Mohinder Singh and others vs State of Punjab

C.G. Suri, J.—Mohinder Singh aged 25 years of village Tut Kalan, Makhan Singh aged 15 years of village Rangran, Geja Singh aged 18 years and Sarwan Singh aged 25 years, residents of village Heran, have been convicted u/s 302, read with section 34 Indian Penal Code, and have been sentenced to each to life imprisonment for the murder of Constable Harchand Singh in the area of village Tut Kalan on the evening of 12th September, 1968 at about 7.00 P.M. They have filed this appeal against their convictions and sentences.

The prosecution story in brief is that Harchand Singh deceased was a Constable attached to Police Station. Nakodar. According to daily diary entry No. 44, he had left the police station on duty on the morning of 9th September, 1968. He had been entrusted with some robkars or processes for service and had set out on a cycle. At about sunset time on 12th September, 1968, he happened to be present at the Bus Stand of village Tut Kalan. He was in uniform at the time and was carrying the cycle. Some unknown person informed the deceased that Mohinder Singh, Makhan Singh, Geja Singh and Sarwan Singh had illicit liquor in their possession and had been seen going towards the village. P.Ws. Resham Singh, Karam Singh Sarpanch and some others were present when this information was given. Harchand Singh went in pursuit in the direction indicated and intercepted the appellants near the well of Sadhu Singh which is about half a mile from the abadi of this village. The P, Ws., who had stayed on at the bus stop, beard cries of "Mar Dia Mar Dia" raised by the deceased These cries were also heard by persons who have their fields or wells in the vicinity. Lashkar Singh P. W. was one such person who reached the scene of the crime on hearing these cries. Resham Singh informant and Karam Singh Sarpanch had also reached the place. They saw Mohinder Singh appellant armed with a kulhari, Makhan Singh with a kirpan, Geja Singh with a lathi and Sarwan Singh with an iron bar (saria) giving injuries to Constable Harcband Singh who was lying on the ground. The P.Ws. wanted to intervene but the appellants threatened them with similar treatment. Harchand Singh died then and there and the appellants left the place with their respective weapons. The appellants were known to Lashkar Singh P. W. and others as they belong to the same or ''nearby villages. Banta Chowkidar was sent for and Resham Singh and Karam Singh Sarpanch left the place to report the matter at Police Station, Nakodar which is at a distance of about three miles from the scene of the crime. Resham Singh lodged the report. Exhibit P.D., at 8.40 P. M. at the police station and a copy of the first information report reached the Ilaqa Magistrate at his residence in Jullundur eighteen miles away, at 11.30 P.M. the same night.

S.I. Mangal Singh, Station House Officer incharge of the police station, who had recorded this report, as also the statement of the Sarpanch, at the police station reached the spot the same night and carried out the usual investigations. He made a search for the appellants the same night but they were not to be found. He arranged for the despatch of the dead body after holding the inquest and the post mortem examination was carried out at Nakodar in the afternoon of the day following the occurrence. The dead body had more than a score of injuries Two were stab wounds while seven were incised injuries. There were about a dozen blunt weapon injuries all over the front side of the body. Two injuries on the hand suggested that the deceased had been trying to ward off the blows Third, fourth, fifth, sixth, seventh and eight ribs were fractured on the left side along with the sternum just below the manubrium sterol. A look at the pictorial diagram may seem to make it elear that all these injuries had been given to the deceased while he was lying on the ground face upwards. The incised injury on the left maxilla, which had cut the muscles and bone underneath, was individually sufficient to cause death in the ordinary course while the other injuries could have the game mortal effect collectively. Death was instantaneous. The nature of the injuries was such that in the doctor''s opinion, the use of all the four weapons ascribed to the appellants could not be ruled oat. The medical evidence may, therefore, appear to be consistent with the ocular testimony of Lashkar Singh P. W. even though the other eye-witness had been declared hostile at the request of the Public Prosecutor. They had, therefore, been confronted with their statements made to the police and stand contradicted by these statements in so far as they have now tried to help the appellants Informant Reshem Singh had supported the entire prosecution story during his examination in-chief before the Committing Magistrate on 27th November, 1968 The case was adjourned for his cross examination which was carried out on 24th Match, 198). During the interval of about four months, Resham Singh had been completely won over end was declared hostile by the Committing Magistrate on the adjourned hearing. Resham Singh''s statement, Exhibit P.U., before the Committing Magistrate had, in these circumstances, been transferred to the Sessions record u/s 288 of the Code of Criminal Procedure.

The appellants had been arrested on 15th September, 1988. Mohinder Singh appellant was wearing the shirt, Exhibit P. 5 which had stains of blood. The shirt was taken into possession and the Serologist''s report, when received in due course, showed that the stains ware of human blood. The interrogation of Mohinder Singh and Ma khan Singh accused on 21st September, 1968 led to the recovery of blood stained hatchet (kulhari), Exhibit P. 4, and kirpan, Exhibit P. 6, after they had respectively made disclosure statements leading to the recovery of these weapons from places of concealment pointed out by them. The Serologist''s report establishes the human origin of the blood found on both these weapons.

Lashkar Singh P.W. has his well near the scene of the crime. He had reached the place on hearing the cries for help. He had been examined within a Few hours of the arrival of the police He claims to have seen the Constable in uniform being murderously assaulted by the appellants. He is not a stock witness of the police and had no apparent reason for making a false statement Implicating the appellants, one of whom belongs to his village. The English record suggesting that the witness had been interrogated by the police as a suspect is not a true rendering of the statement made by the witness in Punjabi. The Gurmukhi record is to the effect that the police had interrogated the witness to remove their doubts and they had also made similar inquiries from other owners of the nearby fields or wells. There was no suggestion during the cross-examination of the Inveitigating Officer S.I. Mangal Singh whether Lashkar Singh had been suspected of the commission of the crime and why this should have been so when the assailants had been named in the first information report. The special report had reached the Ilaqa Magistrate so very promptly the same night that even if any such ill-advised suggestion had been made to the S.I., it would have carried no weight. We can therefore, place implicit reliance on the statement of Lashkar Singh P.W.

Resham Singh informant had also supported the prosecution up to the stags of examination-in chief during the commitment inquiry. The statement made by him on the adjourned hearing after some months only shows that he had been suitably tackled during the interval. The statement made by him on the adjourned hearings stands belied by his earlier statements made not only before the police but also during his examination-in-chief before the Committing Magistrate. Karam Singh Sarpanch and Gurdev Singh P. Ws. had also to be given up by the prosecution on the ground that they had been won over. The recovery witnesses Amar Nath Sarpanch and Banta Chowkidar had also turned hostile and had to be contradicted by their earlier statements made before the police. If the blood stained weapons of offence had been found near the dead body as now stated by these witnesses and the appellants had been arrested the same night as claimed by them, then there was no apparent reason why the staging of the recoveries on the pointing out of the appellants should have been postponed for more than a week. The fact that so many prosecution witnesses could be tampered with would only be an indication of the resourcefulness of such smugglers or traffickers in contraband stuff. It is obvious that some of these witnesses have falsely introduced evidence about an oral dying declaration by the deceased The medical evidence is that the death was instantaneous and there was, therefore, no question of the deceased having made any dying declaration identifying some of the assailants and not the others. There is no evidence that the deceased knew any of the appellants and if all the four names had been given to him at the bus stand by the unknown informant, there was no question of the deceased having named only two out of the four appellants. It is obvious that Resham Singh P. W. has made an innovation in his statement at the trial.

It was then argued by Shri Dara Singh, the learned counsel for the appellants, that the transferred statement of Resham Singh could not be used as any weighty piece of evidence against his clients because the witness had resiled from the statement made by him on the earlier hearing. The value to be attached to the statement of a hostile witness transferred u/s 288 of the Code of Criminal Procedure would depend on the facts and circumstances of each case and if there is any corroboration forthcoming of this substantive piece of evidence, it could be made the basis of conviction for a criminal charge. Shri Tiwana, the learned Assistant Advocate General for the State of Punjab has relied in this connection on a Division Bench ruling of the Saurashtra High Court in K.S. Nirmalkumorsinhji v. State AIR 1964 Sau. 55, which lays down that the evidence of a witness admitted u/s 288 of the Code could even find corroboration from the evidence of another hostile witness which has been transferred under that section. In AIR 1949 257 (Privy Council) their Lordships were of the view that even the tainted testimony of an approver given before the Committing Magistrate could be accepted when it was corroborated in material particulars. In spite of the fact that the approver had resiled at the trial, his deposition transferred u/s 288 of the Code could be acted upon. In Periyasami v. State of Madras AIR 1957 SC 1027, their Lordships of the Supreme Court had relied on the statement of a solitary eye-witness to uphold a conviction u/s 202, Indian Petal Code, even though the witness had turned hostile at the trial and his statement made before the Committing Magistrate had been transferred u/s 288 of the Code. The only corroboration that was forthcoming of the retracted statement of the hostile witness was the fact that the appellant had tried to commit suicide after the occurrence.

In the case row before us, the transferred statement of the informant Resham Singh P. W. made during his examination-in chief before the Committing Magistrate finds full corroboration from the (sic) of another eye witness Lashkar Singh and the recovery of the (sic)-stained weapons of offence, Exhibits P. 4 and P. 6. The statement made by Resham Singh at the adjourned hearing during the commitment inquiry stands contradicted by his earlier statements made not only before the Committing Magistrate but before the police within a couple of hours of the occurrence. The statement made by him during his examination in chief is not so contradicted by the firs information report and can, therefore, be preferred to the statement made by him on a later hearing since it stands contradicted by his earlier statements.

We, therefore, find that all the appellants have been rightly convicted and sentenced. The appeal is accordingly dismissed and the convictions and sentences are maintained.

S.C. Mital, J.

I agree.