K.D. Sharma, J.
1. D.B. Criminal Appeal No. 245/79 filed by Bholasingh and Balbirsingh, D.B. Criminal Jail appeal No. 246/79 preferred by Bholasingh and D.B. Criminal Jail Appeal No. 247/79 filed by Balbirsingh are directed against one and the same judgment of the learned Additional Sessions Judge No. 2, Hanumangarh whereby Bholasingh and Balbirsingh appellants were convicted under Section 302 IPC and each of them was sentenced to death subject to confirmation thereof by the High Court. The Additional Sessions Judge No. 2, Hanumangarh also has submitted the proceedings before us for confirmation of the sentences of death awarded by him to both the aforesaid appellants. This reference is D.B. Criminal Murder Reference No. 1 of 1979 The State of Rajasthan v. Balbirsingh and Anr. As the murder reference and the three appeals arise out of one and the same judgment of the learned Additional Sessions Judge No. 2 Hanumangarh and as common questions of Jaw and fact do arise for consideration in all of them, they are disposed of together by our one judgment.
2. The prosecution story runs as follows : In the night intervening 25th and 26th June, 1977, Meetsingh and his son Bhagwansingh deceased were sleeping on their cots outside their house Gurdeep Kaur wife of Bhagwan Singh deceased was sleeping with-her mother-in-law Punjab Kaur deceased in the court yard inside the house, Both the appellants, namely. Bholasingh and Balbixsingh who had gone to sleep on the cots in the court-yard inside the house at some distance from the cots of Gurdeep Kaur and her mother-in-law. Some time before 3 or 3.30 A.M. Gurdeep Kaur aroused from sleep when her husband's brother Balbirsing appellant struck a 'kassi' blow on the body of he mother-in-law Punjab Kaur. She saw Bholasingh appellant also striking a blow on the body of Punjab Kaur with a 'gandasi'. She tried to rescue her mother-in law bit Balbirsingh appellant pushed her aside she claimed to have seen her father-in-law Meet Singh and her husband Bhagwansingh also being murdered by both the appellants with the weapons in their hand, Gurdeep Kaur raised an outcry which attracted Bhagwan Kaur to the place of occurrence. At the sight of Bhagwart Kaur both the appellants ran away from there, On hearing her cries Angrej Lumberdar and Karatra Ram Sikh came there and ran after the appellants but they could not overtake and apprehend them Kartara Ram then rushed to the house of Suja along with Balvir, Bhima and Angrej Lumberdar informed him about the three murders Suja came to the spot and was informed by Gurdeep Kaur that the two appellants had killed Meet Singh, Bhagawnsingh and Punjab Kaur with 'kassi' and 'gandasa'. Then Surja accompanied by one Nathu rushed to the field of Gurdeosingh PW 5 and informed him about three murders committed by the appellants. Upon receiving the above information Gurdeo Singh left, his field and hurriedly rime to the place of the incident. He saw Meetsingh, Bhagwansingh and Punjab Ksur lying dead on their cots having multiple injuries en their bodies. Gurdeosingh saw Gurdeep Kaur weeping by the side of the dead bodies. She related the whole of the incident to Gusdeosingh PW5 who then rushed to the Police Station Sangaria making a first information report of the incident to the police. Gurdeo Singh reached the Police Station at 6 A.M. the very day and lodged a verbal report of the occurrence with Sitaram Incharge Police Station Sangaria The report is Ex. P.1 In the report it was further alleged that the motive on the part of the appellant to commit three murders was that Balbirsingh appellant wanted 15 Bighas of land in excess of his share from his father Meet Singh deceased while the latter had given him his due share i.e. 10 Bighas of land only upon partition that took place a few days prior to the occurrence. On the basis of the report, Sitaram registered a criminal case under Section 302 IPC & took up the usual Investigation into the matter.
3. He went to the spot and prepared a site inspection memo and a site plan. He noticed blood stains on the 'kacha' wall of Kishnaram near the cots of Meet Singh and Bhagwansingh deceased, He scrapped the blood and took it into his possession along with the blood stained earth lying near the cots. He found that the beddings lying on the rots of the three deceased were stained with blood. He took the beddings into his possession. Then he called for Dr. Roop Singh, Medical Officer Incharge R.G.P. Dispensary Hanumangarh Junction to perform post mortem examination over the dead bodies. Dr. Roop Singh examined the dead' bodies at the spot on 26th June, 1976. Upon post mortem examination over the dead body of Meet Singh he found the following external injuries:
(1) Incised wound 8' x 1' x 3' from left chin to left side neck cutting the lower jaw.
(2) Four incised wounds 6' x 1' to 7' x 1' in length and breadth & 2 ' deep cutting all the structures on the left side neck, trachea and curvical vertebrae into chips by sharp cuts as shown by fractured and margins of bone.
On dissection, skull was healthy, 3rd, 4th & 5th vertebrae was cut into chips by transverse cuts along the neck wounds. Spinal certical chord was also cut into pieces. Both sides of heart were empty. Stomach contained some digested food and gas. Small intestines contained digested food and gas Large intestines contained faecal material Month, pharyax and oesophages were cut in the region of respective injuries and contained clotted blood. Cause of death in doctor's opinion was due to spinal injuries in the neck region with shock and haemorrhage due to sharp weapon injuries. All the injuries were ante mortem and were sufficient to cause death in ordinary course of nature. Time between cost mortem and death was about 12 hours. There was cut mark on the shirt in the neck region on the left side.
4. The doctor conducted an autopsy on the dead body on Bhagwan Singh son of Meet Singh also. Upon examination he found the following external injuries on his body:
(1) One incised wound 3' x 1 ' x 2' just below the right ear. 3' x ' bone deep on the right occipital region transverse in direction.
(2) One incised wound 4' x 1 ' x 2 ' just below the right ear enterio-posterior in direction
(3) One incised wound 3' x ' x 1 ' just below the right mandibular region right side neck antere-posterior in direction.
(4) One incised wound 3 ' x 1' right side neck just below the Injury No. 3 and is 2' deep.
(5) One incised wound 2 'x 3/4' x 1 ' right side neck middle part lateral aspect and anterio-posterior in direction.
On dissection there was extravasation of blood in the region of injury No. 1 with cut fracture of occipital bone along the wound. Membranes were cut along the wound and there was haemorrhage inside. There was extravasation of blood in the occipital brain tissues with cut 2' x 1/4' x 3/4'. Both sides of hearts were empty. Large neck vessels i.e. carctiod arteries and veins were cat in the region of neck wounds. Stomach contained slight mucus and remains of some digested food. Small intestine contained digested food and gas. Large intestine contained faecal matter and gas. All the neck muscles on the right side neck were cut leaving aside the posterior ones. There were cut marks on the third fifth and sixth curvical vertebraa on the arch right side. In my opinion death was due to sharp edged injuries on the skull and neck causing extensive injuries to brain haemorrhage and shock. All the injuries were ante mortem and were sufficient to cause death in ordinary course of nature.
5. The same day he performed the post mortem examination on the dead body of Punjab Kaur also and found the following external injuries;
(1) One incised wound 7' x ' x 3' wide and 3' deep just from 1' leteral to left eye-socket to left occipital region cutting the left ear pinna and the external auditory canal
(2) One incised wound 1' x 1/4' x 1' just below the left mandible.
(3) One incised wound 4' x 15' x 1' just below the left mandible. On the right side neck transverse in direction in upper of neck.
(4) There was one linear cut between injuries Nos. 2 and 3 joining these two injuries. Injuries Nos. 2, 3 and 4 are in one straight line and are caused by one below.
(5) One incised wound 4' x 3/4' x 1 ' between injuries Nos. 1 and 3.
All the injuries i.e. 1 and 2 to 4 and 5 were practically parallel to each other and the ends and edges were sharp On internal examination there was extravasation of blood in the region of injuries No. 1 and 4 with fracture. The membranes were cut in the region of injury No. 1 throughout its length. The third cervical vertebrae was cut transversely from behind forwards on the left side exposing the cord which was also half cut. Both sides of lung had extensive cavilation, casiation and fibrosis in the upper and middle part with additions to parietal wall Pleurae had multiple extensive addition on both sides. But sides of heart were empty stomach contained practically digested food material in small quantity Snail intestines contained digested food material and gas Large intestines contained faecal matter and gas. Clause of death in the opinion of the doctor was due to extensive injuries on the skull and neck by sharp weapon leading to extensive damage to brain and spinal cord. There was cut wound 6' x ' x 2' in the left temporal and occipital lobe. All the wounds were ante mortem and were sufficient to cause death in ordinary course of nature.
6. The time between post mortem examination and the death of the three deceased was within 12 hours. In the opinion of the Doctor in all the three persons death should have been intantaneous after the inflection of the injuries The doctor further opined that the injuries found on the three dead bodies could be caused by 'kassi' Article 1 and gandasa' Article 2 which were town to him in the Court After the post mortem examination on the dead bodies was over Sitai am PW 11 took the blood stained clothes of the three deceased into his possession in the presence of motbirs. He then arrested Balbirisingh and Bholasingh appellants vide memoes of arrest Ex. 31A and Ex. 32A respectively. After his arrest Balbirsingh appellant, while in the Police custody, furnished an information to Sitaram on 29th June, 1976 that he had concealed one 'kassi' under the heap of sticks lying in his field Rohiliwala and that he was prepared to got it recovered at his instance. Sita Ram recorded the above information in Ex. P 33A and recovered the Kassi from the field mentioned above at the instance of Balbjrsingh appellant and in consequence of his information. Vide memo Ex. P 33 Balbeersingh also got recovered one Khadar shirt from his house. He seized Kissi and shirt in presence of Motbirs. Bholasingsh appellant also gave him an information which led to the discovery of one blood stained 'gandasa' which was lying concealed under a jemon tree. This recovery was made at, the instance of Bholasingh appellant. Bholasingh gave another information in consequence of which a 'khakhi' shirt having stains of blood on it was recovered from inside a heap of bushes growing near a Nala flowing towards the north side of Maman canal. The Khaki shirt also was scaled properly in the presence of the motbirs. Sitaram then collected other necessary evidence in the case and eventually filed a charge sheet against both the appellants under Section 302 IPC in the Court of Judicial Magistrate Hanumangarh. The learned Magistrate upon finding a prima facie case exclusively triable by the Court of Sessions committed both the appellants to the Court of Additional Sessions-Judge Hanumangarh for trial on the aforesaid offence. The learned Additional Sessions Judge tried both the appellant for the defence of murder and found them guilty thereof and sentenced tent to death Aggrieved by their conviction and sentence the appellants have preferred these appeals and the Additional Sessions Judge has submitted proceedings for confirmation of the death sentence pasted by him.
7. We have carefully perused the record and heard Mr. Than Chand Mehta, learned Counsel for the appellants and Mr. D.S. Shishodia, Public Prosecutor assisted by Mr. Bhagwati Prasad, learned Counsel for the complainant.
8. The first contention put forward by Mr. Than Chand Mehta, learned Counselor the appellants, is that the testimony of a single eyewitness, namely, Mst. Gurdeep Kaur PW 1, in this case, does not spite condense as she has been demonstrated to have been an untruthful witness. It was further urged that it is unsafe to sustain the conviction of the appellants for the offence of murder on the evidence of this witness alone as be evidence given by her is which unreliable and untrustworthy and as it finds no corroboration from independent source. In support of his above contention Mr. Than Chand Mehta relied upon the following authorities : (1) 1976 CAR CSC 46 Karunokaran v. State of Tomil Nadu, (2) 1955 RLW 60 Kartar Singh v. The State, (3) AIR 1973 SC 2622 Shivoji v. State of Maharashtra para 19 at page 2634.
Mr. D.S. Shishodia, Public Prosecutor, on the other hand strenuously urged that the evidence of the single eye-witness in this case is of sterling worth and there is no legal impediment to the conviction of the appellants on such evidence specially when it stands corrobarated by other independent evidence which unmistakeably points to the guilt or the appellants.
9. We have given our best consideration to the above contentions. As a general rule the evidence of a single eye-witness to the occurrence may be acted upon in convicting the accused though uncorroborated if there is re speck of doubt in the mind of the Court relating to that testimony. It is not the quantity of evidence but the quality that weighs with the Court. No invariable rule can be led down as to how many witnesses would be sufficient for the purpose of convicting the accused in a particular case. The evidence of a solitary eye-witness no doubt must be tested and weighed with care and caution and if it satisfies the conscience of the Court as to the guilt of the accused person, it is permissible to base a conviction on it even in a murder case. Reliance in this connection may be made to an authority of the Supreme Court Ramratan v. State of Rajasthan reported in AIR 1962 SC 424 wherein the following observations were made by their Lordships on this relevant point at page 428 para 10. The observations are quoted below in extenso:
In the present case Jawanaram is neither an accomplice nor anything analogous to an accomplice he is an ordinary witness who was undoubtedly present at the came the incident took place The case of such a solitary witness was considered by this Court in Vadivelu Thevar v. Stale of Madras 1957 SCR 981 : AIR 1957 SC 614, & after referring to the earlier case it was held that as a general rule a court may act on the testimony of a single witness though uncorroborated. It was further held that unless corroboration is insisted upon by state, courts should riot insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, and that question whether corroboration of the testimony of a single witness was or was not necessary must depend upon facts and circumstances of each case.
Hence in our opinion the appellants could legally be convicted on the basis or the evidence of the solitary eye-witness Gurdeep Kaur, but the pertinent question that arises for consideration is whether it was permissible and safe to do so in the particular circumstances of this case
10. Gurdeep Kaur PW1 stated in her deposition at the trial that in the night when occurrence took place she was sleeping on a cot by the side of cot of her mother-in-law Punjab Kaur deceased. She was roused from sleep when her husband's brother Balbirsingh appellant dealt a blow with a Kassi on the body of her mother-in-law who was sleeping on the cot by her side. Then she saw Bhola Singh appelant also striking a blow on the body of her mother-in-law with Gandasa. She treed to rescue her mother-in-law Punjab Kaur but Balbirsingh appellant pushed her aside. She also claimed to have seen her father-in-law Meet Singh and her husband Bhagwansingh being murdered but the two appellants with Kassi and Gandasa She raised an alarm which attracted her husband's elder brother's wife Bhagwan Kaur to the place of occurrence According to her version, the three murders were committed by the two appellants because of a quarrel that ensued between them and their father Meetsingh over partition of the joint property including agricultural land The evidence given by Gurdeep Kaur has been assailed on several grounds by Mr. Than Chand, learned Counsel for the appellants The first attack made on her testimony is that the offence was committed during the hours of darkness, & owing to the absence of light she could not have seen the faces of the culprits. It is no doubt true that the night was dark when the crime was alleged to have been committed. Mst Gurdeep Kaur, however claimed to hive seen the perpetrators of the crime in the light of an electric bulb which was fitted on a pole out side the gate of her house in which the murders were committed. Hence the question whether there was any source that light is a matter of crucial importance. Mr. Than Chand Mehta contended before us that no source of light was mentioned in the first information report which was lodged by Gurdeosingh after consultation with Gurdeep Kaur PW 1. Apart from this, he further urged that the Investigating Officer did not make a mention in the site inspection memo or the site plan that an electric bulb hang on a pole out side the house of Gurdeep Kaur and that no such bulb was pointed out or shown to the investigating agency at the time of site inspection. In this context he referred us to the statement of Sitaran ASI PW 11 who categorically denied in his cross-examination that Gurdeep Kaur had pointed out or show to him any electric bulb out side her house Sitaram further admitted that there was no electric light in the house on Gurdeep Kaur wherein murders were committed Hence the argument of Mr. Than China Mehta that owing to the absence of light Gurdeep Kaur could not see the perpetrators of the crime finds favour with us. If there had been light of electric bulb prevailing in the courtyard of the house wherein murders were committed, this source of light no doubt would have been 'certainly' mentioned in the first information report-Omission from the FIR of this alleged source of light is of material significance specially when no such existing source of it was mentioned in the site inspection memo and in the site plan even by the investigating officer. Consequently we have no hesitation in holding that there was no source of light in tee court are to enable Gurdeep Kaur to see the faces of the culprits at the time when they were striding blows on the body of Punjab Kaur with sharp edged weapons.
11. There is another circumstance which throws considerable doubt on the evidence of Gurdeep Kaur PW 1 relating to identification of the assailants. Before reliance can be placed on the testimony of an identifier like Gurdeep Kaur PW 1 we must satisfy ourselves as to the condition of her eyesight. There would have been no difficulty at all if the eye-sight of Gurdeep Kaur was alleged to be normal at that time. But if, her vision is found to be dim, her claim to have seen the faces of the assailant becomes highly doubtful specially in the absence of light or adequate light. Gurdeep Kaur herself admitted in her cross-examination that in those days she was pregnant and that during pregnancy she became night blind. Her admission on this point is quoted below in her own words:
xqMh tc gksus okyh Fkh rks eq>s jkrhUnk gksrk Fkk] yM+dh esjh dRy ds ckn gqbZ Fkh A jkrhUnk es jkr es de fn[kus yxrk gS A ,d nks fnu dk cPpk gks tkrk gS rks eq>s fn[kus yx tkrk gS A
Hence her claim that she marked the features of the perpetrators of, the crime is highly doubtful because she was admittedly night-blind, owing to pregnancy.
12. Apart from this, the evidence of Gurdeep Kaur suffers from other glaring serious infirmities. She has been demonstrated to have been an untruthful witness. The first infirmity in her testimony is that she falsely claimed to have seen the two appellants committing the murders of her father-in-law Meetsingh and her husband Bhagwansingh also with sharp edged weapon inspite of the fact that she was roused from sleep only when Balbirsingh appellant bad struck a blow on the body of her mother-in-law Punjab Kaur with Kassi. It is not disputed before us by either part, that the murders of Meetsingh and Bhagwansingh were commixed prior to the murder of Punjab Kaur Gurdeep Kaur herself stated in her deposition that after causing fatal injuries to her mother in-law both the appellants ran away when she raised an alarm. From her evidence it is established beyond doubt that after injuries were caused to Punjab Kaur the assailants did not make an assualt on Meetsingh and his son Bhagwansingh. In these circumstances it is difficult to understand how Gurdeeo Kaur could, see the two appellants striking fatal blows with sharp edged weapon on the bodies of Meetsingh and Bhagwansingh deceased, who were sleeping on their cots out side the house in which Gurdeep Kaur and Punjab Kaur were sleeping in the open courtyard thereof specially when Gurdeep Kaur was admittedly roused from sleep, when her mother-in-law was hit with a Kassi by Balbirsingh appellant She has definitely told a lie because in her statement Ex P, 1 before the Police she did not state that she had seen both the appellants striking blows on the necks and fees of her father-in-law, her husband and her mother-in law with Kassi and Gandasa. She was confronted with her Police statement Ex. P 1 but when confronted with, she merely stated that these facts were stated by her before the police, but the Police might not have recorded them in her statement, la her statement before the Police she did not even State that she had seen Bbola Singh appellant striking a blow or blows on the body of Punjab Kaur. The trial Judge also found that his part of her evidence is false. Hence the claim of Gurdeep Kaur that she saw the appellants striding blows on the neck and faces of the three deceased with Kassi and Gandasa becomes highly doubtful, for reasons mentioned above.
13. There is another infirmity in her evidence which creates a speck of doubt in our mind relating to the veracity of her testimony. The infirmity is that Mt. Gurdeep Kaur PW 1 seated in her deposition that in the night of occurrence two appellants also were sleeping on their cots in the same courtyard at some distance from her and her mother-in-law Punjab Kaur deceased and that when the ran away after committing the murders their beddings on the cots were there which were taken into possession by the Police. This fact does not find corroboration, from the evidence of Sitaram Investigating Officer who categorically denied that there were beddings on the two cols marked D and E in site plan' Ex. P 296. In the site plan the cots at places marked D and E were shown to be of Bholasingh and Balbirsingh appellants respectively. From the evidence of Sitaram it does not appear that he had taken the beddings of these two cots in his possession as alleged by Gurdeep Kaur. Hence the evidence of Gurdeep Kaur that the two appellants were sleeping near her and her mother-in-law in the night when occurrence took place is not believable because if they had been sleeping in the same court-yard on cots at places marked D and E, the Investigating Officer would have surely found beddings on them and-would have taken the beddings into his possession at the time of site inspection. There is another circumstance which throws considerable doubt on the evidence of Gurdeep Kaur on this point. The circumstance is that Gurdeep Kaur stated in her cross-examination that there were beddings on the cots of her husband's elder brother Balbirsingh and his wife and on the cot of Bholasingh appellant and the beddings were taken away by the Police. If this statement is true then there must have been three cots one of Rajashtan, another of his wife and the third one of his on Bholasingh. But curiously enough, two tots marked at places D and E only were, found in the court-yard' by the Investigating Officer at the time of site inspection having no, beddings on them. No other witness has come forward to say that the two appellants slept on the night of occurrence in the court-yard of the house of Meetsingh deceased. In this manner Gurdeep Kaur has been demonstrated to have been an untruthful witness.
14. Mr. D.S. Shishodia, Public Prosecutor vehemently contended before us that the evidence of Gurdeep Kaur at the trial, is consistent through out and deserves to be believed as she disclosed orally to several, persons at or about the time when the occurrence took place that she had seen, both the appellants, committing the three murders The above contention has no force as it is not borne out from the record. It is no doubt true that the testimony of witness, in Court about same fact can be corroborated under Section 157 of the Evidence? Act by any, former statement made by him or her relating to the same fact but in the, present case there is no reliable evidence on the record that, Gurdeep Kaur PW 1 had disclosed the identity of the perpetrators of the crime to some persons at or about the time when the occurrence took place. The first person, acceding, to Gurdeep Kaur PW 1 who reached the place of occurrence on hearing her alarm was Bhagwan Kaur but for reasons best known to the prosecution Bhagwan Kaur has not been examined as a witness in this case from the side of the prosecution. She would have been the best person to say that Gurdeep Kaur had disclosed the identity of the assailants to her at or about the time when the occurrence took place. The other persons according to Gutdeep Kaur who came to the place of occurrence were Angrej and Kartararam. Angrej also has not been examined by the prosecution. Kartararam no doubt appeared in the witness box from the side of the prosecution. His evidence in the trial court was that at about 2.30 or 3 A.M. on the day of occurrence he was sleeping on a 'choki' at her house. In the night he heard outcries of Gurdeep Kaur wife of Bhagwan singh deceased. She was crying mare-re-mare-re. Upon hearing the cries he got up & saw the two appellants running towards the way having Gandasa and Kassi in their hands. Then Gurdeep Kaur wife of Bhagwan Singh told him that three murders had been committed and Meetsingh, Bagawansingh and Punjab Kaur had been killed He claimed to have run after the two appellants along with Angrej According to his version Bholasingh appellant while running left his shoe of right foot in front of the house of Mangla & the other shoe of his left foot was left by him in front of the shop of Birju Mahajan Kartraram PW 3 did not say in his deposition at the trial that Gurdeep Kaur had disclosed to him the names of the perpetrators of the crimes of murder at that time when he met her soon after the occurrence. According to his version, Gurdeep Kaur merely told him that three murders of Meet Singh, Bhagwansingh and Punjab Kaur had been committed in her house. Hence from the evidence of Kartara Ram PW3 it is not borne out that the names of the two appellants as perpetrators of the crime of murder were disclosed to him by Gurdeep Kaur soon after the occurrence. As regards the claim of Kartara Ram that he saw both the appellants running with sharp edged weapons in their hands and that he along with Angrej ran after them for some distance, it may be observed that such claim is highly doubtful. Kartara Ram admitted in his cross examination that the two appellants were running fact and that he saw their backs only while they were running. It is highly unbelievable that Kartaiaram recognised the two appellants by seeing their backs in a dark night specially when there was no source of light to enable him to identify them. There is another circumstance which throws considerable doubt on this part of the story narrated by Kartararam. The circumstance is that in the first information report it was not mentioned that Kartararam and Angrej had run after the appellants, although this fact was alleged to have been disclosed by Kartararam to Gurdeo Singh. Apart from this there is no evidence on the record that the shoes (Jootion) found by the Investigating officer laing in front of the house of Mangla and Birju Mahajan belonged to Bholasingh appellant. The prosecution could lead evidence to show that the two shoes fitted well in the right and left feet of Bhola Singh or that they belonged to him or he used to wear them prior to the occurrence Consequently we do not feel inclined to attach any importance to the evidence of Kartararam PW 3.
15. Another witness relied upon by the prosecution is Surja Ram PW 2. The evidence of Surjaram PW2 in the trial court was that at about 3 or 3.30 A.M in the night Balbir Singh Bhoora, Kartar and Angrej came to his house and Gurdeep Kaur also raised an alarm that Balbir Singh appellant and his son had killed Meet Singh, his wife and his son. Then he went to the house of Gurdeep Kaur and saw Meetsingh, his wife and son lying murdered on their cots. Gurdeep Kaur at that time was telling that Balbirsingh appellant had a Kassi in his hand while his son was armed with a Gandasa and that both of them murdered his husband, his father-in-law and mother-in law. Gurdeep Kaur further disclosed that Kartararam and Angrej had run after the two appellants. The evidence of Surjaram PW 2 is unworthy of credence because it was Kartara Ram who went to him and informed him about the three murders. His statement that he went to the house of Gurdeep Kaur after hearing her cries that the two appellants had murdered her in laws & husband appears to be false because he admitted in his cross-examination that he might not have stated before the Police that Gurdeep Kaur had raised an outcry from her Gwara. He further admitted that in his statement before the Police he night not have stated that he was informed by Gurdeep Kaur that Kartararam and Angrej had run after the assailants. As stated earlier the first person who ran to the place of occurrence was Kartara Ram PW 3 He did net state in his deposition that the name of the two appellants were disclosed to him by Gurdeep Kaur after the occurrence. There is no doubt that Surjaram did not go to the house of Gurdeep Kaur soon after the miscreants had run away, but he reached there later on when he was Informed at his house by Kartara Ram. Hence if any such statement as deposed to by Surja Ram was made to the latter by Gurdeep Kaur, it could not be said to have been made at or about the time when occurrence took place or at least shortly after when a reasonable opportunity for making it presented itself. The previous statement regarding identity of the culprits it was not made by Gurdeep Kaur as early as could reasonably be expected in the circumstances of the case and before there was opportunity for concoction, and so it cannot be admitted under Section 157 of the Evidence Act to corroborate the evidence given by her subsequently in the trial court relating to that fact.
16. Likewise the evidence of Gurdeo Singh PW 5 that he was informed by Gurdeep Kaur that when she was roused from sleep she saw Balbirsingh and his son Bhola Singh striking blows on the body of Punjab Kaur with Kassi and Gandasa respectively, cannot be believed and relied upon because his evidence is not supported by the testimony of Kartararam on this point. Gurdeo Singh stated in his examination-in-chief that when he reached the house of Meet Singh deceased along with Nathu and Surta, he found Angrej Lumberdar, Kartararam, Bhoora Godara Surjaram Atmaram Choudhary, Balbirsingh and Gurdeep Kaur present there, & then Gurdeep Kaur disclosed to him that she saw Balbirsingh and Bholasingh appellants killing Punjab Kaur and when she tried to save Punjab Kaur she was pushed a side by Balbir Singh as a result of which she fell down. If the aforesaid facts were disclosed by Gurdeep Kaur to Gurdeo Singh in the presence of Kartararam, PW 3, the latter (Kartararam) would have surely corroborated Gurdeo Singh or Gurdeep Kaur, in these material particulars. Kartara Ram on the other hard did not say a word in his deposition that Gurdeo Singh was informed by Gurdeep Kaur in his presence that the two appellants were seen by her killing Punjab Kaur and that she tried to save Punjab Kaur but she was pushed aside by Balbir Singh and she fell down as result of the push Surjaram PW 2 also did not say in his statement at the trial that such a disclosure was made by Gurdeep Kaur to Gurdeo Singh in his presence. Hence upon careful review of the entire evidence we have no reluctance in holding that Gurdeep Kaur did not disclose to any person as early as could reasonably be expected in the circumstances of this case that she had seen the two appellants committing the murders of Meet Singh Bhagwan Singh and Punjab Kaur with sharp edged weapons like Kassi and Gandasa. Hence we therefore feel presuaded to hold for reasons mentioned above that the evidence of solitarv eyewitness Gurdeep Kaur was wholly unreliable and no conviction could be based on such a highly untrustworthy testimony.
17. The other pieces of evidence relied upon by the prosecution are recoveries of Kassi and Gandasa at the instance of Balbirsingh and Bholasingh appellants respectively and in consequence of their informations which were recorded by Sitaram PW 11 under The Kassi and the Gandasa were sent to the Director State Forensic Science Jaipur who after finding them stained with blood forwarded them to the Serologist and Chemical Examiner Calcutta for serological examination. The Serologist found both the articles stained with human blood. The prosecution further led evidence to prove that Balbirsingh appellant while in the Police custody gave Sitaram, Investigating Officer, an information which led to the recovery of a shirt from residential room (Kotha) at his instance. The shirt was lying concealed behind a box inside the Kota. This shirt also was found started with blood by the Director State forensic Science Jaipur. The Serologist found this shirt also stained with human blood. Mr. Thanchand Mehta. assailed the recoveries of the armies on the ground that they were not recovered from any hidden place as the Investigating Agency could easily come by then without any initiative from the appellants The above contention is devoid of substance, because there is reliable evidence of Sita Ram Investigating Officer that these articles were lying concealed in different places and he could not come by them without any initiative from the appellant Sitaram stated on oath in the trial court that he arrested Balbirsingh and Bholasingh appellants vide memoes of arrest Ex. P31 A and Ex. 32A respectively on 27th June, 1976. After his arrest, Balbirsingh appellant gave him an information on 29th June, 1976 that he had concealed one Kassi under the heap of Bansathias in his field Rohiliwala and that he was prepared to get them recovered at his instance. The above information was recorded by Sitaram in a memo Ex. P 33A The Kassi was then recovered from the place mentioned above at the instance of the appellant Balbirsingh and in pursuance of his above information vide memo of recovery Ex P.33A in the presence of Baisakhasingh & Karnailsingh Motbirs. Bainsakhsingh was examined at the trial by the prosecution to proved this recovery. He is PW 8 He corroborated the evidence of Sitaram by staling that Balbirsingh while in the Police custody got one Kassi recovered from the heap of Bansathies lying in his field and the Kassi after recovery was wrapped in a piece of cloth and sealed properly by the Police in his presence Likewise it is proved by the evidence of Jaipal Singh PW 10 that Balbir Singh while in the police custody gave an information Ex. P 33 which led to the discovery of blood stained shirt from the appellants home wherein it was lying behind a box. As stated earlier that shirt also was found stained with human blood by the Serologist upon analysis. There is further evidence of Sitaram that after his arrest Bholasingh appellant also gave him an information that he had concealed OLC Gandasa under a lemon tree which is standing in his field and had hidden one Khakhi shirt inside a heap of bushes growing near a Nala flowing towards the north side of Maman canal Sitaram recorded the above information in a memo Ex. P.33 and recovered these articles from the places mentioned above at the instance of Bhola Singh appellant ad in pursuance of his above information in the presence of Baisakasingh and Beer Singh Motbirs. Baisakhasingh PW 8 proved the recovery of Gandasa from Under the lemon tree at the instance of Bhola Singh appellant white Beer Singh testified to the fact that a shut was recovered in his presence from the heap of bushes near a Nala towards the north side of Maman canal at the instance of Bhola Singh appellant. It is farther proved by the evidence off Sitaram Ex. P. 11, Jaipal Singh PW 10 and the Motbirs that the articles so recovered were properly sealed in their presence. Hence the prosecution has succeeded in proving that a Kassi and a shirt were recovered at the instance of Balbir Singh appellant and in consequence of his information which he furnished to Sitaram and Jaipal Singh Investigating Officers, while in the Police custody and that a shirt and Gandasa were discovered at the instance of Bholasingh in pursuance of his information recorded by Sitaram under Section 27 of the Evidence Act.
18. The learned Counsel for the appellant further assailed the recoveries of these articles on the ground that no evidence has been led by prosecution to show that after these articles were recovered at the instance of the appellants and in consequence of their information they were kept in the same sealed position during the period they remained in the custody of the Police and before they were delivered to the Director of State Forensic Jaipur for examination. According to the submission of Mr. Thari Chand Mehta, appearing on behalf of the appellants it was necessary for the prosecution to adduce evidence that the seals put on these articles so in after their recoveries were not tampered with till they were sent to the Director of State Forensic Jaipur for analysis. The above contention raised by Mr. Than Chand Mehta has some force because in the absence of such evidence it is open for the appellants to contend that the seals on these articles were tampered with by the Police and human blood was sprankled out them later on in order to create evidence against them.
19. Mr. D.S. Shishodia, Public Prosecutor strenuously urged before us that the prosecutor has produced evidence that stops were take at once to seal the articles & that from the time the articles remained in the possession of the Police till the date on which they were delivered to the Director State Forensic Jaipur the seals put on them remained intact and were not tampered with by any person In support of his above contention, he invited our attention to the statement of Khusalsingh PW 13 and con fended that on its strength that the seals were not tampered with till the articles were handed over to the Director, State Forensic Jaipur for analysis.
20. We have carefully perused the statement of Khusasingh PW 13. Khusalingh merely stated that on 15th July, 1976 he was ordered by the Superintendent of Police to take away 17 sealed packets of this case to the Chemical Examiner Jaipur. He further stated that after making an entry Ex P.38 in the daily diary he carried the 17 sealed packets to Jaipur and handed them over to the Chemical Examiner for analysis. He obtained arcipt from the Chemical Examiner and returned back to the Police Outpost Singaria on 17th July, 1976 and made an entry Ex. P 39 about his return in the daily diary. Khusalsingh did not say in his deposition that the seals on the 17 packets of this case were the same seals as well as which were put on them by the Investigating Officer at the time of their recovery. His mere assertion that the packets were given to him in a sealed condition is not sufficient to show that the seals put on these articles at the time of their recovery were not tampered with during the period these articles remained in the custody of the Police. Curiously enough Suaram, Investigating Officer, did not say in his deposition that the seals on these articles were not tampered with while they were in the custody of the police and before they were sent for examination to the Director, State Forensic Jaipur. Such an evidence is missing in this case and so we do not feel persuaded to place the same reliance on the discovery of the blood stains on there articles as we would we placed if necessary evidence had been produced by the prosecution that from the time the articles came into possession of the police to the time they were sent for examination to the Director, State Forensic Jaipur, the seals put on these articles at the time of their recoveries remained in tact and were not tampered with by any person. We are fortified in our above view by a decision of our Division Bench in a case The State v. Motia reported in 1953 RLW at page 640 wherein Hon'ble Wanchoo C.J. ashes then was has made the following observations on this point at page 642:
Whenever it is desired by the prosecution that certain articles, which have been recovered from accused person are to be identified, or are to be sent to the Chemical Examiner for analysis it h necessary that the officer recovering; the articles should immediately take steps to seal them and evidence should be produced that the seals were not tampered with till the identification is over, or till the articles are sent to the Chemical Examiner for analysis. In the absence of such precautions it would always be open to the accused to say that the police later put human blood on the articles in order to implicate the accused. It is, therefore, necessary for the prosecution to produce evidence that steps were taken at once to seal the articles and that from the time the articles came into possession of the police to the time they were sent for identification before a Magistrate or far examination to the Chemical Examiner the seals remained in tact This evidence is missing in this case. It is, of course, nor difficult to sprinkle a few human blood stains on articles recovered if some body wants to do so we do not say that this was done in the present case, but as precautions were mot taken, the argument raised on behalf of the accused that this might have been done remains unrefuted.
21. A similar view was taken by another Division Bench of this Court In a case Ratun Lal v. Slate reporter in 1966 RLW. at page 451 The relevant observations made by Hon'ble Tyagi J as he then was ate quoted below from para No. 6 at page 453:
We find that the sample taken by the Station House Officer, Begun on 2-7-1961 from the bedding belonging to the accused was sealed by him and was sent to the Superintendent of Police, Chittorgarh to be forwarded to the Public Analyst for chemical examination. From the report (Ex. P.6) it is, however, evident that the Public Analyst received that sample from the office of the Superintendent of Police Chittorgarh with seals intact, but it was not mentioned in the report that the seals found on that sample were that of the Station House Officer, Begun or of the office of the Supdt. of Police. Mr. Dalpat Singh has urged that the sample might have been changed at the office of the Supdt. of Police Chittorgarh by mistake or otherwise and a different sample could have been sent under his seals. This possibility cannot altogether be ruled out It is for avoiding such a contingency that the law requires the prosecution to prove that the same sample with the seals intact reached the Public Analyst which was taken from the possession of the accused.
In the present case also the Director, State Forensic Science Jaipur did not state in his report Ex. P.41 that the seals found on 17 parcels were those of S.H.O.P.S. Sangaria or of the office of the Superintendent of Police. He merely stated in his report that 17 sealed parcels were received and the seals were found intact on the packets marked A to Q. Later on the Supreme Court in a case Okha Khole v. State of Maharashtra reported in A.I.R. 1963 S.C. 1531 has laid dawn that the prosecution must adduce evidence to prove that the seals put on the articles remained intact till they reached the hands of the Chemical Examiner. The relevant observations made by their Lord ships in para 12 at page 1537 are quoted below:
Evidence regarding the dealing with the phial since it was sealed and it was submitted for examination of the Chemical Examiner may appear to be formal but, it shall still to be led in a criminal case to discharge the burden which lay upon the prosecution.
Under these circumstances we are unable to hold that the recoveries of blood stained Kassi, Gandasa and shirt are helpful in fastening the guilt on the appellants.
22. The prosecution has led evidence of motive also on the part of the appellants to commit the three murders The motive alleged was that Balbirsingh appellant was annoyed with his father Meet Singh and his brother Bhagwan Singh on account of some dispute relating to partition of joint family property. The dispute was said to be that Balbirsingh appellant demanded 15 Killas of agricultural land from his father Meet Singh as his share while Meet Singh had given him 5 or 10 Kills only. The prosecution case is that Meet Singh deceased partitioned the properties including the agricultural land among himself and his two sons Balbirsingh and Bhagwansingh a few days before the occurrence and was reluctant to give more land to Balbirsingh and his son Bhola Singh This led to a quarrel between him and Balbirsingh and so Balbirsingh and his son murdered Meet Singh, his wire and his son Bhagwan Singh. There is no evidence on the record that Balbir Singh had quarrelled with his father prior to the occurrence. According to Gurdeep Kaur PW. 1 the partition was made in writing and she handed over the deed of partition to the Police, but it is surprising that no such deed was produced by the prosecution to show that 5 or 10 Killas of land only was allotted to the share of Balbir Singh Even if there was any dispute relating to the partition of the propsrties between father and son, it does not stand to reason that Balbirsingh appellant suddenly embarked upon the murder of his parents and of his younger brother with the help of his son Bhola Singh on that score. Apart from this in the absence of any other reliable evidence to connect the appellant with the three murders, the evidence of motive is in sufficient to fasten the guilt on them because motive is not an ingredient of the offence of murder and it may only play an important role along with ocher incriminating factors.
23. The result of the above discussion is that the prosecution failed to prove the guilt of the two appellants beyond reasonable doubt. It is undoubtedly true that three murders were cruel and of sho king nature but in the absence of clear and satisfactory proof regarding the guilt of the appellants their conviction cannot be sustained merely on suspicion and surmises how so ever strong they may be. Hence we accept the appeals (Nos. D.B. Criminal Appeal No. 245 of 1979 and D.B. Criminal Jail Appeal No. 246 of 1979 and D.B. Criminal Jail Appeal No. 247 of 1979) filed by both the appellants set aside their convictions and sentences of death & acquit them of the offence of murder punishable under Section 302 IPC. The D.B. Criminal Murder Reference No. 1 of 1979 for confirmation of death sentences, (sic) against the appellants by the trial Judge stands automatically rejected. Both the appellants are in jail. They shall be released forth with if not required in connection with some other case.