Was Dev Misra, C.J.
1. Jagan Nath, aged about 20 years, has been convicted under Section 302 of the I.P.C. for the murder of Hiru and sentenced to imprisonment for life by the Additional Sessions Judge, Kangra, at Dharamsala, He appeals against the conviction and 'sentence.
2. Hiru (deceased) was residing in village Dari with his family members. On 17th September, 1979 Hiru with his wife went for cutting grass. They returned as the sun was setting. On the way to their house falls their cattle shed. Hiru told his wife Geeta Devi to Proceed on to the house since he had to give fodder to the cattle, Geeta Devi, therefore, came alone to the house. All the family members waited for the return of Hiru Thinking that Hiru might come late. everyone went to sleep. Next morning Geeta Devi realised that Hiru had not returned home that night. She went to the cattle shed There she saw her husband lying dead. She noticed that his intestines had come out and the clothes were smeared with blood. Prakash Singh, Advocate, a neighbour of Hiru deceased, informed the police on the telephone,
3. On receiving the telephonic information Sub-Inspector Amar Singh (P. W. 16), Station House Officer of police Station, Dharamsala, proceeded to the scene of crime. There he recorded the statement of Sheelo Ram (P.W. 2). father of the deceased and registered a case under Section 302 of the I.P.C. The Investigating Officer got the dead body photographed and prepared the inquest report. He sent the dead body for postmortem examination, Dr. Kartar Singh (PW 15). Senior Medical Officer, District Hospital Dharamsala, conducted the post-mortem examination on 18th September, 1979. He noticed, an incised wound on the abdomen. He found the peritoneum cut and full of blood, He was of the opinion that death was due to the cutting of the intestines, which led to haemorrhage, shock and death. The injury was opined to be sufficient in the ordinary course of nature to cause death.
4. There is an old civil litigation between the family of the deceased and the family of the appellant. Both the families are related to each other, They were not on visiting terms. During the investigation of the case the appellant was suspected of having committed the murder of the deceased. The Investigating Officer deputed constables to various places to apprehend the appellant. Constable Chaman Lal apprehended the appellant on 20th September, 1979 at Gagal. He was taken to Kachehri Adda at Dharamsala and thereafter to Dari. His bush-shirt (Ex, P-5) was suspected to have a dot of blood on the sleeve and so it was taken intc possession. On interrogation a disclosure statement was made by the appellant who got discovered bloodstained knife (Ex. P-8). The shirt and t.he knife were found to be stained with human blood by the Chemical Examiner.
5. After completing the investigation, the appellant was charge-sheeted under Section 302 of the I.P.C.
6. During the trial the appellant was given the assistance of a counsel at the expense of the State. His defence was that he was the victim of suspicion.
7. There is no eye witness and the case rests completely on circumstantial evidence. The evidence consists of (i) extra-judicial confession. (ii) bloodstain found on the shirt (Ex, P-5) of the appellant; and (iii) recovery of bloodstained knife (Ex. P-8).
8. The prosecution has produced Man Singh (P. W. 7) to prove the extra-judicial confession. He was working as a salesman at 'Aggarwal Filling Station' Gagal. He claims to know the appellant since the latter was working as a labourer at Gagal. He would have us believe that on 19th September, 1979 at about 9,30 P. M, the appellant asked this witness t.o help the appellant to sit in a truck since the latter wanted to go to Pathankot. Man Singh questioned him as to why he was not going by a bus. The appellant told the witness that he had no money. It is stated by Man Singh that the appellant also disclosed to him that the appellant had killed Hiru Ram and was trying to run away. The witness tried to inform the police on the telephone but failed since the telephone was not in order. While he was trying to ring, the appellant ran away.
9. It is no doubt true that no corroboration is required of a witness to whom extra-judicial confession has been made (Piara Singh v. State of Punjab : 1977CriLJ1941 ). However, the credibility of the witness to whom such a confession has been made has to be closely tested. If the witness is credible, there is no hesitation in believing the extra-judicial confession (Mulk Raj v. State of U.P. AIR 1959 SC 902.: 1959 Cri LJ 1219. But can Man Singh be relied upon He admits that the appellant never had a talk with him at any time before 19th September, 1979. He never financially helped him. He has no explanation why he did not inform the police on 19th September, 1979 after the appellant had run away. He admits that he had heard a rumour about the murder. In case the appellant had told him the name of his victim, the witness should have had no hesitation in informing the police about the appellant. But he remained silent till the next day when constable Chaman Lal apprehended the appellant. It is thus very doubtful whether the appellant had at all confessed his crime to him. Moreover. Man Singh would have us believe that he had told constable Chaman Lal about the appellant's confession. Strangely enough the prosecution has withheld constable Chaman Lal. They have no explanation why this constable, who had apprehended the appellant at Gagal, was not produced. He was a material witness. He had not only arrested the appellant but had taken him along with Man Singh first to Kachehri Adda. Dharamsala, and then to Dari. Of course Man Singh did say in the court that he told constable Chaman Lal that the appellant had run away from the petrol pump but he was duly got contradicted with his police statement,
10. Now whereas Man Singh is very categorical that he accompanied Chaman Lal and the appellant to the scene of crime at Dari. Investigating Officer would have us believe that he recorded the statement of Man Singh before he came to know about the apprehension of the appellant by Chaman Lal. This indeed was a clever devise of the Investigating Officer. His effort clearly was to show that Man Singh had talked about the extra-judicial confession before the appellant was arrested. The Investigating Officer states that at Dari he had come to know about the arrest of the appellant and his being brought to Kachehri Adda at Dharamsala. He also admits that he came to Kachehri Adda after the information was conveyed to him. Here were present the appellant, constable Chaman Lal as well as Man Singh. We cannot understand how the Investigating Officer wants the Court to believe that he recorded Man Singh's, statement before he came to know about the arrest of the appellant by Chaman Lal. Moreover, the Investigating Officer had recorded the statement of Man Singh at Dari and not at the Kachehri Adda. We have no hesi-tation in holding that the Investigating Officer is telling a white lie in order to ensure that his case succeeds against the appellant,
11. Man Singh is belied also by the fact that on personal' search of the appellant a sum of Rs. 3.20 was recovered. Therefore, there was no occasion for the appellant to inform Man Singh that he had no money. If the appellant was interested in running away, he would be the last person to make a voluntary confession to a stranger specially when he had money with him to travel by a bus. We find that the learned Additional Sessions Judge has acted on surmises in believing Man Singh without paying any attention to the facts discussed above. He seems to have been led away by the fact that there was old litigation between the families of the appellant and the deceased, and discovery of a bloodstain on the appel-lant's shirt as well as the recovery of a knife.
12. In circumstantial evidence it is necessary that each fact must be proved individually and only thereafter the sum total of the proved facts has to be taken into consideration, The proved facts should be such tha' they form a complete chain which leads the Court to only one. conclusion, that is the guilt of the accused. In the instant case the only evidence left agatnst the appellant is a dot of blood on the shirt (Ex. P-5) and recovery of knife. Even if we take them duly proved, these two facts are not enough to prove the guilt of the appellant since they do not link the appellant with the murder. We will take up the case of a dot of blood on the shirt (Ex P-5) of the appellant.
13. Our attention has been drawn to the fact that the seals which have been used by the Investigating Officer and handed over to the witnesses have not been produced by the witnesses in the court. Indeed Dina Nath (P. W. 5) who came with Chaman Lal and the appellant from Gagal and to whom the seal, with which the shirt Ex. P-5 was sealed, was given, deposed in the court that the seal was lost. He never informed the police officer about the loss of the seal nor he explained the cir-cumstances in which the seal was lost. Similarly Devinder Paul (P. W. 6), who is a witness of the recovery of knife and to whom the seal with which the knife was sealed was given, told the court that the seal was not with him. Moreover, we find (as stated by Dina Nath) that there was only a dot of blood on the sleeves of shirt (Ex. P-5), We wanted to see the shirt and we had asked the prosecution to produce it. This shirt was not produced. The learned Assistant Advocate-General informed us that he had duly instructed the police station concerned to produce the articles including the shirt (Ex. P-5) but no one turned up. This is not the first time when the State has failed to produce the exhibits before us. We had various occasions to impress upon the State that failure to produce the exhibits will force us to believe, in some cases, that the State is afraid in our examining the exhibits since these may not support the prosecution. In the instant case we were very anxious to see the shirt and also to find out the dimensions of the 'dot of blood' which was on the shirt (Ex, P-5). The shirt not having been produced before us, we will hold against the State that the blood was very insignificant which could have been there for various other innocent reasons,
14. Similarly the State has failed to produce the knife (Ex. P-8) before us. The sketch of the knife shows that it is only a sort of pen knife. This knife was stated to have been recovered from among the bushes. Admittedly it was neither buried nor hidden. Much reliance cannot be placed on such a recovery.
15. We may also point out the highly unsatisfactory manner in which the case diary was maintained by the Investigating Officer. We had an occasion in Criminal Appeals Nos. 66 and 67 of 1979, decided on 7th January, 1981 : 1981 Cri LJ NOC (HP) 103 to discuss the import of Rule 25.54 of Chapter XXV of Volume-III of the Funjab Police Rules, 1934, which are applicable in this State. We had criticised the police for keepfng the case diaries which do not bear printed page numbers leaving an opportunity for a dishonest Investigating Officer to interpolate. We find that in the instant case also there are no printed page numbers. Another glaring defect which has come to our notice is that the Superintendent Police, to whom the case diaries were sent, did not Put down the date when he signed them. It is expected of the Superintendent of Police to put date on the case diaries in order to check the bona fides of the investigation. In respect of the second case diary which was written on 19-9-1979, the endorsement of the office of the Superintendent of Police shows that it was received on 27- 9-1979. This noting of the date as well as the points written in the case diary seem to be in the handwriting of some person working in the Superintendent of. Police's office whereas the latter has only initialled the same. Case diary No. 3 of 20th September, 1979 also shows that it was received on 27-9-1979 in the office of the Superintendent of Police, Case diary No. 4 of 21-9-1979 was received in the office of the Superintendent of police on 29-9-1979. We noticed that whosoever signed as Superintendent of Police has also given this date under the initials as well. Fifth case diary of 22nd September, 1979 seems to have been received in the office of the Superintendent of Police on 29-9-1979/3-10-1979. It is true that the dates of despatching the case diaries have been shown as the next day on the case diaries, but we have taken the dates of receipt because of the endorsements found on the reverse of the opening sheets of the case diaries. For example, in case diary No. 3, the reverse of the opening sheet contains the date as 20-9-1979/27-9-1979 which only means that the case diary of 20-9-1979 was received on 27-9-1979. It could not have been received on 20-9-1979 because the case diary shows the date of its despatch as 21-9-1979. All this indicates great laxity of supervision in a murder case. Incidentally this has given a free hand to the Investigating Officer to fudge his diaries. We expect the State to ensure that such things are not repeated in future. Investigations, specially in cases relating to heinous offences, need a close supervision by the Superintendents of police so that an innocent person is not harassed by the Investigating Officer who are usually anxious to show successful investigation.
16. The result is that the appeal is allowed. Conviction and the sentence of the appellant is hereby set aside and he is acquitted. The appellant is directed to be released forthwith unless he is wanted in any other case.