(1) The appellant (Tirlochan Singh) has filed this appeal with the special leave of this Court against the acquittal of Chander Badan Singh (then S. I. of Police, who will hereafter be referred to as A.1) and Bishan Singh (Head Constable who will be referred to as A. 2) of the Kingsway Camp Police Station, Delhi by the learned Additional Sessions Judge (Shri M. K. Chawla) of offences punishable under sections 302/201 and 201/114 Indian Penal Code . The appellant's brother Inder Singh (deceased) was running his business at shop No. 39, Mall Road, Kingsway Camp, Delhi. According to the prosecution case A.I had information that a person would be coming across the Yamuna bridge with opium and that he could be apprehended. Accordingly he posted himself there and recovered opium (said to be 800 gms.) from one Kundan Singh at about 10 a.m. on 4-4-71. Interrogation disclosed that opium had been obtained from Inder Singh (deceased) 's shop; Kundan Singh said that he would point out that shop. When A.1 went to the shop of Inder Singh, Vinod Kumar, an employee, was present there.
(2) Vinod Kumar had opened the shop as usual at 9.30 a.m. but Inder Singh himself reached the shop only at about 12 noon. About half an hour thereafter one Jagdish Singh (P.W. 18) came there to collect rent for the house which was in the occupation of Mohan Lal (another brother of the complainant and the deceased). Since the deceased did not have enough money in the shop he left for his house to bring more money from there. About 4 or 5 minutes after his departure A.1 came there along with some persons in plain clothes. A.1 wanted to search the shop. Vinod Kumar said that Kundan Singh was falsely saying that he had purchased opium from that shop and that there was no opium; the shop was nonetheless searched but nothing was recovered. Public Witness 2 is alleged to have taunted A.1 by saying 'Le lee Talashi, Milgayee Afim' (on search have you found opium?) which offended A.1 and he gave two or three slaps to Vinod Kumar; he also directed his associates to take away Vinod Kumar. One of the persons caught hold of Vinod Kumar and tried to put him in a taxi which was standing close to the Nala on the side of the Mall Road. (According to the defense A. 1 had gone in a Police Jeep). In the meantime Vinod Kumar directed one Arjan Das (P.W. 3) to bring the deceased and he accordingly rushed to the house of the deceased and brought him to the shop. As the deceased was coming near his shop he told A.1 and his associates that he was the owner of the shop and that they should talk to him and not to his servant. Actually the deceased caught hold of the hand of Vinod Kumar and tried to free him whereupon A. 1 abused him and also gave him a slap. The deceased retaliated by abusing A.1 who became furious and raised his band with a view to hit the deceased- again. The deceased caught hold of the hand of A.1 but they were actually separated by the persons who were present there including Ram Kishan (P.W. 5). Public Witness 3 wanted to take the deceased towards his shop but the deceased wanted to go towards his shop. As the deceased was nearing his shop his clothes at his back had also lifted up as P.W. 3 caught hold of the clothes of the deceased from behind near the collar. A.1 took out his .45 revolver and fired abullet at Inder Singh which hit him on the left side at his back. Inder Singh took his right hand towards the back from across his chest in front and turned round facing A.1. Chander Badan Singh stopped two paces ahead and fired another shot on the chest of Inder Singh; the bullet hit him on the chest. The deceased fell down with his buttocks on the floor and hands behind in a stretched position. According to the eye witness Vinod Kumar (P.W.2) A.1 fired the first shot from a distance of 5 to 6 feet and the second from a distance of 1 or 11/2 ft.
(3) On account of fear Vinod Kumar sat in the taxi where A.2, Kundan Singh and yet another person wearing a Dhoti held him. He was taken to the Police Station Civil Lines and kept there up to 2.30 p.m. He was brought in another taxi to Police Station Kingsway Camp and made to sit in the room of the S.H.O. At about 5 p.m. the S.H.O. came there. There was a chick hanging in front of that room. When the same was lifted Vinod Kumar could see the complainant sitting there. The S.H.O. shouted at the Moharrar that he was not to write the report of any one to which he replied that he had already stopped the Roznamcha (daily diary of the Police Station). Vinod Kumar was made to sit there till about 7.30 p.m. and then put him in the lock-up of the same Police Station. At about 1.30 a.m. A. 1, accompanied by one or two persons in uniform, came there and, at the point of the revolver, A.1 took the signatures of Vinod Kumar to some blank papers which he signed out of fear. On 5th April, 1971 when he was produced before a Magistrate in Tis Hazari Vinod Kumar learnt that he was involved in a case of opium and of possession of a knife. Bail was ordered and he was released at about 9 p.m. on 6th April 1971 ; he learnt that Tirlochan Singh had stood surety for him. As advised by his brother Public Witness 2 sent a telegram to the Police as per Ex. Public Witness 2/A. Public Witness 1 came to know of the occurrence by telephone at about 3.30 p.m. on 4th April, 1971 in the office of the Delhi Milk Scheme where he was working. His brother's wife told him that Inder Singh had been killed. His daughter Manjit Kaur was an in-patient in the Willingdon Hospital and his wife was attending on her. After getting permission the complainant went to the Kingsway Camp Police Station on a scooter and found a crowd of persons there and after having learnt that his brother had been shot at with a bullet by a Police Officer and had been removed to the Hindu Rao Hospital he went there. He met Faqir Chand S.H.O. who noted his name and address and thereafter took him to a room where he could peep into yet another room where the body of his brother was lying; since he could not bear to see the sight he came away. When Faqir Chand enquired from him whether he had lodged any report concerning the death of his brother S.P. Parkash Singh also came there ; to make similar inquiries by the S.P. he replied that some people had gone to lodge a report at the Police Station, but the same had not been recorded. The S.P. told him that he should go to the Police Station for lodging the report and that it would be recorded. Though he had told S.H.O. Jatka that he wanted to lodge a report that A. 1 had killed his brother the S.H.O. informed him that no report will be recorded and that he could give anything in writing if he wanted. He thereupon wrote just a few lines about his brother having been shot at by A.I and handed over the same (Ex. Public Witness I/D) to the Police Officer sitting at the counter who put his signature in a copy by way of acknowledgment of his having received the said report at 5.10 p.m.
(4) When he returned to the Hindu Rao Hospital S.H.O. Faqir Chand was still there. When he complained to him that nobody would record his report he had left a written report concerning the incident. He learnt that some inquiry was going to be held in the room where the body was lying. The complainant wanted to be associated with the inquiry. He was taken inside the room where Shri L. D. Gupta S.D.M. (C.W. 1) was present along with another S.D.M. (Shri Ashok Kapur). The complainant told them that whatever was recorded should be recorded in his presence. Shri Gupta told him that he was putting obstacles unnecessarily and that everything would be done properly. While removing the Chadar from the body of the deceased there was a bandage in the chest; the complainant wanted a photograph to be taken before further investigation of the injuries. C.W. said it would be done. The complainant offered to get a photographer himself. C.W. 1called the Police Photographer Harpal Singh (Public Witness 17) and got the photographs of the deceased in that condition. The complainant did not remember whether the bandage had been removed by that time or not. But the photographer himself has stated that he was asked to take photograph of the front chest and only after he had taken the snaps of the front chest the bandage of the deceased was cutoff. When the body of the deceased was turned thereafter on his chest after cutting the bandage Public Witness 17 found that the bandage was sticking on the back wound of the deceased. The wound on the back is seen in the photographs Exs. Public Witness 17/G and J; the wound on the chest is seen in Exs. Public Witness 17/A, D, E&H.; There was only one bandage which was covering the front wound as well as the back wound of the deceased. He found on removal of the bandage that not only there was cotton wool but underneath there was gauze also. The photographs show the cut bandage lying close to the back of the deceased. According to the complainant, however, there was also an injury on the right hand side of the elbow. There was yet another cut mark on the left leg which was a surgical wound.
(5) There was a procession to the Lt. Governor's house by way of protest and demanding the suspension of the Police Officer and the holding of a judicial inquiry; but there was neither suspension of the Police Officer nor a judicial inquiry. Shri R. C. Sharma (DW 17) was asked to hold an inquiry not even under section 174 Criminal Procedure Code ., but under the Punjab Police Rules (Rule 16.38). By his report (Ex. D.W. 17/A) dated 24-7-71 he exonerated A.1 and had found that only one bullet was fired. Thereupon a private complaint was preferred before a Magistrate on 3-8-1971; the case was committed to the Sessions Court on 4-1-1974 after an inordinate delay of three years.
(6) A 1. had taken Inder Singh to the Hindu Rao Hospital himself and had made a statement to the doctor who examined Inder Singh that he had shot him in self-defense. According to the defense there was no search of the shop by A.I who had shot at the deceased only once, on his chest, when A.I was about to be attacked by the deceased with a barchha spear 5' 10' long and the blade portion of which is about 9'. The crucial question for consideration is whether A. 1 shot at the deceased only once as claimed by him or twice as stated by the prosecution. It would, thereforee, be important to notice the kind of injuries on the deceased according to the two doctors who were the earliest to examine him. Dr. R. S. Gupta of the Hindu Rao Hospital was the first to examine the deceased. He was only examined in the committing court as C.W.3 but had left for Australia by the time the case was committed to sessions. Hence his deposition was transferred to the record as Ex. Public Witness 8/D and the Seriall number Public Witness 19 was assigned to him. His examination revealed a 'round' wound on the right side of the chest of the deceased in the fifth intercostal space about 2' from the sternum. The entry was 'oblique' and the wound was about 1/2 in diameter. There was a superficial lacerated wound 1/2' X 3/4' on the right elbow. There was yet another wound on the left side of the chest above the 10th rib and 4' below the inferior angle or scapula. An Opd ticket was issued which contained entries made by Dr. Gupta himself in the first instance; the deceased was examined by him at 1.30 p.m. and later by Dr. S. K. Saxena (P.W.8) of the same hospital. Though Dr. Gupta did not make a note about it he recollected having found everted edges in the injury on the left side of his back. He did not find any blackening or charring around the chest injury. He was sure that he would have mentioned 'blackening' if there was any; nor was there any blackening on the wound near the right elbow of the deceased. Since in case of such wounds tight pressure bandage is usually applied he did so on the chest and back. According to his recollection he had 'separately' bandaged the wound on the chest and the back; in other words, he had used two bandages. Difficulty has arisen chiefly by reason of his having not dealt with such type of case before, a difficulty which has been somewhat aggravated by the kind of autopsy that was done by Dr. Ghosh (P.W.6).
(7) When the dressing was completed Dr. S. K. Saxena (P.W.8) arrived. He examined the deceased at 1.40 p.m. that day and found the following injuries:
1.Pistol shot rounded wound on right 7th inter costal space, 11/2' internal to the nipple line of the size of about 1/2' diameter with rigid margins and black surrounding area with bleeding.
2.Lacerated wound 1' size on front of the right elbow with black surrounding area.
3.Another punctured wound of half inch diameter present on left 10th rib about 4' below the inferior angle of left scapula with bleeding'.
HIStreatment of the injured included applying 'Vaseline gauze seal of wound' with pressure bandage'. The injury on the back was an exit wound with everted margins. It was possible for a punctured wound like injury No. 3 with everted margins to become inverted as a result of the application of vaseline gauze and dry gauze pieces and cotton together with application of tight pressure bandage; no gauze was inserted inside that injury. The singular expression 'wound' in the earliest records of the Hindu Rao Hospital is consistent with the concerned doctors thinking that only one shot had caused the external injuries as indeed they were told by A.1 that he had 'hit the patient with gun in self-defense' as it has been mentioned in the Opd ticket (Ex. P.7A), the earliest record made at the hospital. Most of the criticism of the learned counsel for the complainant on this part of the case would seem to fall in place if the medical evidence is viewed in this light.
(8) It may be noticed that while Dr. Gupta had not noticed any black surrounding area around injuries on the chest and right elbow ; Dr. Saxena had noticed them.
(9) When Dr. A. K. Ghosh (P.W.6) conducted the autopsy on 5-4-1971 at 9 a.m. he noticed the following external injuries :
'1.One circular wound 1/2'X1/2'X? over the right chest 3' inner and 2' below the right nipple. The margins of the wound were smooth inverted and blood stained and the surrounding area up to 5 centimeter showed charring.
2.One wound 6/10' X 3/10' X? with smooth clean cut inverted margins over the left back 5' vertically below the inferior angle of left shoulder blade. The wound was transversely placed and blood was seen coming out of the wound. No charring round about.
3.One wound 1'X 1/2' X skin deep, blackish in colour over the front of right fore-arm 1' below the fold of the elbow. There was effussion of blood in the deeper underlying tissues.
4.One abrasion 1' X 1/2' reddish colour over the back of right elbow.
5.One incised wound 1/2' X 3/10' over the inner aspect of the left leg 2' above the inner malleous of left ankle. The margins of the wound were blood stained and was longitudely placed'.
THEdead body was wearing a blood stained bushirt bearing a hole 1' X 1/2' on the right side in front, blood stained Banyan bearing a hole 1/2' X 4' X /10' in front of the right side and a blood-stained underwear and pant and a belt.
(10) The following emerge if the description of the external injuries by the three doctors is compared :
(1)Dr. Gupta had not noticed blackening of the area surrounding any area. Dr. Saxena, who had noticed 'blackening', had confined it to the injuries on the chest and on right elbow ; in other words, he had not noticed blackening in the injury on the back. Dr. Ghosh had found 'charring' over the chest injury but none on the back injury (not even blackening) though he had noticed merely 'blackish colour' over the right forearm injury.
(2)Though Dr. Gupta had described the chest injury' as 'round' or 'circular' Dr. Saxena had said it was 'oval'.
(3)Though Dr. Saxena had described the back injury, (larger than the chest injury) as 'punctured' without adverting to the nature of the wound margins. Dr. Ghosh had described the wound margins as 'inverted'.
(4)Both Dr. Gupta and Dr. Saxena had used the singular expression 'wound' despite there being three external injuries, other than the surgical injury.
(11) On dissecting the chest one wound was found in the 7th intercostal space in the right parasternal area. On opening the chest both the lungs and heart were seen to be pale and normal. On opening the abdomen effusion of blood was seen to be present in the entire abdominal cavity, more on the right half. The left lobe of the liver was seen ruptured with a through and through opening. The right side of 12th dorsal vertebra was covered by clotted blood and there was an opening 1' X 1/2' in the 9th intercostal space with no wound of exit. The track followed by injury No. 1 on the liver, vertebra and the right 9th intercostal space was one and the same. The stomach contained about 2 ounces of digested food. After searching for two hours no bullet could be traced. Injury No. 1 was directed towards the mid-line. The track followed by injury No. 2 and that on the spleen was one and the same.
(12) During the course of the evidence he gave in Court Dr. Ghosh was of the opinion that death was due to shock and haemorrhage as a result of injuries to the liver and spleen. There can be no doubt about this fact. He added that though by looking at the nature of the wound at the back it appeared that two bullets were apparently fired by closely scrutinising the absence of charring, blackening, tatooing or singeing of the hair, tatooing and burning of the clothes on the left side he was of the opinion that only one bullet had been fired and not two. According to the blackening and charring were almost the same. The blackening in this case might have been due to clotting of blood; in the case of charring there was deposition of gun powder superficially. He did not find any burning of the bushirt or burning of the deceased. There was tatooing on the front chest of the deceased (injury No. 1 is on the same level or about 1' or 11/2' above injury on the back injury No. 2). The firearm should have been fired from a distance beyond 36'. It could not have been fired within 2 ft. from the front of the deceased. If the revolver was fired between 1 and 2 feet there would be laceration and scorching and the hair would have been singed; these were absent. He did not find any piece of cloth, tissue of thread or gun powder inside the wound. The absence of scorching, tatooing or singeing of the hair in respect of injury No. 3, namely, on the right elbow also confirmed the fact that the bullet could have been fired from a range of 4 to 6 feet. The wound on the chest was neither stellade nor curciform but circular. The wound at the back was bigger than the wound on the front chest. When tight bandage was applied everted margins could become inverted. Non-rupturing of the spleen and absence of injuries to other adjacent visceras would also lead to the conclusion that fire-arm was not fired from outside in respect of injury No. 2 (back). He thought that if injury No. 2 had been caused due to a bullet fired from outside the bullet must have lodged inside the body. There was no hole or charring or even blackening of the bushirt and banyan on the left side of the back of the deceased corresponding to injury No. 2. The clothes which were in court were not sent for Chemical examination. If injury No. 2 was a wound of penetration and not one of exit there was bound to be corresponding damage to the clothes worn by the deceased on the back unless he was naked or his clothes had been displaced from the injured portion. As we look at then there is neither charring nor blackening on the bushirt or banyan.
(13) Having called Dr. Ghosh as a witness for the prosecution the learned counsel for the complainant was allowed to literally 'crossexamine' him by way of 're-examination'. We are surprised that no objection was even taken to this course. Shri A. N. Mulla, learned counsel for A.1, rightly objected to the procedure that had been adopted. Despite such kind of re-examination no question had been addressed bearing on the specific answer which Dr. Ghosh had given in cross-examination (page 158 of the paper book) to the following effect:
'THEintestines in the present case were not hurt by the bullet because when the man stands, intestines are sagged down and there remains enough space in the anterior abdominal cavity (for the bullet to pass through)'.
(14) The prosecution has, in the main, relied upon the evidence of Dr. Kesar Chand Chopra (P.W. 16, who hereinafter will be referred to as Dr. Chopra), who was working as a Civil Assistant Surgeon attached to the Police Hospital and during that period he used to be asked to deliver lectures in forensic medicines, for which he was paid, in the Lady Hardinge Medical College and Tibia College. He was absorbed in the Delhi Medical Service when he migrated from West Pakistan consequent on partition. After his retirement in 1956 he had not performed any post-mortem examination; but he had been appearing as a witness in criminal cases. He was assessed to income tax in the year 1956-57; thereafter his income was decreasing and he had not been assessed to income tax two years prior to the examination in the trial court, which was in March 1974. It may not be fair to a medical witness to criticise him merely because his evidence was not accepted by learned Judge (s) before whom he appeared as a witness previously as the learned Additional Sessions Judge in this case has sought to do. The quality of his present evidence has alone to be seen. What is, however, relevant is his admission that he had never given any opinion against the party calling him in the Court. He sought to whittle down this admission by saying that whenever he gave an opinion adverse to a party contacting him he was never called; he used to enquire about 'the truth of the matter'; whenever he was told the truth he refused to help them. The further and inevitable question put to him in cross-examination was who had told him about the truth in this particular case; he could only reply 'there is no question of telling the truth to me in this particular case'; the post-mortem report alone was sent to him. This poor witness had allowed himself to be caught in a web of taller claims than he could justify even about his professional status and an endeavor to pose as an 'impartial witness' regardless of his admittedly not giving evidence against those who called him even in a single case. At the same time we do not share the feelings of the learned Additional Sessions Judge against this witness when he went the length of calling him a 'stooge'. We would, for our part, content ourselves with merely confining ourselves to the question whether to act on his evidence that the wound on the back (injury No. 2) was one of entry as stated by him or not. The learned Additional Sessions Judge correctly expressed his displeasure with this witness for attempting to make it appear that the Director, Health Services, Punjab had got him transferred to Delhi and that he was posted as 'the Police Surgeon' under the Delhi State at the Police Hospital. The true position, however, was as noticed above.
(15) There is no need to be detained by the fact that injury No. 1 was a wound of entrance because it was admittedly a wound of entrance according to the case of both sides; the only further aspect pertaining to injury No. 1, namely, the bullet which had entered through injury No. 1 had found its exit through injury No. 2, namely, on the back. Unfortunately there are a few observations of the learned Additional Sessions Judge during the course of discussion of the testimony of this witness which tend to be somewhat confusing and of which the learned counsel for the complainant sought to take advantage. In the interests of greater clarity we may stear clear of them. The further question concerning the distance from which the shot causing injury No. 1 was fired will be discussed separately.
(16) Dr. Chopra made his best endeavor to establish that the bullet as it entered injury No. 1 could not have found its way out of the body through injury No. 2 and that injury No. 2 was itself entrance and not an exit wound. After having heard both sides fully on this question and read the leading authorities on Anatomy we have no doubt that on the data furnished by Dr. Ghosh, such a view is not possible to maintain. One of the reasons given by Dr. Chopra was that the bullet which entered through injury No. 1 deflected backward. and to the right 9th intercostal space making a dent 1 inch X 1/2 inch on the posterior abdominal wall. The assumption, which he seems to have made, that the bullet went backward and then to the posterior abdominal wall, does not have any basis. The 9th intercostal space commences from the vertebra and exists up to the right side of the body called chondoral. There is no statement in the post-mortem report or Dr. Ghosh's evidence about the track which had gone to the posterior abdominal wall or any other fact sufficient to raise any inference that the bullet should have deflected backward. Dr. Chopra himself admitted in cross-examination that there is space between the 9th intercostal from front to back i.e. between costo-chondoral junction and vertebral junction. Dr. Chopra also sought to rest his opinion on the absence of any injury to the anterior back wall of the abdomen (9th and 10th ribs), but he himself admitted that the 9th and 10th ribs are flexible due to their being attached on one side with spinal vertebra and on the other side by simple cartridges to the ribs above. The absence of any injury on those two ribs could, thereforee, be hardly of any significance. He even sought to derive support from the clotted blood on the body of the 12th dorsal vertebra which he explained as being the result of blood from the liver; but he admitted if could also be from the blood from the soft tissues of that vertebra. Even on this particular he admitted that the blood in the liver would have separated from any clot which woluld be at the surface of the 12th dorsal vertebra due to oozing of blood. Quite contrary to the testimony given by the other doctors in the case. Dr. Chopra sought to draw inferences from the vertebra not being dented, fractured or pierced by the bullet; the other doctors had categorically said that the 12th dorsal vertebra is very strong the presence of clotted blood clearly showed that the bullet did strike the vertebra. There is, however, nothing in the post-mortem report to show that the bullet after striking the 12th dorsal vertebra deflected backward and went to the right 9th intercostal space. It was Dr. Chopra who was positive that if the bullet had gone from the 9th intercostal space to the spleen it had necessarily to injure the visceras.
(17) It is incontrovertible that the position of the stomach varies,due to posture, with the amount of stomach contents and with the condition of the intestines on which it rests ; it is also influenced by the tone of abdominal muscles and of the musculature of the organs itself in addition to the type of the body-build of the individuals. In the commonest type of stomach when empty it is somewhat 'J' shaped; in the erect posture the pylorus descends to the level of the second or the upper part of the third lumber vertebra and the most dependent part of the stomach is below the level of the unbillcus. The following passages from Gray's Anatomy 31st Edn. seem to be relevant :
'THEshape and position of the stomach are so greatly modified by changes within itself and in the surrounding viscera that no one form and no single position can be described as typical. The chief modifications are determined by:
(1)the amount of the stomach contents,
(2)the stage which the digestive process has reached,
(3)the degree of development of the gastric musculature, and
(4)the condition of the adjacent intestines ;
BUTcertain features are more or less common to all..
THEstomach has two openings, two borders or curvatures, and two surfaces.'
REGARDINGsurface it is stated :
'SURFACES.When the stomach is empty and its walls contracted, its surfaces arc directed upwards and downwards respectively, but when it is distended they look forwards and backwards'.
IT is further stated as follows :
'THEposition of the stomach varies with the posture, with the amount of the stomach contents and with the condition of the intestines on which it rests. In addition there is a wide range of individual variations. In the erect posture the empty stomach is somewhat 'J' shaped; the fundus is usually distended with gas, the pylorus descends to the level of the second or the upper part of the third lumber vertebra, and the most dependent part of the stomach is below the. level of the umbilicus. Variation in the amount of its contents affects mainly the body of the stomach, the pyloric portion remaining in a more or less contracted condition during the process of digestion. As the stomach fills it tends to expand forwards and downwards in the direction of least resistance, .... etc. The position of 'the full stomach depends, on the state of the intestines. . . .The lowest part of the stomach is at the pyloric antrum, which reaches below the umbilicus. Where the intestines interfere with the downward expansion of the fundus the stomach retains the horizontal position which is characteristic of the contradicted viscus'.
(18) This is what Dr. Ghosh had meant in the passage extracted earlier (page 158 of the record) explaining how the intestines were not hurt by the bullet in this case; owing to the injured standing and the intestines sagging down there remains enough space in the anterior abdominal cavity to the bullet to pass through from the 9th intercostal, without injuring any internal organs till the spleen. As already noticed there has been no question addressed to Dr. Ghosh on this specific point though there has been a lot of questioning concerning the structure of stomach etc. quite overlooking the fact that everything would depend upon the posture of the victim at the relevant time, stomach contents etc.
(19) Let us now read what Dr. Chopra says about the stomach cavity :
'Q.Do you agree as Grey writes in his book Greys Enotomy page 1399 in his 32nd Edition of the year 1958. 'The position of viscera is affected not only by posture but by respiratory movements and by the condition of the hollow organ as regards quantity of contents' ?
Q.Do you agree with Grey when he writes on page 262 of the same book 'That ribs due to their connexions and shape are able to withstand great force, yielding under pressure and recovering themselves like a spring' ?
Q.How many hollow organs are there in the abdomen?
A.The Stomach, the whole length of the intestines up to anus. The intestines cover from the lower and of the stomach right down to the anus. Besides that, there is the urinary bladder.
Q.Do you agree with Grey when he writes on page 1415 of the aforesaid book 'The shape and position of the stomach are so greatly modified by changes within itself and in the surrounding viscera that no one farm and no single position can be described as typical. The chief modifications are determined by (1) the amount of the stomach contents, (2) the stage which the digestive process has reached, (3) the degree of development of gastric musculature and (4) the condition of the adjacent intestines' ?
A.I agree. I have already stated that these visceras modify each other.
Ialso agree that the chief -modifications are determined by the amount of the stomach contents, the stage which the digestive processes have reached, the degree of development of gastric musculature and the condition of the adjacent intestines.
Q.Do you agree with Grey when he writes in the aforesaid book at page 1418 'The position of the stomach varies with the posture, with the amount of stomach contents and with the condition of the intestines on which it rests. It is also influenced by the tone of abdominal muscles and of the musculature of the organ itself and by the type of body build of the individual. In the commonest type of stomach the empty organ is somewhat 'J' shaped and, in the erect posture. The pylorus descends to the level of the second or the upper part of the third lumber vertebra, and the most dependent part of the stomach is below the level of the umbilicus' ?
A.Yes, I agree.
Iagreed that injury No. 1 in his present case as shown in the postmortem report is wound of entry.'
(20) How then does Dr. Chopra claim that there were two separate tracks of the bullets and the shot fired through the chest did not find its way through the back Despite his concession that the person who conducted the autopsy was in a better position to speak about the findings arrived at during autopsy than one who merely read the report he swore that from the 12th dorsal vertebra the bullet 'went upward, backward and a little towards the right to the 9th intercostal space on the posterior abdominal wall'. What material had he in the post-mortem report to say so None whatever. As one, reads through the recorded evidence of Dr. Chopra one is left with the feeling that he had not come to grips with the above or even other facts stated in the postmortem report but had tried to take advantage of what it does not say except, of course, the reference therein to 'charring'. Reference appears to have been made during his examination to a lot of other matters which do not even appear germane to the issue: whether the bullet which entered injury No. 1 could have passed through injury No. 2 or not A sample of the same would be the following question and answer:
'Q.You have mentioned in your examination-in-chief that this bullet must have followed the line of least resistance to lodge itself somewhere. Would you please tell the court what is that line of least resistance ?
A.It was for the bullet to travel wherever it could find an easy way and it was for the Surgeon to have followed the track made by the bullet'.
NOone is wiser for this statement.
(21) Dr. Chopra claims to have conducted about 100 autopsies in which fire arms were involved but without using X'ray in those cases. In, this case also the body has not been examined radiologically either before the autopsy was commenced or even later. Every modern writer on the subject highlights the value of thorough X'ray examination in case of injury by firearm both before commencing autopsy and later. It is a pity that inspire of X'ray facilities being more freely available today than before, though not at the mortuary itself, no X'ray examination was done. But having regard to several other features there must be no difficulty in coming to the conclusion that there was only one shot fired in this case and that No. 2 was only an exit wound and not a wound of entry. The following discussion, we trust, would make this even clearer.
(22) Fortunately for us we have at least two photographs (Exs. Public Witness 17/J and Public Witness 17/G) which show very clearly the injury on the back, though not so clearly with the naked eye of the chest injury (Ex. Public Witness 17/A, D, E&H;). It is a pity that none of the doctors examined were questioned with reference to the photographs. The evidence of the photographer (P.W.17) was that the bandage on the back was removed under which there was cotton wool and gauze; these are seen lying close to the back of the wound of the deceased in these two photographs. Even after exposing the chest injury the bandage over the back injury could be seen in Ex. Public Witness 17/A. Permission sought to treat the witness as hostile was rightly declined. His evidence tallies with that what one is able to see in the photographs themselves.
(23) On the question of whether a single shot or two shots were fired Dr. Ghosh summed up as follows:
'Iuse the word (sic) in the examination in chief: 'Looking to the nature of the wound at the back apparently two bullets seem to have been fired'. But that I mean that seeing the body from distance without handling it apparently it looks so. But after conducting the post-mortem I was of the opinion that only one bullet had been fired'.
THISis not only a summing up of the position but also, at the same time,a commentary on the way in which the post-mortem was done, which has caused all this difficulty. A case which should not have taken more than a week, even having regard to the bulk of the evidence, has actually taken us 16 hearing days. We have had to study as exhaustively and intensively as we could all the literature made available to us in order to understand the nature of fire-arm wounds, how they are caused and the relevant ballistic features. Mr. Bawa Gurcharan Singh, learned counsel for the complainant, who argued with great ability made available to us a magnifying glass (ten times magnification) with batteryoperated electric lamp with which to view the photographs in this case more clearly than would have been otherwise possible; he also brought to Court a skeleton with the aid of which both sides could explain realistically the relevant anatomical features. Both sides have also scanned critically the recorded medical evidence in this case. In attempting all this, however, we have borne in mind the obvious, namely, that we are not experts ourselves and we are not to constitute ourselves as experts and that our task is only to understand, to the extent it is permissible for us, in furtherance of our duty to understand.
(24) The injury on the back, as seen from the two photographs, is itself tell-tale; one has only to compare it with the photographs in medical text books of similar exit wounds. We saw so many of them. It would be sufficient to compare it with the photograph of the exit wound on page 241 of Modi (1947 Edition). The wounds in both the cases (of exit) are elongated, oval or eliptical, more characteristic of exit wounds than of entrance wounds. As we have indicated, even a look at the concerned photographs in this case (Exs. Public Witness 17/G and J) would be enough to show that there are irregular margins and the edges appear perforated; these features become .even clearer when seen with the above magnifying glass (ten times magnification with electric lamp attached) furnished to us. One is also thus able to see even more clearly the bandage underneath the wound.
(25) The Sub-Divisional Magistrate (C.W. 1), who did the inquest, wrote a forwarding letter on 4-4-1971 itself to Police Surgeon for conducting autopsy (C.W.1/B) wherein he has referred to revolver 'shot' (in the singular) and requested that 'the bullet or its part from it in the body may also be separated and sent' etc. He had also used expressions indicating that he was of the view that all the external injuries caused by fire-arm shot were the result of a single shot: he had referred to the chest injury as 'rounded shot wound' in centra-distinction to the one on the back as merely 'round wound' ( the injury 'on the back it was not described as a 'shot' wound). Even this report, however, did not refer to the injury on the right forearm which seems to be consistent with the view entertained that a single shot alone had been fired.
(26) The formal inquest report drawn up by C.W.1 (not by Dr. Saxena as wrongly typed on page 823 of the record) on the same day itself and attested by the complainant refers to the photograph being taken after opening the bushirt (as we see from the concerned photograph Ex. Public Witness 17/series) and then 'one' bandage tied over the chest being 'untied'. A hole was seen 'near the middle portion towards the right chest' which appeared to be that of a bullet and from which blood was coming out in the form of drops; we could also see the blood stain over the bandage near the arm-pit in the photograph (Ex. Public Witness 17/A, D & H). After the said injury was photographed (Ex. P.W-17/series) C.W.I ordered the 'bandage tied over the chest' to be cut and the body turned over; the injury on the back was then ordered to be photographed with the features noticed earlier being present. In view of these statements in Ex. Public Witness 1/B any further argument concerning whether the injury on the back was also bandaged or not (based upon the manner in which entries were made in the Opd card) seems utterly futile. Similarly references to inverted edges after bandaging and even any reference to grease on the back when vaseline pressure bandage was applied, seem pointless; Dr. Chopra, however, strained himself unduly, as it seems to us, to rely on grease being present on the injury on the back as indicating that it was due to the same being a wound of entry even without paying any regard to vaseline being applied while bandaging, a feature which must have been present to the mind of any doctor who had the experience, as he claims, of having conducted nearly a hundred autopsies where firearms were involved in killing.
(27) The evidence of Dr. Saxena is to the effect that he applied vaseline gauze bandage by keeping the wound in apposition which means that the edges would be brought nearly together and opposite each other before applying the pressure gauze bandage; the presence of grease on injury No. 2 noticed by Dr. Ghosh would not be significant. Dr. Chopra did not state anything to the contrary concerning the meaning of 'apposition'; he also gave the same meaning but went on to explain how the edges are cut before the wound is stitched, which is hardly relevant since in this case the wound was not stitched. It would have been obviously dangerous in that state to either explore or stitch the wound; 'apposition' and pressure bandage alone were indicated and this ought to have been done, as indeed it is claimed to have been done. The consequence of this was that even the margins of the wound on the back, which were originally averted, would become inverted. This is the reason why effort was made by the learned counsel for the complainant to show that injury No. 2 was not at all bandaged. But Dr. Ghosh as well as Dr. Saxena were cross-examined on the basis of some of the entries on the Out Patient Card (Ex. Public Witness 7/A & B). We have carefully gone through the entries in the card as well as the crossexamination on this point directed to showing that the injury on the back was not noticed and hence not treated. It is not possible to accept this criticism because the photographs show that the back injury was also bandaged (treated). Both of them rightly stated that their efforts, at that time, were more to save the patient than slmpliciter be concerned with the entries being made in the card, which is only pertaining to the treatment given and not meant to serve as a medico legal document. It is difficult for us to visualise how any doctor concerned with stopping bleeding would only be confined to the injury on the chest but not on the back. The back injury must have been bleeding; it would not have been necessary, thereforee, even to turn the body to notice that back injury. Even in the process of bandaging the chest injury the back injury must have been noticed, either by seeing it or even by feeling the wetness caused by bleeding; there is usually more bleeding from the wound of exit. Even if there was any omission to note down all the injuries in the O.P.D. Card/register, to start with, and this was made good later this would not have much significance. The further question, whether there was a single bandage or two bandages may normally be a matter of some difficulty no specific note to this effect having been made concerning it, but in this case the omission of the doctor concerned to note whether one or two bandages were applied would be easily understood. Dr. Gupta seems to recollect having applied two bandages; even if this recollection was not correct even one bandage covering the wounds would have been quite enough. The injury on the back, which is on the 10th intercostal space, would be practically on the same level at the most about an inch or a little more of the chest injury (on the 7th intercostal space) having regard to the way in which the ribs are shaped. We were able to appreciate this feature by looking on the skeleton of the human body shown to us by the learned counsel for the complainant and anatomical charts produced before us. The manner of bandages can be found out from the photographs. Not much significance, thereforee, could be attached to the fact whether the bandage was single or two. There could have been one outer bandage and two separately within. It seems certain, however, that the injury on the back would not have been failed to be bandaged since efforts must obviously have been made to stop bleeding; pressure bandaging was the obvious treatment; it would have been a self-defeating exercise to bandage only the chest wound but not the one on the back. Even apart from the application of pressure bandage the question of everted and inverted margins is not the only test as explained by Modi in his work Medical Jurisprudence and Toxicology (page 222, 1969 Edition). Especially in the case of a fat man, like the deceased, the entry wound also may even have everted edges. Dr. Bharat Singh (P.W.9.) also stated that inverted or everted edges were not the only aspects to be considered though they would be one of the aspects to be considered.
(28) Dr. Gupta and Dr. Saxena had seen the patient within an interval of 10 minutes; Dr. Gupta was the first to see him. Dr. Gupta had not seen any blackening; he would not have failed to see it if it was there. Dr. Saxena, however, thought that there was a black area surrounding the wound on the chest, which he explained while giving evidence as even being possible due to coagulation of blood; what is even of greater importance on this aspect is that Dr. Saxena had not seen blackening in the area surrounding the wound on the back.
(29) Dr. Ghosh who did the autopsy, however, thought that there was 'charring' around the chest wound; this has to be appreciated in the light of his thinking that there was also charring around the back injury, caused even according to the prosecution by a shot from a distance of about six feet. Modi 1969 Ed (page 232 35) says a service revolver cannot cause charring beyond I to 3'. thereforee this might even be a matter of faulty observation or description; if there was 'charring' on the chest wound neither Dr. Gupta nor Dr. Saxena could have missed it; Dr. .Saxena referred to blackening alone.
(30) It seems even prima facie difficult to believe that two bullets, if they had been fired, would have both of them, got lodged somewhere. In support of this theory that two bullets were fired Dr. Chopra would only say that from the right 9th intercostal space the bullet must have deflected somewhere, because it did not strike the 9th and 10th ribs of the back wall to get deflected. This, and other reasons, given by Dr. Chopra appear highly speculative and fail to carry conviction in support of the position which Dr. Chopra took. The assumption made by him that the bullet deflected to the left side along the length of the back abdominal wall being deeper than the convex front surface of the vertebra) to reach the spleen and that it could not go to the left without either going through or jumping across the vertebra without injuring the omentum, stomach, intestines which lies in front of the spleen seems even less warranted in view of the interspaces available for the bullet to pass through while the deceased was standing and his stomach was practically empty. There seems to be no basis at all in the post-mortem report for making any of the assumptions that Dr. Chopra made
(31) Dr. Ghosh had searched for the bullet for two hours and it could not be found. If it had been lodged in the 9th intercostal space it should have been easy to find it out as Dr. Bharat Singh said. Dr. Ghosh had taken the precaution of thoroughly checking, by even collecting the blood in a bucket and the faccal matter too. Despite numerous citations from text books as to how in rare cases a bullet can get lodged and might be difficult to trace it seems, on an overall view of this case, that the bullet which entered wound No. 1 did find its way out through injury No. 2. There is no compulsive need to find the bullet inside the body when there are two external wounds, one of which could be the exrit one.
(32) The above view gets additional support from a number of features. Firstly, regard must be had to the nature of the chest injury itself; it was somewhat oval (not exactly circular); the wound was 'oblique'. Injury No. 2, as one can see from the photograph, is eliptical; the length is much larger than the width; one can see, even with the naked eye, perforation or irregularity of the edges, a feature which can be more clearly seen with the help of a magnifying glass.
(33) There was no charring on the back wound. There was also no tattooing. It could not have been due to decreased bullet velocity as stated by Dr. Chopra without any data whatever to support him. The bullet was said to have been fired, according to the eye-witnesses, from a distance of 6 or 7 feet; this distance was certainly not enough to lessen its velocity. There was also no other hindrance from outside to lessen its velocity. The same revolver is alleged to have been used for causing both injuries 1 and 2 by two separate shots.
(34) Even Dr. Chopra had not mentioned in his opinion (Ex. Public Witness 16/A) or before Shri R. C. Sharma (D.W.17) that the bullet did not go deep inside the spleen and that it had gone out with the outflowing blood. This seems to us extremely unlikely. Asked to explain how it could happen that there was a cut injury on the spleen except by a bullet which became deformed passing through injury No. 1 on the chest Dr. Chopra relied upon the possibility of low-velocity of the bullet which in the case of a .45-Webley revolver is not less than 650 ft. per second (Taylor Vol. I page 284 Edn. 1965) or it could be up to 820 ft. per second (Smith Wesson pages 516-17 Edn. 1968). There was no obstacle. The injury on the back was caused, according to the evidence of eye witnesses, by firing from a distance of not more than six or seven feet at the highest; any reference to low velocity in this context was, thereforee, utterly irrelevant. Dr. Chopra only appears to have resorted to this theory in desperation.
(35) The manner in which Dr. Chopra sought to justify his stand may be best illustrated by the following questions and answers :
'Q.Do you agree with Taylor when he writes on page 288 of his book Taylor's Principles & Practice. 1965 edition All entrance wounds (of fire-arm) if examined, will be found to have a zone of denuded epithelium immediately surrounding the orifice. This is caused by the spin of the bullet and the investigation of the skin by the bullet and tends to ride and become discoloured shortly after death. It should not be confused with the marks due to powder for it gives no indication of range'?
A.The dark ring found round the wound of entrance in the case of distant shots is there and if present is the characteristic of a gun shot wound, but if it is not present, it does not exclude a gun shot wound.
Q.Thus, how disagree with Taylor when he writes that all entrance wounds if examined will be found to have zone of denuded epithelium immediately surrounding the orifice'?
A.I agree with him but there may be rare cases otherwise.'
WHATare those 'rare' cases 'otherwise' Could he mention, even one such case within his own personal experience or even gathered from books? He would not have failed to refer to any, when so cornered, were it available.
(36) The learned counsel for the complainant made a strenuous endeavor to distinguish between revolver shots and rifle shots, the velocity in the case of the former being lower. He said that Taylor had not kept this distinction in mind when he said in his book 'Principles and Practice of Medical Jurisprudence' (Twelfth Edition) on page 288:
'ALLentrance wounds, if examined will be found to have a zone of denuded epithelium immediately surrounding the orifice. This is caused by the spin of the bullet and the invagination of the skin by the bullet, and tends to dry and become discoloured shortly after death. It should not be confused with the marks due to powder for it gives no indication of range.'
WEshould for our part be slow to attribute such a deficiency to an authority on the subject of Taylor's eminence. The learned counsel also claimed that Glaister's Medical Jurisprudence and Toxicology (Thirteenth Edition) edited by the late Edgar Rentpoul and Hamilton Smith (Thirteenth Edition) had kept this distinction in mind when the following statements were made on pages 274-75 :
'WHENa revolver is fired at a very close range, almost in contact with the body surface, the wound of entrance is not circular in contour, but is cruciform or stellate with lacerated edges. This results from laceration of the tissues with some excavation due to expansion of the liberated gases. When the site of the injury is hair-covered, the hairs will show evidence of singeing, and when the ammunition has been charged with black powder there will be burning, in varying degree, around the entrance wound, together with an irregular ring of carbon deposit, usually bout a quarter of an inch or more in diameter. In addition, the skin will show tattooing with powder particles driven into the skin. At distances beyond 6 inches the effect is different. The gases no longer enter the tissues and the wound is approximately circular and corresponds to the size of the projectile. Such wounds show marginal bruising, and some inversion of the edges. There may also be an area of tissue bruising around the wound. The edges may show a grease collar. Bruising tends to disappear at about 6 inches, although there will probably be some evidence of bruising and of powder marks. At a range of about 12 inches and over, the skin around the wound does not, as a rule, show evidence of powder marks'.
(37) The positive statement in the above quoted passage seems to be that evidence of powder marks' is not seen as a rule at a range of about 12 inches and over; there is no statement that denuded epithelium will not be seen in the case of entry wounds, at a range of 12' or more Glaister speaks of 'tissue bruising' around the wound: within six inches hair will show evidence of singeing and where ammunition is charged with black powder (not when it is smokeless) there will be burning in varying degree around the wound together with a carbon deposit (as an irregular ring) and skin will show tattooing with powder driven into the skin. These effects (above) are said to be different at distances beyond six inches. But those caused from beyond six inches would show marginal bruising and some inversion of edges; in addition, there may be also an area of tissue bruising around the wound. The further statement 'bruising tends to disappear at about 6', although there will probably be so evidence of bruising and of powder marks' also seems important. Different writers employ different phraseology as will be seen presently. Glaister uses the expression ' marginal bruising', Glaister also refers to 'tissue braising' (in addition to the above feature) and couples it with 'powder marks'. Dr. Bharat Singh who made the statement that entrance wounds would bear marks of denuded epithelium had not been contradicted with reference to any of these passages. On the other hand, some passages from the undermentioned works were brought to our knowledge :
MALLIK: A Handbook of Medical Jurisprudence, 1969 Ed.198.
'Azone of denuded .epithelium caused by the spin of the bullet and invagination of the skin by the bullet will be found immediately surrounding the orifice of all entrance wounds'. DR.Bhooshna Rao, Shri N. Jauhari and Shri N. M. Supanekar: Firearms and Firearm Injuries, 1965 Edn. 1726 (published by the Intelligence Bureau, Ministry of Home Affairs, Government of India).
'THEABRADED Collar : Regardless of the distance between the muzzle and the target, the entrance' hole may usually be distinguished by what is referred to as the 'abraded collar'. As the bullet enters the skin, it is inverted, stretched and split allowing the entry of the bullet. The skin is invariably abraded immediately around the hole and this is due to the rubbing of the body of the bullet against the inverted epidermis. If the bullet is lubricated or soiled or if it is made of soft metal, there is another black-coloured ring, the 'grease' or 'dirt' collar, which at times covered the 'abraded' collar. The abraded collar rapidly darkens as it dries. The two features the 'abraded' and 'grease' or 'dirt' collars is proof positive of an entrance wound.
If the bullet strikes the skin at less than a right angle, one no longer finds a uniformly narrow circle of abrasion round the bullet hole, but instead, an accentric hole with the abrasion wider on one side than the other. This shows the direction of the bullet from the wider towards the narrow side this appearance being caused by the bullet gliding across a wider surface of skin on one side than the other'.
THErelative features in the case of revolver and rifle wounds are mentioned and differences between exit and entrance wounds noticed. There is reference in the last mentioned work to 'abraded collar' abrasion is the rubbing off of the skin in the case of entry wounds.
IT would be needless to further multiply citations.
(38) The learned counsel for the complainant referred to the description of injury on the back as a 'punctured' wound and sought to derive assistance from certain passages in Modi concerning a punctured wound, bringing out the characteristics of a punctured wound caused by a weapon with a single sharp edge, rouble sharp edges etc. These references are wholly beside the point because the bullet, as in this case, has no sharp edge; it enters the body only by force and spinning. What impact such force and spinning has on the skin tissue at the point of entry is the question for consideration and this should not be missed by adverting to factors which have no bearing.
(39) The learned counsel for the appellant also suggested that it is sometimes possible that the bullet fired from the same weapon may not ignite properly and might be a State bullet. There seems no room turn such speculation in this case since a State bullet would not have been able to cause such an injury on the back. Glaister (p. 293) says that a spent bullet may cause a surface injury only, but the injury on the back is not such an injury; the track could be pursued at least as far inside as the spleen. The warning uttered by Glaister has to be born in mind (page 293) till all the facts of the case have been considered it may be unwise to express an opinion regarding the nature and course of fire-arm missile. The compulsive need for finding a bullet inside the body would arise only in cases where there is a single wound which must be the wound of entrance and there being no possible wound of exit (page 293). Glaister contains the following passage (at page 293) which may be useful in our case :
'EXITwounds never show evidence of carbon deposit, burning, or powder tattooing. It is frequently found that the track of the bullet is a devious one due to its deflection by bone, and the projectile may ultimately be found in a most unexpected situation.' This point is of practical significance, when the question arises in the case of two wounds being found on the body not corresponding to the likely line of traject, as to whether they have been produced by one or two bullets. The bullet may take a straight path through the body. and in this event the relative positions of the entrance and exit wounds will indicate the direction of fire. When a cavity has been penetrated and a quantity of blood has collected, a careful search for a bullet in the effused blood should be made. The possibility of the bullet being overlooked in such a case might result through its removal in a measuring vessel with the blood.
ANX-ray examination to identify the position of the bullet or fragments should always be made where possible. Without this it may be extremely difficult to locate the bullet at the post mortem dissection. We have made long searches for small bullets embedded in the body of the sphenoid bone, the spinal canal, and the hip joint'.
(40) Our attention has also been drawn to the following passage in Keith Simpson : Forensic Medicine (Sixth Edition) at p. 74 :
'ASsoon as the bullet meets dense tissue, like bone, capable of deflecting it, the projectile may suffer a violent change of direction.'
ONpage 23 of Dr. Bhooshana Rao's work the following passage occurs :
'Aricochat bullet may have its shape altered, e.g. it may be flattened with a sharp edge which on striking may produce a wound resembling an incised wound. A bullet glancing off a surface may strike the skin sideways producing an elongated oval shaped wound'.
THEcut wound on the spleen could not satisfactorily be explained on any other footing. Dr. Bharat Singh's evidence makes this clear.
(41) The bullet in this case was not a small one. Dr. Ghosh had collected the blood in a bucket and had carefully searched for the bullet in the effused blood. The possibility of his having overlooked the bullet in the blood collected by him was not even put to him.
(42) Dr. Bharat Singh, Police Surgeon, was examined by the prosecution as P. W. 9 to prove the injury to A.2, whom he had examined at 12.40 p.m. on 5-4-1971. The learned counsel for A.1 cross-examined him on the basis of the post-mortem report. He relied on the absence of denuded epithelium in the case of the injury on the back (No.2) in support of the view that it was only a wound of exit. Taylor (page 288) supports him. There was also the absence of much more damage to the interior organs, tissues etc. underneath that injury. Dr. Bharat Singh carefully distinguished between 'blackish wound' and 'blackening around the wound'; Dr. Ghosh had said nothing more except that the injury was 'blackish'. There was no tattooing. Dr. Bharat Singh rightly said that the bullet should have become transformed before reaching the spleen to cause a 'cut' injury; on the other hand the bullet entering through the chest wound could have found its way through injury No. 2 without causing any more damage that seem in the region of the stomach. It is well known that an exit wound could look like a punctured wound when seen from the outside; Dr. Saxena could well have made such a mistake.
(43) The doctors who were examined at the trial except Dr. Chopra were really cross-examined at length by the learned counsel for the complainant even though it appears to have been under colour of re-examining them. The correctness of this procedure itself seems to us questionable, as we have already indicated. In any case, we have looked into all the answers elicited from those witnesses and we find nothing in them to support the complainant's version that A.1 fired twice at the deceased and that the same struck two places, back and front chest respectively. Normally, if this were so, there would have been four injuries: two of entry and two of exit. It seems remarkable that two shots were fired and that the bullets in neither case were embodied in the body. The question of everted and inverted margins, which is not by itself conclusive as stated by Dr. Bharat Singh would be less determinative in this case because of the possibility of pressure bandage making even everted edges inverted. Dr'. Gupta was treating for the first time a patient with fire-arm injury. According to Dr. Saxena the margins were inverted; he was no doubt the more experienced doctor of the two but the possibility of his having made a mistake even about the margins, especially in the context of his being busy saving the life of the patient rather than writing the description of the wound, cannot be ruled out. He had also prescribed pressure bandage with vaseline gauze and had noted in Ex. Public Witness 7/B that this was one item of treatment given to the deceased. Even previous to his examination pressure bandage had been applied by Dr.Gupte. Dr. Ghosh had not noticed everted edges in the case of this injury. All the doctors, including Dr. Chopra, admitted that pressure type bandage could convert everted margins into inverted ones.
(44) On 4-4-1971 one revolver of .45 bore and 12 cartridges were got issued from the Malkhana, Qandhi Nagar. by A.1 and the same evening the same revolver and 11 live cartridges with one spent up cartridge were surrendered before the S. H. O. and was taken into possession; thereafter that revolver and the cartridges were received in the Malkhana. The entries in the Malkhana register, but not daily diary, confirm this fact. The further comment, however was that the entries in the register were not Seriallly numbered and such entries could have been written up any time.
(45) The presence of injury No. 3 is also an aid to appreciate the manner in which injury No. 1 should have been caused. The doctors are all agreed about injury No. 3 that it could be possible only if the victim's right elbow was in the self-flexed condition and not otherwise. in order to circumvent this the eye witnesses went to the extent of staling, as the learned Additional Sessions Judge remarked, that the deceased placed his right hand on his back after he was fired at and when he turned round A. 1 fired another shot. It seems to us that this was not likely.
(46) The learned Additional Sessions Judge took into consideration the statement of Dr. Bishnu Kumar who was examined during the course of the inquiry conducted under Ppr 16.38 by Shri R. S. Sharma (DW 17) who was appointed by the Deputy Commissioner to enquire into the firing. Ppr 16.38 reads as follows :
'(1)Immediate information shall be given to the District Magistrate of any complaint received by the Superintendent of Police, which indicates the commission by a police officer of a criminal offence in connection with his official relations with the public. The District Magistrate will decide whether the investigation of the complaint shall be conducted by a police officer, or made over to a selected magistrate having 1st class powers'.
(47) After making an inquiry Shri Sharma had only to make a confidential report to the District Magistrate, he did not have to judicially or quasi-judicially determine anything. In the very nature of things no one had any 'right' to cross-examine any one who was examined during the course of the inquiry. Even though cross-examination may have been permitted to such a situation section 33 of the Evidence Act would have no application. Section 33 reads as follows :
'33.Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case. the Court considers unreasonable :
THATthe proceeding was between the same parties or their representatives ininterest;
THATthe adverse party in the first proceeding had the right and opportunity to cross-examine;
THATthe questions in issue were substantially the same in the first as in the second proceeding
ExplanationN.A criminal trial or inquiry shall be deemed, to be a proceeding between the prosecutor and the accused within the meaning of this section.''
THEproviso, read above, specifically requires that the adverse party in the first proceeding had the right and opportunity to cross-examine. If this requirement was not complied with section 33 could not be invoked. 'This has been so held by the Judicial Committee of the Privy Council in Dal Bahadur Singh v. Bijai Bahadur Singh and others . It is needless to notice decisions of various High Courts which have followed the above-said view.
(48) The above aspect was considered in varying situations. The absence of right to cross-examine a witness till the charge was framed in a case proceeding as a warrant case by reason of section 256 of the old Criminal Procedure Code . (Arabinda Dey v. The State : AIR1953Cal206 , Banwari Lal v. State : AIR1956All341 and the evidence of a witness examined under section 202 of the old Criminal Procedure Code . would preclude the applicability of section 33 of the Evidence Act; Dr. A. N. Mukerji v. State, : AIR1969All489 and P. Rajangam v. State of Madras, : AIR1959Mad294 decided under section 176 of the old Criminal Procedure Code . also show hat section 33 of the Evidence Act could, not apply.
(49) For these reasons we are unable to hold that the evidence of Dr. Bishnu Kumar could be transferred under section 33 of the Evidence Act as the learned Additional Sessions Judge had gone.
(50) We might have considered calling Dr. Bishnu Kumar as an expert witness in this Court if it was considered necessary. Dr. Bharat Singh (P.W. 9) is himself an expert witness who has given evidence on the basis of the post mortem certificate and in our view no statement made by him has been open to any serious challenge. In the circumstances, we do not wish to further encumber the record or spend more time on this case by calling Dr. Bishnu Kumar.
(51) Even Dr. Chopra had to say at one time that if the bullet entered through the back wound and travelled up to the spleen the same bullet could have come out through the same track and the wound. It is sufficient to say that even in this view the wound on the back show have at least partially the characteristics of a wound of exit, one of the characteristics being averted edges. It seems to us that Dr. Chopra was hard put to justifying a stand which was not possible. The theory suggested by learned counsel for the complainant that the. bullet which entered through the back got settled in tissues within the body, but for a time only, and was then pushed out through the back wound itself by the out flowing blood sounds not only far-fetched but subjective in the extreme.
(52) It seems to us that when the question is investigated scientifically and overall view is taken of all the circumstances the version of the alleged eye witnesses that two shots were fired against the deceased one of which entered into his chest and the other through his back is obviously false; this conclusion is only reinforced by the manner in which the complainant changed his original version to ultimately say that two shots had been fired and two fire-arm injuries were inflicted on the deceased. Having regard to the fact that it was well-known that A. I had not only taken the injured to the hospital but had also stated that he fired once in self defense, the first attempt, naturally, on the part of the complainant was to show that he had no right of private defense, since A. I had fired the shot even from a distance without justification. This is what he has stated in his representation dated 5.4.1971 (also signed by some other residents of the locality) to the Lt. Governor Delhi Ex. Public Witness 1/E wherein the averment made was that the deceased 'was shot at with pistol in his chest from a distance without any justification' ; yet another similar averment (also signed by the complainant on 8-4-1971 Ex. Public Witness 1/H) was made to the Lt Governor. In yet another representation, in between, the complainant had written to the Deputy Commissioner on 6-4-1971 stating as follows:
'SHRIChander Badan Singh S.I. (A. 1) slapped him as well and retreating a few steps took out a pistol and shot him at the chest causing serious injury' .
Here, the effort was to show that A. 1 had retreated a few steps to show that he had shot at a time when there was no danger or even a threat of it to him. The present version is that A.1 did not retreat bat probably even advanced. The site plan (Ex. C.W. 3/A) prepared by Cw 3 at the instance of the complainant also indicated the place at which A. 1 had fired (at the chest) as 20 ft. This would help establish that the prosecution was at pains to show that A.I had fired not twice but only once, and that too from a distance without justification. This version was obviously calculated to deprive A.I of the plea of self defense, which he had chosen to put forward soon after the occurrence, on the ground that having shot from that 'distance' he could not have apprehended any danger to his life. There was also an injury on the armpit of A-2. said to be caused by the barchha but this was sought to be explained away as an injury later on caused to be inflicted for the purpose of buttressing the defense.
(53) It was not till about two months after the occurrence dated 4-4-71 that the prosecution thought of the present version, namely, that two shots were fired by A. I, at the front and back. Ex. Public Witness 1/N dated 1-6-71 is the plan where two shots are stated. This again was aimed at depriving A. 1 of the plea of self defense because firing two shots would not have been within his right in any .case and that if he fired two shots his own case that he had fired only one shot in self defense would be falsified.
(54) The learned counsel for the complainant next contended, though somewhat feebly, that even if the prosecution did not succeed in proving that two shots were fired the burden of showing that the accused acted in self defense and that A.I had not exceeded his right of self defense would be on him. The relevant statutory provisions of the Indian Penal Code and the Evidence Act are as follows :
S. 80. 'Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution?'. EVIDENCEAct. S. 103. 'The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person'.
S. 105. 'When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances'.
S. 3. 'In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context :
Afact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist'.
S. 4. 'Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved',
(55) These provisions were considered in K. M. Nanavati v. State of Maharashtra (1962 Supp (1) S.C.R. 567 by Subba Rao, J. (as he then was) who observed as follows :
'BUTwhen an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, S. 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under the section the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the non-existence of such circumstances as proved till they are disproved. An illustration based on the facts of the present case may bring out the meaning of the said provision. The prosecution 'alleges that the accused intentionally shot the deceased; but the accused pleads that, though the shots emanated from his revolver and hit the deceased, it was by accident, that is, the shots went off the revolver in the course of a struggle in the circumstances mentioned in s. 80 of the Indian Penal Code and hit the deceased resulting in his death. The Court then shall presume the absence of circumstances bringing the case within the provisions of s. 80 of the Indian Penal Code, that is, it shall presume that the shooting was not by accident, and that the other circumstances bringing the case within the exception did not exist; but this presumption may be rebutted by the accused by adducing evidence to support his plea of accident in the circumstances mentioned therein. This presumption may also be rebutted by admissions made or circumstances elicited by the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients of the offence with which the accused is charged : that burden never shifts. The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under s. 105 of the Evidence Act is more imaginary than real Indeed, there is no conflict at all. There may arisen three different situations : (1) A statute may throw the burden of proof of all or some of the ingredients of an offence on the accused : (see ss. 4 and 5 of the Prevention of Corruption Act). (2) The special burden may not touch the ingredients of the offence, but only the protection given on the assumption of the proof of the said ingredients : (see ss. 77, 78, 79, 81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception if proved affecting the proof of all or some of the ingredients of the offence : (see s. 80 of the Indian Penal Code). In the first case the burden of proving the ingredients or some of the ingredients of the offence, as the case may be, lies on the accused. In the second case, the burden of bringing the case under the exception lies on the accused. In the third case, though the burden lies on the accused to bring his case within the exception, the facts proved may not discharge the said burden, but may affect the proof of the ingredients of the offence. An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of s. 300 of the Indian Penal Code; the prosecution has to prove the ingredients of murder, and one of the ingredients of that offence is that the accused intentionally shot the deceased; the accused pleads that he shot at the deceased by accident without any intention or knowledge in the doing of a lawful act in a lawful manner by lawful means with proper care and caution; the accused against whom a presumption is drawn under s. 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in s. 80 of the Indian Penal Code, may adduce evidence to rebut that presumption. That evidence may not be sufficient to prove all the ingredients of s. 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertance, i.e, it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of s. 300, Indian Penal Code, or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder. In that event though the accused failed to bring his case within the terms of s. 80 of the Indian Penal Code, the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused. In this view it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence; indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence'.
THElearned trial Judge has also cited some passages from Nanavati.
(56) The learned counsel for the complainant relied upon certain observations of I.D. Dua, J., who spoke for the Supreme Court, in Bajwa and others v. State of U.P. : 1973CriLJ769 . The passages relied upon occur in paragraph 13 (at p. 724). Those observations only explain how it would not be proper to discredit the eye witnesses on the basis of unsatisfactory testimony given by the doctor which on proper judicial appraisal did not contradict the version of the prosecution witnesses as to the manner in which the deceased was shot at. That is not the case here.
(57) On the other hand the representation dated 13-4-1971 made by the complainant (vide Ex. Public Witness 1/P) to the Home Minister refers to danda being a document proved by the complainan There was no need to put to him any part of it in cross-examination. It reads :
'ONinformation received from Arjan Dass about the alleged beating and search of his shop by the police, he (complainant) reached the spot and found that Chander Badan Singh Sub Inspector was trying to take away forcibly Vinod Kumar in the taxi. He objected to the assault by the police on Vinod Kumar by shouting that the Police has no business to assault the servant and if they have any grievance they should talk to him. Sub-Inspector Chander Badan without any rhyme or reason slapped him as well. Sardar Inder Singh retreated a few steps and went to his shop in anger to pick up a danda as he apprehended an assault on him at the hands of the Police. As soon as he had just stepped out of the shop Chander Badan Singh who had in the meantime taken out the pistol shot point blank on the chest as a result of which he was seriously injured in the region of the heart. Police officer hurriedly took away Vinod Kumar and removed Inder Singh after a few minutes on the arrival of the Police Jeep and left him at the Hindu Rao Hospital instead of taking him to the Irwin Hospital'.
(58) The reference to stick in Ex. C.W. 3/ is worth-recalling. According to Ex. P, the first and only shot was fired on the chest.
THIShas to be read along with the report which A.1 himself had made to the S.H.O., P. S. Kingsway Camp giving the time of sending the report at 2.05 p.m. from the Hindu Rao Hospital with reference to the occurrence which took place at 1.20 p.m. opposite the shop of the deceased on the same day, namely, 4-4-1971. Ex. Public Witness 1/L is the F.T.R. (pages 840 to 843 of the record) wherein after setting out the facts leading to the occurrence the following averments appear :
'THEREUPONInder Singh deceased) rushed into his shop and brought out a sharp pointed barchhi fitted with a bamboo of six digits, having a double edged iron blade with its length as 9.10' and attacked the Police party and as a result thereof the barchha hit across the left armpit of Head Constable Bishan Singh No. 1454 (A.2). The remaining companions of Inder Singh started struggling with the Police in order to extricate accused Vinod Kumar. Inder Singh aimed to give a blow on my chest for the second time. I at once retreated. When he pounced upon me for the second time with the intention of making a murderous assault, I pointed my Government revolver towards him in order to save my life and aimed to fire a shot on his thigh whereupon said Inder Singh bent downward as a result of which the bullet hit his chest and he was injured'.
(59) At this earlier stage, thereforee, both sides had said that the deceased went inside his shop and brought out something; according to A.I it was a barchha but according to the complainant then it was only a danda. Having regard to the fact that there was an incised injury on A.2 (though later on sought to be explained away) what was brought by the deceased from his shop may well have been a barchha and not a mere danda. The reason for the later prosecution version suppressing the said fact of the deceased going into his shop for bringing out a weapon barchha or even a danda is not far to seek. The injury on A.2 woul0d show it was a barchha.
(60) In Partap v. The State of U.P. (Cr. Appeal 120 of 1971 decided by the Supreme Court on 10-9-1975) (8) Beg J. pointed out, relying upon the Full Bench decision of the Allahabad High Court of 9 Judges in Rishi Kesh Singh v. The State : AIR1970All51 that the burden of proving that a case comes within the exception including self defense (in this it is self defense) has not to be discharged strictly; the defense has only shown to be probable by resorting to a preponderance of probabilities. The debate, as in this case, was whether the occurrence happened in the manner narrated by the prosecution or by the defense. When the prosecution fails to prove, as a necessary part of its case, that A.I fired two shots at the deceased and caused fire-arm injuries on the back and front, if it turns out, as it has done in this case, that two shots were not fired at all, but that A.I had fired only one shot, then for this very reason the prosecution case fails and A.1's case of acting in self defense has to be upheld. In other words, the complainant cannot urge in this case that even if the prosecution, as it has been put forward in this case, is not true A. I is under a duty, independently and regardless of the truth or otherwise of the prosecution case, to prove strictly that he acted in self defense. It has been explained by Beg J. in Partap that there is no such burden on A.1. While concurring with Sarkaria, J. who was convinced of the veracity of the defense plea of self defense and held it proved a balance of probabilities. Beg J. said: 'I think that what transpires from a consideration of the whole evidence is enough to entitle the accused to a benefit of doubt' etc. Beg J. added that it was for the prosecution in such a context to 'establish its case beyond reasonable doubt against Pratap as an essential ingredient of the offence of murder the required means rea. After examining all the facts and circumstances revealed by the prosecution evidence itself and the defense evidence and considering the effect of non-production of the better evidence available which, for some unexplained reason, was not produced, I am not satisfied that the plea of private defense of person can reasonably ruled out here. This is enough, in my opinion, to entitle the appellant to get the benefit doubt'. These observations completely negative the above legal contention of the learned counsel for the complainant.
(61) Yet another contention of the learned counsel for the complainant is that A.1. who was the Police Officer of Gandhinagar Police Station at that time, had no authority to search the shop of the deceased which is within the limits of Kingsway Camp Police Station and for this reason could not rely on any plea of self defense. Reliance was placed on sections 14 and 15 of the Opium Act, 1878 and sections 165 and 103 of the Criminal Procedure Code . (old) in this connection. But this contention is entirely misconceived because it is only according to the prosecution version that A.1 and party had searched the shop of the deceased. The defense version, on the other hand, is that when A.1 was at the Police Post, Krishna Nagar he came to know through informer that a person would be at the embankment of the Yamuna river for sale of opium; he informed his Sdpo (D.W.18) at his residence at New Police Lines, Kingsway Camp by telephone; the Sdpo wanted to talk to him and the informer, A. 1 left at 10.30 a.m. on .Police jeep along with A.2, Constables Kimti Lal and Beer Sen (D.W. 16). The informer who met them on the way was also taken in the jeep; some time later Om Prakash (of Jhil Chowk Police Station Gandhi Nagar) also joined them on the way. A.1 went to Gandhi Nagar Police Station, took a .45 revolver and 12 cartridges from the Malkhana after signing for it and started for the New Police Lines Kingsway Camp to meet his Sdpo (D.W. 18), which he reached at 11 a. m. The Sdpo advised the informer to find out whether the opium could be purchased at Kingsway Camp itself since the person informed against was said to be living in Kingsway Camp. The informer returned after some time and said that he had negotiated for the purchase of opium and it would be delivered near Outram Line culvert. Then the Sdpo, Shahdara and Sdpo Kingsway Camp (D.W.18) talked to each other on the telephone. A.1 came in the jeep to the Chowk Kingsway Camp along with Sdpo Shahdara, Policeman Om Prakash (since dead) and the informer. In a few minutes Sdpo Kingsway Camp reached there in another jeep and met the party; Constable Sadhu Singh of Police Station Kingsway Camp, who was in uniform, also joined the raid party there. The two SDPOs directed A.1 to follow them after taking two other witnesses. Sadhu Singh called Maman Singh (D.W. 9) and Joseph George. A.1 took the party to the culvert near Hakikat Nagar and Outram Line. The two SDPOs met A.1 and party there and advised A.1 to hold Naka Bandi near the urinal and then left. Vinod Kumar, who came there with a bag from the side of the shop of the deceased, was pointed out by the informer, who then went away. Vinod Kumar was secured and searched; the bag contained 800 grams of opium, a sample of 20 gms was taken from it; both quantities were sealed separately. A clasped knife was also recovered from Vinod Kumar; the recovery memo was prepared which was attested by Om Prakash, Man Singh and Joseph. Two written ruqas (Exs. Public Witness 1/J and K) were sent to Kingsway Camp Police Station for registration of cases under the Opium Act and Arms Act through Kimti Lal. On enquiry Vinod Kumar disclosed that he was an employee of the deceased and that the recovered opium belonged to his master. The disclosure statement of Vinod Kumar (signed by him) was also attested by the above said witnesses. Vinod Kumar, who was secured by Sadhu Singh, led the raid party to the shop of the deceased. When they were about 18/20 paces from the deceased's shop, the deceased came out of his shop and questioned why his servant had been apprehended. Meanwhile some persons had collected. A.1 told the deceased about the recovery of opium from Vinod Kumar and his disclosure statement. The deceased called out to five or six persons there to come and rescue Vinod Kumar and assaulted the Police party. Those persons grappled with Sadhu Singh and in a f,ew seconds the deceased went inside the shop and brought a barchha and aimed it at A.2 who was injured in the armpit, tearing his clothes. Then he aimed it at the chest of A.1 who stepped back. Again the deceased came forward to attack him with barchha. Immediately A.1 took his revolver and aimed at the right thigh of the deceased who ducked and the bullet hit his chest instead of his thigh. A.I had fired only one shot. He would have been killed but for firing that shot. Sadhu Singh was assaulted by 5 or 6 persons who tried to release Vinod Kumar and A.2 is also said to have been attacked with harchha
(62) Once the prosecution version that A. 1 came and searched his shop (which was done later on by D.W. 11 Harbhajan Singh of Kingsway Gamp Police Station) is not made out there is no scope for the further contention based on the search of the shop being illegal. Even according to the prosecution case this argument has no substance because the search by A.1's party had disclosed nothing and there was no occasion to resist the search; there was none in fact. The learned counsel contended that an aggressor who acted illegally and not in good faith could not claim any right of private defense under section 99 Indian Penal Code .; there is no need to be detained by this aspect in this case because the question is whether the case of the prosecution has been made out; shooting twice is an inextricable and essential part of the prosecution case and if this is not proved beyond reasonable doubt the entire case has to fail.
(63) The approach to be adopted by the High Courts in case of appeals against acquittals has been the subject of several decisions of the Supreme Court. An aspect which seems peculiarly relevant in the context of the present Case has been emphasized by Gupta J., speaking for the Supreme Court most recently in Dharamdeo Singh and others v. The State of Bihar : 1976CriLJ638 as follows :
'THEHigh Court on a reappraisal of the evidence held that there was sufficient and cogent material to prove the charges leveled against the 7 appellants before us. It does not appear from the judgment of the High Court that it relied on any piece of evidence which the Additional Sessions Judge had overlooked to take note of or that the High Court thought that the Additional Sessions Judge relied on any circumstance which die not appear in the evidence on record. The only reason that we could see why the High Court reversed the decision of the court of sessions is that the High Court was inclined to take a view on the evidence different from that taken by the Additional Sessions Judge. We do not say that the view which the High Court took was not a possible view on the evidence, but so also was the view that the Additional Sessions Judge had taken. It is well settled that in an appeal against an order of acquittal if two conclusions can be based upon the evidence on record, the High Court should not disturb the finding of acquittal recorded by the trial Court. It would follow as a corollary from that that if the view taken by the trial Court in acquitting the accused is not unreasonable, the question for the reversal of that view would not arise.'.
THEsame appears to be the position in the present case also except for our view that the statement of Dr. Bishnu Kumar as well as that of Om Prakash, both recorded before D.W. 17, do not come within the purview of section 33 of the Evidence Act. Excluding them, there is other abundant material in support of the view taken by the learned trial Judge. Our discussion may at best indicate different emphases here and there but in the main we are in substantial agreement with the learned trial Judge.
(64) In the light of above discussion so far the actual version concerning the occurrence as it was placed by the prosecution before the trial court would be briefly adverted to; the learned trial Judge has discussed the oral evidence not only of the so-called eye witnesses but also those on the periphery of the case (including that of the complainant who was not himself an eye witness) at very great length. It would not be necessary to encumber this judgment, which has already become too long, even with a summary of what the learned trial Judge has said elaborately; it would be sufficient to advert to some salient features alone. That the complainant had admittedly come to know all the facts concerning the occurrence on 4-4-71 at 4 p.m. would be clear from his own evidence, despite his assertions at the same time, to the contrary :
'(1)When I reached the spot, I had come to know that my brother had been injured with bullets (in the plural).
(2)By the time when I went to the police station to make report, I had come to know that Inder Singh had been killed by bullets (in the plural). Arjan Dass met me in Hindu Rao Hospital on the day of the occurrence but I do not remember the time . . . He told me that my brother had been killed with bullets' (in the plural, once again), etc.
DESPITEhis denial, at the trial, that he had met his brother Mohan Lal at 4 p.m. on 4th outside the said hospital, Mohan Lal's presence outside the Casualty was admitted in the representation to the Deputy Commissioner (Ex. Public Witness 1/G).
(65) The complainant (P.W. 1) had at least come to know on 5-4-1971 the full details of the occurrence from Wazir Singh (P.W.4) one of the so-called eye witnesses. He had also known at least by 10 p. m. on 4-4-1971 (if not even at 4 p. m.) from his brother Mohan Lal (not examined) about 'two bullets' having been fired to kill the deceased. Arjan Dass (P. W. 3) yet another eye witness, had admitted that he had told the complainant at 3.30 or 4 p.m. on 4-4-1971 that the deceased had been shot by 'bullets' (in the plural) though he would later qualify it by saying that he did not specifically tell him about two bullets. The other two eye witnesses Ram Krishan (P. W. 5) and Wazir Singh (P. W- 4) claimed to have told the complainant about the details of the occurrence the former on the third day after the occurrence and the latter on the next day. Vinod Kumar also had said that when he came out of jail on 6th, not 7th April (as we see from the telegram Ex. P. W. 2/A sent by him) he had told the complainant about the entire occurrence. Wazir Singh (P.W. 4) also admitted that he told everything to Mohan Lal at the hospital on the very day of occurrence. Yet, what do we find In the first report (Ex. P. W. 1/C) lodged at 5.10 p.m. on 4-4-1971 at the Kingsway Camp Police Station the complainant did not mention the name of any of the eye witnesses or of two bullets or the story of shop search by A.1; there was none in the phonogram message (Ex. Public Witness I/D) sent at 11.15 p. m. on 4th (it contained reference to 'bullet' in the singular). In the representation to the Deputy Commissioner which also signed by Chuni Lal (P. W. 10) on 5-4-1971, a detailed one, there is no reference to the shop search or names of the witnesses in spite of reference to 'witnesses', being threatened; it only mentions per contra, bullet (in the singular) being fired from 'distance'. Ex. Public Witness 1/H is an exact copy of Ex. Public Witness 1/E, but .dated 8-4-1971. The learned trial Judge rightly presumed from a perusal of the various representations (Ex. P. W. I/C to H and D.W.1/N) that Public Witness s Arjan Dass, Ram Kishan and Wazir Singh did not witness the occurrence; at least there is a serious doubt about it. Even the version which had been put forward before Shri R. C. Sharma (D. W. 17) was different. We find a reference in Ex. Public Witness I/P (representation dated 13-4-1971) to shooting from 'blank range', quite contrary, to 'distance' mentioned earlier in Ex. P. W. I/E dated 5-4-1971. This change was probably due to either direct or indirect knowledge concerning the post mortem report (of same date) mentioning 'blackening' and 'charring' on the chest injury. It is important to notice that the request made in the above representation was for a judicial enquiry.
(66) The only manner in which the learned counsel for the complainant sought to get over these massive admissions was to say that they had not been put to the complainant as required by section 145 of the Evidence Act. This contention is totally misconceived. Section 145 reads as follows :
'Awitness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him'
THEREis no question of the accused having to prove any of these representations which were part of the prosecution case and filed by the prosecution and proved by the complainant himself. Absolutely beside the point is the decision of the Supreme Court in Pooda Narayana and others v. State of Andhra Pradesh : AIR1975SC1252 relied Upon by the learned counsel for the complainant, for it pertains to the proof of statements made under section 161 Criminal Procedure Code . Not only did the complainant admit that he made these representations but also added that he made them under legal advice. The argument based on section 145 of the Evidence Act is altogether without force. The statement by him in the course of his evidence before the trial court denying that he did not learn about the occurrence from all or any of them, even contrary to what the above mentioned witnesses had said, has only to be discarded.
(67) The complainant had gone the length of staling that A. 1 came to him at 1.30 a.m. on the night of 4th/5th April, 1971 and extorted his signatures to blank papers; this was flatly contradicted by the fact that A. 1 who had his nose fractured his having been allegedly assaulted by the deceased's brother and others at the Hindu Rao Hospital, was in-patient at that hospital from 12.30 A. M. on 4th/5th night itself and remained there for two days. This false allegation had obviously been made by Vinod Kumar to get over his signing the discovery statement and recovery memo. concerning opium.
(68) It is needless to deal at length with the complainant whose evidence has been dealt with at great length and analysed by the learned trial Judge; he has mentioned twelve reasons for discrediting not only his testimony but the entire prosecution case which has been shaped by him from time to time. The complainant had refused to identify the signatures of Wazir Singh, Jagjit Singh, Chuni Lal and even Vinod Kumar inspire of the fact of the last one being his brother's servant; he went the length of even saying that he was unable to say if Vinod Kumar is the one examined in this case. In the committing Court the complainant had admitted that those who signed Ex. Public Witness 1/E (30 in all) had done so in his presence, but he had no compunction in going back even on that admission while he was examined in the trial court. The learned trial Judg& observed :
'THEsum and substance of the evidence of Tirlochan Singh summarised above clearly shows that he did not hesitate to speak lies and to improve upon his previous statements at every stage to suit the prosecution story. He has not come with clean hands and I do not propose to place any reliance on his testimony'.
(69) The prosecution story begins with the search of the deceased's shop by A.1 with others. For the first time preference to the search of the deceased's shop was made only on 13-4-1971 in Ex. Public Witness I/P sent to the Home Minister; there is reference therein for the first time to the taunting words uttered by Vinod Kumar but for which, according to the prosecution, the shooting would not have taken place.
(70) Report 13A, timed 2.30 p.m., entered in the daily diary of the Kingsway Camp Police Station (Ex. Public Witness 1/K) shows that Harbhajan Singh (D.W.11) had conducted the search of the house and shop of Inder Singh; the shop would not have been searched once again by A.1 if it had been already searched. It is significant that in the representation by the complainant dated 6-4-1971 to the Deputy Commissioner (Ex. Public Witness 1/G) para 3 stated that he went the length of falsely slating that A.1 searched the shop once again after the occurrence. The relevant portion reads as follows:
'THATafter the occurrence Sh. Chander Badan Singh S.f. (A.1) broke open the locks of the house, searched it again came to the shop searched it and found nothing incriminating'.
HOWmany times would the shop be searched? Would it be searched even after the shooting? After shooting had taken place this would have been plainly impossible; it is nobody's case at least now. In sum, there is no reference at all to the search of the deceased's shop in the earliest representation on 4th and 5th; on the representation dated 6th, but handed only the next day, there was an admittedly false accusation of a second search of deceased's shop by A. 1even after the occurrence. All these show the utter want of regard for truth.
(71) The persons who spoke to the alleged search by A. 1 of the shop are Public Witness 2 (Vinod Kumar ), Chuni Lal (P.W.10), Taran Singh (P.W.12) and Jagjit Singh (P.W.8). We have been taken through their evidence and we have heard the comments of the learned counsel for the complainant. We fully agree the the learned trial Judge's estimate of their evidence; none of them can be believed. The discrepancies concerning from where the search witnesses were called, sequence of happenings, concerning whether A. I told Vinod Kumar as to why he wanted to search and who went into the shop to search, regarding dragging of Vinod Kumar etc., have been discussed by the learned trial Judge at length. We also do not consider, as the learned trial Judge also viewed it, that a servant would go to the extent of ridiculing a police officer searching the shop. The story of the search of the shop by A.1 appears incredible. The reference to taunting words was not there in the earliest representations; it seems to have been introduced for the first time in Ex. P. W. 1/P (dt. 13-4-71); in Ex. Public Witness 1/G (dated 6-4-1971) it it was a case merely of A.1 objecting to the behavior of Vinod Kumar but not of taunting words having been uttered by Vinod Kumar. We also share the view of the learned trial Judge that the presence of Jagjit Singh (P.W.18) appears doubtful. The reason for his presence and the absence of the deceased from the shop is said to be his having gone there to demand rent and the deceased having gone to his house to fetch such a small amount as Rs. 20 from his house. The shop had been taken on rent by Mohan Lal ten years prior, not by the deceased; demanding the rent from the deceased itself, does not seem probable. It seems even more improbable that the deceased did not have even Rs. 20 in the shop but had to go to his house to get it. The admission of Vinod Kumar is that there used to be always cash of about Rs. 300 to Rs. 400 in the shop in those months (March/April); the key of the Almirah, where the money was kept, was also in the shop always. The further theory of planting such a huge quantity of 800 kilograms of opium is also difficult to accept; the worth of that quantity of opium is said to be about Rs. 2,000. The case of the prosecution of the same having been recovered from one Kundan (un-proved) is itself meant to get over the improbability of such a huge quantity being 'planted'. Public Witness O admitted that he) used to gamble with the deceased occasionally (a coaccused with him in gambling and Sattachi Parchis, as it has been proved) and he had appeared against D.S.P. Shri Shinglu as a witness at the instance of the deceased and Mohan Lal. inspire of his being having signed Ex. Public Witness 10/E (representation) he began to simulate his writing in the sample signatures Cowing to his hand shaking) but behind it all the similarity is patent to us, as indeed it was the learned trial Judge. The signature on the summons (Ex. Public Witness 10/E) furnishes a more useful basis for comparison. The learned counsel for the complainant did not even make any effort to dispute his signature en the representation. Public Witness 10 said that he left the placet of occurrence, afterwards, to fetch a Constable in uniform from Kingsway Camp Chowk as directed by A.1 when he heard the duty officer of the Police Station there giving instructions to stop making further entries in the daily diary. It does not make sense how he went to the Police Station when he was asked to go to the Chowk. His evidence sounds very artificial and unconvincing. He was no doubt a witness to the search of the house by Harbhajan Singh (D.W.11). He did not, on his own showing go to the house of the deceased or Mohari Lal to tell them that Vinod Kumar was in difficulty; he wants us believe that he took a scooter and went to the Police Station. Harbhajan Singh (D.W.11) 's departure is shown in Ex. Public Witness 14/C, but there is no mention about the jeep being taken out of the Police Station or of the name of Public Witness 10as indeed it should have been if he had gone there; but the fact is clear from Ex. Public Witness 14/H which shows Sho Jatka left Kingsway Camp Police Station in a jeep (DLE 4280) at 2.30 p.m. Public Witness 10 is also belied by Aijan Dass (P.W.3) in one important respect; while Public Witness 10 said that he did not go inside the Hindu Rao Hospital on account of his not being allowed inside Arjan Dass said that he was present in the hospital and told the whole story to the complainant. He even went to the extent of suggesting that D.W.17 did not record his full statement; he would say of A.1 also that he threatened him 2/3 months after he made his statement before D.W. 17. Such statements of threat by police officers have been made by other witnesses also. Such allegations are easy to make. It is even unnecessary to be detained by his accusation that he was implicated falsely in an Opium Act case later, where he was convicted by the trial court, but as we told, acquitted since in appeal. Bhawani Das (P.W. 11) having a shop, five shops away from that of the deceased and known to him for about 5/7 years, also met the complainant at Ii p.m. on the day of occurrence and informed him of what he saw, but it is not referred to in the representation of the complainant. Despite his earlier assertion he had to concede that D.W.1 was there at 10/11 p.m. on 4th April. The evidence of Public Witness 18, who is a government servant but no smuggler or gambler, does not carry conviction. His evidence before the committing Court was transferred to the record since he was away at London. The learned trial Judge has discussed his evidence also at length. The broad feature of his evidence is that though he says that he mentioned the minute details of the search etc. to Mohan Lal 3 or 4 days after the incident there is no reference to any of them in any of the representations. Taran Singh (P.W. 12) is a next door neighbour of the deceased and knew him and Mohan Lal intimately. He says he was present till Vinod. Kumar was dragged to a taxi and A.1 standing there waving the revolver all the time. His Version that the deceased was taken to the Police Station is belied by the representation (Ex. Public Witness -1/C). Public Witness 12's name also does not find a place in any of the representations; he was treated as hostile.
(72) D.WS 9 and 16 (Maman Singh and Beer Sen, respectively) spoke about the seizing of 800 gms of opium from Vinod Kumar; the learned trial Judge accepted the evidence of the latter but not of the former owing to his being a stock witness of the Police. D.W.11 (Harbhajan Singh) spoke about his searching the house and shop of the deceased. The statements of these witnesses are Supported by the documents prepared and the entries in various official registers made contemporaneously.
(73) Another important question is about A.I and others having gone there in a taxi. None of the prosecution witnesses has been able to say what the number of the taxi was; it seems odd that though meticulous details were given concerning the clothes worn by the occupants of the taxi no identifying particulars whatever could be given concerning the driver of the taxi, if he was there. The time factor also appears to be against the prosecution case. Regarding the recovery of opium the report was sent at 1.10 p.m.; regarding the knife it was sent at 1.15 p.m. and reference was made to the shooting as having taken place at 1.20 p.m., (vide Ex. Public Witness 14/J). Dr. Gupta had seen the deceased at the hospital at 1.30 p.m., which was about 2 miles away. According to the prosecution the taxi must have come at about 12.45 p.m. and Vinod Kumar should have been dragged at about 1 p.m. If the taxi had been brought there by the Police it does not stand to reason how the taxi went away at any point of time, it could not be on account of any scare. The jeep should have arrived in a matter of minutes, after the occurrence if it was not there already according to the prosecution case. The fact of the removal of the deceased in the jeep to the hospital having been admitted and no other suggestion made that there was any information given to any Police Station for sending a jeep it is a fair inference that the jeep must have been there already because A.1 and his party went in a jeep. The complainant had taken no steps to secure the log book of the concerned jeep.
(74) We have also to view the prosecution case in the light of the facts that are known about the deceased himself and his associates including his brother Mohan Lal who has not had the courage to figure as a witness. There is sufficient indication, however, of Mohan Lal being an actor behind the scene. D.W.1 (Constable Ram Swaroop) spoke to there having been nine cases against the deceased; three excise cases, one under the Arms Act and five under the Gambling Act. D.W. 3 (Constable Attar Singh) proved that two kilograms of Charas was recovered from the possession of the deceased and his companions and his being convicted on 11-3-1970. D.W.4 (Head Constable Brahm Singh) proved the F.I.R. of the year 1961 under section 325 Indian Penal Code . D.W.6 (Inspector K. S. Nair of C.B.I.) produced a copy of report 2/69 dated 2-10-1969 in which the car of the deceased was impounded from which 14.100 kilograms of Charas and 4.600 kilograms of opium was recovered and during the pendency of that case he met with his end. Mohan Lal was said to be having that car. D.W.10 (Ahlmad of the court of Chief Metropolitan Magistrate, Delhi) produced the records pertaining to one case under the Gambling Act. The history sheet of the) deceased was being maintained according to the evidence of D.Ws 13 and 14 (Inspector Baljeet Singh and Constable Mahipal, respectively). According to D.W.6 (Inspector K. S. Nair) 95 Kilograms of opium was recovered -from his associates Om Prakash Vohra and Subash Chand and Mohan Lal (brother of the deceased). Chufli Lal (P.W.10) admitted that he used to gamble with the deceased and that he had also been a co-accused with the deceased in a gambling case.
(75) The complainant stated that the car of the deceased (bearing No. Dlj as put to him 5008) in his life time was with him, after the occurrence but was unable to give the present number of that car though it was with him since the occurrence. He even pretended ignorance of the car having been impounded in excise cases which has been otherwise proved. His stance that he did not know whether it was involved in an excise case against the deceased inspire of the same being released to him is at par with that taken by him on many other important parts of the case. There were two excise cases involving the car with one of which Mohan Lal also was concerned (vide the evidence of D.W.6). There was a challan against Mohan Lal also with reference to the assault on A.I at the hospital. The complainant would make it appear that he had not even opened the Almirah at the deceased's shop; the Almirah was not searched according to the prosecution. The Explanationn given for not opening the Almirah was that he had quarrelled with Mohan Lal about 8 or 9 months after the occurrence; but he was soon in difficulties because he had to admit that he had not opened the Almirah even before he had quarrelled with Mohan Lal. This was part of his effort to cover his pretended ignorance whether the deceased maintained accounts. He denied knowledge of whether the car had been kept by the deceased for smuggling purposes. He would make the claim that when he and Mohan Lal were traveling by that car on 9-5-1971 the accused and two others had stopped them and threatened them saying that they should not give evidence at the enquiry but yet he had to concede that there was no mention as indeed there is none of this threat in the telegram given by him on 10-5-1971.
(76) In the above background the evidence of the so called eye witnesses Vinod Kumar (P.W.2), Arjan Dass (P.W.3), Wazir Singh (P.W.4) and Ram Kishan (P.W.5), which has also been dealt with exhaustively by the learned trial Judge, can now be referred to, only briefly, even though we have been taken through their evidence exhaustively and heard the detailed comments on their evidence by the learned counsel for the complainant. We have no difficulty in agreeing with the learned trial Judge that not one of them is a truthful witness. Among them the presence of Vinod Kumar at the spot is no doubt admitted by both sides; for this reason the learned trial Judge paid, as we have also done, even more detailed attention to his evidence. On the face of it Vinod Kumar is the most interested, next only to the complainant, among the prosecution witnesses; he was in the employ of the deceased. He i^ also biased against the accused; at the time he gave evidence at least three cases were pending against him; (1) recovery of opium, (2) recovery of knife, and (3) under section 307 Indian Penal Code . According to the defense version he was the person who was carrying opium. In the circumstances there is no surprise that he has gone all but to support the complainant. Without going into the numerous details to which reference has been made by the learned trial Judge to show that he is not a truthful witness, it is sufficient to recall what was pointed out with reference to the complainant, namely, that Vinod Kumar was brought to the Kingsway Camp Police Station only at 6.30 p.m. but according to Vinod Kumar he was taken in a taxi from Civil Lines Police Station (where he was till 2.30 p.m.) to the Kingsway Camp Police Station and made to sit there in the room of the S.H.O. with a chick hanging in front of the room; the concerned entry shows that Vinod Kumar was taken there only at 6.30 p.m. Not merely this; his allegation, which is worth recalling, is that his signatures were taken on some blank papers by A.1 at 1.30 a.m. (on the night of 4thpth April 1971). On account of the fracture of nose sustained by A.1 during the assault by the deceased's brother and others at the hospital he was an in-patient at the hospital from 12.30 p.m. on 4th April 1971 and he remained there for a couple of days. On crucial details he is found to speak falsely; his entire testimony has to be rejected in the circumstances. Even in the telegram (P.W.2/A) which he sent on 6-4-1971 after he was released he had chosen to make a false statement that A.1 had come there and tortured him at Kingsway Camp Police Station and taken his signatures to some documents. A further allegation was made that he was threatened not to depose against the Police. This is a part of series of such representations about witnesses being forced by the Police not to depose. The lower court has referred to these aspects also at length and it is needless to go into them.
(77) The evidence of Arjan Dass (P.W.3) seems hardly worthy of consideration. His name, no doubt, was mentioned in the telegram sent by the complainant on 4th itself. This witness turned hostile during cross-examination, commencing 24th May; his chief examination was completed on 23rd May. More than a year later he came forward with a rather odd version of his having gone to Jammu when he had a fearful dream of Mata Vaishnu Devi; he feared she was reprimanding him for giving evidence in favor of a murderer. He did not do anything even after he returned to Delhi to make known his change of mind in this respect to anyone; about a year later he came forward with the version that what he had stated in his cross-examination was false. The request of the complainant to treat his evidence given in the court of the comirtitting Magistrate as evidence under section 288 Criminal Procedure Code . was rightly declined by the learned trial Judge. Even apart from this feature a number of reasons have been mentioned by the learned trial Judge for not acting on his testimoney to the extent he supported the prosecution. If this witness is to be believed he met the complainant at 4 p.m. on 4-4-1971 at the Hindu Bara Rao hospital and told him the whole story in the presence of Wazir Singh (P.W.4) If this were so the complainant would not have failed to mention both of them as eye witnesses, at least that of Arjan Dass in his earliest representation (Ex. Public Witness I/C). It was only in the next representation (Ex. Public Witness 1/D), sent by telegram to the Home Minister, that the name of this witness was referred to. It is passing strange that even though he was threatened even before he made the statement before D.W.17 he still supported the prosecution version in the enquiry by S.D.M. before the committing Magistrate and even during chief examination. Between the years 1964 and 1970 he was involved in several cases involving violence ranging between sections 325 and 302 Indian Penal Code . He had been arrested by the Policy a number of times. If inspire of such Police pressure being there before and after 23-3-1972 he could bring himself to support the prosecution version one fails to see why he supported the defense on 24-5-1972 and yet had qualms about it may be due to Mata Vaishnu Devi later. According to the complainant there was undue pressure on him because he was the only witness mentioned in the telegram of the 4th April, 1971. But it has also to be remembered that he was 'a tough person who would not even bend or break under pressure; the more important question is how if he yielded to police pressure to save himself he still chose to support the prosecution later. His version that he was dragged by three persons near the Nala was belied by the other witnesses. He would refer to the presence of Malkiat Singh at that time whereas Malkiat Singh would say that he had already left. Before Shri R. C. Sharma (D.W.17) he had mentioned the presence of Ram Kishan (P.W. 5) alone at the time of the alleged search and of no other witness. But before the committing court he had omitted to refer to Ram Kishan. Pertaining to one of the significant details of [he shooting by A. I in the manner alleged by the prosecution, he would have us believe that he forced the deceased to come to his shop while the deceased wanted to go to his own shop, a fact not mentioned by him either before the committing court or before Shri R. C. Sharma. This led to the catching hold of the deceased from his back. Even in this respect there was considerable improvement in an obvious effort to make it appear that by reason of catching hold of his neck the clothing went up over the back of the deceased, thus explaining the absence of any injury on the clothes when as alleged by the prosecution A.1 shot at his back. He was also one of those who went in a procession to the Lt. Governor's place. He was a neighbour whose shop was only at 4 or 5 shops away from the shop of the deceased.
(78) Wazir Singh (P.W.4) is yet another neighbour who had his house opposite the deceased's shop. He had come at about 1 p.m. on the scooter for taking his meals and this gave him the occasion to witness the occurrence. He narrated the whole incident to Mohan Lal the brother of the deceased; he also claims to have told the complainant on 5-4-1971 about A.I having fired 'two shouts' at the deceased's back and chest. Still it is surprising that for at least two months after the occurrence the complainant did not come forward with any statement of two shots having been fired. He was a prosecution witness in a C.B.I. inquiry, said to be at the instance of the deceased and his companions, against Shri Singhlu D.S.P. When his two sons were involved in two criminal cases the surety and personal bonds were attested by Mohan Lal the brother of the deceased (S.I. Bishan Dass D.W,7 proved the signatures of Mohan Lal on the personal bond Ex. D.W 7/A). If he had disclosed himself as an eye witness to the deceased's brother even at 2.30 p.m. Wazir Singh's name should have been mentioned as one of the eye witnesses in the representations of the complainant (Exs. Public Witness 1/G, C, D & H).
(79) Ram Kishan (P.W.5) another so called eye witness did net refer to the presence of Public Witness 4 at the place of occurrence. Despite the complainant admitting the signature of this witness in the representation (Exh- Public Witness 1/H) he attempted to deny his signature to it. His conduct also is somewhat strange. If he had witnessed the firing incident his natural impulse would have been to go to the house of the complainant or Mohan Lal situate at a distance of 15/16 paces rather than go in the direction of the Mall Road in the hope of finding Mohan Lal. His story that he tried to contact the S.D.M. (C.W.I) at 9 a.m. on 5th is also improbable since C.W.I had stayed at the spot for 45 minutes the previous night to ask the neighbouring shopkeepers if anybody had witnessed the occurrence. C.W.1 drew blank. Ram Kishan (P.W.5) was also a neighbouring shop_ owner (No. 41-A); he lived in the back portion. He had been intimate with the family of the deceased for at least 10 years. He would still have us believe that he did not inform any of the deceased's family members because of his impression that they might have come to know of the occurrence. After the occurrence he went home and even managed to sleep there till 3.30 p.m. Even though he had referred to the presence of Mohan Lal in his statement before D.W.17 he went to the extent of saying that it was not the brother of the deceased but a different person, his own sister's son; he could not, however, keep up this pretence for long because it was soon elicited from him that he had no sister, much less one who had a son of the name Mohan Lal. The criticism noticed about the others that if he had narrated all the facts to the complainant on 6-4-1971 it is surprising that his name was not mentioned in any of the representations applies to him also.
(80) Of these eye witnesses Arjan Dass, the only witness referred to in the telegram of 4th, stands self-condemned by reasons of his contradictory statements made on oath by him and it would be extremely unsafe to rely on any portion of his testimony. Wazir Singh (P.W. 4) had not referred to the other eye witnesses. Arjan Dass was confronted with his statement dated 23-5-1973 wherein the had not mentioned the name of Wazir Singh. Vinod Kumar (P.W. 2) was confronted with his preliminary statement (Ex. Public Witness 2/C) where he had not mentioned the name of Wazir Singh. Ram Kishan (P.W. 5) had in his statement before Shri R. C. Sharma (D.W. 17) not mentioned the name of Wazir Singh; he had been emphatic then that he himself, four Police men, the deceased, Vinod Kumar and Arjan Dass were present at the time shooting took place; Ex. Public Witness 5/A is that statement.
(81) The place from where A.1 is said to have shot, according to Vinod Kumar, was the Nala. Ex. C.W. 3/A is a plan drawn by Tirath Raj Singh (C.W. 3) bearing date 28-5-1971 showing the place from where A.I is said to have shot; the place has been marked as item 6 near the Nala (covered drain) and the distance from which the deceased was shot has been shown as 18 ft. Tirath Raj Singh was summoned by the prosecution but given up and later examined as Court Witness No. 3 and cross-examined by both sides. He visited the spot as per directions of the complainant; his brother Mohan Lal also met him once or twice after inspection of the spot. He had also prepared yet another plan (Ex. Public Witness 1/N) on 1-6-1971. He had specifically stated from the witness box that the distance shown between the place of firing and the victim was 18 ft.; he had also indicated in the plan (Ex. C.W. 3/A) only about one shot. But the complainant had asked C.W. 3 to prepare yet another plan on 1-6-1971 where for the first time it was shown that two shots were fired. The place from where the shot was fired by A.1 in the 'first' instance was marked in Ex. Public Witness 1/N as item 6 which itself was about 22 ft. from the place where the taxi was said to be. The 'second' shot was said to be fired from item marked as No. 9 and item No. 1 is the place where the deceased was when he was shot. The distance here is very much reduced. It is thus clear that the complainant had no scruple in the matter of manipulating the prosecution case in the manner he wished.
(82) The complainant had also admitted that he had consulted his counsel; Ex. Public Witness 1/G bearing date 6-4-1971 was prepared after his brother Mohan Lal had met their Advocate, Shri Bawa Gurcharan Singh; the complainant also had met the Advocate on 7-4-1971; Ex. Public Witness I/G was presented on 7th. The complainant admitted that the Memorandum and the applications to the Deputy Commissioner and the Lt. Governor the names of the witnesses were given after consulting their counsel. The version concerning the shooting in Ex. Public Witness 1/G was that A.1 slapped Vinod Kumar and retreating a few steps took out a pistol and shot the deceased at his chest causing serious injury. Even in this representation to the Deputy Commissioner there is no reference to two shots being fired. There is omission to refer to the presence of Ram Kishan (P.W. 5); there is reference to only neighbouring shopkeepers of having witnessed the murder. Public Witness 5 was no doubt a neighbouring shopkeeper but his name had not been specifically mentioned even in Ex. Public Witness 1/G which had been given after consulting a lawyer; on the other hand, there is reference to one Gulab Chand (not examined) as an eye witness to the occurrence.
(83) All the so-called eye witnesses had signed some of the representations but they had no scruple in. the matter of denying their signatures on the representations. These are the kind of persons who figured as eye witnesses in this case. On the other hand, the defense version finds support from the contemporaneous reports made by A.1 concerning the recoveries of opium and knife as well as about the commission of the offence under section 307 Indian Penal Code . etc. The learned counsel for the complainant stated that these records could have been written up by the Police Officers who had come together later but one cannot presume like that in the absence of anything sufficient to warrant such a conclusion. A criticism was leveled that the F.I.R. was not shown to Shri L. D. Gupta (C.W. 1) resulting in his mistakenly staling in his report that the shop of the deceased was searched by A.I. A further comment was made about the non-examination of Constable Kimti Lal who carried the ruqa and of Constable Sadhu Singh who was said to have joined A.1 and his party. The burden of proof being on the prosecution it fails on account of the prosecution evidence discussed above being so unsatisfactory and unacceptable.
(84) The learned counsel for the complainant urged that the complaint or the F.I.R. is not substantive evidence in the case; this is so. The further argument that the complainant not being an eye witness to the occurrence the evidence of the eye witnesses should not be critically examined in the light of his representations fails to appeal to us particularly when it has been brought out that the complainant despite his contrary assertions had met the so-called eye witnesses and had come to know of the details of the occurrence from them. When the eye witnesses admit that they had mentioned to the complainant and/or his brother Mohan Lal, the- details of the occurrence it is open to the legitimate comment that if what the eye witnesses now say is correct the complainant would not have failed to mention them in his earlier representations.
(85) A general comment was also made about the witnesses appearing without summons. It is no doubt true that D.W. 17 had made a public announcement inviting witnesses to come forward and make statements. The non-summoning of any witnesses at that stage may not be of much significance; but it would assume at least some significance in the case of the later hearings in court. But it seems even needless to rely on this rather slender circumstance when the evidence of the eye witnesses does not seem to be convincing or acceptable for other and weightier reasons.
(86) The defense; witnesses who spoke about the occurrence were D.W. 5 (Shiv Lochan Singh), D.W. 9, (Maman Singh) and D.W. 16 (Constable Beer Sen). As it was noticed already the learned trial Judge has not attached weight to that of Maman Singh on the ground that even though he gave a cogent account of the occurrence he was a stock witness of the prosecution; the learned trial judge has chosen to act on the evidence of D.Ws. 5 and 16 and we agree with his estimate of their evidence. D.W. 5 was a teacher in a school in Kingsway Camp. At the time of the occurrence he was going towards Novelty Cinema for tuition work which gave him the occasion to witness the occurrence. He supported the defense case concerning the manner in which A. I fired at the deceased. The suggestion to him, in cross-examination, was that A. 1, Shri Markandey Singh, S.P. Shri Nakul Sen, S.P. (North) and the then S.P C.I.D. (Crime) all belonged to U.P a suggestion which was denied. He did not receive any summons from D.W. 17 but appeared before him on 17-7-1971 after getting half a day's leave from his Principal. As already noticed D.W. 17 had issued a notification concerning the enquiry. By and large the cross-examination of this witness centered on whether he could have private tuition inspire of his being in a managed school; he said that he had taken the necessary permission. It is not uncommon for such teachers to have private tuition. He was able to give precise particulars, being an educated person. According to him the deceased was in a standing posture with half bent knees when he aimed a second barchha blow at A. 1; A. l's revolver was in the stanting position for he aimed at the thigh but because of the deceased bending his knees still further he was hit on the chest. The medical evidence concerning the wound on the chest being oblique significantly corroborates D.W. 5's 'evidence. D.W. 16 (Beer Sen) had remained with A. 1 and A. 2 throughout the period. They left the' Police Post, Krishna Nagar till they returned to the Police Post at 11 or 11.30 p.m. His name is specifically mentioned in the F.I.R. 205 laid under the Opium Act (vide Ex. Public Witness 14/D) as a member of the raiding party. It was this witness who carried the ruqa for registration of F.I.R. 207 (case under section 307 Indian Penal Code .). His name also appears in the Kingsway Camp Police Station daily diary entry (Ex. Public Witness 14/P) made at 2.30 p.m. that he had brought that F.I.R. (No. 207) sent by A. 1 and that S.H.O. Jatka had left for the place of occurrence for investigation in jeep No. Dle 4200. The learned trial Judge also referred to his presence having been admitted in the statement of Om Prakash (since dead) before D.W. 17, but this does not come under section 33 of the Evidence Act for reasons already discussed. D.W. 16 was also injured at the Hindu Rao Hospital at 3.45 p.m. at the time when A. 1 suffered a fracture at the nose (vide F.I.R. 323 of Police Station Sabzi Mandi). An injury statement was prepared and his name appears in the register of the hospital; he was directed to come turn further examination the next day and he was examined by Dr. Bharat Singh (P.W. 9). D.W. 16 who was no doubt examined only in the trial court, supported A. l's statement even in minor details. He also accompanied the deceased to the Hindu Rao Hospital. He referred to the doctor having applied two bandages on the chest and back wounds after applying medicines. He also referred to the revolver and the un-fired cartridges having been returned. The issue of ammunition and arms was noted only in the Malkhana register but not in the daily diary. So the same was the case when they were returned also. Not a single question was put to him about any entry having been made in the daily diary concerning such issue or return. This was the witness who was wearing a dhoti and a shirt. The evidence of the prosecution concerning the occurrence of shooting but also the search of A. I and party is utterly unworthy of belief. On the other hand, the defense version and the evidence in support of it discussed above appear to be acceptable.
(87) There was no entry made concerning A.2 in the daily diary of the injury on A.2 or his being sent to the hospital; our attention was however, drawn to a slip (Ex D.W. 11/A) sent to the Police Hospital in respect of A.2 on 4th itself and his having been asked to be present on 5th for being examined by Dr. Bharat Singh, who saw on that day a linear scratch over the posterior wall of left axilla on the medial side 1' long skin deep with redness around the scratch and corresponding injuries in the shirt and banyan which he was wearing. The injury could have been caused by a hard pointed object like the barchha or bhala (Ex. P.4); it could also be caused by nails of fingers and thumb, but the tearing of the shirt and banyan could not have been caused by nail; they could be caused later but cutting with a blade would cause close cut-edges and not those seen. The learned trial Judge has referred to A.2 having been posted on duty at the scene and his returning to the Police Station only in the evening and his being sent to the Police Hospital late that evening. Moreover, there was no reference to A.2 at all by the complainant at any anterior stage but he had no scruple in the matter of impleading A.2 in the private complaint after he had figured as a witness in the enquiry before D.W. 17.
(88) Reference was also made to the non-making of entries about the issue and return of revolver and bullets in the Daily Diary of the Police Station; such entries, however, had been made in respect of issue in the Malkhana register (Ex. Public Witness 2/A) and of their return in Ex. Public Witness 14/Z. The concerned entries were made by C.W. 2 (Amar Nath). The learned counsel for the complainant pointed out that issue and return of property had to be entered in the daily diary as per P.P.R. 22.7, 25.45 and 25.48, but issue and return of fire-arms and bullets are entered in the separate Malkhana register to be maintained for this purpose. Our attention was not drawn to any such entries, in other cases, in the daily diary; no question on this aspect seem to have been put to Constable Beer Sen (D.W.16) who said that no such entries are made in the daily diary. It may be enough that the entries in the Malkhana register do not contradict the defense case of only one bullet having been fired by A.1. The criticism of not making entries in the daily diary concerning the issue and return of the revolver and bullets does not seem legitimate. Though we have referred to this aspect, of the issue and return of fire-arms and bullets, as tallying with the defense case, in the view, that it would not be impossible to' make these entries in a self-supporting manner, there may not be much need to stress this aspect unduly in the light of the above discussion.
(89) The prosecution case is thus seen to be in a shambles.
(90) Before we take leave of this case the public interest compels us to make some observations. Whenever a police officer shoots a citizen it calls for prompt, careful and unbiased investigation. The faith of the citizen in the rule of law, which is so necessary for maintaining order, should not be allowed to be shaken, as it indeed would be, on such occasions by the whole matter not being carefully and thoroughly examined by those who carry credibility with the public both for their impartiality and ability.
(91) The Ilaqa Sub-Divisional Magistrate (C.W. 1) had been asked by the Deputy Commissioner to make an enquiry and complete it quickly, but he had not even been told whether he was to make an enquiry under P.P.R. 16.38(1) or under section 176 of the old . Cr.P.C. Many of the unsatisfactory features which inevitably stem from such an unsatisfactory step were the subject of sharp criticism by the learned counsel for the complainant. Non-examination of A. I, or even of the complainant (even if he had offered himself for examination.) soon after the occurrence is understandable in the circumstances. What is passing strange is that in his report [Ex. C. W. (C)] he had even referred to opium being recovered from Vinod Kumar at the shop of the deceased, which he later explained as what he had heard on the telephone from the Sdpo Kingsway Camp. The learned Additional Sessions Judge rightly discarded the prosecution version of opium not having been recovered from Vinod Kumar. The version given by (even their presence) Public Witness s 10 to 12 and 18 regarding the search by A.1 of the shop had been rightly disbelieved by the learned trial Judge. The F.I.Rs concerning the recovery and knife from Vinod Kumar (Exs. Public Witness 14/O&E;) had been registered in the police station even at 1.30 p.m. and 1.35 p.m., respectively (vide Exs. Public Witness - 14/A and B); there is specific reference to them in C.W.1's report (Ex. C.W. 1/O. The case under the Opium Act gives all the details concerning the seizing of the opium as it is now mentioned by the defense; obviously the report concerning it in Ex. C. W. 1/C was inaccurate. These defects notwithstanding the case of the prosecution as put forward that two shots were fired by A. 1 on the back and front of the deceased has been seen to be false. But such unsatisfactory features should not be present.
(92) It also seems necessary to draw the attention of the doctors for bestowing their utmost care and expertise in the matter of conducting medico-legal examination. Once there is any shortcoming in this respect it could add furry to the flames; it might make even possible all kinds of attacks and theories based on no more than the results of incohate scrutiny. It becomes onerous, then, for those who have to ultimately deal with such a situation. Our labours in this case and nearly half the time we have spent on this case (as it seems to us, by hindsight, needlessly) may well have been avoided if better attention had been paid by those doctors conducting the medical examination in the first instance and even by the one who conducted autopsy later. Fortunately we have been able to come to a conclusion, which seems to us to be the only possible one in this case, by taking an overall view not only of the medical features but also of other facts. The complainant, fortunately for the accused, manifestly took a course which only suited his avowed purpose of depriving the first accused, in any case, of,the right of private defense. The dice, commonly enough in such situations, is heavily loaded against the official concerned. The administration has provided A.I with legal help in this Court after the learned trial Judge made some observations; at the trial he was not given assistance but was given assistance at the anterior stage of the inquiry by the Magistrate (D.W. 17). With or without such assistance A. 1 has had to undergo this ordeal for nearly five years; this could be neither described nor adequately compensated. While one could legitimately look out for official excesses one could not make any such presumption against him. The considerations on both sides of the line have to be delicately poised and an anxious search made to find out the truth. This highly delicate and complicated task can easily become unmanageable if the kind of attention that does not meet with the needed sensitivity of such a demanding situation is alone bestowed. An official, who has to expose himself even to the risk of losing his life while discharging his official duties, is also entitled to such protection as the law gives him; denying it to him would make it difficult for him even to function. We can only hope that this case will bring home to all the concerned authorities the duty of care and sensitivity they owe in such a case.
(93) THEappeal is dismissed.