J.P. Jain, J.
1. The three appellants and one Jai Singh were tried for offences under the Indian Ptnai Code and Indian Arms Act by the Additional Sessions Judge No.2, Sri Ganganager. As a result of the trial, Sadnu Singh was convicted under Section 302 I.P C and sentenced to life imprisonment. He was however acquitted of the charge under Section 27 Indian Arms Act. Sohan Singh and Hanuman were acquitted of the charge under Section 302 I.P.C. but each one of them was convicted under Section 25, Indian Arms Act and sentenced to three years' rigorous imprisonment. Jai Singh was acquitted of all the charges levelled against him. The three convicts have filed appeal No. 704/71 seeking their acquittal The State of Rajasthan has also preferred a revision application praying for the award of extreme penalty of death to Sadhu Singh.
2. The prosecution evidence disclosed that Sher Singh (P.W.11) resident of village Guda Beeruwala Tehsil Sirs? District Hissar had two murrabbas of land in village Nethrana, Tehsil Bhadra, Rajasthan With a view to help him in the cultivation of the said land he took one Tulsi as his partner to cultivate with him. After sometime Tulsi started claiming the land as his own Some how he got the land from him and at (he advice of Jaijingh accused, who was distantly related to Sher Singh, finally accepted Sadhu Singh as his partner. Jaisingh even suggested to Sher Singh to adopt Sadhu Sinah, as he was a bechelor and ostensibly there was none to succeed him. Sher Singh had only one widow sister Daya Kaur (P.W.1). Sher Singh did nut accept this suggestion but all the same Sadhu singh started living with him. After borne time Sadhu Singh also betrayed his trust and claimed the land of Sher Singh as his own. Then followed a litigation between Sher Singh and Sadhu Singh. Sher Singh appointed Bakshi Singh as his genera) power of attorney holder to appear in the litigation on his behalf. It was, in the course, of this litigation, Tehsildar Bhadra was appointed Receiver to manage the land of Sher Singh. In his capacity as the Receiver Shri Shantu Lal, Tehsildar Bhadra, went to village Nethrana on 25-8-70 to section the land, perhaps as a part of managing the same.
3. Bakshish Singh with Mithoo Singh (who was Bakshishsingh wife's brother), and Basant Singh son of Daya Kaur (Sher Singh's sister) also decided to 20 to village Nethrana on 25-8-1070 to offer bid at the auction, For that purpose they engaged the jeep No. RJK-1941 of Mamdin (P.W 3), who took the three poisons namely Bakshish Singh, Mithoo Singh, Basant Singh by his Jeep to the village but on the way when they were only two miles from Nethrara the engine of the vehicle failed and it got stuck up.
4. While the Tebsildar and his reader Shri Shermal were busy in auctioning the land at village Nethrana, they were informed that there were some gun fires and some murders had taken place. The Tehsildar, after having disposed of the job on hand started from the village and on their way found the jeep RJK 1941 standing on the road They also noticed two dead bodies near about the jeep. Some 50 pavandas ahead they also found one another dead body. The Tehsildar then wrote out the report Ex P/1 and gave it to his reader Shermal (PW 2) to deliver the same at the police station Bhadra. Shermal (PW 2) on his part lodged the report at the police station and on that that basis Shri Gajanand A S.I. (P.W.5), of the police station Bhadra recorded the first information report at Ex P/2 Since the S.H.O was on leave, he informed Shri Manohar Lal Circle Officer (PW. 15) about the incident. In the meanwhile Shri Gajanand went to the place of occurrence and placed a guard to look after the site and the dead bodies. Shri Manohar Lal reached the place of occurrence next morning, that is, on 28.8.1970 and took charge of the investigation. He prepared the site plan, the 'fard surtehal' and the inquest report. He took in his custody the three dead bodies and sent them to Bhadra Hospital for post-mortem examination. He received certain articles including six empty cartridge cases and one misfired cartridge, The three dead bodies were photographed and kept for identification. They were identified to be those of Bakshish Singh, Mithoo Singh and Bagant Singh.
5. Dr. Gopal Dass (PW 7) conducted the autopsy of Bakshish Singh in the Mortuary of Bhadra hospital, and found that the deceased Bakahish Singh had one gun shot wound in the abdomen and an incised wound 1' X 1/10' X muscle deep on the right side of the fore head. According to the doctor these injuries were ante mortem and the cause of death was injury by the gun-shot which was sufficient in the ordinary course of nature to cause death.
6. The post-mortem examination of Basant Singh by the doctor disclosed that the deceased had two gun shots; one in the abdomen and the other on the left side of the head. On account of which all the bones of skull were fractured. These injuries were ante mortem and reported to be responsible for the death of Basant Singh. Dr. Gopal Dass recovered 50 small gun shot pallets from the head and 43 small pallets from the wound in the abdomen.
7. The result of the third autopsy on the dead body of Mithoo Singh was, that the doctor found the following injuries.
8. Two incised wounds; one 21/2' X 1' X bone deep left hand dorsal aspect cutting through meta-carpo-phalvngeal joints of the middle and index fingers, and the other was 21/4' X 21/4' X muscle deep right fore-arm about its middle The third injury was a gun shot wound with multiple small shots spread out in front of the right cheat upper part front of right shoulder right side of the neck about 3' in radius spread from the middle of the clavicle. These injuries were aho ante-mortem in nature and the cause of death was reported to be the gun shot injury. 22 small gun pallets were recovered from this wound. The two incised injuries were caused by sharp edged weapon.
9. Shri Amar Singh (PW.14) S.H.O. Bbadra joined his duty on 28-8-1970 and he was entrusted with the investigation of the case. Sadhu Singh, Jai Singh and Hanuman were arrested on 9-9-1970. Sohan Singh was arrested on 15-10-70. This investigating Officer recovered 12 bore single barrel gun No. 12039 at the instance of accused Sadhu Singh vide Ex.P/38 on 19-9-1970. Similarly another gun was recovered from the possession of Hanuman vide Ex,P/39 at his instance. It is alleged that Sohan Singh also informed the S.H.O. and got recovered a gun vide Ex P/47 on 25 10-1970. After having completed the investigation Jai Singh and the three accused appellants were charge sheeted in the court of Munsiff Magistrate, Bhadra, who did the committal proceedings and sent them to be tried in the court of Sessions They were tried by the Additional Sessions Judge No 2, Sri Gangaoagar. All the accused pleaded not guilty, and also claimed to be innocent in the matter. On behalf of the prosecution 15 witnesses were examined, but none was produced in defence.
10. Before the trial Judge the prosecution placed reliance on the extra judicial confession said to have been made by Sadhu Singh to Baltej Singh lP.W.8 The learned Judge did not think it safe to rely on this evidence. Another piece of evidence relied upon was, the recovery of 12 bore gun from the possession of Sadhu Singh and the recovery of the six empty cartridge cases from the scene of occurrence by Manohar Lal (P.W 15) The statement of Shri S.M. Chatterjee (P.W.12) a ballistic expert was also pressed into service for connecting the empties with the gun recovered from the possession of Sadhu Singh It was urged on behalf of the prosecution that the six empties were discharged from the gun of Sadhu Singh (Article 1). The learned Judge accepted this evidence to connect Sadhu Singh with the crime The recovery of the guns from the possession, of Hanuman and Sohan Singh were held to be not sufficient to connect them with the crime of murder. Eventually the learned Judge convicted Sadhu Singh Under Section 302 I.P.C. for committing the triple murder of Bakshish Singh, Basant Singh and Mithoo Singh. Hanuman and Sohan Singh were however acquitted of the charge of murder; There was no evidence against Jai Singh to connect, him in any manner with the crime, he was also acquitted Having accepted the recovery of two guns from the possession of Hanuman and Sohan Singh, which were found to be, according to the learned Judge, as not licenced, he convicted each one of them under Section 25 of the Indian Arms Act. The 12 bore gun found to be in possession of Sadhu Singh was licenced and as such he was acquitted of the charge under section 27 of the Indian Arms Act.
11. There is no direct evidence in the case Mamdin (P.W.3), the owner and the driver of the jeep, who carried the three deceased in his vehicle, was cited as an evidence; but he did not support the prosecuion He stated that his jeep was stuck up on the way to village Nethrana. He got down from the jeep and tried to ascertain the fault and to start the jeep with the handle, He then suddenly heard gun shot reports. He got frightened and ran away towards the village. As regards the identification made by him earlier in the jail he stated that he was shown the accused while they were in the police custody otherwise he did not know any of them nor did he see any of them at the scene of occurrence. He, however, identified the three deceased and stated that they were in hit jeep and he was transporting them to village Nethrana that day. The testimony of this witness does not, in any manner, help the prosecution.
12. The only evidence against Sadhusingh is the recovery of the gun at his instance and the evidence of Shri S M. Chatterjee (P,W 12) Learned counsel for Sadhusingh has strenuously urged that the evidnce of Mr. Chatterjee cannot be pressed into service to connect the accused Sadhu Singh with the come of murder even if it is accepted that the gun (Article 1) was recovered from his possession at his instance. This witness stated:
I fired test cartridges through 12 bore S B.B L shot gun S. No. 12039 (Ex A) (Ex. Article 1). I compared these-empty fired cartridge cases with the cartridge cases D1 to D6 received in the cases from the police and also with D7. I found firing pin impression and the breach face marking of cartridge cases fired by me through Ex. A and of the cartridge casts D1 to D6 were matching. I am therefore of the opinion that these cartridge cases D1 to D6 and the cartridge cases fired by me through gun S No. 12039 under the comparison Microscope and found these marking identical. I also took photographs which is part of my report. The report Ex P/37 bears my signatures and is correct ' ... Again he proceeded to state, 'the photograph is of cartridge case D3 and of one of test cartridge fired by me through gun 12039. I only took this one photo graph though I compared all the six cattidge cases D1 to D6 and four tet cartridge cases fin d by me through the gun. My photograph only indicates breach face marks. Firing pin matching test and breach face matching test are equally effective and I have employed both the tests in coming to a finding about Ex. D1 to D 6 & the gun S. No. 12039.
13. According to his testimony Mr. Chatterjee fired four test cartridges from the gun Article 1. He did not take any photograph of the empty cartridges D 1 to D 6 which were r covered from the scene of occurrence and sent to him for comparison. HE did not as well take the photographs of four test cartridge cases. According to him he took photograph of only one cartridge case D/3 and one of the test cartridges fired by him. He did not mention that the photograph on the record is that very phonograph which was taken by him. In his statement Mt. Chatttrjee also failed to state the points of similarity on the test cartridge cases and the cartridge cases D 1 to D 6. In the absence of the relevant details we are let't with the opinion as given by him in his deposition. Learned counsel for Sadhu Singh appellant argued that no data was supplied to the court to enable it to verify the correctness of the opinion of the expert. We have already pointed put that photography or the empty cartridge cases fired by Mr. Chattetjee and that of the cartridge cases recovered from the spot (Ex. D1 to D 6) were neither taken nor produced at the trial In the absence of the proper material on the record we find ourselves in a difficult position and cannot verify the correctness of the opinion given by Mr. Chatierjee In such circumstances unless we surrender our judgment to the opinion of Mr. Chatterjee we cannot conscientiously hold that the test cartridge cases and six empties recovered from the spot of occurrence matched as opined by the expert. There is no material to support the opinion in question which is so vital to the accused. Sir Gerald Burrard in his book 'The Identification of Firearms and Forensic Ballistics in Chapter VIII observed; under the head of Photo Micrograph at p. 175:
As has already been stated in evidence of identification which is unsupported by photograph cannot be regarded as being any thing more than an expression of opinion, photographs are accordingly essential, such must be taken through microscope.
14. These observations are quoted with approval by their Lordships of the Supreme Court in the State of Gujarat v. Adam Fateh Mohammed Umatiya and Ors 1971 UJ (SC) 466 . In that case ballistic expert did not take any photograph of the misfired cartridge or of misfired test cartridges for comparison. Yet he gave an opinion that bold face impressions and striker scrape of misfired cartridge were similar to those of test fired cartridges. Inspire of the face that he gave reasons for his opinion their Lordships discarded the evidence of identification as it was not supported by the photographs. It was held that it was nothing more than an expression of opinion. The evidence according to their Lordships did not establish that the test cartridges were fired from the tame weapon and that the mufired cartride was also fired from that very gun. In the present case we find no material on record to verify for ourselves if he opinion given by the expert is correct. He even failed to mention as indicated above, points of similarities in the six empty cartridges. In this view of the matter the opinion given by the Ballistic Expeit (P W 12) is not sufficient to establish conclusively that the empty D 1 to D 6 recovered from the place of occurrence wtre fired from the 12 bore gun No, 12039 recovered from the possession of Sadhu Singh. After this evidence falls to the ground the recovery of the gun, even it is held to be proved, arsd the recovery of six empty cartridge cases do not connect Sadhu Singh with the murder of the three persons, narrely Bakshi Singh, Mithoo Singh and Basant Singh.
15. Another important element that has been pointed out in this case is the delay in the despatch of the guns of Sadhu Singh and the six empty D 1 to D 6 to the Central Forensic Science Laboratory Calcutta. The emptry cartridge cases were recovered from the place of occurrence on 26.8.70 by Shri Manohar Lal Circle Officer (PW 15). The gun was recovered at the instance of Sadhu Singh on 19.9.1970 by Shri Amar Singh (PW 14) Admittedly they were dispatched to the laboratory through Gopal Parsed (PW 16) on 12 4 71. According to this witness he was entrusted with the eight sealed packets on 12.4.71. He reached Calcutta on 15,4 71 and delivered seven packets on 17.4 71. The eighth packet which was left behind in the salt case by mistake, was redelivered at the Laboratory on 23.4.71. The prosecution has not explained as to, why the empty cartridge case could not be despatched earlier and why the delay was occasioned of nearly 7 months in dispatching them for examination. No explanation has been offered by the prosecution. It could be understood if the gun had been recovered very late. In the present case the gun (Article 1) was recovered on 19.9.1970. Even after the recovery, these incriminating articles were dispatched after 6 months and 24 days. In the absence of any reasonable explanation, learned counsel for the Sadhu Singh is right in submitting that it makes the whole thing very suspicious. He has placed reliance on the following bench decisions of this court : (i) D. B Criminal Appeal No 71/1970--Decided on 10.8.71--Hardev Singn v. State, (11) D. B. Criminal Appeal No. 177/71--Ladhu and Ors. v. State--Decided on 20-12-1972 (iii) Desraj v. The State 1969 WLN 42 (Part II) .
16. In the case of Hardev Singh the delay in sending the incriminating articles to the ballistic expert was of three months. Their Lordships observed :
Apart from this there was an inordinate delay of three months in sending these articles to the ballistic expert. For this no explanation has been offered on the side of the prosecution. We may emphasise that where the face of the case depends on the important evidence like examination of the articles recovered by the police then they should be sent for examination without all avoidable delay, so that none may be able to suggest that anything shady has taken place about such articles.
17. In the case of Ladu and others, articles, namely, blood stained lathi; Baniyan and Turban were recovered and they were sent to the chemical examiner after the lapse of more than a month.: Their Lordships noticed this delay as a serious infirmity on the part of the prosecution and it thought it unsafe to place reliance on the evidence of the recovery of the said articles.
18. In the case of Deshraj, the empty partridge cases were recovered on 3-11 65 and the pistol was recoved on 19-11-65. It was sent to the ballistic expert on 9-1-66. There was no explanation on the record to show why the empty cartridge cases could not be sent soon after its recovery. The delay in this case was only in months. This was treated to be an inordinate delay raising suspicion against the prosecution case. We respectfully concur in the view taken in the three aforesaid decisions of this court. We feel further fortified by a decision in Santa Singh v. State of Punjab AIR 1956 SC 626. It was a case, where an empty cartridge case was recovered on 10-9-54 but it was dispatched for examination to the ballistic expert on 27-10-54. Chandrasekhra Aiyar, J. who delivered the judgment of the court observed as follows :
There is another element in the case which creates even greater difficulty. An empty cartridge case is alleged to have been recovered from the place of occurrence by the police on the 10th of September when they went for investigation after receipt of the first information from Uttam Singh (PW 16); so also some blood-stained earth.
They were carefully packed and sealed in two separate pickets & despatched to the Police Station. The sealed parcel of the earth was sent to the Chemical Examiner at Kasauli on the 11th October, 1964, and the sealed parcel of the empty cartridge case was sent to Dr Gayle as late as the 27th October, 1954. Even if we accept the explanation given by the Sub-Inspector of Police that the empty cartridge case had to be kept at the police station till the rifle used was recovered so that both might be sent to the expert for his opinion, nothing has been stated why after the rifle was recovered on the 26th September, 1954 along with 24 cartridges from the be use of the accused, it was incumbent for the police to retain the : parcels of rifle and empty cartridge case with them till the 11th (27th) October, 1954.
Naturally this inordinate delay raised much suspicion and has given rise to the suggestion on the part of the accused made in the course of the cross-examination of the Sub-Inspector that the empty cartridge case ultimately sent to the expert relates to a cartridge that was fired by them at the police station and is not the one recovered at the spot.
19. In the case on hand there is an unexplained delay of nearly seven months, and we cannot but look at the prosecution case with serious doubt in our mind.
20. Yet another infirmity that has been pointed out in this case is that there is no evidence on the record that the seals were not tampered with by the persons who dealt with the articles between the period they were recovered and sent to the Central Forensic Science Laboratory or received back from the laboratory. Learned counsel for the appellants supported his contention by referring to the following authorities : Ukha Kolhe v. The State of Maharashtra AIR 1963 SC 1531, The State v. Motia and Ors. ILR (1953) 3 Raj 655, The State v. Banwan and Ors. ILR (1959) 9 Raj 107, Ratan Lal v. The State 1966 RLW 451. The bench decisions in Hardev Singh v. State and Ladu and Ors. v. State referred to above, have also been relied upon.
21. It hag also been submitted by him that Brij Singh, who was admittedly the incharge of the Malkhana had not been produced in evidence to depose that the seals were not interfered with. In view of the conclusion that we have arrived al on the submissions discussed hereinbefore it is rot necessary for us to decide this contention of the learned counsel.
22. Mr. Mehta learned counsel appearing on behalf of Mr. Sadhu Singh' as also challenged the recovery of the gun We have held above that even if the recovery of the gun and the empties is accepted the case against Sadhu Singh is not proved beyond doubt.
23. On behalf of 'he State Mr. Singhvi has urged before us that the extra judicial confession made by Sadbu Singh to Baltej Singh (P W.6) can be availed of to find Sadhu Singh guilty. This piece of evidence has been discarded by the learned trial Judge. He has elaborately discussed the reasons for disbelieving this evidence. He also took notice of the conduct of the witness after he was informed by Sadhu Singh that be along with four others committed the murder of Bakshi Singh, Mithoo Signh and Basant Singh. After having read the statement of Baltej Singh we do not think that the learned Judge in any way fell in error in brushing aside this piece of evidence. The witness is interested being closely related to Bakshish Singh. The statement does not inspire confidence either. That apart, no independent corroboration of this alleged confession made by Sadhu Singh is available on record, This is settled law that extra judicial confession has to be received with great care and caution and when the foundation of the conviction is the confession alleged to have been made by the accused there are three things which the prosecution must establish, (1) that the confession was made, (2) that the evidence of it can be given, and (3) it is true. Such a confession must as well be proved by an independent and satisfactory evidence. The alleged confession falls, in the present case, far short and cannot be relied upon.
24 Now adverting to the case of Hanuman it has been urged that the gun which is said to have been recovered from him is not proved beyond a shadow of doubt. Ex.P/44 is the disclosure memo by which it has been alleged by the prosecution that Shri Anar Singh was informed about the gun (Article 2) in possession of Hanuman. In pursuance of this information the gun (Article 2) has been recovered vide recovery memo Ex.P/39. According to the recovery memo the gun was recovered in the presence of (1) Phool Chand panch of the village Nethrana, (2) Darshan Singh, a rijan resident of village Lalbai (Punjab), and (3) Hakim Singh a resident of village Doda (Punjab). To prove this recovery only one witness Hakim Singh (P.W.13) has been produced. Hakim Singh is said to be related to Mithoo Singh. He is admittedly a resident of village Doda in Ferozpur, Punjab which is 400 500 miles away from village Nethrana. Mithoo Singh deceased belonged to village Lalbai which is 300 4CO miles from village Nethrana. Hakim Singh no doubt supports the recovery of the gun from the possession of Hanuman. But from & reading of his statement it does not appeal to reason as to why he should be at the place of occurrence on 19-9-70, when the recovery was effected by the Investigating Officer. According to this witness he is distantly related to Mithoo Singh and he bad come to look after this case. ID the normal course he should have either gone to the village of Mithoo Singh i.e. village Lalbai, or to the police station Bhadra. But be deposed at the trial that he sat under a tree at the place of occurrence because he had heard that the Sub-Inspector would be going to the place of occurrence. Recovery was effected from the village Nethrana and according to the witness he sat under a tree near the place of occurrence which is the road leading to Nethrana. According to Ex P/13, the recovery was also witnessed by one Phool chand a local resident of the village. Phool Chand is comparatively a more respectable man being a Panch in Nyaya Panchayat of the village. The prosecution did not care to produce him. We are also amazed to find that the recovery memo was got signed by three persons, two out of whom are from Punjab. Phool Chand being one from the localiiy, the police officer could have summoned one more person from the village to witness the recovery if he wanted more than one witness. Hanuman not only denied the recovery but he also disowned the gun. There is no doubt, that there is no statutory requirement for a recovery to be witnessed by any person from the locality but in the present case it has been witnessed by three persons and one is admittedly from the village. The non-production of Phool Chand in the witness box casts a great doubt about the recovery of the gun in the circumstances of the case. Having regard to the manner, in which the whole investigation has been conducted, we are not prepared to place implicit reliance on the statement of Anar Singh (P.W. 14) so far the recovery is concerned.
25 Now coming to the case of Sohan Singh the gun from his possession has been recovered by Anar Singh (PW 14) vide recovery memo Ex, P/47 on 25-10-1970. The information given to the Investigating Officer is contained in Ex.P/46 dated 2-10-1970. The recovery memo is witnessed by Phool Chand of village Nethrana and Udmi Ram of village Chobara. None of them has been produced. Prosecution has not offered any explanation as to why these motbirs have been with held. Apart from this, it has not been identified by Anar Singh (P.W. 14) that Article 2 was the gun recovered from the possession of Sohan Singh. No attempt has been made by the prosecution even to prove the signatures of the accused on the recovery memo (Ex.P/47). On the facts and circumstances of the case we are unable to place reliance on the solitary statement of Anar Singh (PW14). We are, therefore, not inclined to uphold this recovery as genuine.
26. Before we part with this case we take it to be our duty to observe that in this case the Investigating Officer has been guilty of serious lapse on his part He failed to dispatch promptly empty cartridge cases and other incriminating articles for examination to the Central Forensic Science Laboratory, Calcutta. The prosecution agency has also failed to produce all necessary evidence which was available to it. It did not produce Phool Chand a motbir witness of Ex.P/39. Similary Phool Chand and Udmi Ram, who witnessed the recovery of gun from the possession of Sohan Singh were deliberately with held. It is unfortunate that this murder of three persons is going unpunished but it is only on account of the serious lapse on the part of the Investigating agency in the discharge of its duty We are not in a position to say whether delay in dispatching the empty cartridge cases and other incriminating articles to the forensic laboratory in time was due to sheer inadvertence or it was by design, but it goes without saying that the prosecution agency miserably failed in the conscientious discharge of its duties and it can not therefore escape the charge of dereliction of duty which resulted in the crime of triple murder going unpunished. The responsibility of this result squarely falls on the should of the investigating officer who discharged his function callously. A copy of this order may be sent to the Chief Secretary, Government of Rajasthan, to take such action as he may deem fit in the circumstances of the case.
27. In the result we accept the appeal and acquit Sadhu Singh; Han-man and Sohan Singh Their convictions are sit aside Sadhu Singh shall be released forthwith if not required in any other case. Sohan Singh and Hanuman are on bail, they need not surrender to their bail bonds- The bail bonds a re cancelled.
28. The revision application of the State consequently stands dismissed.