J.M. SHELAT, J.
1. In Sessions Case No. 51 of 1967, one Banta Singh, appellants Thakur Singh and Piara Singh, one Shera Singh and Niranjan Singh were charged under Section 120-B, Section 302, read with Sections 120-B, 34 and Section 109 and Section 307, read with Sections 120-B and 34 of the Penal Code for having entered into a conspiracy along with the approver Shubag Singh and one Akali, since absconding, to cause the death of witness Chainchal Singh and of having caused, in pursuance thereof, the murder of Tirath Singh and Jaswant Singh and injuries to witnesses Menhga Singh and Sakhi Chand with such intention and in such circumstances that if by that act those two witnesses had died they would have been guilty of murder. The incident in question took place at about 6.45 p.m. on December 19, 1966, just outside the Village Mukhumajra when the deceased Jaswant Singh, witnesses Mehnga Singh and Sakhi Chand and some others were going in a jeep driven by the deceased Tirath Singh and when appellant Piara Singh and the said Akali fired gunshots at them killing the said two deceased and injuring the said two witnesses. The Sessions Judge convicted the two appellants and the said Banta Singh under Sections 302 and 307, both read with Sections 120-B, 34 and 109 in respect of the death of the said Tirath Singh and Jaswant Singh and in respect of the gunshot injuries suffered by Mehnga Singh and Sakhi Chand, and acquitted the rest of the accused.
2. Prior to December 1966, a bitter struggle was going on between two factions led by witness Chainchal Singh on the one hand and Banta Singh and Niranjan Singh on the other for getting control over certain transport companies called the Hoshiarpur Express Transport Co. Ltd., Azad Transport Co. and Victory Transport Co. The struggle resulted in numerous proceedings, civil and criminal. Chainchal Singh, being the leader of the opposing group, was the main target of the group led by Banta Singh and Niranjan Singh and to get rid of him the said conspiracy was said to have been entered into by Banta Singh and Niranjan Singh with the appellant Thakur Singh, his man, Shubeg Singh the approver, appellant Piara Singh, Shera Singh and the said Akali absconder. The conspiracy to kill Chainchal Singh was hatched in July-August 1966, under which the approver Shubeg Singh with the assistance of Thakur Singh was to kill Chainchal Singh and as a reward Banta Singh was to pay Rs 4000. Since the victim was unknown to them, the two of them were shown Chainchal Singh and the route by which the victims used to return every day of his village in a jeep from Hoshiarpur where he was working. The place where the assassins were to ambush themselves and from which the victim was to be fired at while he was returning to his village from Hoshiarpur was also selected. Banta Singh and appellant Thakur Singh were to remain in the former's car some distance away so that as soon is Chainchal Singh was shot down the assassins could be whisked away from the place. Those who were to fire at the victim were appellant Piara Singh and the Akali absconder and the approver Shubeg Singh was to remain ready with them in case any counter attack was made by the other side. To give no chance of escape to the victim, a tree standing on one side of the jeep track was to be cut down and thrown across it so as to block the passage, thereby making any escape by Chainchal Singh impossible. In pursuance of this plan, appellant Thakur Singh gave his double-barrelled gun to appellant Piara Singh. The approver, Shubeg Singh, had his own gun and the said Akali had a Kirpan. Leaving the three of them at the place selected, as aforesaid, Banta Singh and appellant Thakur Singh went in the former's car to the shop of witness Hari Om (PW 11), at Mahilpur nearby and had liquor and thereafter left presumably to go the Milestone No. 9 to wait for the killers to come there after completing their work. Chainchal Singh had on that day, however, returned to his village at about 2 or 3 p.m. having left his jeep with his friend Baldev Singh to return later. At about 6.45 p.m. the jeep reached the spot with Baldev Singh, the deceased Jaswant Singh, witnesses Mehnga Singh, Sakhi Chand, Tarlok Singh, Beant Singh and Pargat Singh with the deceased Tirath Singh driving the jeep, all bound for the Village Lehli Kalan. On finding the road blocked, the driver Tirath tried to swerve the vehicle towards his left. At this juncture appellant Piara Singh started firing into the left side of the jeep and the Akali, snatching the gun from the approver, also opened fire. Tarlok Singh, Beant Singh and Pargat Singh managed to run away. Jaswant Singh, Mehnga Singh and Sakhi Chand, though injured, got down from the jeep on the right side. The driver Tirath Singh, however, was fatally injured and therefore could not move from his seat. The three assailants then came to the jeep, passing across its head lights which were still on, and ascertained from Mehnga Singh, Sakhi Chand and Tirath Singh who they were, presumably to ascertain if Chainchal Singh was one of them. Appellant Piara Singh and the approver thereafter opened the bonnet of the jeep and the said Akali cut off its engine wires and thereafter the three of them went towards Milestone No. 9 where Banta Singh and appellant Thakur Singh were waiting for them. In the meantime, Pargat Singh who had escaped unhurt ran to the village and informed Chainchal Singh of what had happened. Chainchal Singh arranged for the removal of the four injured persons to the hospital at Hoshiarpur. Tirath Singh and Jaswant Singh, however, expired having succumbed to their injuries. The other two, Sakhi Chand and Mehnga Singh, were given medical assistance by Dr S.S. Chatrath (PW 5), who found gunshot injuries on both of them. The police thereafter carried out the usual investigation and arrested the various accused on different dates.
3. On January 11, 1967, Shubag Singh was granted conditional pardon by the District Magistrate and was made an approver. After the committal proceedings the accused were put up for trial before the Sessions Judge and at the end of the trial the two appellants and Banta Singh, as already stated, were convicted as aforesaid. The three convicted accused preferred appeal before High Court against their conviction. The State also filed an appeal against the acquittal of Shera Singh and Niranjan Singh.
4. As the High Court observed, the prosecution case largely hinged upon the evidence of the approver. Following the decision of this Court in Sarwan Singh v. Punjab1 the High Court's approach was to ascertain, whether the evidence of the approver passed the two tests laid down there, namely, (1) whether he was a reliable witness and his version was intrinsically credible and (2) if so, whether his evidence was corroborated against each accused in material particulars by other evidence, direct or circumstantial. After scrutinising the approver's evidence the High Court concluded that though that evidence was not “impeccable and absolutely free from blemishes” it satisfied the first test, and that, therefore, the case resolved mainly into the question whether his evidence satisfied the second test, namely, whether it was corroborated against each of the accused.
5. According to the High Court, the prosecution case fell into five stages:
(1) July, 1966, when appellant Thakur Singh and the approver met Banta Singh and Niranjan Singh at Banta Singh's house in Hoshiarpur and when it was agreed that Thakur Singh would find out a person who would kill Chainchal Singh;
(2) August, 1966, when a meeting between Thakur Singh and the approver on the one hand and Banta Singh on the other took place when it was agreed that Banta Singh would pay Rs 4000 as a reward for killing Chainchal Singh;
(3) October, 1966, when an abortive attempt to kill Chainchal Singh was made by Banta Singh taking appellant Thakur Singh, the approver and accused Shera in his car near the Village Lehli Kalan where appellant Thakur Singh, the approver and Shera Singh waited for the victim but the attempt failed as Chainchal Singh did not turn up as expected;
(4) December 18, 1966, when Banta Singh, appellant Thakur Singh, the approver, appellant Piara Singh and the Akali armed with two guns and a Kirpan went on a reconnaissance to finally settle the details of the plan to kill Chainchal Singh and when they were observed at the spot by PW Gurmail Singh; December 25, 1966, when the shooting incident took place, when instead of Chainchal Singh who did not, contrary to expectations, travel in the jeep, Jaswant Singh and Tirath Singh were killed and Sakhi Chand and Mehnga Singh were injured; and
(5) December 25, 1966, when Banta Singh met appellant Thakur Singh and the approver to tell them that their target had escaped and arranged to meet them at Phagwara to settle further details to kill Chainchal Singh.
6. Accused Niranjan Singh, even according to the prosecution, was not concerned with the shooting incident. He was concerned with the conspiracy i.e. with stages 1 and 3 only. As regards the first stage, apart from the evidence as to rivalry between the two factions, the only evidence against him was of the approver without any other evidence to corroborate him. Regarding the third stage, the only evidence to corroborate the approver was that of Harbans Singh (PW 30). For the various reasons set out in the High Court's judgment, the High Court agreed with the Sessions Judge that that evidence could not be trusted and therefore the charge of conspiracy against Niranjan Singh failed since the only remaining evidence, on elimination of Harbans Singh's evidence, was that of the approver. The High Court, therefore, upHeld his acquittal by the Sessions Judge and dismissed the State's appeal against him.
7. The evidence against accused Shera Singh consisted of the testimony of (1) the approver, (2) Harbans Singh and (3) his confession made before the Committal Court on August 8, 1967, in his answer under Section 342 of the Criminal Procedure Code, but which he retracted on December 12, 1967, during the trial. Both the Sessions Judge and the High Court rejected the confession on the ground that it was neither voluntary nor true. The High Court in that connection observed:
“All said and done, the fact remains that the statement, dated 8-8- 1967, is enveloped in suspicion being conceived in a shadowy setting and cannot be accepted as true and voluntary.”
The High Court relied on three circumstances on which it declined to hold the confession to be either true or voluntary. They were — (1) that on August 8, 1967, when he made the confession Shera Singh was not represented by counsel; that a counsel amicus curiae was allotted to him on December 12, 1967, and on that very day he repudiated the confession, (2) that the confession consisted of answers which were in the form of admissions made in cryptic language, namely, “it is correct” and (3) that he had admitted in that confession even that part of the evidence of witness Harbans Singh relating to his having joined in the conspiracy with Niranjan Singh, appellant Thakur Singh and the approver at the well of accused Niranjan Singh, he having gone there and having been served with meals brought by witness Harbans Singh. Regarding the last circumstance, the High Court observed that the evidence of Harbans Singh was “utterly unreliable and untrustworthy”, which meant that the facts admitted by Shera Singh were found to be untrue, at least in respect of that part of the prosecution case where Shera Singh was said to have joined the others at the well of Niranjan Singh and served with meals brought by Harbans Singh. The High Court Held that since it rejected the evidence of Harbans Singh and the retracted confession of Shera Singh, the only evidence left against him was the uncorroborated testimony of the approver which could not be the basis for a conviction for conspiracy.
8. As regards Banta Singh, he was, as aforesaid, convicted by the Sessions Judge, but the High Court accepted his appeal and acquitted him. The evidence against him consisted of (1) the evidence as to motive, (2) the approver's evidence which was sought to be corroborated by the evidence of Gurmail Singh (PW 18) to show his presence on December 18, 1966, along with Thakur Singh, the approver, Piara Singh and the Akali near the place where on the next day the shooting took place, and on December 19, 1966, being near Milestone No. 9 in his car to take away the assailants who were instructed to come there after the shooting. As for the motive, the High Court accepted the evidence of Chainchal Singh (PW 39) that there was bitter enmity between the two groups headed by the witness on the one hand and Banta Singh and Niranjan Singh on the other and that in consequence thereof Chainchal Singh was the target. The evidence of the approver as regards participation by Banta Singh in the conspiracy was accepted by both the courts. But the High Court declined to set on the evidence of Gurmail Singh and the other witnesses relied on by the prosecution for corroborating the approver. The reason given by the High Court was that so far as Banta Singh was concerned those witnesses were partisan witnesses and their evidence suffered from several discrepancies. Consequently, the only evidence which could be relied on for the purpose of corroborating the approver was that of Hari Om (PW 11), in whose shop Banta Singh was said to have gone at about 6.30 p.m. on the day in question with appellant Thakur Singh. But appellant Thakur Singh was not satisfactorily identified by Hari Om, and therefore, the prosecution could not establish that Banta Singh was concerned in the conspiracy or that he had aided and abetted the shooting. According to the High Court, the only evidence, of satisfactory character against Banta Singh was, therefore, as regards motive and his having been at the shop of Hari Om at about 6.30 p.m. on the day of the incident with one person whose identity could not be established, though the prosecution case was that that person was appellant Thakur Singh. Banta Singh, therefore, was acquitted on the ground, firstly, that he was entitled to the benefit of doubt, and secondly, that the approver's evidence against him remained uncorroborated.
9. The question is what is the impact of these conclusions of the High Court on the evidence of the approver in regard to the two appellants? According to the prosecution, Banta Singh was the prime mover of the entire conspiracy and the abetter in the shooting which resulted in the death of two and injuries to two others. The prosecution case was that it was Banta Singh who from the start to the finish was deeply concerned in the whole of the transaction. The evidence of Harbans Singh was that it was at his instance that the conspirators at the early stages of the conspiracy assembled at the well of Niranjan Singh. The evidence of the approver was that he was with them when the site was chosen and the details for shooting were fixed and that it was he who immediately after the shooting had kept himself in readiness with his car to remove the assailants from the scene of the offence. If Banta Singh was acquitted by the High Court on the grounds (1) that the evidence of Harbans Singh with regard to the early meeting was untrustworthy, (2) that the evidence of Gurmail Singh with regard to his being with the two appellants, the approver and the Akali on December 18, 1966, for choosing the site and fixing other details was unsatisfactory and (3) that the evidence with regard to his being near the place of the incident first in the shop of Hari Om with appellant Thakur Singh and then in his car near Milestone No. 9 soon after the incident was also unsatisfactory, is it possible to say that the evidence of the approver in regard to these parts of the incident assigned by him to Banta Singh can be regarded as reliable? In any case, insofar as accused Niranjan Singh and Shera Singh were concerned, the version of Harbans Singh having been Held to be both untrustworthy and improbable, that part of the approver's version involving those two accused must be Held to be equally unreliable and improbable.
10. If in the case of Banta Singh, a witness like Gurmail Singh (PW 18), could add the name of Banta Singh by stating in the Sessions Court that he had met five and not four persons only, as was stated by him at the identification parade, and on that ground his evidence was Held to be unsafe, would not that criticism also render the approver case that Banta Singh was with the four others at the site of the offence on December 18, 1966, for fixing the details equally unsafe? If Banta Singh was there with the approver, the two appellants and the Akali on December 18, 1966, Banta Singh being well known to Gurmail Singh (PW 18), it was impossible that Gurmail Singh would fail to mention his name at the identification parade when he made the statement that he had seen only four persons at that place on that day. These are questions which must arise while considering the evidence of the approver in connection with the two appellants.
11. Before we discuss the case against the two appellants it is necessary first to examine the evidence of the approver against them. The approver first deposed about his having been associated with appellant Thakur Singh, when the latter was in the police force, in an encounter with a dacoit, Gurdial Singh, and his having been awarded for his services a licence for a gun and about his cordial relation with Thakur Singh since then. He also deposed to having been called by Thakur Singh in June-July 1966 and both of them having met Banta Singh and Niranjan Singh at Hoshiarpur and Thakur Singh at that time having promised to find out a person who would murder Chainchal Singh. His evidence then was that in or about August, 1966, he and Thakur Singh met Banta Singh when the former assured Banta Singh that he had found a person who would kill Chainchal Singh, that Banta Singh thereupon promised to pay Rs 4000 as a reward and that thereafter Banta Singh led them to a bus stop at Hoshiarpur where the victim Chainchal Singh was pointed out to them. According to him, in October, 1966, Banta Singh took him, Thakur Singh and Shera Singh to a track by which Chainchal Singh used to return to his village, that they hid behind the bushes, waiting for the victim to come, but their scheme was foiled on account of Chainchal Singh not turning up. His case then was that on December 17, 1966, there was a meeting between him, appellant Thakur Singh and Piara Singh and the absconding Akali at the well of Thakur Singh, that from that place they all went the next day to Hoshiarpur and then to the Cho near Chainchal Singh's village and finalised the details such as felling a tree across the jeep track to block the way and where witness Gurmail Singh (PW 30) saw them and on whose enquiry Banta Singh told him that he had brought his guests for shooting. As regards the day of the incident, in, December 19, 1966, Banta Singh picked up all of them in his car at about 4 p.m. from the house of Harbhajan Singh, a relation of appellant Thakur Singh, at Jullunder and brought them to Hoshiarpur and from there drove them to the said Cho and dropping him, Piara Singh and the Akali there, Banta Singh and Thakur Singh left in Banta Singh's car after Banta Singh had given a saw to the Akali to cut off the tree and Thakur Singh had given his double barrelled gun to Piara Singh. It was arranged that they would wait at Milestone No. 9 nearby where these three should go after completing their work. The three of them then waited behind the bushes after the road had been blocked by them by felling the true. His case then was that at about 6.45 p.m. the jeep arrived at the spot and on seeing that the way was blocked the driver Tirath Singh tried to swerve the jeep towards the left. Piara Singh at that time started firing at the left side of the jeep. The Akali then asked him i.e. the approver, to fire, but he declined to do so saying that his instructions were that he should fire only if there was resistance from the other side and some one tried to snatch away the gun from Piara Singh. Thereupon the Akali snatched the gun from him and started firing. After Piara Singh and the Akali had fired 7 or 8 shots, the three of them went up to the jeep to see if Chainchal Singh was there and was killed. They found four persons injured but Chainchal Singh was not one of them. Tnereafter, he and Piara Singh lifted the bonnet of the jeep and the Akali cut off the engine wires. They then went towards the north from where they were picked up by Banta Singh and Thakur Singh and taken to Jullundur at Harbhajan Singh's house.
12. On behalf of appellant Thakur Singh, Counsel raised two contentions (1) that the approver's evidence could not be regarded as reliable and that the High Court was in error in doing so and (2) that even assuming that his evidence were to be Held reliable, the two pieces of evidence relied upon by the prosecution against him, namely, the evidence of Gurmail Singh and the evidence as to Thakur Singh's gun having been used during the shooting, were not reliable enough to corroborate the approver's version.
13. In our view there is force in both the contentions. The approver case that the Akali snatched away the gun from him and started firing, that he declined to fire because his agreement with Thakur Singh and Banta Singh was that he would shoot only if any one tried to snatch away the gun from Piara Singh does not sound convincing and is inconsistent with the case that appellant Thakur Singh had put him up as the person who would kill Chainchal Singh. If the Akali and not he were to fire, Banta Singh and Thakur Singh would ordinarily leave the gun with the Akali and not with the approver. His case that all the three of them went up to the jeep to ascertain the names of those therein and to find out if Chainchal Singh was one of them and injured is inconsistent with the eyewitness account of witnesses Sakhi Chand and Mehnga Singh that they saw only appellant Piara Singh and the approver. The approver appears to have introduced the Akali as the other person firing at the jeep so that he could take up the role of a person stationed there to counter a possible resistance from the opposite side. His version that he, Thakur Singh, Shera Singh, Niranjan Singh and Banta Singh had all gathered to hatch the conspiracy at the well of Niranjan Singh also does not appear to be trustworthy. He did not know any one of these persons except Thakur Singh. It is highly unlikely, therefore, that he would join in such a conspiracy without knowing the others. If the amount of Rs 4000 was to be paid by Banta Singh, it is impossible that he would not fix his own share, for, before Piara Singh and the Akali joined the conspiracy it was understood between Thakur Singh and Banta Singh that it would be he, the approver, who would be the assassin. Even when appellant Piara Singh, Shera Singh and the Akali joined them, the approver did not depose as to what share they were to get from out of Rs 4000 or whether they were to be paid over and above that amount by Banta Singh. Further, the version about their assembling together in October, 1966, at the well of Niranjan Singh was not accepted by the High Court, and especially the role, according to him, played by witness Harbans Singh.
14. He had even to shift the dates of that meeting from 21st to 23rd of October to 25th and 26th of October as the defence could establish that on the 21st and the 22nd of October he had appeared before the Deputy Collector (Canals) in a dispute about some land. Besides these infirmities, several contradictions between his evidence before the trial court and his previous statement were pointed out, but which we need not detail here. Even the High. Court, which accepted the approver's version in regard to the two appellants, declined to accept the prosecution case of conspiracy against Niranjan Singh and Shera Singh principally on the ground that the whole of the version of witness Harbans Singh having seen them at the well of Niranjan Singh, having served them with meals there and having overheard the formation of the conspiracy to kill Chainchal Singh was altogether improbable. If Harbans Singh's part in that part of the prosecution case was found by both the courts to be unbelievable and they declined, therefore, to convict Niranjah Singh and Shera Singh as parties to the conspiracy, it stands to reason that the evidence of the approver on that part of the case in which he also brought in Harbans Singh was equally unreliable and untrustworthy. In the view of the High Court there was evidence that Harbans Singh could not have been favourably disposed either towards Banta Singh or Niranjan Singh, and, therefore, it was unthinkable of either of them entrusting Harbans Singh with the work of supplying meals to the persons who had gathered at the well of Niranjan Singh and thus giving him an opportunity of overhearing their talks about taking the life of Chainchal Singh.
15. The evidence of an accomplice being suspect, as Held in Sarwan Singh v. Punjab2 it has to pass the two tests laid down there. Considering the reasons mentioned above, we are of the view that the approver's evidence cannot be said to have passed the first test. Indeed, parts of that evidence, as already remarked by us, appear to us to be intrinsically improbable. That being so, we will have to examine the case against the two appellants in the light of the evidence other than that of the approver. In our view this is not a case, as observed by the High Court, where the approver's evidence being reliable the enquiry would be confined only to ascertain whether it stood corroborated by other evidence.
16. As against appellant Thakur Singh, the evidence depended upon for establishing that he was a party to the conspiracy and in pursuance whereof he had aided and abetted in the said shooting consisted of the approver's evidence, the evidence of Gurmail Singh and the circumstantial evidence in the shape of recovery of empty cartridges from the scene of the offence which according to the prosecution was fired from the gun belonging to him. So far as the evidence of witness Gurmail Singh is concerned there are two infirmities in that evidence: (1) his strained relations with Banta Singh and, as the High Court has found, his being a partisan of Chainchal Singh and (2) his adding during the trials Banta Singh, contrary to his earlier statement, as one of the persons whom he had seen on December 18, 1966, along with Piara Singh, the approver, Thakur Singh and one more person. If Gurmail Singh, a partisan of Chainchal Singh, was Held to be a witness who had no compunction against inducting the name of Banta Singh in the incident of December 18, 1966, is it possible to treat him as a reliable witness against appellant Thakur Singh. Besides, the case that on December 18, 1966, these persons went to choose the site and finalised other details appears to be highly unlikely. The place from where Chainchal Singh was to be shot at while on his way back to his village was already previously fixed and from where an abortive attempt to kill Chainchal Singh had already been made. There was, therefore, no point in once again taking these persons at that spot. Even if it was decided to go there again it does not appear to be probable that they would go there during day time when there was every possibility of their being seen by other persons. More important still, if Banta Singh, the prime mover of the conspiracy, was not proved to be with them, it hardly seems possible that the others would go to the place. On these circumstances the evidence of Gurmail Singh that on December 18 he had seen appellant Thakur Singh and the others mentioned by him were at the place from where the shooting took place the next day does not appear to be true.
17. Regarding the evidence about his gun having been used in the shooting, the first item urged against him was that SI Madan Singh (PW 48), recovered six empty cartridges, 8 wads and 4 pellets lying scattered about on the left side of the jeep in the morning of December 20, 1966. The evidence of the Sub-Inspector and the two witnesses in whose presence these articles were seized was not challenged before us. The fact that these very cartridges were taken to Dr Sharma (PW 23), the Director of Forensic Science Laboratory at Chandigarh, was, however, seriously challenged. The next item of evidence was that the double barrelled gun, Ext. P-27, belonging to appellant Thakur Singh was seized by the police on January 16, 1967 at his instance from witness Het Ram at Ganganagar, Rajasthan. The gun was sent to Dr Sharma for testing. The evidence of Dr Sharma was that two of the six empty cartridges sent earlier to him, Exs. P-32 and P-38, had been fired from the gun, Ext. P-27 and two other empty cartridges, Exs. P-29 and P-30, were tired from the other gun, Ext. P-1, belonging to the approver.
18. But the question is whether appellant Thakur Singh had deposited his gun with witness Het Ram on January 2, 1967, as was the prosecution case and the police had seized it on January 16, 1967 and not on December 22, 1966, as alleged by the defence. It the gun was deposited by Thakur Singh on January 2, 1967, with Het Ram, it was obviously available for the shooting on December 19, 1966. Het Ram (PW 49), a private armourer of Ganganagar, knew Thakur Singh for some seven years as Thakur Singh used to come to him for repairs to his gun. According to Het Ram, on December 17, 1966, Thakur Singh lodged his gun with him for repairs and Het Ram promised him that he would repair it and return it to him after 4 or 5 days. Het Ram gave him a receipt on a loose sheet of paper as the regular receipt book in which he used to enter the names of the customers who left their fire-arms with him for repairs was then at his shop. Het Ram case was that Thakur Singh returned to his house about half an hour later and took back the gun saying that he wanted to show it to some one else. But while giving back the gun to him Het Ram forgot to take back the receipt. His case was that on January 2, 1967, Thakur Singh again came to him and deposited the gun with him for polishing and Het Ram made an entry, Ext. P-50-A in his register, Ext. P-50. On January 16, 1967, Thakur Singh came to his shop in police custody and at his instance he handed over the gun to the police and the police also took charge of the said register.
19. If this testimony were to be accepted it would establish a link showing that the gun was with Thakur Singh and was available for use on December 19, 1966 and was again deposited with Het Ram on January 2, 1967. The suggestion of the defence was that the police took charge of the gun from Het Ram on December 22, 1966, on information received from Thakur Singh's wife, and that Het Ram was made to fabricate a false entry in his said register to show that Thakur Singh had deposited the gun with him on January 2, 1967. The suggestion was not acceptable to the High Court for the reason that if the police had obtained the information about the gun from Thakur Singh's wife they could have easily examined her to depose that fact. That was not done. There was, save this suggestion, no evidence to show that the police had the information about the gun and bad seized it on December 22, 1966, and that, therefore, they could not have deposited the gun with Het Ram on January 2, 1967, as was the case of Het Ram. Another suggestion made was that even after the gun had been sent to Dr Sharma the parcel containing it had returned to the police by the Forensic Laboratory as the seals on it did not tally with the specimen seals sent along with it, and, therefore, the police had the chance to tinker with the gun. This suggestion also was not acceptable to the High Court.
20. The real difficulty, however, arises from the evidence of Het Ram. For the question is: was the gun after it was deposited with Het Ram taken back by Thakur Singh on that very day i.e. December 17, 1966? It seems to us that there was not sufficient satisfactory evidence on that question so as to base the appellant's conviction on it. There was clear evidence of Het Ram that when Thakur Singh deposited the gun on December 17, 1966, he gave a receipt mentioning therein that he would return the gun on December 21, 1966, after repairing it. His explanation was that though he returned the gun within half an hour to Thakur Singh he forgot to take back that receipt and therefore the receipt remained with appellant Thakur Singh. Though the High Court accepted this explanation, we are of the view that it is not convincing. It was admitted by Het Ram that he had started maintaining a register some time in August, 1966, mentioning therein the names of customers who left their firearms for repairs with him. It is true that as Thakur Singh had come to his house and not at his shop and the register was at the shop, he could not immediately make an entry in the register, and, therefore, he had given the receipt to Thakur Singh. But it is impossible to think that he would forget taking back the receipt, for, he returned the gun within half an hour. Even if he forgot to do so, he was bound to make the necessary entries in his register later that day. He did not produce and the police also did not take charge of that register. His plea was that it was lodged by him with the licensing authority to whom he had applied for renewal of his permit as a repairer of firearms.
21. Assuming that the register, as stated by him, was with that authority the police could have seized it from the licensing authority and produced it before the trial court. This was not done. In any event, it was with Het Ram when he gave his evidence. If he had made the entries in that register, as he was bound to do, to the effect that the gun had been deposited with him on December 17, 1966, but had been taken back on that very day, the register would have been of invaluable help to the prosecution. As it was, the prosecution relied upon his verbal testimony though the register was available. Curiously, the prosecution got him to produce only the register for 1967 to show the deposit of the gun on January 2, 1967, without making him produce the register for the year 1966. The important question is: would Thakur Singh lodge his gun with Het Ram on January 2, 1967, if it had been used in the murder? In the first place, he would know as an ex-police officer that there was a possibility of empty cartridges being found at the place of the offence and if the gun was deposited by him with Het Ram and later on seized by the police the gun and the cartridges would establish a formidable link between him and the crime. In the second place, he had the receipt of Het Ram with him which he was in a position to use for establishing that he had left the gun with Het Ram on December 17, 1966 and since the receipt was with him, it showed that the gun remained with Het Ram all throughout. There was, therefore, no necessity for him to deposit the gun with Het Ram as re-depositing it would show that it had been taken back by him from Het Ram and left with him after the shooting incident. It is impossible to think that Thakur Singh would leave the gun with Het Ram and that too for polishing it as stated by Het Ram and thereby take such an obvious risk. The evidence of Het Ram thus cannot be said to be free from doubt and consequently could not with any safety be relied upon to establish that it was with his gun that Piara Singh had fired at the jeep or that Thakur Singh had lent it to Piara Singh to fire the inmates of the jeep. Consequently, the opinion of Dr Sharma that the empty cartridges were fired from this very gun could not be linked with the prosecution plea that Thakur Singh had lent that gun to Piara Singh on December 19, 1966, after having got it back on December 17, 1966 from Het Ram. In any event, the evidence leading to that conclusion was not beyond the pale of doubt.
22. This is particularly so because when the six empty cartridges were seized from the scene of the offence on December 20, 1966 and were packed in a parcel, that parcel was sealed only with the seal of the police officer. Neither the signatures nor the seals of the witnesses in whose presence they were seized were affixed on that parcel. The parcel remained with the police from the 20th to the 24th December, 1966, when they were sent to the Forensic Laboratory. Even thereafter the parcel containing those cartridges remained with the receptionist of the Laboratory until March 21, 1967. The evidence of Dr Sharma was that he took up on that day the parcel containing the gun Ext. P-27 and the parcel containing the six cartridges for his examination but finding that the seal on the parcel containing the gun did not tally with the specimen seals sent by the police he returned both the parcels i.e. the one containing the gun, Ext. P-27, and the other containing the six empty cartridges, is the police station. On March 28, 1967, the police officer personally brought back the two parcels with the correct specimen seals and thereafter Dr Sharma tested the gun and the cartridges and made his report. This evidence clearly establishes that the cartridges and the gun were in police charge from the 21st to 28th of March, 1967. It was argued that it was possible during this period for any one desiring to do so to break open the seals and the parcel containing the cartridges and tamper with them and again reseal the packet as the parcel bore only the seal of the police officer and did not have the seal or the signatures of the witnesses in whose presence they were taken charge of. It is true that in his re-examination the prosecution brought out from Dr Sharma that while returning the two parcels to the police on March 21, 1967 the seals of the laboratory had been affixed on the parcels and those seals were intact when the police officer brought the parcels back on March 28, 1967. But Dr Sharma gave his evidence on December 23, 1967, nearly nine months after his returning the parcels. He conceded that he had not mentioned in his report the fact of the laboratory seals having been affixed on the parcels. It is difficult, therefore, to say with certainty whether in the absence of any such reference in that report he would be in a position to remember that laboratory seals had been affixed on that parcel particularly as he must be receiving a large number of such parcels for examination. In these circumstances it is not possible to rule out altogether the possibility of the cartridges having been tampered with and accept Dr Sharma's report at its face value. In our view, once the evidence of the approver is eliminated, there was hardly any convincing evidence left on the record to connect appellant Thakur Singh with the crime in question so as to warrant his conviction under Section 302, read with Section 120-B or Section 109 or Section 34 of the Penal Code.
23. As against appellant Piara Singh, there is, even leaving aside the evidence of the approver and Gurmail Singh, the evidence of Sakhi Chand (PW 7) and Mehnga Singh (PW 12). Their presence at the scene of offence at the time of the incident cannot be disputed as both of them had received gun-shot injuries.
24. The evidence of Sakhi Chand was that in all 7 or 8 shots were fired as a result of which both he and Mehnga Singh received injuries. According to him, immediately after the shots were fired two miscreants came near the jeep and walking in front of the head lights of the jeep which were still on came to him, Jaswant Singh and Mehnga Singh and enquired the name of those inside the jeep. Obviously the enquiry as to their names was made to ascertain whether one of them was Chainchal Singh. These two persons, according to him, were appellant Piara Singh and the approver, the former with a double barrelled gun and the latter with a single barrelled gun. Both of them then opened the bonnet of the jeep and one of them cut the wires inside the jeep's engine and went away towards the north. To the same effect was the evidence of Mehnga Singh. It will at once be observed lliat unlike the approver, these two witnesses mentioned only two persons i.e. the approver and Piara Singh having come up to the jeep after the shooting and not three, the third person, namely, the Akali, having been introduced by the approver. The view of the High Court on the evidence of these two witnesses was that it was without any blemish and therefore acceptable, nothing against either of them having been brought out in their cross-examination. We may, however, mention that Mehnga Singh at the date of the incident was an employee of the Kartar Bus Service of which Chainchal Singh was the Chairman. To that extent Mehnga Singh must be said to be an interested witness. But that fact cannot by itself be enough to reject his evidence particularly as he was present at the time of the incident and had received injuries and his evidence stood completely corroborated by the evidence of Sakhi Chand against whom no circumstance has been brought out to disqualify him as an uninterested and non-partisan witness. Though there is some discrepancy in the evidence as to whether the second person who came to the jeep after the firing was the approver or the Akali, their evidence is clear that the other person was Piara Singh armed with a double barrelled gun. Thus, there is clear and cogent evidence as to Piara Singh being one of the two miscreants having inquired the names of those inside the jeep and having been responsible for opening the bonnet for the purpose of cutting off the wires in its engine. On this evidence there can be no doubt whatsoever of Piara Singh having been concerned in the shooting at those inside the jeep, and therefore, being responsible for the murder of Jaswant Singh and Tirath Singh and the injuries on these witnesses.
25. The evidence of these two witnesses that the persons who came to the jeep after the firing were the approver and Piara Singh is strengthened by the fact that finger print expert (PW 33) found finger and palm impressions on the windscreen and the left head light of the jeep which tallied at many points with the specimen finger and palm prints of these two persons. No contention was urged before us by Counsel against the testimony as to the finger and palm prints. Therefore, there does not seem to be any reason why it cannot be used as a piece of evidence fortifying the evidence of the two eyewitnesses insofar as Piara Singh is concerned. To add to this evidence was the evidence of similarity of shoe impressions found at the spot with the specimen foot prints of appellant Piara Singh taken by the police in the presence of a Magistrate. Though the verification of foot prints cannot be said to be as satisfactory as that of the finger prints, that evidence serves to a certain extent the purpose of adding strength to the ocular testimony of Sakhi Chand and Mehnga Singh and the evidence as to his finger and palm impressions on the jeep. In our view there was sufficient satisfactory evidence to justify the conviction of appellant Piara Singh.
26. In the result, the appeal by appellant Thakur Singh is allowed and the order of conviction and sentence passed against him is set aside. The appeal by appellant Piara Singh, however, fails and is dismissed.