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Mohinder Singh and ors. Vs. the State - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCriminal Appeal No. 125 of 1969
Reported inILR1970Delhi854
ActsEvidence Act, 1872 - Sections 25
AppellantMohinder Singh and ors.
RespondentThe State
Advocates: A.N. Mulla,; G.S. Bakshi and; B. Dayal, Advs
Cases ReferredPershadi v. State of Uttar Pradesh
(i) evidence act - section 25 - first information report made by the accused--self exculpatory statement therein admissibility of-; where the first information report read as whole is a self-exculpatory statement, no part of it being confessional, all the facts stated therein could be taken into account against accused appellant, as a piece of admission made under section 21 of the evidence act, because he was not an accused person then and only later on he became an accused:; that no part of such a statement is hit by section 25 of the evidence act.; (ii) criminal trial - identification of accused--need for identification.; it is no doubt true that in all cases where the concerned witnesses had not seen or known the assailant previously every effort is and has to be made to make those.....s. rangarajan, j.(1) this judgment will also disposeof criminal appeal no. 122 of 1969 which has beenpreferred by kartar singh, who was convicted under section 364 read with section 34 of the indian penalcode and sentenced to rigorous imprisonment for fiveyears but was acquitted of the other charges framedagainst him under section 302 read with section 34 section 201 read with section 34 and under section 325 read with section 34 of the indian penal code by thelearned additional sessions judge delhi (2) the appellants mohinder singh, plara singh andkundan singh (in criminal appeal no. 125 of 1969),who will hereinafter be called the appellants unless otherwise indicated.. have all been convicted under section302 read with section 34, section 325 read with section 34 and section 364 read.....

S. Rangarajan, J.

(1) This judgment will also disposeof Criminal Appeal No. 122 of 1969 which has beenpreferred by Kartar Singh, who was convicted under section 364 read with section 34 of the Indian PenalCode and sentenced to rigorous imprisonment for fiveyears but was acquitted of the other charges framedagainst him under section 302 read with section 34 section 201 read with section 34 and under section 325 read with section 34 of the Indian Penal Code by thelearned Additional sessions Judge Delhi

(2) The appellants Mohinder Singh, Plara Singh andKundan Singh (in criminal appeal No. 125 of 1969),who will hereinafter be called the appellants unless otherwise indicated.. have all been convicted under section302 read with section 34, section 325 read with section 34 and section 364 read with section 34 of the IndianPenal Code and sentenced to undergo rigorous imprisonment for life, five years and two years respectivelyon each of the above counts : the sentences againsteach of those accused have been directed to run concurrently. All the four of them were acquitted of thecharge under section 201/34 of the Indian Penal Code.

(3) Joginder Singh and his wife Pritam Kaur, who werealso charged along with the appellants in both the appealswere acquitted. There has been no appeal by the Stateor of any of the accused either wholly or of any charge.

(4) The case for the prosecution briefly is that after thedeath of Tara Singh (the father of appellant MohinderSingh) about a year and a half prior to the occurrence,Jaswant Kaur, the widow of Taia Singh, became intimate with the deceased, Surjit Singh. Appellant MohinderSingh and his mother Jaswant Kaur were living at 2/54,Roop Nagar along with two other sons, aged 17 and 6respectively, and three daughters of whom the eldestis about 15 years old. Gurmit Singh, the elder brotherof Surjit Singh, was also living in the same house.Surjit Singh was living with his wife, Sudershan Kaur,in Kingsway Camp stated at the bar to be about threemiles away from Roop Nagar.

(5) Naturally this intimacy between the deceased andJaswant Kaur was resented by her eldest son (appellantMohinder Singh) and other relations, including her twobrothers (appellants Kundan Singh and Piara Singh)as well as appellant Kartar Singh, who had married thesister of Jaswant Kaur.

(6) On 1/07/1968, the day previous to the occurrence,appellants Mohinder Singh, Piara Singh and KundanSingh went to the house of the deceased in order to takeback Jaswant Kaur, who had gone there the previousday. They forcibly took away Jaswant Kaur afterbeating and fisting her. They threatened the deceasedthat he should either marry Jaswant Kaur and keepher in his house or else they would kill both JaswantKaur and the deceased. The deceased protested thathe was innocent and that Jaswant Kaur was visting themof her own accord.

(7) Next day (Tuesday, the 2/07/1968) at about7-30 Am the deceased went to a public hydrant nearhis house along with his three guests, namely, Sat PalSingh, Paramjit Singh and Gurlal Singh (PWs 2,3 and4 respectively) for taking their bath. At about 8-COAMfour Sardarjis (who are stated to be the four appellants)came in a car and took Surjit Singh in that car. Public Witness 4also got into that car as requested by the deceased.But the car stopped at a nearby petrol pump underpretext of needing petrol for the car; Public Witness 4 who was sittingin the front seat, was asked to get down and the carspeed away without him. Public Witness 4 come back to the hydrantand reported the matter to Gurmit Singh (PW12), thefather's elder brothers son of the deceased, who lodgeda report at the Kingsway Camp Police Station (as perEx. P W. 12/1) at 8.05 Am concerning what had happenedand requested that a search may be made for SurjitSingh.

(8) PW4 went to the same Police Station at 9-30 AMand made a report Ex. Public Witness 4/1, giving some descriptiveparticulars of the four Sardarjis and referring to hishaving been asked to get down from the car near thepetrol bunk and the car being driven away with SurjitSingh in it, but without him.

(9) Appellant Mohinder Singh lodged a report (Ex. Public Witness 15/1) later the same day at 1-25 Pm at the RoshanaraPolice Station mentioning that his mother in spite ofseveral warnings did not desist from her illicit relationswith deceased Surjit Singh, that her mother and SurjitSingh wore sharing bed in the same room that day,that both of them were beaten after opening the doorand that they were in the same room even at the time ofreporting. He prayed that help may be given to him.

(10) On receipt of the report (Ex. Public Witness 12/1) fromGurmit Singh at the Kingsway Camp Police Station,where a case under section 355 of the Indian PenalCode was registered, Sub-Inspector Rishi Parkash(PW14) set out to trace the missing person (Surjit Singh)along with Public Witness . 12. Public Witness 12 got down from the policevan at Vijay Nagar Bus Stop since he had to go to NewDelhi court in connection with a case. On his wayback to the Police Station Public Witness 14 was given a copy ofthe report (Ex. Public Witness 4/1) by a constable. He then proceeded to the spot and recorded the statement of Public Witness s 2 andThe widow of the deceased Sudershan Kaur(PW6),who had gone out and, thereforee, knew nothing aboutwhat happend that morning after her husband and theirguests had gone to take their bath at the publichydrant, even without taking tea, returned to her houseat 1-30 noon. Public Witness 12 also returned from court at about2-30 PM. Public Witness 14, along with some others, went to thehouse of accused Mohinder Singh at Roop Nagar,which is within the limits of Roshanara Police Station.Assistant Sub-Inspector Ram Singh of the same PoliceStation (PW15) met Public Witness 14 there and informed him aboutSurjit Singh having been killed. Ram Singh (PW18),also of Roshanara Police Station, had gone to the sceneof occurrence on receipt of the report (Ex. Public Witness 15/1)given by accused Mohinder Singh at 1-25 PM. Public Witness 18found the body of Surjit Singh with a kuchha but nobanyan lying on the floor and Jaswant Kaur also lyingwith injuries on a pallang in the same room. He alsorecorded a statement (Ex. Public Witness . I/A) of Jaswant Kaur.Jaswant Kaur subsequently resoled from this statement& tried to make it appear that Surjit Singh had come homewith two guests who were not known to her and whenthose two guests behn.ved towards her in an indecentmanner Surjit Singh attacked them with a thapi (awooden stick used for beating, washing clothes. ) Theyattacked and beat Surjit Singh as well as herself andfled away. According to her earlier version to the police,however, the four appellants had arranged to send thechildren to some other house, brought Surjit Singh(deceased) into a room which they forced her to enterand taunted her to sleep with Surjit Singh in their presence,beat Surjit Singh with shoes, dundas and grinding stickand also beat he'. Surjit Singh succumbed to his injuries at the spot. It is this statement of Public Witness 1 which hasbeen treated as the first information report.

(11) Inspector D.D. Sharma (PW19) reached the sceneof offence at Roop Nagar at 2-50 Pm and took overinvestigation from Public Witness 18. The body of Surjit Singhhad only a knchha on it which according to Public Witness 19 contained spots which looked like semen. This kuchha,however, was not examined Chemically for the presenceof semen stains. Public Witness 18 noted that there were markson the floor of the baithak, i.e., the room adjoiningthe room in which the corpse was lying which had beenfreshly scrubbed with a wet and dirty scrubber (stainedwith blood) which was recovered from the adjoiningbath-room. The blood stained thapi (PI) and dundasP2 and P3) which were lying in the court-yard were alsoseized. Some blood stained clothes were found lyingsoaked in water in the bath-room on the first floor.The clothes included a jumper (P4) Salwar (P5) shirt(P6) and two tehmads (P.7) and (P.8) There were alsoblood stains on the wooden almirah fixed in the wallof the baithak those blood stains were scraped and sentfor Chemical analysis. Appellant Mohinder Singh andPiara Singh, who were in that house, were taken intocustody. Public Witness 1 was sent for medical examination toDr. S. Talwar (PW16). Public Witness 1 had stated to Public Witness 16that she had been beaten by her relations for two days.

(12) Appellant Kundan Singh surrendered on 12/07/1968 and appellant KartarSingh, who was absconding,was not available for arrest till 27/07/1968. Proceedings were taken against both of them under sections87 and 88 of the Code of Criminal Procedure.

(13) At the trial Jaswant Kaur, Paramjit Singh and Gurlal(PWs 1, 3 and 4 respectively) were permitted to betreated hostile by the prosecution.

(14) All the appellants denied the prosecution case intoto. Mohinder Singh denied that he gave a report(Ex. Public Witness . 15/1) though he admitted having gone toroshanara Police Station on seeing his mother, whohad injuries, lying down unconsciously and Surjit Singhdead. He asserted that on the body of the deceasedthere was not merely a kuchha but a banyan also.Nothing, including what has been stated to be bloodstained clothes, was recovered in his presence.His positive case was that his uncle (appellant) PiaraSingh came to see him at Ii Am at the transport office,where he was working from 7 Am that day, and wantedto see his mother, brothers and sisters; when he tookhis uncle to the house at 1-30 or 2-00 Pm they foundthe door of the house closed but unbolted. Whenthey went in they saw Surjit Singh lying dead in theroom and Jaswant Kaur lying unconscious with injuries.Appellant Piara Singh had nothing more to add to what Mohinder Singh had stated. Appellant KundanSingh stated that he was away at Punjab.

(15) There can be no doubt that Surjit Singh met withhis death as a result of the injuries which he had sustainedon the morning of 2/07/1968. According to Dr.M.A. Babu, who was examined as Public Witness 2 before the committing Magistrate and whose evidence was transferredto the file of the trial court, death was due to ruptureof the spleen and intracranial haemorrhage. Dr. Babunoticed the following injuries in addition to bleedingfrom nostrils, sub-conjuctival haemorrhage of botheyes, right eye-lid bruised with ecchymosis all round :

1.Contused lacerated wound 3 x ' x scale deep onright parietal region with scattered abrasionsover an area l'x 1' over right side of fore-head.2. Contused lacerated wound ''x'' behind theright ear with scattered abrasions over back ofright-elbow over an area of 1'x ''.

(16) On opening the abdominal cavity, it was foundto be filled with blood, the spleen was found rupturedand the liver was bruised superficially. There was noteven a suggestion that the spleen was diseased. Stomachwas empty. There was effusion of blood all roundunderneath the scalp, the sutures of the brainwere somewhat loosened but there was no fracture ofthe skull. Under the skull bone the brain surfacewas braised, with a few blood clots in subdural spaces.

(17) There can also be no doubt about the fact thatJaswant Kaur also had received injuries. Accordingto the evidence of Public Witness 6 (Sudershan Kaur) JaswantKaur was beaten and fisted by appellants MohinderSingh, Piara Singh and Kundan Singh on the day previousto the occurrence. Though the doctor (S. TalwarPW 16) who examined her or even Public Witness 11, the OrthopedicSurgeon, were not questioned about which among thoseinjuries were caused on the date of the occurrence andwhich were caused on the day previous to the occurrence.The injuries found on her were described by Public Witness 16as follows :-

1.Swelling of both eyes with conjunctival haemorhage.2. Stains of blood from the nostrils were presentin the nose.3. Multiple contusional injuries on the face.4. Three stabs in the middle one-third of the rightleg, each stab about an inch in size and 5 cm.apart.5. Stab wound of size about one inch in the middleof left leg.6. Fracture left patella with swelling of the kneejoint.7. Lacerated wound about 2 inches size in rightthenar region.8. Another wound in the left-hand about 3 inchesin the left thenar region. The muscles of theleft thenar partially divided.9. Small contusions all over the body.

(18) The wound certificate issued to Jaswant Kaur (acarbon copy of the medico-legal report (marked asPW. 11/1) prpeared by Public Witness 16 with reference to thoseinjuries) was proved in the first instance by Dr. S.K.Jagga(PW11) who had also seen Public Witness 1 in the Orthopedic Department, Irwin Hospital, New Delhi,where he was working as Registrar at that time. Healso proved that Ex. Public Witness 11/1 was written and signedby Dr. Talwar. Jaswant Kaur was transferredto the Orthopedic Department on 6/07/1968, whereshe stayed up to 15th July and then transferred to PantHospital because of the fracture on both of her kneecaps and she had to undergo surgery. Ex. Public Witness 11/1mentions the fact of Public Witness 1 being fully conscious whenshe was examined by Dr. Talwar at 7-20 Pm on 2/07/1968 and about her being beaten by her relativesfor 'the last two days'. Public Witness 19 had prepared an injuryreport (EX. Public Witness 19/1), mentioning the fact of his havingnoticed the injuries on the person of Jaswant Kauramong which were two injuries which were said to bebleeding, namely, the right and left palm, both of thesebetween thumb and the fingers. This is an indicationof the bleeding injuries having been caused on the dateof the occurrence. The stab wounds on her left and rightlegs also could not have been caused on the previousday because Public Witness 6 did not refer to any sharp edged instrument having been used against Jaswant Kaur then.PW19 found that the floor of the baithak (the room nextto where the body of deceased and Jaswant Kaur werelying) had been recently cleaned by using wet cloth;blood had splashed on the almirah from which scrapingswere taken and detected to contain human blood. Allthe windows of the room in which the body was lyingand which were abutting towards the road were foundclosed when the police reached the scene. The jumper(P4) and Salwar (P5) said to be the blood stained clothesof Jaswant Kaur were recovered from a Balti on thefirst floor along with tehmads (P7 and P8). Thesewere also found to contain human blood. The thapiwhich was recovered from the coart-yard of the ground floor, but not the two dundas (ghonfas) which werealso recovered from the same place, contained bloodstains.

(19) Regarding the motive for the occurrence there isthe clear evidence of Public Witness 6, even though she did notherself personally know about the intimacy between thedeceased and Jaswant Kaur; on Sunday, previous tothe occurrence ( 30/06/1968), Jaswant Kaur came tothe house of the deceased and told Public Witness 6 that she hadquarrelled with the members of her family and spentthe whole day there. When the deceased returned homein the evening he advised her to go back to her house.She went away saying that she would be going back toher house. She however, returned to Public Witness 6's house.On Monday ( 1/07/1968). On that day appellantsMohinder Singh, Piara Singh and Kundan Singh cameto Public Witness 6's house, beat and fisted Jaswant Kaur sayingthat she was bringing disgrace to them and forciblytook her away. While leaving they threatened that eitherthe deceased married her and kept her in his houseor else they would kill both of them. The deceasedprotested claiming that he was innocent and assertedthat she was visiting him of her own accord. It is a fairand obvious inference from Public Witness 6's evidence concerningthe events that happened on Sunday and Monday,prior to the occurrence, that the appellants resentedJaswant Kaur going to the house of the deceased andher intimacy with him. On this question we do noteven have to depend on the admission of the appellantMohinder Singh in Ex. Public Witness 15/1.

(20) Roshanara Police Station, be yet admitted when hewas examined under section 342 Criminal ProcedureCode that he had gone to the Police Station after hefound Surjit Singh dead and his mother lying with injuriesin his house. In that report he had admitted that hismother had illicit relations with the deceased and theywere warned to desist from such relationship.

(21) It has now been authoritatively laid down, (videAghnoo Nagesia v. State of Bihar reported in : 1966CriLJ100 ) that where the accused himselfgives the first information, the fact of his giving the information is always admissible against him as evidenceof his conduct under section 8 of the Evidence Act.If the information is non-confessional it is admissibleagainst the accused as an admission under section 21of the Evidence Act and is relevant. But a confessionalfirst information report by the accused to a police officercannot be used against him in view of section 25 of theEvidence Act. A confession is an admission of the offenceby a person charged with the offence. A self-exculpatory statement cannot amount to a confession.If an admission of an accused is to be used against himthe whole of it should be tendered in evidence and,if a part of the admission is exculpatory and a partinculpatory, the prosecution is not at liberty to usein evidence the inculpatory part only for the accused isentitled to insist that the entire admission, including theexculpatory part, must be tendered in evidence.

(22) This aspect of the matter will be clearer if referenceis made to Faddi v. State of Madhya Pradesh : 1964CriLJ744 It was explained that whena person lodging the first information report regardingthe occurrence of murder is himself subsequently accused of the offence and tried and the report lodgedby him is not a confessional first information reportbut is an admission by him of certain facts which havea bearing on the question to be determined by the Court,viz., how and by whom the murder was committed orwhether the statement of the accused in the court denyingthe correctness of certain statements of the prosecutionwitnesses is correct or not, the first information reportis admissible to prove against him, his admissions whichare relevant under section 21 of the Evidence Act. Reference was also made to the decision of the JudicialCommittee in Pakala Narayana Swami v. Emperor where it washeld that an admission of gravely incriminating fact isnot by itself a confession. Faddi was cited with approvalin Aghnoo Nagesia.

(23) Exhibit Public Witness . 15/1 read as a whole is a self-exculpatory statement, no part of it being confessional. Allthe facts stated therein could be taken into accountagainst appellant Mohinder Singh as a piece of admissionmade under section 21 of the Evidence Act because hewas not an accused person then and only later on hebecame an accused; this statement, no part of it,is hit by section 25 of the Evidence Act.

(24) Even without reference to Ex. Public Witness 15/1 the abovemotive and the threat meted out by the appellants isabundantly proved even by Public Witness 6 alone, whose evidencewe can find no sufficient reason to distrust. Regardingthe murder and how injuries were caused to Public Witness 1,she having turned hostile, there is no direct evidenceconcerning the murder.

(25) Among Public Witness s 2 to 4, who came to the house of thedeceased on the evening prior to the occurrence, Public Witness s3 & 4 had turned hostile. Since they went back completely on their earlier statements to the police thereis nothing in their present evidence which is useful to theprosecution. We are only left with the evidence of Public Witness 2,with such corroboration as we can find from the evidenceof Public Witness 12 concerning the alleged abduction of the deceasedby the appellants in both the appeals. Public Witness 6 herselfdid not witness the taking away of her husband forshe was not in her house.

(26) PW2'S brother Iqbal Singh has married the sisterof Sudershan Kaur, widow of the deceased. He sworethat along with Public Witness s 3 and 4 he had gone to the houseof the deceased and Public Witness 6 as their guest the day priorto the occurrence. On the morning of the day of occurrence four persons came in an Ambassador car of blackcolour when Public Witness s 2 to 4 and the deceased had gone tothe public hydrant, which was near their house, for takingtheir bath. Three out of the four passengers in thecar came out and they were greeted by the deceased.They requested the deceased to accompany them forsome talks. The deceased, who had just finished hisbath, was wearing his clothes-a kachha and a banyan-expressed his regret as he was having guests in the house.On the insistence of those three peisons the deceasedaccompanied them towards the car. He himself andPW4 followed them. Those who came had gone nearlya distance of 100 kadams talking with the deceasedwhen they stopped near the car and the car also whichwas moving slowly stopped. The deceased reqestedPW2 to go back and bring his clothes : Public Witness 2 was changing his clothes. They boarded the car. Public Witness 4 alsoboarded the car at the request of the deceased. WhenPW2 had just turned his back to them the car, with allof them, sped away. Public Witness 2 waited at the hydrant forthe return of Public Witness 4 and the deceased. Half an hourlater Public Witness 4 came out of a taxi, ran towards Public Witness 2 andinformed him that these peisons had played a trick* by dropping him at the petrol bunk and taken awaythe deceased. Since they suspected foul play theyinformed Gurmit Singh (PW12) the cousin of the deceased. PW12 immediately went to the nearby Kingswaycamp Police Station and lodged a report at 8-05 A.M.

(27) Taking another person along with them Public Witness s 2and 4 went to the petrol bunk to find out what happenedto the deceased. Not being able to get any information they returned to Kingsway Camp and then wentto the Police Station in Kingsway Camp, where Public Witness 4lodged a report at 9-30 A.M.

(28) PW2 identified all the appellants before the court.PW2 had also gone, on the 6th (and again on 22nd)to the Jail to take part in the identification parade whichwas not held because the accused concerned had refusedto participate. The Magistrate, who was to have heldthe identification parade, was not examined and hisnotes were also not filed. The learned Public Prosecutor made a statement before the trial Court, on 27/08/1969, that he was giving up the learnedMagistrate because the records prepared by him at thetime the accused was alleged to have refused to takepart in identification parade were not traceable in spiteof best efforts.

(29) It was urged for the appellants that Public Witness 2's statement concerning the appellants refusing to participatein the identification parade was only hearsay and thatthere was no other evidence about it. A perusal of thecross-examination of Public Witness 2 shows that not even a singlequestion was put to Public Witness 2 concerning his evidence inexamination-in-chief that the appellants had 'refused'to participate in the identification parade and the pardaenot being held for that reason. It was also suggestedby Shii Bishamber Dayal for the State that the mostobvious inference from the identification prarade notbeing held after the witnesses were also taken for the purpose is that the concerned accused had refused to participate. It was, however, urged by Shri Mulla, the learnedcounsel for the appellants, that there could be otherreasons for not holding the parade like the requisitetype of persons, with whom the concerned accused oughtto be paraded for being identified, not being available.But, in the absence of any cross-examination of Public Witness 2on this question one cannot speculate about any otherpossible ground (than spoken to by Public Witness 2) on whichan identification parade, which was arranged, did notactually take place. It was also urged by Shri Mullathat having regard to the provisions of the Rules andorders of the Punjab High Court Volume Iii Chapter2-C containing instructions to criminal courts about theholding of identification parades Public Witness 2 could not havehimself actually seen the accused and much less hisrefusing to participate in the identification parade.But this argument overlooks the fact that there wasno impediment to his seeing the concerned accusedafter they had refused to participate, Even if thiswere not the case the positive evidence of Public Witness 2 thatthe parade did not take place on account of the refusalof the accused could not be discarded in the absenceof any cross-examination on this point as one whichwas only based upon a statement made to him by otherpersons about their refusal to participate.

(30) Shri Mulla also complained that the fact of the accusedrefusing to take part in the identification parade wasnot put to the appellants when they were examined under section 342 Criminal Procedure Code . But no prejudice can be said tohave been caused by reason of the said omission whenthere was no cross-examination even of Public Witness 2 on thispoint. That is why Shri Mulla was at pains to characterise the evidence on this aspect as hearsay .: we couldnot agree with him that it is hearsay.

(31) It is no doubt true that in all cases where the concerned witnesses had not seen or known the assailant previously every effort is and has to be made to make thosewitnesses participate as soon as possible in an identification parade held according to the rules and proceduregoverning the same. In this case such effort was madebut yet the parade could not be held for no fault orlapse on the part of the prosecution. It is no-doubtunfortunate that the record prepared by the Magistratein respect of the identification parade was said to benot traceable ; this alone resulted in not examining theconcerned Magistrate by the learned Public Prosecutor.Obviously the Magistrate could only give evidencewith his notes before him ; without his notes there wasno point in examining the Magistrate. But as explainedat length we are unable to find any infirmity on thisground.

(32) Shri Mulla relied in this context, upon VaikuntamChandrappa and others v. State of Andhra Pradesh( : AIR1960SC1340 .' In that case therewas an identification parade consisting of 46 persons;including among them were seven suspects. An eyewitness while taking out nine persons made three correctidentifications and six mistakes. But the said eye-witness,after failing to identify an accused not only in the paradebut also before the committing Magistrate belatedly,identified him in the Session Court. On these factsthe Supreme Court observed as follows :-

'INthese circumstances, the conclusion cannot be escaped that the three suspects mighthave been picked out by this witness by merechance. It is true that when he came to giveevidence in Court, the witness did point out tothe same three accused as having been seen byhim at the time of the murder. It is also truethat the substantive evidence is the statement incourt; but the purpose of test identification isto test that evidence and the safe rule isthat the sworn testimony of witnesses in court asto the identity of the accused who are strangers tothe witnesses, generally speaking, requires corroboration which should be in the form of an earlieridentification proceeding. There may be excep'lion to this rule where the court is satisfied thatthe evidence of a particular witness is such thatit can safely rely on it without the precaution ofan earlier identification proceeding. But in thiscase we are not prepared to consider Public Witness 1 as a witness of that exceptional kind.'

(33) The above said observations, particularly thoseemphasised by us, go to show the value to be attachedto the later identification by a witness of an accusedperson in court, when there was either a failure to holdan identification parade or even when held there isa failure on the part of the concerned witnesses to identifycorrectly; such a feature will have to be appreciatedin the light of the facts of each case.

(34) Shri Mulla also referred to some other decisions,of other High Courts, containing observations aboutthe importance , holding the identification paradesoon after the occurrence. The observations in thosedecisions, which were relied upon, are seen to have beenmade on the special facts of those cases, such as difficultyin identification owing to poor light or where the incidentwas a very quick moving one not allowing sufficienttime to enable clear and safe identification. The importance generally of holding an identification cannotbe minimised ; the prosecution has to make every endeavor to hold an identification parade as soon as maybe possible after the occurrence so that the witnesses,who did not know the assailants before, would havean opportunity of identifying them and before theycould have any occasion or opportunity to see them.This would also enable the accused themselves to takewhatever precautions they might consider necessaryin the matter of ensuring that the witnesses who identifythem do not get an opportunity of seeing them beforethe actual parade. But in the present case in the viewwe take that the prosecution did make its best endeavorto hold an identification parade, which was not heldbecause of the refusal by the concerned accused toparticipate in the parade, we see no force in the contention that the evidence of Public Witness 2 cannot be safely actedupon merely because he identified the appellants onlyin court.

(35) The most important question in this case thereforeeis whether the evidence of Public Witness 2 can be accepted. Guarantee concerning the presence of Public Witness 2, as spoken to byhim, is furnished by reference to his presence (along withPWs 3&4) in the report (Ex. Public Witness 12/1) which was promptly made at the Kingsway Camp police station by Public Witness 12at 8-05 AM. Public Witness 12 reported that 'four Sardars' hadtaken away the deceased in a black Ambassador carand to Public Witness 4, who also went along with them, havingbeen dropped at the petrol bunk. This report wasgiven with such promptitude that unless it is statedthat this report itself was concocted at a later point oftime, for which no basis at all has even been laid, it ishardly possible to minimise the importance to be attachedto Public Witness 2 being mentioned in this report. Public Witness 12 hadnot even waited to make an inquiry about the identifying particulars from Public Witness 4 for Public Witness 2 along with Public Witness 4and another person had gone in search of the deceased.Their first concern should have been about the safetyof the deceased. The persons who thus took with themthe deceased were not known to any of the guests (PWs 2to 4) of the deceased.

(36) It was noticed that this was followed up, at 9.30 Am, yet another report (Ex. Public Witness 4/1) by Public Witness 4 who wasnaturally able to give some identifying particulars concerning at least of those persons (Sardars) ; but he was,however, in a position to identify the fourth personif brought before him. He also explained in greaterdetail the manner in which he was asked to get downfrom the car before it sped away without him.

(37) Still further correboration in this respect is furnishedby Public Witness 6 who swore that Public Witness s 2 to 4 had come to theirhouse on Monday evening and stayed in their houseas the guests of their husband. She left next morning(on the morning of the day of occurrence) for her husband's elder brother's house. Just then the three guestsalong with her husband were taking their bath at a publichydrant near their house. She had not prepared teafor any of them, which fact is confirmed by the stomachof the deceased being found empty during autopsy.

(38) The cross-examination of Public Witness 2 does not discloseanything which may be sufficient to throw doubt on hisveracity. It is true that Iqbal Singh, brother of Public Witness 2had married the sister of Public Witness 6 but that is no reasonwhy he should purjure himself against the appellants,whom he had not even seen. We discard, as false, theclaim of appellant Mohinder Singh, when he was examined under section 342 Criminal Procedure Code ., that he had previouslyknown Public Witness s 2 to 4 for a long time prior to the occurrence.Such a suggestion was not made even to Public Witness 2. It isworth recalling in this context that Public Witness s 3 and 4 (whosenames had also been mentioned in Ex. Public Witness 15/1) turnedhostile by completely going back on their earlier versionto the police.

(39) Shri Mulla was at pains to refer to Public Witness 2's earlierstatement of the police (Ex. D.A) wherein he had statedthat the Ambassador car was at a distance of 200 or250 steps from the hydrant. He had mentioned thedistance, during examination-in-chief before the trialcourt, as 100 kadams (steps) ; he had also said thatthe three persons who got down from the Ambassadorcar had gone 100 kadams as they were talking to thedeceased. It was no doubt elicited from him duringcross-examination that the car came up to the point ofthe hydrant and stopped on the load right oppositethe hydrant, but he had also stated that there were stonesfor about 2 kadams in width between the hydrantand the road. There was no further suggestion thatthat portion was passable and yet there was an unaccounted detour to reach the car. Public Witness 2 also stated thatthe engine of the car was kept running and the car wasmoving slowly, the deceased got into the car only afterwalking a distance of about 100 kadams. In anycase on the mere basis of a slight discrepancy as to theactual distance which they walked from the public hydrant to the place where the car was stopped his evidencecannot, in all fairness, be disbelieved.

(40) Shri Mulla next contended that Public Witness 2, who admittedat the trial about his becoming suspicious when thethree persons who got down from the car surroundedthe deceased as they were talking to him, had not noticedthe number of the car which, it is stated, he should havedone if he had become suspicious. Since differentpersons react differently in the same situation we areunable to persuade ourselves not to accept Public Witness 2's evidenceon the ground that in spite of his having become suspicious he failed to see or make a note of the numberof the car. He admitted, when questioned about it,that be could not even say whether Public Witness 12 left by the sametaxi by which Public Witness 4 came back to the hydrant. In asituation like this we do not consider that any significance can be attached to Public Witness 2 not having noticed thenumber of the car.

(41) PW2 had seen all the four persons who came thereforee quite some time in broad day light. He bad nodoubt that the person, who was sitting in the car whenthe other three persons had got out and came towardsthe hydrant, was appellant Mohindei Singh. Duringthe course of cross-examination he mentioned the heightof Mohinder Singh as 'above 5 ft' build as 'average':complexion as 'wheatish'; age as '24-25 years' andbeard 'trimmed'. It may be remembered that thesewere the descriptions he had given in the trial court.To the police, however, he is stated to have mentionedthe height as 5 ft. 8 inches : build as 'stout' ; complexionas 'fair' age as '18-19 years' and his face as 'well nourished with a trimmed beard'.

(42) It is stated that the age of appellant Mohinder Singhwas about 20 at that time. But having regard probablyto his growth there could not be said to be any discrepancy on the ground of age nor even regarding his build.PW4 had stated in Public Witness 4/1 that the driver was about28/30 ; there can also difference of opinion as to whethera person's complexion is only 'v.heatish' or 'fair'.These are only rough descriptions. So far as the appellant Piara Singh is concerned the only point is that hehad to mention fact of his having pock marks ofhis face, a feature which he was able to point out onlylater, after a closer look, even in the trial court. Public Witness 2had also omitted to refer to the blue eyes of KartarSingh. These depend upon the intensity with which(and the setting where) one observes. These discrepancies often occur where a natural account is givenof what one observes: a tutored witness could be,and often is, much more exact.

(43) We have referred to the contentions advanced byShri Mulla pertaining to the evidence of Public Witness 2 in suchdetail because having regard to the importance of hisevidence a very strenuous effort was made to attackhis testimony. We have been taken through the entireevidence in this case and we have listened to his elaboratearguments on every minute circumstance ; we were anxi-ous to appreciate the entire evidence and circumstances inthe case ourselves, especially having regard to the factthat the trial Judge had in the course of his judgmentrelied upon even statements in the Fir (given by JaswantKaur) practically as if they were substantive evidencein the case. Having heard Shri Mulla as well as Mr.Kohli, who followed him, on behalf of the appellantKartar Singh, we have no hesitation in accepting thetestimony of Public Witness 2, especially when the evidence ofPW6 makes out that he, along with Public Witness s 3 and 4, hadcome to the house of the deceased on the evening ofthe occurrence and his name was mentioned even at8-05 Am on the day of the occurrence so soon after thedeceased was taken away by the appellants. He hadno animosity whatever against any of the appellants,in fact he was an utter stranger. His evidence and thatof Public Witness 6 has to be appreciated in its broadest aspectsand we have no difficulty in placing full reliance and inaccepting their testimony.

(44) It is yet necessary to refer to another contention ofShri Mulla that it was dangerous to rely upon the identification of a single witness, namely, Public Witness 2, especiallywhen there is not even the guarantee to be obtained in respect of his identification by holding of identificationparade. We have discussed at considerable length thecircumstances in which the identification parade wasnot held in this case. We cannot overlook the factthat if Public Witness 2 now happens to be the sole witness indentifying the appellants (in both the appeals) as those whotook away the deceased from the public hydrant on thatfateful day it is because the two other persons, namely,PWs 2 & 4, to whose presence at that place reference hadalso been made by Public Witness 12 in the earliest report given at8-05 Am, had turned hostile.

(45) Regarding the threat, which Public Witness 6 swore the appellantsuttered on the day previous to the occurrence, ShriMulla stated that not all the three persons may haveuttered the threat as spoken to by her, but on this aspect,again, there was no cross-examination when Public Witness 6deposed in examination-in-chief, that all the three ofthem beat and fisted her. The cross-examination was directed to this aspect of beating but not at all to theuttering of the threat.

(46) It was also contended by Shri Mulla that nothinghad happened after the threat and before the occurrenceto drive the appellants to give effect to that threat. Butthis argument entirely fails to take note of the humansituation which was over-charged not only by a senseof shame but there was also the added difficulty ofJaswant Kaur having an unmarried daughter aged 15.The two uncles (appellants Kartar Singh and PiaraSingh) of appellant Mohinder Singh, who were livingin Palwal, about forty miles from Delhi, were presentin Delhi even on the day previous to the occurrenceas spoken to by Public Witness 6. They had not only taken heraway forcibly but had also uttered that threat. Whenthey left the deceased did not say that he had nothing todo with Jaswant Kaur or even assure them that shewould not visit him thereafter but had only protestedthat he was innocent and that she was visiting his house ofher own accord. The three appellants had naturallybeen boiling over this unhappy situation. They were alsotogether then. It is small wonder that they made uptheir mind to get rid of the deceased in this most unfortunate manner. To draw the above said inference wouldnot, as Shri Mulla suggested, be a case of indulging infancy ; this is only to appreciate how people placed insuch a situation react.

(47) The evidence of Public Witness 6 coupled with what MohinderSingh himself had stated in Ex. Public Witness 15/1 does help establish beyond doubt the motive for the occurrence and thethreat, which have an important bearing upon the manner in which the deceased was taken away from the publichydrant on the morning of the occurrence a day afterthe threat was uttered. That he was so taken awayfrom the public hydrant is fully established not onlyby the evidence of Public Witness 2 but also of Public Witness 12 who madea prompt report (Ex. Public Witness 121) about it to the police.

(48) The deceased was murdered in the portion, marked'B' in the plan, which is seen to be separate, of the housewhere the appellant Mohinder Singh lived along withhis mother, brother and sisters. The brother of thedeceased Joginder Singh was living with his wife PritamKaur (both of them were acquitted by the lower court)with their family in the portion marked 'A' Bloodstains on the almirah in the baithak and the floor, foundby the police, to be recently scrubbed are some indicationsof some injuries at least being caused to the victimsthere. The doors and windows abutting the road inthe room where the deceased and Public Witness 1 were lying hadall been closed. This suggests the inference that theywere so closed so that the cries of the victims would notbe heard by the passers-by along the road. The appellant Mohinder Singh had himself gone to the policestation at 1-25 Pm and despite his denial had madea report; he is himself a signatory who has signed itin English.

(49) The inferences, which are irresistible and whichthus flow from the above said facts and circumstances,were sought to be nullified by a two-pronged attackby the defense : the first was the attempt by appellantMohinder Singh, in Ex. Public Witness 15/1, to make it appearthat both his mother and the deceased were found IN a compromising situation when not only his motherbut Surjit Singh were attacked ; the second was the attempt to put forward a theory through Jaswant Kaurherself, when she was examined in court, despite herearlier statement to the police, that the deceased andherself were attacked by the two guests, unknown toher, of the deceased and that she became unconscious.This version given by Public Witness 1 is totally inconsistent withthat of Public Witness 2 that the deceased was taken away from thepublic hydrant near his house that morning by theappellants (in both the appeals). That Jaswant Kaurwas conscious is clear from the police having recordeda statement from her. On the other hand appellantMohinder Singh had not stated in Ex Public Witness 15/1 thathis mother was unconscious. In fact he had not referred therein to Surjit Singh having died; when he wasexamined under section 342 of the Criminal ProcedureCode, appellant Mohinder Singh claimed that his motherwas unconscious but yet admitted that at the time hefirst saw Surjit Singh he was dead. He had furtherasserted that at 11 Am the appellant Piara Singh hadcome from Palwal to the place, where he was workingfrom 7 Am and expressed a desire to go and see hismother, brothers and sisters in their house, a suggestion which he says he approved. Appellant PiaraSingh adopted the above statement of Mohinder Singhbecause when he was questioned under section 342Cr. P.C., whether he had anything else to say he hadnothing more to add to what appellant Mohinder Singhhad already stated. Apart from there being no need forappellant Piara Singh, who was no other than the brotherof Jaswant Kaur, to have gone to the appellant MohinderSingh's place of work in order to see his own sister andher children, we have the evidence of Public Witness 6 that appellants Piara Singh and Kundan Singh were both in Delhion the previous day itself. The case of Piara Singhcoming all the way from Palwal (if that was whatMohinder Singh meant) on the morning of occurrenceIs thus unacceptable.

(50) The plea of Piara Singh as well as of MohinderSingh, is, thereforee, one of alibi. In answer to a question(No 14) put to appellant Kundan Singh under section342 of the Code of Criminal Procedure suggesting thathe was absconding after the day of occurrence andtill he surrendered before the Magistrate on 12/07/1968, he claimed to have gone to Punjab. He didnot, however, say when he went to Punjab, whetherbefore or after the occurrence. According to Public Witness 6 appellant Kundan Singh was one of those who beat andfirsted Public Witness 1 on the day previous to the occurrence ;according to Public Witness 2, he was one of those who took thedeceased away from the public hydrant on the morningof occurrence. The case of alibi, if that was the plea ofKundan Singh also, was not even sought to be substantiated.

(51) Where the various links in the chain of circumstantialevidence are satisfactorily made out and the circumstances point to the accused as the probable assailant, withreasonable definiteness and in proximately to the deceased as regards time and situation, and he offers noexplanation which, if accepted, though not proved,would afford a reasonable basis for a conclusion on theentire case consistent with his innocence, such absenceof Explanationn or false Explanationn would itself be anadditional link which completes the chain vide theobservations of Jagannadhadas J. in Deonandan Mishrav. The State of Bihar : 1955CriLJ1647 .The total denial of the accused without explainingthe circumstances appearing against him was held tojustify an adverse inference against the appellant inPershadi v. State of Uttar Pradesh : 1957CriLJ328 . The (three) appellants have totally deniedtheir presence in the house of Public Witness 6 on the day previousto the occurrence and their presence at the public hydranton the morning of the occurrence, shortly after whichthe deceased was found dead in the house of appellantMohinder Singh, the nephew of the other two appellants; Jaswant Kaur was also lying with injuries neaihim in the same room. In these circumstances, especiallyin the light of the motive and the threat uttered by theappellants, the necessary links in the chain of circumstantial evidence have been satisfactorily proved and theinference arising from them is inesistible that all the threeappellants in pursuance of their common intention tomurder the deceased did commit this murder and achieved this purpose by abducting him from the publichydrant. They also caused grievous injuries to Public Witness 1in pursuance of their common intention to punish herby even trying to maim her. The appellants did notgive any Explanationn concerning those circumstances;the absence of Explanationn would by itself completethe chain of circumstances against them. It is furtherseen that appellant Mohinder Singh is seen to have madean exculpatory report, Ex. Public Witness 15/1, merely with aview to explain the circumstance of the deceased havingbeen done to death in his house and Public Witness 1 also havingsustained injuries at about the same time. The attemptthen was to make it appear, without of course expresslysaying so, that they had been done to death in his houseby somebody when the deceased and Public Witness 1 were in acompromising position. Shri Mulla rightly urges thatfrom the mere unwillingness on the part of the sonto say at the trial that his mother was found in thatsituation with the deceased an adverse inference againstthe son could not be harshly drawn. But it is obviousfrom the other evidence and the proved circumstancesthat he was only trying to make it appear falsely thatboth of them were sharing bed in the room that morning.Resort to such a theory was made in Public Witness 15/1 by appellant Mohinder Singh to nullify the effect of evidence,which was expected to be forthcoming later, that thedeceased had been taken away by the appellants. Eventhis theory was not pursued later because appellantMohinder Singh did not even stick to such a versionwhen examined under section 342 of the Code of Criminal Procedure: he denied having made that report(Ex Public Witness 15/1) though he admitted that he went to theRoshanara Police Station.

(52) We are unable to find support for the theory, elicitedthrough Public Witness I, even contrary to her own earlier versionin Ex. Public Witness 15/1, that two persons unknown to her,who had come to her house along with the deceased,behaved indecently towards her and also belabouredthe deceased and attacked her with a thapi. It is worthrecalling that her statement in Ex. Public Witness I/A was to theeffect that the appellants (in both the appeals) andJoginder Singh (acquitted accused) had after sendingaway her children, brought the deceased to her houseand had taunted her to sleep with him. This portion ofher statement, we are afraid, had been relied upon bythe learned Additional Sessions Judge to form the impression that the 'decks were cleared' for the murder by sending the children away. Shri Mulla rightly complainsthat the said statement in Public Witness 1/A could not be takenas substantive evidence, there being no other evidenceabout the children having been thus designedly sentaway from the house. The above view of the learnedAdditional Judge may, however, be still supportedas a matter of inference from the children not beingin the house when the police reached there. Shri Mullaalso complains that even though Public Witness 19 noticed stainswhich looked like semen stains on the kuchha of thedeceased still the Chemical examiner had not been requested to examine the stains to find out whether theycontained semen. As we have already indicated, theversion of appellant Mohinder Singh, in Ex. Public Witness 15/1,that his mother and the deceased were sharing bed thatmorning has only to be stated to be rejected. Thetestimony of Public Witness 6, which we have accepted, is that onthat very morning the deceased had gone to the publichydrant with his guests (PWs 2 to 4) for taking theirbath and of Public Witness 2, whose evidence we have also accepted, is that he was taken away from there by the appellants. If the deceased was taken away like that it wouldbe exceedingly improbable that on that very morninghe shared bed with Public Witness 1. There being no evidence thatthe deceased had washed his kuchha that morning beforewearing it, married man that he was, his kuchha containing semen stains, if he was wearing the same overnight, would not help that theory. In the absence offurther clarification, by the necessary questions beingput concerning this, Shri Mulla cannot seek to deriveany support for the theory implicit in Ex. Public Witness . 1/Athat the deceased met with his end that morning duringthe time when he was sharing bed with Public Witness 1 that morning.There is still less support for this theory from therebeing no banyan on the body of the deceased when The police saw it. Other blood stained clothes had beenput inside the balli in the bath room in the first floor.They included the salwar and jumper of Jaswant Kaur.There were two other tahmads also, not stated to belongto the deceased. To whom the two tchmads belongedis not known. It is true that the investigation did notbring out to whom those two tehmads belonged but ithas not been brought out that they were capable ofbeing identified. The absence of the banyan, accordingto Shri Mulla, supports his view that the deceased hadgone to P.W1's house that morning to have physicalrelationship with her. According to Public Witness 2 he had thebanyan on him when he was taken from the publichydrant. It is also not possible that he would havegone along with the appellants without even his banyanWe are unable to find any reason why the prosecutionshould suppress the banyan, when the kuchha was thereon his body and there were so many other blood stainedclothes, especially when reference was made in Public Witness .15/1 to their having shared bed that morning. Theabsence of the banyan suited the purpose of the it was conceived in Public Witness 15/1, more than any otherpurpose of the prosecution one can think of. ProbablyRealizing that the absence of the banyan would notserve the defense purpose, or may even hinder it, appellant Mohinder Singh had no compunction in saying.during his examination under section 342 of the Codeof Criminal Procedure, and without suggesting it toany of the prosecution witnesses, that the banyan wason the body of the deceased. If that was so why shouldthe prosecution suppress it We are left withouteven any plausible answer.

(53) Yet another argument of Shri Mulla was that evenif the evidence of Public Witness 2 was accepted and in the background of the motive and the threat still it was notpossible to draw an inference that Surjit Singh wasabducted in order to commit his murder for it wasstill possible, even at that stage, especially havingregard to the appellants having insisted on Surjit Singhmarrying Public Witness 1 or living with her that he might havebeen taken for the purpose of enforcing the said advicegiven to him or even, at the worst, to give him a severe'hiding'. Since soon after the taking away of SurjitSingh by the appellants he had been done to death inno other place than the house of appellant MohinderSingh himself, the inference seems irresistible, in the absence of any other Explanationn, that the taking awayof Surjit Singh from the public hydrant that morningby the appellants was for the purpose of murderinghim.

(54) So far as appellant Kartar Singh is concerned it isdifferent because Public Witness 6 did not mention about his havingbeen present at a time when Jaswant Kaur was beatenand the threat was uttered by the other appellants onthe day previous to the occurrence. There is also nothingto suggest that Kartar Singh was aware of the intentionof the other three appellants that he was being taken forthe purpose of being murdered. In this view, especiallywhen the lower court had acquitted him of the chargeof murder and there has been no appeal against hisacquittal on the charge of murder, we are unable tosustain the conviction of Kartar Singh under section364/34 of the Indian Penal Code. The said convictionand sentence there under are set aside.

(55) We see no force in the argument of Shri Mulla thatthe responsibility for the murder could not be laid atthe door of the three appellants, especially when JoginderSingh, the brother of the deceased, and the membersof his family were living in another portion of the house,both Joginder Singh and his wife who were also prosecuted Along with the other appellants being acquitted andthe possibility of any of those living in the other portionhaving murdered deceased Surjit Singh and causinginjuries to Jaswant Kaur by reason of having becomedisgusted with their conduct. When the circumstances,which are thus established against the three appellants,are wholly inconsistent with their innocence and areconsistent only with their guilt the mere fact that someothers, who might have also participated in the commission of the said offence or even aided its commission,have not been prosecuted, or if .prosecuted acquitted,cannot affect the culpability of the appellants.

(56) Dr. Babu was examined in the committing courtas Public Witness 2. The Public Prosecutor having stated in thetrial court, on 27/08/1969, that his presence couldnot be secured without unnecessary delay. His evidencebefore the committing court was transferred to thefile of the Sessions Court under section 33 of the Evidence Act and section 509 of the Code of Criminal Procedure. Even at this stage, when the court permittedthe said request of the Public Prosecutor no requestwas made on behalf of the accused that Dr. Babushould be examined again for putting further questionsin cross-examination to him. The examination of Public Witness 2(Dr. Babu), who did the autopsy on the deceased,appears no-doubt to have been conducted somewhatperfunctorily in the committing court. After referringto the external injuries on the right parietal region andover the right-side of the head he stated they wouldhave been caused by blunt force injury. He alsoreferred to the rupture of the spleen and the liveralso being bruised superficially. Regarding the spleenit was not noticed by Dr. Babu in his post mortemreport (Ex. Public Witness 2/A), nor was it stated in the course ofevidence, that it was diseased or enlarged. There was,however, no corresponding external injury noticed.Modi in his Medical Jurisprudence and Toxicology-1969 Edition--at page 295 states that he had seen casesof ruptures of spleen as a result of falls and blowswithout any corresponding external injury. So far asthe intracranial haemorrhage is concerned Modi hasobserved, at page 276, that the same can occur, evenwithout fracture of the skull, from a slight blow. Dr.Babu had also referred to the sutures being loosenedeven without any fracture of skull and effusion of bloodall around. Black's Medical Dictionary by William A.R.Thomson, Twenty-Eighth Edition, at page 863, mentions that 'suture' is the name given to the close unionbetween two neighbouring bones of the skull. Dr.Babu states as follows :-

'DEATH,in my opinion, is due to inpture of thespleen and intracranial haemorrhage possible by ablunt force injury.''

(57) He also stated:

'THEREis no external injury on the abdomen.It is possible that a fail on a hard surface can resultin a head injury, described by me above.'

(58) The medical evidence, thereforee, regarding the headinjuries is consistent with the prosecution case, thesame having been caused by blunt force injury, and inno wise militates against it. So far as the rupture ofthe spleen is concerned there was not even a suggestionto Dr. Babu that the same was caused by a fall. Dr.Babu's evidence is that death was due to the above said injuries, on the head, resulting in intracranialhaemorrhage, and the rupture of the spleen. The woodenthapi recovered from the court-yard of the appellantMohinder Singh was found to contain blood stains.In these circumstances the inference is irresistible thatthe three appellants in pursuance of their commonintention abducted the deceased from the public hydrantand also committed his murder intending to kill him.They had also, in pursuance of their common intention,caused grievous injury to Jaswant Kaur as well.

(59) Before concluding we have to record that Shri Mulladrew our attention to the questions (a number of them)for the accused which were disallowed by the learnedtrial Judge. While he did not, in our opinion rightly,complain that there had been any prejudice caused tothe appellants by such questions being disallowedhe pointed out that the over-ruling frequently of questions, which were not scandalous or vexatious or notrelating to matters which were irrelevant or inadmissible, did not conduce to building up of the public imageof a court-trial. We hasten to point out that the trialJudge has a duty not to permit questions which arescandalous, vexatious or even contakerous, which elicitirrelevant or inadmissible answers, or even those whichdo not advance the trial but are calculated to hinderor delay its progress. We go further to point outthat where the interest of justice clearly requires it,the trying Judge himself has a duty to put questionsto clarify matters which are left vague by one or evenboth sides. But beyond such and other clear situationsthe trial Judge does not himself enter the arena of combat.His dignity and the public image of a court trial are greatly enhanced by the trying Judge approximating as nearlyas he can to the position of an umpire. We have carefully looked into the various questions of the accuseddisallowed by the learned trial Judge, some of themeven without objection from the prosecution, and havesatisfied ourselves that no prejudice has been causedto the appellants. In fact, that was not the complaintbefore us.

(60) We, thereforee, confirm the conviction of each of theappellants under section 302 read with section 34, section 325 read with section 34 and section 364 read withsection 34 Indian Penal Code . The sentences of imprisonment forlife on the charge of murder were the minimum thatcould have been imposed, the learned Additional Sessions Judge having taken into account the sense of shameunder which the appellants had acted in the mannerthey did for not awarding the extreme penalty. Thesentences on the other two counts also are not excessive.The convictions and sentences of the appellants areconfirmed. Criminal Appeal No. 125 of 1969 is dismissed.

(61) In view of the above discussion Criminal AppealNo. 122 of 1969 is accepted, the convictions and sentenceof the appellant Kartar Singh are set aside, he is acquitted and directed to be set at liberty unless he is liableto be detained for some other cause.

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