Hate Singh vs State

Samvatsar, J.—This appeal is filed by the accused Hatesingh S/o Mehkal Bhilala, who has been convicted for offences under Secs. 302 and 307 I.P.C. and sentenced to suffer imprisonment for life on the first charge and rigorous imprisonment for five years on the second.

One Thavli is a niece of Mehkal, the father of the accused Hatesingh. She was married to one Khumsingh s/o Nahalya and stayed with him for about fifteen years. Thereafter she left her first husband and began to live with Manga, the deceased, as his wife. After living with him for about six months, Thavli left Manga and went to her brother. According to the prosecution case Mehkal and his son Hatesingh claimed compensation (Jhagda Money) from, the deceased Manga in respect of Thavli and as Manga failed to pay it, there arose bad blood and bitterness between them; that Mehkal and Hatesingh tied Manga and beaten him only a few days before the incident that thereafter also trouble was always brewing between them.

3 On 6.11-1955, which was the Diwali Day, one Thavaria, P.W. 3 was having a feast at his house. Amongst others, he had also invited the deceased Manga and P.W. 6 Jemla to participate in the feast. After dinner, Thavaria along with the deceased Manga and P.W. 6 Jemla was sitting in the courtyard of his house. P.W. 7 Bhuru, a neighbour of Thavariya was also sitting in the courtyard of his house. It is alleged by the prosecution that at about 3 or 4 P.M. the accused Hatesingh, his father Mehkal and ten other persons including two females, were seen going towards Thavanya's house. They were abusing Manga. Hatesingh then had a gun with him. One Khumsingh who is the uterine brother of the deceased Manga, heard these abuses and apprehending danger to his brother, ran to Thavariya's house and asked Manga to run away from the place.

Khumsingh Manga and Jemla left Thavariya's place and took the way to Manga's house. P.W. 6 Jemla was going ahead and he was followed by Khumsingh and Manga, Mehkal told the accused Hatesingh to fire the gun and kill Manga. The accused thereupon fired the gun. The bullet struck Khumsingh first in the lumber region and thereafter hit Manga in the back and passed through his body. Both of them fell down. Khumsingh got up and managed to reach his house. Manga who was more seriously hurt by the bullet was removed from the place of occurrence to his own house by P.W. 6 Jemla and by one P.W. 12 Lalu who is also alleged to have reached the place of occurrence at the time of the incident. Manga died soon after reaching his house.

A report of this incident was lodged at the Police Station Khargone by one Mangtya on 7-11-1953 but as the place of occurrence was, within the jurisdiction of Gogava Police Station, the report was forwarded by Khargone Police to Gogava Police Station and was recorded there again. The Sub-Inspector Police in charge of Police Station Gogava was on leave. The offence was therefore investigated by one Gajanan Joshi of the Oan Police Station.

After reaching his hut, P.W.5 Khumsingh got into a bullock cart and proceeded to the Khargone hospital where after receiving treatment for about a month he recovered.

The accused and his father Mehkal were in course of time put up for trial before the Sessions Judge, Mandleshwar for offences u/s 302 I.P.C. for causing death of Manga and u/s 307 I.P.C. for causing injury to Khumsingh. At the conclusion of the trial the learned Sessions Judge found Mehkal not guilty and acquitted him. The learned Judge convicted Hatesingh u/s 302 I.P.C. for causing death of Manga and u/s 307 I.P.C. for gun-shot injury caused to Khumsingh and sentenced him to rigorous imprisonment as stated above. Aggrieved by this conviction and sentence, the accused Hatesingh has preferred this appeal.

It is not disputed in this case that Manga and Khumsingh received injuries with a gun-shot and that Manga died on account of a gun-shot injury. There is also ample evidence on record to bear out this fact.

The main point urged in this appeal by Shri D.P. Bhargava, learned Counsel for the appellant is that the evidence on record is not sufficient to establish beyond all reasonable doubt that the gun was fired by the accused and by no one else.

The prosecution has examined five persons as eye-witnesses to the crime. These are: P.W. 5 Khumsingh, P.W. 6 Jemla, P.W. 7 Bhuru, P.W. 8 Thavariya and P.W. 12 Lalu.

P.W. 5 Khumsingh is the uterine brother of the deceased Manga. He has stated that on the Diwali Day of the year 1953, he was in his hut; that after sometime he saw the accused Hatesingh, his father Mehkal and several other persons going towards Thavariya's hut; they were abusing Manga; that hearing these abuses he ran to Thavariya's hut believing that these people intended to kill Manga; that he found Manga and Jemla at Thavariya's hut; that he told Manga of the movement of the accused and his partisans and told him to run away otherwise he may be beaten or killed; that he was taking Manga to his hut but on the way Mehkal told Hatesingh to shoot Manga and Hatesingh fired the gun; that the bullet hit him first in the lumber region and then hit Manga in the back and escaped through his body; that both of them fell down; that after sometime he got up and saw that Lalu and Jemla were by the side of Manga; that he himself got on to his feet and slowly moved towards his house as he was feeling uneasy; that after sometime Mehkal went to his place and told him that Manga had died and that there was every chance that he too would have been killed; that he then got into a bullock-cart and went to Khargone hospital.

The witness has further stated that Thavli, the niece of Mehkal was married to one Khumsingh s/o Nahalya with whom she stayed for about fifteen years; that she then left Khumsingh s/o Nahalya and lived in the house of the deceased Manga; that about six months thereafter she left him too and went to her brother; that the accused Hatesingh and Mehkal had tied Manga and beaten him because Manga did not pay the compensation money for Thavli that the relations of the deceased Manga and the accused were for this reason strained.

In his cross-examination the witness has stated that Jemla had accompanied him to Khargone; that Jemla went to the police-station but he himself went to the hospital.

In his further cross-examination the witness has stated that Hate, singh did not carry bow and arrows in his hands; that he and Manga were moving side by side and were going to Manga's hut by a foot-path; that he himself was about two paces behind Manga; that Lalu and Jemla were on his sides; that their faces were towards West but it is not correct that they were running; that Hatesingh fired the gun from behind them,

In reply to further questions, the witness stated that when he fired the gun, Hatesingh was at a distance of about 17 or 18 paces; that the bullet hit them when they were on the foot-path going through Bhuru's field; that the gun was fired by Hatesingh from behind Narsingh's hut and the bullet hit them when they were on the waste-land belonging to Bhuru; that Hatesingh fired the gun only once; that the bullet bit him first because he was in between Manga and Hatesingh.

P.W. 6 Jemla is the real brother of Khumsingh, He has stated that on the Diwali Day he had gone to the house of Thavariya to take his meals; that after taking the meals, Manga himself and Thavariya were sitting in the courtyard outside Thavariya's hut; that Bhuru was sitting in the courtyard of his own hut; that he was the accused Hatesingh, Mehkal and others coming from the East; that Hatesingh then had a gun; that Khumsingh had also arrived and on seeing the party of the accused, the witness Khumsingh and Manga left the place; that he was going by the foot-path through Bhuru's field when Mehkal told Hatesingh to shoot Manga and Hatesingh thereupon fired the gun; that the bullet first hit Khumsingh and then Manga; that the bullet bit Manga in the back and passed out through his stomach; that Khumsingh was injured in the lumber region; that both of them fell down and the party of the accused ran away; that he and Lalu stayed where Manga had fallen out Khumsingh got up and walked to his house; that they then lifted Manga and took him to his house where he died; that the incident took place sometime in the afternoon.

The witness has further stated that Thavli, the niece of Mehkal Patel had got into the house of Manga and lived there as his wife for six months; that Mehkal was not on visiting terms with Manga.

In cross-examination the witness has said that when he and Manga left Thavariya's house and were proceeding towards West, they met Khumsingh on the way who told them to return to their huts; thai Khumsingh followed them; that Khumsingh said nothing on the way.

The witness further stated that when the gun was fired by Hatesingh, he was at a distance of about 125 paces; that the bullet hit Khumsingh first and then hit Manga. The witness was at this stage confronted with the statement in the police diary in which it is mentioned that Manga was hit first and Khumsingh was hit afterwards, and the witness said that that statement was true and what the stated in Court was false. He further deposed that the gun was fired once only and two shots were not tired.

In re-examination the witness has said that Khumsingh met them when they were at about 20 or 25 paces from the hut of Thavariya.

P.W.7 Bhuru is a neighour of Thavariya. He has stated that on the Diwali Day Jemla and Manga had gone to Thavariya's house to take their meals. That after their meals they were sitting in the courtyard that he himself was sitting in his own courtyard; that about that time Metrical and Hatesingh accompanied by ten other persons including two women, were seen going towards Thavariya's house; that it was past afternoon; that Hatesingh bad a gun; that the party of the accused was using abusive language; that seeing them, Jemla and Manga began running; that Khumsingh also arrived on the scene and apprehending that the accused would kill Manga took them away; that Manga, Jemla and Khumsingh were passing through his waste-land when Mehkal told his son to shoot Manga and Jemla; that Hatesingh fired the gun; that the bullet hit Manga and Khumsingh and both of them fell down; that Manga fell on one side and Khumsingh on the other; that the bullet hit Khumsingh in the lumbar region; that it struck Manga on the back and passed through his stomach; that Lalu was then coming from the opposite side; that Lalu and Jemla lifted Manga and carried him to his house; that Khumsingh got up after sometime and walked to his house; that Article A is the gun which Hatya had fired and that it belonged to him.

In cross-examination the witness has stated that he was at his own house at the time of the incident and that he saw being fired from behind Thavariya's house; that he had gone to the back side of Thavariya's house on seeing the accused and his partisans; that the incident could not be seen from his house as other houses were intervening. The witness was confronted with the statement made by him before the committing Magistrate (Ex. D/6) and was asked why he did not mention the fact that he had seen the incident from behind Thavariya's house. The witness replied that he had made this statement and cannot say it was not recorded. He was also confronted with his statement in the police-diary, copy of which is produced at Ex. D/7, wherein he had stated that he had witnessed the incident from his courtyard. The witness stated that the statement was false.

In further cross-examination the witness has stated that after the incident he did go to the place where Manga had fallen down; that he had also not taken any part in removing Manga; that Hatesingh was at a distance of 25 hands from him and about 60 hands from Manga and Khumsingh when he fired the gun; that he identified the gun and saw the hammer from a distance of 25 hands; that he was a brother-in-law of Thavariya and Manga; that blood had fallen down at the place of occurrence; that he had shown it to the police but they did dig the earth from that place.

P.W. 8 Thavariya is the person at whose house Manga and Jemla had gone to take their meals on the Diwali Day. He has stated that after taking their meals they were sitting in the courtyard; that sometime towards the evening the accused reached there; that they were then using abusive language; that Khumsingh bad also gone there; that he took Manga and Jemla with him to their huts; that when they were going by the foot-path through Bhuru's field, Mehkal asked his son to shoot Manga and administered an oath; that Hatesingh fired the gun; that Khumsingh and Manga were hit and fell down; that the bullet hit Khumsingh in the lumber region, and further struck Manga on the back and pierced his body through and through; that the accused then ran away; that Jemla and Lalu carried Manga to his house; that Khumsingh got up and walked to his hut; that be himself then went to Manga's house where Manga had died; that Article A was the gun which was carried by Hatesingh and which he had fired; that Thavli was the niece of Mehkal; that she had married one Khumsingh S/O Nahalya and then Manga; that as Manga did not pay the compensation money Mehkal had beaten Manga sometime earlier; that thereafter Thavli went to her brother.

In cross-examination the witness has stated that when the accused Hatesingh and Mehkal reached his but Bhuru was sitting at his house but Lalu was not there; that it was wrong to say that the party of the accused reached his hut when Manga and Jemla were sitting in his courtyard; that it was also wrong to say that Khumsingh reached his hut when the party of the accused was there. The witness was confronted with his statement marked C to C in Ex. D/8. He replied that it was a false statement; that Lalu was also not there and that his statement marked D to D in Ex. D/8 to the effect that Lalu was also there was false.

In his further cross-examination the witness has stated that Jemla, Manga, Khumsingh and Lalu were running one after the other; that when Hatesingh fired the gun Jemla was ahead of others and Lalu was behind all of them; that Manga and Khumsingh were in between; that Hatesingh had his back towards him; that Bhuru was near him; that Khumsingh. Jemla and Manga had their backs towards Hatesingh when the gun was fired.

In reply to further questions in cross-examination the witness has stated that the party of the accused reached his bouse and there began abusing Manga from a distance of about ten or twelve paces; that he himself, Manga and Khumsingh were then sitting and chit chatting; that in order that there may not be any trouble, Khumsingh took away Manga with him; that Khumsingh took Manga when the accused were standing there; that Mehkal thereupon said "Fire the gun" that this he said from a place near his but; that Khumsingh and Manga there, after ran from behind his hut. The witness again stated that they walked slowly and did not run. In the last line of his cross-examination the witness has stated that about six months before Manga was killed, Thavli had left him and had gone to her brother and that since then there was no dispute left between Manga and Mehkal.

The last of the eye-witnesses is P.W. 12 Lalu. He has stated that he was returning from Hirapur to Balkhad at the material time; that Thavariya bad invited him to the feast and he was at that time going to Thavariya's hut; that Mehkal, Hatya and certain other persons were also going towards Thavariya's house shouting; that about that time Khumsingh came running and told Manga and Jemla that those people were coming and would beat them, hence they should run away: that Manga, Jemla and Khumsingh thereupon began to run; that Mehkal thereupon told Hatya to shoot Manga; that Hatya lifted his gun and fired; that the bullet struck Khumsingh and Manga and both of them fell down; that he himself Jemla and Bhuru then carried Manga to his hot where he died; that Article A is the gun which was carried by the accused Hatya then.

In his cross-examination that witness admitted that he had never taken the gun in his hands and that there was no particular sign to identify it that he had seen the gun from a distance but had not seen any such gun with any one else; that Manga also had a gun in his house which was bigger than Article A; that Manga was his neighbor and was on friendly terms with him In his further cross-examination the witness has said that he met Manga, Jemla and Khumsingh when he was on his way to Thavaariya hut; that he met them at a distance of about 15 or 20 paces from Thavariya's hut; that it was incorrect to say that he met them at Thavariya's hut that his statement in Ex. D. 12 that when the accused reached Thavariya's hut, he was sitting with Manga and Jemla was false; that his statement that Khumsingh reached there at that time is also false.

All these eye-witnesses have stated that they had heard Mehkal telling his son, the present appellant, to fire the gun. There is however no unanimity among the witnesses as regards the precise words used. According to P.W. 5 Khumsingh, Mehkal told his son to fire the gun at Manga and to the same effect is the statement of P.W. 6 Jemla. P.W. 7 Bhuru has however improved the version slightly and has stated that Mehkal instructed his son to kill Manga and Jemla with the gun.

P.W.5 Khumsingh has further stated that Mehkal went to his hut after the incident and told him about Manga's death. He has also stated that Mehkal then said that there was every chance that he himself (Khumsingh) would have been killed.

Mehkal was put up for trial along with the appellant but was acquitted because the Court did not believe the statement of the eye-witnesses that Mehkal had instigated his son, the present appellant, to fire the gun and to kill Manga and Jemla both.

Apart from the fact that the evidence of these witnesses has been disbelieved as regards the complicity of Mehkal in the crime, there is something inherent in it which requires that the evidences of these witnesses should be subjected to greater scrutiny.

P.W. 5. Khumsingh and P.W. 6 Jemla were at the material time going from Thavariya's house towards Manga's hut. They have admitted that the person who fired the gun was at some distance and had fired the gun from behind. On their own showing they were either running or walking fast to escape from being attacked by the accused and his partisans.

According to the evidence of P.W. 8 Thavariya, Lalu had also accompanied Manga when he left the witness's hut, and was behind Khumsingh. On this evidence it must also be assumed that Lalu had his back towards the person who shot the gun.

It therefore seems doutbful whether P.W. 5 Khumsingh, P.W. 6 Jemla and P.W. 12 Lalu could have seen the person who had really fired the gun.

P.W. 7 Bhuru was in his courtyard when Manga and others left Thavariya's hut. He has admitted that the incident could not be seen from that place but has added that he had moved to a place behind Thavariya's hut and bad seen what had happened from there. This statement of the witness is in conflict with what he had deposed during the investigation and P.W. 8 Thavariya does not support him on this point. While admitting that the accused was behind his house when the gun was fired, the witness Thavariya has stated that both, he himself and P.W. 7 Bhuru had seen the accused firing the gun from his own courtyard.

From these conflicting versions it seems doubtful whether these witnesses had actually seen the accused firing the gun.

In appreciating the evidence of these witnesses there is also one important aspect to be noticed. According to the evidence of the prosecution witnesses, the gun was fired from a considerable distance. P.W. 6 Jemla gives this distance as 125 paces. According to Khumsingh this distance was 17 or 18 paces. P.W. 7 Bhuru has then stated that Hatesingh shot the gun when he was at a distance of about 60 hands from his victims. Besides the evidence of these witnesses, there is also on record a plan Ex. P/15 prepared by the investigating officer himself which discloses that the accused had fired the gun from a distance of about 105 paces. Apart from the discrepancy in the measurements given, it is plain from the eye-witnesses account that the gun was filed by the accused from a considerable distance and was not fired from a very close range.

The Panchnama Ex. P/7 and the evidence of P.W. 4 Shamsherkhan however tell a different tale. The Panchnama of the dead body (Ex. P.7) was prepared by the investigating officer on 8-11-1953. It is mentioned in the Panchnama that the skin of the dead body round about the place where injury was caused, was burnt and charred and that it had therefore become dark. P.W. 4 Shamsherkhan who is a witness to this Panchnama also supports this fact. He has admitted that the statement made in the Panchnama regarding the condition of the skin is correct.

In the present case, the prosecution have not examined any ballistic expert to ascertain the distance from which the shot must have been fired to cause the charring of the skin.

Taylor in his Principles and Practice of Medical Jurisprudence ''Volume 1, 10th Edition, at page 441, has dealt with the subject of Burning of the Wound.

The learned author has said:-

It is impossible to state rules as to the precise distance from which it is possible to produce marks of burning, for this depends on the quantity and nature of the powder, the method of charging, and the nature of the weapon. It is unusual, however, to get marks of burning beyond a yard or a yard and a half with a shot gun or at more than half a yard with a revolver.

This statement of the learned author has been referred with approval by the Supreme Court in Santa Singh Vs. The State of Punjab,

From the opinion expressed by Taylor, it seems to me that the filing in the instant case was from a short distance not exceeding more than a yard or a yard and a half. If the gun had been fired from a long distance, as stated by the prosecution witnesses, there would have been no marks of burning on the skin.

The evidence of the eye-witnesses cannot be reconciled with the marks of burning which were present on the body of Manga when the Panchnama Ex. P/7 was prepared.

The prosecution have produced a gun, Article A, as the weapon with which the crime was committed by the accused Hatesingh: They have examined witnesses to prove that it was this gun which was in the hands of accused at the material time and was fired by him.

The gun was seized from the house of the accused on 8.11.1953. No attempt was however made by the prosecution to get the gun examined by a ballistic expert and to ascertain whether it had been recently used or fired. Gajanan Joshi P.W. 10 the Investigating Officer himself claimed to have received special training in fire-arms. He has admitted in his statement that he did not examine the gun and ascertain whether it was recently used or whether it was in a working condition. In my opinion, the prosecution were bound to produce some evidence to show that the gun Article a was in a working condition and was recently used by examine an expert. Instead of doing that they have relied upon the ipse dixit of the prosecution witness like Bhuru who has stated to have identified the gun from a considerable distance. From the evidence on record, I am not satisfied that the gun Article A, was the gun with which injuries were caused to the deseed Manga and P.W. 5 Khumsingh.

The place of occurrence is stated to be the foot-path passing through Bhuru's field. Though the land is described as a field and in some portion of it the cotton crop is said to be standing, the place where Khumsingh and Manga were actually hit and had fallen down, is admittedly a waste-land (Padat-Jamin). These two persons had apparently sustained grievous injuries and it would not be unusual to expect marks of blood at these places. According to P.W. 7 Bhuru, there was blood on the ground where Manga and Khumsingh had fallen down and that he had shown it to the Police-officer but the latter did not care to seize the blood-stained earth. The prosecution have also not been able to find out the bullet near the place of occurrence. These circumstances are not without significance.

The motive for the crime is alleged to be a dispute between Mehkal and the deceased Manga regarding compensation money in respect of Thavli. There is, however, the evidence of P.W. 8 Thavariya who has in cross-examination, very categorically admitted that Thavli bad left Manga about six months before his death and that since then there was no dispute left between Manga and Mehkal. That Thavli had left Manga much before the incident, is admitted almost by all the witnesses and Thavariya's statement that after Thavli had left Magna's house, there was no bitterness left between Mehkal and the deseased, seem of the motive for the crime is also not proved to be true.

It was urged by Mr. Patel, the learned Deputy Government Advocate, that the eye-witnesses should be believed because they were corroborated by the evidence of Dr. Lajpatrai, who had stated that gun-shot injuries were noticed on the person of Khumsingh and Manga when he examined them on 8th November, 1953. In my opinion this argument is not sound In the circumstances of the case.

The evidence of the eye-witnesses is itself not very satisfactory and the prosecution have not cared to get it corroborated by producing the blood stained earth as and the bullet as also by adducing evidence to prove that the gun Article A was recently used or was in a working condition.

In Santa Singh vs. The State of Punjab the supreme Court had to deal whit a some what similar case It The State of Punjab the Supreme Court had to deal with a some what similar case It was also Their a case of murder by gunshot. The Prosecution had examined two person as eye-witnesses Their evidence was accepted by the Sessions Judge and by the High Court.

The evidence of these eye-witnesses was not believed by the Supreme Court because there were some features in that case which made it unsafe to uphold the conclusion of guilt. These circumstances were:

(i) The evidence of the eye-witnesses showed that the gun was shot from a distance of 25 feet but the ballistic expert was of opinion that the deceased must have been killed by a gunshot fired from a very close range.

(ii) During the investigation the police had seized an empty cartridge and blood-stained earth and kept them in sealed packets. The sealed packet containing earth was sent to the chemical analyzer and the packet containing the cartridge was sent to the ballistic expert, But then there was considerable delay in doing this.

(iii) There was also some delay in interrogating the accused.

It was held by the Supreme Court-in face of the medical evidence, the testimony of the eye-witnesses cannot be safely accepted; the suspicious delays that have occurred as regards important steps in the course of the investigation render it unsafe to hold that the case of the prosecution has been established beyond reasonable doubt.

The test applied by the Supreme Court, fully applies to this case also. The prosecution have failed to seize the blood-stained earth and to recover the bullet from near the place of occurrence. They have also failed to examine a ballistic expert and to prove that the gun Article A, could be used or was in fact used recently. The eye-witnesses are relatives of each other and have been disbelieved in respect of the accused Mehkal. Their evidence that they had seen the accused firing the gun is not convincing in view of the circumstances discussed above. Motive for the crime is absolutely lacking. The evidence of the eye-witnesses cannot be reconciled with the medical opinion. In view of all these circumstances the testimony of the eye-witnesses cannot be safely accepted to maintain the conviction.

I allow the appeal, set aside the conviction and sentence and acquit the appellant Hatesingh of the charges levelled against him.

Dixit J.

I agree.