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Surjaram and ors. Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Appeal No. 747 of 1974
Judge
Reported in1979WLN(UC)445
AppellantSurjaram and ors.
RespondentThe State of Rajasthan
Cases ReferredUkha Khola v. State of Maharashtra
Excerpt:
criminal trial identification - prosecution not explaining as to why witness s was not called to identify accused in test identification parade when accused were strangers--held, evidence of witness s is weak evidence in absence of corroboration.;there is no explanation from the side of the prosecution why suleman khan was not called upon to identify the appellants in a test identification parade specially when the appellants were strangers to him. it is no doubt true that the evidence of identification of the accused in court has a substantive value and the failure to hold the test identification parade does not render inadmissible the evidence of identification in court but save in most exceptional circumstances as a rule of prudence and discretion it is not safe to accept the evidence.....k.d. sharma, j.1. this is an appeal filed by surjaram, kesaram & ramsingh against the judgment of the additional sessions judge, shri ganganagar dated 7-11-1974 by which the appellants were convicted under section 302 ipc and each of them was sentenced to undergo imprisonment for life. surjaram and kesa were charged under section 27 of the arms act also but they were not convicted for the said offence.2. the prosecution case in nutshell was as follows :- bhagwanaram, moharsingh, ramchandra and pusaram were real brothers. they used to live in village motasara tehsil bhadra. they were prosecuted for the offence of murder of banwarilal brother of surjaram appellant in the year 1965 along with their father nanuram, but they were acquitted in that case in the year 1967. this, however, led to.....
Judgment:

K.D. Sharma, J.

1. This is an appeal filed by Surjaram, Kesaram & Ramsingh against the judgment of the Additional Sessions Judge, Shri Ganganagar dated 7-11-1974 by which the appellants were convicted under Section 302 IPC and each of them was sentenced to undergo imprisonment for life. Surjaram and Kesa were charged under Section 27 of the Arms Act also but they were not convicted for the said offence.

2. The prosecution case in nutshell was as follows :- Bhagwanaram, Moharsingh, Ramchandra and Pusaram were real brothers. They used to live in village Motasara Tehsil Bhadra. They were prosecuted for the offence of murder of Banwarilal brother of Surjaram appellant in the year 1965 along with their father Nanuram, but they were acquitted in that case in the year 1967. This, however, led to enmity and bad blood between them and the appellants Moharsingh was facing trial in a criminal case in the court of Sub-Divisional Magistrate Nohar and so he had gone from his village to attend the court at Nohar on 20-2-1972 along with Bhagwanaram. Both of them left their village on 19-9-1972 and boarded a train at Bhadra Railway Station and reached Nohar early in the morning on 20-9-1972 When they were coming from Railway Station Nohar they met Ramsingh appellant in the way near a Dharamshala On seeing Moharsingh, Ramsingh appellant caught hold of his hands and Kesaram appellant who had by that time come there having a .12 bore single barrel gun in his hand fired a shot at Mohar Singh which hit the latter on the right side above his waist. Thereafter Surjaram appellant who also had reached there having a .12 bore double barrel gun with him fired another shot at Mohar Singh which hit the latter on his back. As a result of the two shots Mohar Singh fell down and died instantaneously on the spot. His wounds began to bleed profusely and the clothes which he was wearing were soon wet with blood. Bhagwanaram raised a hue and cry, and the three appellants ran away from there. The occurrence was eyewitnessed by one police Constable Suleman who advised Bhagwanaram to rush to the Police Station for making the first information report about the incident. Bhagwanaram thereupon started from there for going to the Police Station. In the way he saw his enemy Rajmal co-accused who was discharged by the committing Magistrate having a gun in his hand. Bhagwanaram reached Police Station Nohar and lodged a verbal report with Roshan Ali, SHO the very day at 7.30 A.M. The SHO reduced the verbal report into writing and registered a criminal case undar Section 302 read with Section 34 IPC on its basis After registering the case, Roshan Ali SHO accompanied by Bhagwanaram came to the spot & deputed one Police Constable to guard the dead body of the deceased. The SHO then boarded a Jeep car and went in search of the appellants. He succeeded in searching cut the appellants at a distance of about 2 miles from Nohar. He arrested the three appellants and searched their persons. At the time of arrest Kesa @ Kesaram was found having gun Ex. 6, 8 live cartridges and a licence Ex 12 in his possession. Likewise gun Ex 7, 12 live cartridges and a licence Ex 15 were found in possession of Surjaram appellant. All these articles were taken into possession by the SHO and sealed properly by the SHO. The SHO then returned to the place of occurrence at about 10.30 A.M. & prepared inqoest report about the dead body. He noticed one fire cartridge case Ex 8 giving pellets and two overshot wads Ex 9 lying on the spot. He took these articles into his possession and sealed them properly. The SHO then called for Dr. Gangaram Medical Officer Nohar and asked him to perform post mortem examination over the dead body of Moharsingh at the spot. The doctor conducted the autopsy over the dead body at about 12.30 P.M. the very day and found the following injuries:

(1) 3 cm. circular wound opposite the 6th right rib on the posterior axillary line, 6th rib fractured wound is communicating with the chest cavity. Direction of the wound is downward and to the left. There is blackening of the skin around the wound.

(2) 5 cm circular wound with irregular margins on left side of the abdomen 9 cm above the anterior superior iliac spine. Direction of wound is upward and to the right. Intestine is coming out of wound.

(3) 1 cm circular would with regular margins, 2 cm deep on right side of back (Chest) 5 cm below the interior angle of the scapula.

(4) 1 cm circular wound with regular margin 2 cm deep on right side of back (Chest) 5 1/2 cm below the inferior angle of scapula.

(5) 1 cm circular wound regular 2 cm deep on right side of back (Chest) 6 cm below the inferior angle of scapula and ju3t right to wound No. 4.

(6) 1 cm circular wound with regular margins, 2 cm deep on right side of back (chest) 8 cm below the inferior angle of scapula.

Upon dissection of the dead body he detected the following internal injusies:-'6th right rib fractured - Right plearas ruptured Right lung ruptured Peritoneum ruptured - Small intestine ruptured at many places. Liver ruptured- Left kidney ruptured.

In the opinion of the doctor, all the injuries were ante mortem in nature and were caused by fire arm. The doctor further opined that the cause of death of Mohar Singh was severe bleeding and shack on account of firm arm injuries According to his opinion, injury No. 1 alone was sufficient to cause death in the ordinary course of nature and the other injuries could contribute to the cause of death. He claimed to have extracted 4 pellets and one card board from the dead body which he sealed and handed over to the Police vide his letter Ex. P. 23. After the post mortem examination was over the SHO took blood stained clothes of the deceased into his possession and sealed them properly The SHO then interrogated Kesaram appellant who while under the police custody gave him an information on 23-9-1972 which led to the discovery of a fire cartridge case Ex. 16 which was lying concealed in a tree standing on the sand dunes at a distance of about 1 1/2 miles from Nohar town. The SHO seized and sealed the fire cartridge case Ex. 16 also. Thereafter he sent all the articles i.e. guns, empty cartridges, overshot words and nine pellets to the Director Central Forensic Science Laboratory CBI New Delhi for examination. The Sensor Scienti6c Officer, Central Forensic Science Laboratory CBI examined the articles and sent report Ex. P. 29. In his report he stated that the .12 bore cartridge case contained in parcel. A which was recovered from the spot at the time of site inspection has been fired from SBBL gun recovered from the possession of Kesaram at the time of his arrest and the .12 Bore cartridge case contained in parcel D which was recovered at the instance of Kesaram and in consequence of his information has been fired from the right barrel of the gun recovered from the possession of Surjaram at the time of his arrest and pellets and wads contained in parcel A and D would have come from the two 12 bore cartridge-case marked C 1 and C 2. The SHO sent the clothes of the deceased and the blood stained earth to the Chemical Examiner at Jaipur for analysis. The Chemical Examiner found them positive for blood and forwarded them to the Serologist for Serological Examination. The Serologist after analysis found them stained with human blood. The SHO then collected the other necessary evidence in the case and upon completion of the investigation filed a charge-sheet against the three appellants and one Rajmal in the court of Munsif Magistrate Bhadra under Section 302 IPC and 27 of the Arms Act. The learned Magistrate discharged Rajmal and committed the three appellants to the court of Sessions Judge Shri Ganganagar for trial under Sections 302 IPC and 27 of the Arms Act. It appears from the record that the learned Sessions Judge later on transferred this case to the court of Additional Sessions Judge Ganganagar for trial according to law. The learned Additional Sessions judge tried the appellant and found them guilty of the offence of murder punishable under Section 302 IPC and sentenced them to imprisonment for life. He, however, did not think it necessary & proper to convict them of the offence under the Arms Act. Aggrieved by their conviction and sentence the three appellants have preferred this appeal.

3. We have carefully perused the record and heard Mr. Thanchand Mehta Senior Advocate appearing on behalf of the appellants and the learned Public Prosecutor Mr. N.S. Acharya for the State.

4. Firstly it has been contended by Mr. Than Chand Mehta, learned Counsel for the appellants that the Additional Sessions Judge committed a grave error in placing reliance on the testimonies of Bhagwhana Ram and Suleman eye witnesses. According to his submission Bhagwanram being the real brother of the deceased and having an enmity with the appellants was highly interested in securing conviction of the appellants Apart from this his evidence was not free from infirmities and did not inspire confidence upon close and careful scrutiny. It was further urged that Suleman PW2 was wrongly treated as an eyewitness because he did not claim to have seen any appellant firing a shot at the deceased' Besides, his name was not even mentioned in the first information report and he was not called upon to identify the appellants in a test identification parade before giving his evidence in the trial court and so his evidence relating to the identity of the appellants was of no value in the absence of earlier identification. The Public Prosecutor, on the other hand, urged that the evidence of these two eye witnesses, namely Bhagwanaram and Suleman, is entirely worthy of credence and it cannot be brushed aside merely on the ground that Bhagwanaram was closely related to the deceased and was inimical to the appellants and Suleman was not called upon to identify the appellants in a test identification parade before he identified them in the trial court.

5. We have given our anxious consideration to the rival contentions. First we take up the evidence of Suleman Khan for discussion with a view to ascertaining whether he was an eye witness to the actual occurrence Suleman Khan constable stated in his deposition at the trial that on 20-9-1972 at 5 a.m. he was posted at Police Station Nohar for patrolling the area and checking the passenger train. On that day according to his version the passenger train came late at about 7 A M at Nohar Railway Station from Bhadra He along with Khumanuram constable was standing on the railway platform. After the train halted at Nohar Railway Station he left Khumanaram and came out side the railway station where he heard the report of a gun fire corning from the side of Dharamshala which lay at a. distance of about 125 or 150 paces from the passenger shed. On hearing the sound of gun fire he ran towards Dharamshala and in the way he heard report of another gun fire. When he reached near Dharamshala he saw three persons standing on the road in front of Dhararnshala at a distance, of 40 or 50 paces from him. He identified the three appellants to be the same persons whom he saw standing on the road Suleman Khan then proceeded further and saw a dead body lying there. On reaching the spot he saw Kesra appellant having a single barrel .12 bore gun in his hand, while Surjaram was seen by him having doable barrel 12 bore gun in his hand The third appellant Ramsingh was empty handed. At the sight of Suleman, the three appellants ran away towards the petrol pump which was situated in the east. Then Suleman heard the report of gun fire once again. When he reached near the dead body he saw one person raising hue and cry. He made necessary inquiries from that person as to his name and the name of the deceased. The person replied that his name was Bhagwanaram and the name of the deceased was Moharsingh and the names of the. culprits were Surjaram Kesra and Ramsingh and that the culprits had murdered his brother out of previous enmity. Suleman then advised Bhagwanaram to go to the Police Station and to make a report of the incident. Bhagwanaram acted on his advice and rushed to the Police Station. Suleman then stood by she side of the dead body. After a short while Khumanaram constable also came there. Thereafter Roshan Ali SHO and Police Constables arrived at the spot in a Jeep car along with Bhagwanaram. The SHO left Khumanaram Constable on the spot to guard the dead body and started in the jeep car for searching the appellants. Suleman also claimed to have gone with the SHO in pursuit of the miscreants. Suleman Khan further stated that when he & the SHO had hardly gone about 2 miles they saw three appellants running on the sand dunes The SHO asked the appellants to stop running and arrested them then and there.

6. Suleman Khan was cross- examined at length by the learned Counsel for the appellants in the trial court. In his cross-examination Suleman Khan stated that he saw the faces of the appellants while they were running away at and stance of about 40 or 50 paces from him. When further cross-examined on this point he admitted that the appellants while running all of a sudden turned their faces once towards him and so he recognised them by their faces. Suleman further admitted that the three appellants were neither previously known to him nor he had seen them prior to that day. In cur opinion his evidence of identification of the three appellants in the trial court cannot be accepted in the absence of corroboration which could be in the form of an earlier test identification proceedings. There is no explanation from the side of the prosecution why Suleman Khan was not called upon to identity the there appellants. in a test identification parade specially when the appellants were strangers to him It is no doubt true that the evidence of identification of the accused in court has a substantive value and the failure to hold the test identification parade does not render inadmissible the evidence of identification in cart but save in most exceptional circumstances as a rule of prudence and discretion it is not safe to accept the evidence of a witness about the identity of an accused if the accused was unknown to him either by name or by face. Apart from this the evidence of Suleman Khan in court regarding identification of the appellants cannot be accepted because we are not satisfied that he had at least a fair opportunity of seeing them while they were running at a distance 40 or 50 paces from him Suleman Khan clearly admitted in his cross-examination (hat he could see the faces of the miscreants only when they once a)} of a sudden found their facts towards him while running away towards the east This indicates that the witness had a fleeting glimpse only of the faces of the culprits from a distance of 40 or 50 paces. In this situation it cannot be said that Suleman Khan bad at least a fair opportunity of seeing the culprits soon after the commission of the crime. The appellant were not arrested on the spot as admitted by Suleman Khan They were apprehended by the police at a distance of about 2 miles from Nohar town Hence the evidence of Suleman Khan in court that he recognised the appellants whom he had not seen before the occurrence and who were not previously known to him is a weak type of evidence in the absence of corroboration which could be in the form of an earlier test identification proceedings.

7. The other eyewitness examined by the prosecution is Bhagwana-ram PW 1 Bhagwanaram claimed to have gone with the deceased to Nohar on 20-9-1972. His evidence in rut shell is that after he and his brother got down from the train at Railway station Nohar, they proceeded towards the court of SDM in which a criminal case against Moharsingh deceased was pending trial and its date of hearing was 20-9-1972. He further stated that when they were going on the road near Dharamshala, Ramsingh appellant all of a sudden appealed from the side of Dharamshala and caught held of the hands of Moharsingh and Kesra appellant who had come there after a short while and fired a shot from his gun at Mohar Singh from close range The shot hit the right rib of the deceased on the posterior axillary line. After receiving this gun shot injury when Mohansingh was about to fall on the ground Surjaram appellant who also had arrived there by that time fired a shot from his gun at the deceased which hit the latter on the back. Mohar Singh deceased then fell down and died instantaneously.

8. The learned Additional Sessions Judge has placed reliance upon the evidence of this witness. If the statement of Bhagwanaram is accepted to be true and reliable then there is no hitch in maintaining the conviction of the appellants but on a careful scrutiny we are of the view that his evidence is not trust worthy as it is discrepant on material particulars and does not fit in with the probabilities of the case. It transpires from his evidence itself that Surjaram appellant's brother Banwarilal had been murdered in the year 1965 and he along with his brothers Phularam, Moharsingh deceased, arid his father Ramchandra were prosecuted for that murder, but were acquitted by the Sessions Judge. It was further admitted by Bhagwanaram in his deposition at the trial that the first information report relating to the murder of Banwarilal was lodged against him, his father and brothers by Hansraj father of Ramsing appellant and in the report it was specifically alleged that he (Bhagwanram) had fired a shot from his gun at Banwarilal and thereby caused his death. Hence it is established on the record that there was bad blood between the appellant and Bhagwanaram and his family and the relations between the two parties were highly strained. It is undoubtedly true that previous enmity between the two parties is a double edged weapon in the sense that it is possible that because of enmity the crime has been committed & it may also be that the accused has been falsely implicated on account or hostility. Apart from this, Bhagwanaram is the real brother of the deceased and, therefore, is an interested witness. It is true that his statement can-not be discarded simply became of his relationship with the deceased and his enmity with the appellants, but we find that he is not a witness of truth and It is highly doubtful if he was present at the spot and had seen the assailants who committed the crime. According to the statement of Bhagwanaram, Moharsingh deceased was going 5 or 7 paces ahead of him at the time when his hands were caught hold of by Ramsingh appellant. He further slated in his disposition at the trial that as soon as the hands of Moharsingh were caught hold of by Ramsingh appellant he raised hue and cry that his brother was being beaten He however admitted that when he was raising an out cry the appellants did not tell him anything, nor did they aim their guns at him. In our opinion, the above statement does not fit in with the probabilities of the case because the appellants would not have allowed Bhagwanaram to remain there and eye-witness the occurrence from start to finish specially when Bhagwanaram was their arch enemy as according to them he was the person who was responsible for firing a shot from his gun at their brother Banwarilal in the year 1965 and thereby causing his death. It is rather difficult to believe that Kesraram and Surjaram appellants who were armed with guns would have allowed their arch enemy Bhagwanaram to stay there and eye-witness the whole of the incident and would not have either hurt him or scared him away by pointing their guns at him. Reference in this connection may be made to an authority of the Supreme Court Khan and other v. State of U.P. reported in AIR 1933 S.C. 122 where in a similar situation it was observed as follows by their Lordship in para No. 5 at page 124:

Thirdly, the four men, PWs 1,4 5 and 7, would not have been allowed to remain two or three pices from Sikandar Khan and witness the incident from beginning to end. Jannat Khan, with a gun, would have chased them away and the evidence is that he pointed the gun at them and asked them not to come near and sold them that 'if we proceeded further, he would shoot us'. It may be that afraid of the gun and of a probable attack against themselves, the four men did nothing to prevent the occurrence. But it is some what difficult to believe that Jannat would have allowed them to stay there and have a full view of the murder.

There is another important fact which cannot be lost sight of in assessing the evidence of Bhagwanaram. The fact is that Bhagwanaram stated in his deposition at the trial that after receiving the first shot from the gun of Kesra appellant, Moharsingh deceased was about to fall on the ground but before his fall Surjaram appellant fired another shot from his gun from the back side which hit the deceased on his back, Bhagwanaram was confronted with and contradicted by portion E to F of his first information report Ex P. 1 on this point wherein he stated that when Kesra appellant fired a shot from his gun from close range at this brother Moharsingh, the latter fell down immediately and then Surjaram fired another shot at him soon after his fall. When confronted with the above portion of his FIR Bhagwanaram merely stated that he did not make such statement before the police. He was again confronted with and contradicted by portion A to B of his police statement Ex D.1 wherein he stated that Moharsingh deceased fell down immediately after receiving the first shot from the gun of Kesra appellant & soon after he (Surjaram) fired another shot at him. When confronted with the above portion of his statement Ex. D 1 he admitted to have made such a statement before the Police. He however, further stated that he informed the Police that Mohar singh deceased received another shot from the gun of Surjaram while he was about to fall on the ground. In this matter Bhagwanaram PW 1 has deliberately changed his version in the trial court on a material point because if the other shot was fired by the Surjaram at the deceased while the latter had; fallen down after receiving the first shot from the gun of Kesra, then (his shot fired by him could not have hit the deceased on his back because it is admitted by Bhagwanaram that the deceased fell straight on the ground having his face towards the sky.

9. Another circumstance that throws considerable doubt on the testimony of Bhagwanaram is that, he stated in his deposition at the trial that Kesra appellant took out one cartridge from his belt of cartridge which fell on the ground at a few paces away from the place where dead body of Moharsingh was lying. He claimed to have seen that cartridge fallen on the ground. This fact was not stated by him in his first information report Ex 1 and in his subsequent statement before the police He could not after any reasonable explanation for omission to state this fact(sic) his previous statement although he was confronted with the FIR and his statement Ex D 1 on this point. It is farther borne out from his statement that he did not also tell Suleman Police Constable about the names of any of the appellants, although according to his version Suleman constable had arrived at the place of occurrence and at his sight the appellants were alleged to have disappeared from the scene of offence Bhagwanaram merely stated in his cross examination that the Constable after reaching the spot made inquiries from him & he told the Constable that the deceased was his brother and that his name was Bhagwanaram. The Constable advised him to go to the police station and to make a report of the incident No other talk took place between him and the Constable. Suleman PW 3 on the other hand gave a different version by stating in his disposition that Bhgawanaram upon being questioned disclosed to him his name, the name of the deceased and the name of Surjaram Kesra Ram and Ramsingh as perpetrators of the crime. Suleman further stated that Bhagwanaram disclosed to him that the three appellants were residents of village Matsara and had enmity with him and his brother Moharsingh If Bhagwanaram had seen the three appellants committed the crime, he would have surely disclosed their names as perpetrators of the crime to Suleman Constable and to other 10 or 15 persons who had assembled there after the miscreants had run away. Bhagwanaram stated in his deposition that Surjaram and Kesra appellants had leather pelts containing cartridges which were hanging on their necks but when his attention was diverted to the fact that at the time of arrest Kesra and Surjaram appellants were having leather bags with them which were seized by the police, the witness gave an unconvincing reply by stating that he does not differentiate between leather belts and bags so he stated in his deposition that the belts were hanging or the necks of the two appellants. There is another fact of importance which creates a spark of doubt in our mind. The fact is that the occurrence took place at about 7 A.M. in a locality where hotels, Dhabas and shops were open at a distance of about 10 to 20 paunds as admitted by Shri Bhagwanaram in his statement, but the prosecution could not produce any independent witness in support of its case although Bhagwaram admitted to have raised hue and cry when murderous assault on his brother was made by the appellants. It is not an usual phenemonon that out of the persons present in the hotels, Dhabas and shops situate near about the place of occurrence, not a single person eye-witnessed the incident or was attracted to the spot despite cries of Bhagwana-ram. Normally persons present near about the scene of occurrence are expected to observe the occurrence and the perpetrators of the crime. But in the present case, the prosecution his not produced any of those persons who were present in the hotels, Dhabas or shops nearabout the place of occurrence.

10. It is true that conviction can be based even on the basis of the evidence of a solitary witness but such a witness must be of sterling worth, In the present case we found that the single witness Bhagwanaram to the occurrence is not a witness of truth and it is highly doubtful if he was present at the spot and had seen Ramsingh catching hold of the hands of the deceased and the two appellants Keara and Surjaram firing shots from their guns at him and {hereby causing his death. It appears that the deceased was going much ahead of him and he lagged behind and reached the spot when the culprits had disappeared from there after causing the murder of his brother Meharsingh. Hence we are of the view that it is unsafe to ignore the infirmities appearing in the statement of Bhagwanaram and to convict the appellants on that basis in the absence of any other cogent and convincing evidence connecting the appellants with the crime.

11. The other pieces of evidence relied upon by the prosecution to prove the connection of the appellants with the crime are recoveries of guns and leather bags containing cartridges from the possession of Kesra and Surjaram appellants and the recoveries of fire cartridge case Ex 8 two wads and five pellets from the place of occurrence and one empty cartridge case Ex 16 from sand dunes. The recoveries of the aforesaid articles were proved by the evidence of Roshan Ali SHO PW 11 Khetaram PW 5 and Mahavir PW 6 motbirs. These articles were later on sent to the Forensic Science Laboratory for examination. The Senior Scientific Officer Central Forensic Science Laboratory CBI-cum-Assistant Chemical Examiner to the Government of India New Delhi examined the guns and the other articles and gave his report, the relevant portion of which is given out below:

1. The S.B.B.L. Gun (marked W/l by me) contained in parcel 'B' and the DBBL Gun (marked W/2 by me) contained in parcel 'C' are both in working order and have been used in firing. No opinion on the time of their last firing could, however, be given.

2. The 12-Bore cartridge case (marked C/l by me) contained in parcel 'A' had been fired from the SBBL gun (marked W/l).

3. The 12-bore cartridge case (marked C/2 by me) contained in parcel 'B' has been fired from the right barrel of the DBBL gun (marked W/2).

4. The pellets and wads contained in parcels 'A' and 'D' could have come from the two 12-bore cartridge cases (marked C/1 and C/2).

Mr. Than Chand Mehta Senior Advocate appearing on behalf of the appellants assailed the recoveries of these articles on the ground that no satisfactory evidence has been led by the prosecution to show that after these articles were recovered, sealed and 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 Forensic Science Laboratory for examination. According to the submission of Mr. Than Chand Mehta it was necessary for the prosecution to adduce evidence that the seals put on these articles soon after their recoveries were not tamperred with till they were sent to the aforesaid laboratory for examination. The above contention raised by Mr. Than Chand Mehta is not without force because in the absence of such evidence it is open for the appellants to commend that the seals on these articles were tampered with by the police and other similar articles were replaced later on in order to create evidence against them.

12. The learned Public Prosecutor on the other hand strenuously urged before us that the prosecution has produced evidence that steps were taken at once to seal the articles and that from the time the articles remained in possession of the police till the date on which they were delivered to the Central Forensic Science Laboratory, the seals put on them were intact, unbroken and untampered with by any person. In support of his above contention he invited our attention to the statements of Roshan Ali SHO, Kalusingh HC PW 8, Virpalsingh PW 9 and Shri G.R. Prasad Ballistic Expert PW 12 and contended on their strength that the original seals were not broken or tampered with in any manner till the articles were handed over to the Forensic Science Laboratory for examination.

13. We have carefully gone through the statements of the aforesaid witness's Roshan Ali SHO stated that at the time of his (Kesraram's) arrest, Kesraram had a single barrel .12 bore gun Ex 6 in his possession which he seized and sealed vide memo of arrest Ex. P. 5. He further stated that Kesra appellant had cartridges in his leather bag also which were taken into possession and sealed by him. Likewise he claimed to have recovered double barrel 12 bore gun and one leather bag containing cartridges and licence from the possession of Surajaram at the time of his arrest vide memo of recovery Ex. P. 6. He professed to have smelled this gun and the cartridges also. Thereafter Roshan Ali upon site inspection found one empty cartridge case Ex 8 two wads and 5ve pellets as lying near the dead body of Mohar Singh He took these articles also in his possession and sealed them properly. Kalusingh PW 8 stated in his deposition that he was in charge of Malkhana at Police Station Nohar and in that capacity be received 8 sealed packets of this case for keeping them safe in the Malkhana. According to his version 7 pickets were received by him on 20-9-1972 and one packet was received on 24-9-1972. His evidence is that the seals on these packets remained in tact & were not tampered with during the period they remained in the Malkhana On 16-12-1972 he gave two packets to Sardsr Singh FC No. 1115 at the instance of the SHO for being taken to Chemical Examiner, Jaipur. There after on 19-12-1972 he entrusted live packets to Ram Lubhaya ASI in a sealed condition Virpal Singh PW 9 also stated in his deposition at the trial that five sealed packets were entrusted to him from the Malkhana of Police Lines Ganganagar for delivering to the Fornesic Science Laboratory CBI New Delhi along with letter Ex. P. 21. He claimed to have taken these five packets to the Laboratory and delivered them there with their seals intact on 3-1-1973 Dr. G.R. Prasad PW 12 stated in his deposition that be received five sealed parcels marked A to E on 4-1-1973 from the S.P. Shri Ganganagar along with his forwarding letter Ex P.27, and the seals of the parcels were intact and tallied with the specimen were seals on Ex. P. 27 and Ex. P. 28. Kalusingh PW 8 and Virpalsingh PW 9 did not say in their depositions that the scab on the packets which they received were the same seals which were put on them by Roshan Ali Investigation Officer at the time of their recoveries Their mere assertions that the packets were given to them in a sealed condition are not sufficient. to show that the seals put on these articles at the time of their recoveries were not tampered with during the period these articles remained in the custody of the Police. Curiously enough the prosecution could not examine Ram Lubhaya ASI to whom five packets were handed over by Kalusingh on 19-12-1972 from Malkhana, Police Station, Nohar. Likewise the Police Officer in whose charge these sealed packets were kept in the Police lines Ganganagar has not been produced in proof of the fact that the original seals on these articles remained intact & unbroken during the period they were kept in malkhana of the Police Lines Ganganagar. In the absence of any such evidence we do not feel persuaded to place the same reliance on the recovery and examination of these articles as we would have 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 to the Forensic Science Laboratory for examination, the seals put on these articles at the time of their recoveries remained intact and were not tampered with by any person. In support of our above view we may refer to a decision of our Division Bench in a case the State v. Motia reported in 1953 RLW at page 640 wherein Hon'ble K.N. Wanchoo C. J. (as the 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 is necessary that the officer recovering the articles should immediately take steps to seal them and evidence should be produced that the seats 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 for 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 somebody wants to do so. We do not say that this was done in the present case; but as precautions were not taken, the argument raised on behalf of the accused that this might have been done remains unrefuted.

In a case Ukha Khola v. State of Maharashtra reported in AIR 1963 SC 1531 it was laid down by their Lordships of the Supreme Court that the prosecution must adduce evidence to prove that the seals put on the articles at the time of their recovering remained intact till they were delivered to the Chemical Examiner. The relevant observations made by their Lordships 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 it is very difficult for us to hold that the evidence of recoveries of guns, empty cartridge cases, wads and pellets and the testimony of Shri G.R Prasad PW 12 Ballistic Expert provide any important Jink in the chain of evidence against the appellants because these pieces of evidence do not stand to connect the appellants with the crime of murder.

14. The result of the above discussion is that the prosecution could not adduce clear, cogent & unimpeachable evidence to prove the guilt of any of the appellants beyond reasonable doubt. It is undoubtedly true that the murder of Moharsingh was of a shocking nature, but in the absence of clear and satisfactory proof regarding the guilt of the appellant, their conviction cannot be sustained merely on suspicion and surmises how ever strong they may be. Hence we accept the appeal filed by (1) Surjaram son of Ratnaram resident of Motsara, District Ganganagar, (2) Kesra son of Ratna resident of Motsara (3) Ram Singh son of Hansram resident of Motsara, appellants, set aside their convictions and sentences and acquit them of the charges under Section 302 IPC framed against them. The appellant Kesra is in Jail. He shall be set at liberty forthwith if not required in connection with some other case. Surja Ram and Ramsingh appellants are already on bail. They need not surrender to their bail bonds which are hereby cancelled.


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