail -his being thrown out of the family house. It is, therefore, - too much to presume that Kewal Singh had murdered his father and had offered to appear as an eye-witness about the crime the same night. I have, therefore, hardly any reason for disbelieving the testimony of these three eye-witnesses.
10. The complaint, Exhibit P. H., 'made by the deceased four or five days before his death is an important piece of evidence. Shri Kaushal argued that this -document was not admissible in evidence. A complete answer to this contention is provided by a Division Bench ruling in Allijan Munshi v. State A.I.R. 1960 Bom 290. Shah J.. who wrote the judgment for the Bench and who later came to be the Chief Justice of India, was pleased to observe as follows:-
A complaint in writing made to the (police by a person who dies some time thereafter, expressing apprehension of. death at the hands of a certain person is admissible in evidence Under Sections 32(1) and 8 of the Evidence Act, when the person whose conduct is the source of the apprehension, is charged with the offence of murder, of the person making the complaint. The statement is admissible as relating to 'the circumstances of the transaction which resulted in his death', within Section 32(1). It cannot be held fn such cases that there was no proximate connection between the death of the complainant and the complaint from the fact that the complaint was made nearly two months before the death. In any event, the fact of the making of the complaint is admissible as explanatory of the conduct of the complainant Under Section 8, The fact that the deceased had maqle a complaint to the police against the accused charging him with serious offences may also be admitted as showing a motive Under Section 8.
In coming to the above conclusion, the Bench had followed Goloke Behari v. Emperor A.I.R. 1938 Cal 51, Emperor v. Manchankhan, : (1932)34BOMLR1087 and R. D. Sethana v. Mirza Mahomed Shirazi, : (1907)9BOMLR1047 .
11. The appellant had successfully evaded arrest for more than two months. His service and leave records were summoned from the military authorities but it may appear to be a pity that even military personnel accused of such serious crime are screened by the authorities. The summoned records were not sent by the military authorities in spite of two or three attempts made by the Courts. The prosecution evidence had, therefore, to be closed by the Court of Session as the case was getting old. The appellant had overstayed his leave even according to his own showing and if these records were forthcoming, the appellant may have been able to show to the satisfaction of the Court that he had joined duty without any avoidable delay. The appellant's own conduct before and after the crime may appear to be very relevant to establish his guilt. During his examination Under Section 342 of the Code of Criminal Procedure, he had stated that he had taken ten days leave from the military authorities and that this period of leave was to take effect from 29-4-1969. , He had, however, left the Unit without obtaining any leave certificate and in the absence of his Commanding Officer-Even this period of leave had expired on the date of occurrence or on the date on which the appellant's brother Joginder Singh was described to have met with an accident while he was going on a motorcycle in a drunken condition.
It may be observed that according to the dying declaration, Exhibit P. H., of: the deceased, the appellant and his brother Joginder Singh were the leaders of the gang who had criminally intimidated the deceased while armed with fire-,arms and other deadly weapons four or five days before the occurrence. It cannot possibly be argued that the appellant had over-stayed the leave in anticipation of the accident in which Joginder Singh was involved on 9-5-1969. The appellant had pleaded alibi but there is nothing in the hospital records to suggest that he was attending on his brother on the night in question. In this connection, the following observations of a Special Full Bench of the Calcutta High Court in Saratt Chandra Dhupi v. Emperor. 35 Cri LJ 1335 : (A.I.R. 1934 Cal 719) (SB), could be reproduced with advantage:-
Whenever a defence of alibi is set up and that defence utterly breaks down, it is a strong inference that if the prisoner was not in fact where he says he was then in all probability, he was where the prosecution say he was.
12. The dying declaration of the deceased, appellant's absence from duty without any proper leave, his' over-staying that period of leave, his setting up a false alibi and evading arrest for a period of more than two months are circumstances which could have independently of any direct evidence, brought home the guilt to the accused. There was a very strong motive for the crime by the appellant and his brother Joginder Singh and both of them had been conducting themselves in such irresponsible manner during the period of the appellant's leave that one of them had met with a serious accident while he was going about on motorcycle in a drunken condition. The non-recovery of the weapon of offence is due to the fact that the appellant had successfully evaded arrest for a period of more than two months. The records have not been made available to show to the Court how long after the expiry of sanctioned leave the appellant had resumed duty with the military authorities.. The dying declaration of the deceased is also substantive evidence which fully supports the direct evidence of three eye-witnesses.
13. The appeal is, therefore, dismissed and' the appellant's conviction and sentence are maintained.
Banjit Singh Sarkaria, J.
14. I agree.