State vs Hazura Singh

Passey, J.—Three persons, namely, Sucha Singh, Hazura Singh and Gurnam Singh were tried for the murder of one Zora Singh S/o Gujjar Singh but all of them were acquitted by the Sessions Judge, Sangrur. The present appeal has been filed by the State u/s 417 Cr. P.C. against the acquittal of Hazura Singh and Sucha Singh only. The accused belong to village Haryaoo while the deceased and his family were residents of and owned land in village Phulera. These two villages lie close to each other and are separated by a distance of about a mile and a half.

It is stated that Zora Singh and his brother Bakhshish Singh had gone to their field, about a mile distant from the village Abadi on the evening of 21-5-2005. As he had been working throughout the night, Zora Singh felt fatigued and went to sleep on a cot under Ban tree in the field of Mukund Singh which was next to his own. Bakhshish Singh, however, continued to regulate the flow of water in his field. At about 11 A.M. on 22-5-2005, Hazura Singh and Sucha Singh armed with guns, and Gurnam Singh carrying a Gandasa appeared in Mukund Singh''s field and the first two fired shots at Zora Singh while

Gurnam Singh gave him several blows with his Gandasa. Zora Singh died then and there. The incident is alleged to have been witnessed by Bakhshish Singh, Kartar Singh P.W. 4, Jhanda Singh P.W. 10, and Mukhtiar Singh P.W. 11. Information of the crime was carried to his father Gujar Singh by Bakhshish Singh who collected some persons of the village and proceeded to the place of occurrence to find his son dead. Gujjar Singh then left for the police station Lehra which is at a distance of 7 kos and lodged a report at 7 P.M. stating that his son Zora Singh had been attacked by Sucha Singh, Hazura Singh and another man who was with them and who could be identified by the eye-witnesses, it was further stated in the Report that besides Bakhshish Singh three other persons Kartar Singh, Jhanda Singh and Mukhtiar Singh had witnessed the occurrence. S.I. Inder Singh, S.H.O. Lehra, reached village Phulera by 11 P.M. and took up investigation. By the next morning he was able to examine the three eye-witnesses named above.

The dead body was examined by Dr. Tilak Ram, Medical Officer, Sunam, who found two gun shots and eight incised wounds present on it. The pleura at the site of the 9th rib of left side and the left lung at its lower lobe were pierced. Out of the 10 injuries one on the left side of the chest over the 9th rib which had been broken, and was caused by a gun shot, and the other an incised wound on the left neck cutting the big vessels and 5th cervical vertebra were individually sufficient in the ordinary course of nature to cause death. The cause of death was shock due to internal haemorrhage into left lung cavity and external haemorrhage from big vessels of left neck. The gun shot injuries according to Dr. Tilak Ram could have been caused by one fine if the cartridge used was of L.G. or S.G. make.

The accused could not be apprehended till after several months of the occurrence. Gurnam Singh was arrested on 29-7-06 Hazura Singh and Sucha Singh on 23-12-2006. No weapons were recovered from their possession or at their instance. The alleged motive for the crime has not been believed by the learned trial judge. The accused and some others formed one faction in Haryaoo while Kaka and Wazira the other. Kaka and Wazira had killed Wazira, (another man of the same name) of the accused''s party. Zora Singh and Bakhshish Singh were on good terms with Kaka and Wazira, and therefore, were taken by the accused to be their friends. It is alleged that the accused wanted to teach Zora Singh and Bakhshish Singh a lesson for having intimate relations with Kaka and Wazira. The motive ascribed for the murder is flimsy and unbelievable. In the first place there is no evir dence on the record to prove any thick relations between Zora Singh and Bakhshish Singh with Kaka and Wazira, and in the second that closeness could be no ground for making wanton attacks upon the friends of Kaka and Wazira after 2/3 months of the murder of Wazira. Moreover, there is not an iota of evidence to show that the accused had knowledge on that particular morning that Zora Singh and Bakhshish Singh were present in their field. If the accused had set out to kill the friends of Wazira and Kaka, Bakhshish Singh should not have been an exception. He would also have been killed along with Zora Singh, particularly when the accused had guns and there was nothing in their way to prevent them from taking his life. Besides the absence of proof of motive, evidence regarding the immediate cause of the attack is also missing. We, therefore, agree with the learned Sessions Judge that the prosecution has failed to establish any cogent cause of the murder.

(After discussion of the evidence of the eye-witnesses in detail His Lordship proceeded): The eye-witnesses have been disbelieved by the learned Sessions Judge and with the reasons adopted by him for discarding their evidence we are in agreement.

The question of the admissibility of the incomplete statement of Bakhshish Singh recorded by the committing Magistrate now remains to be determined. He was examined in chief during commitment proceedings on 20-5-1950 but his cross-examination was postponed to 5-6-1950. Before that date arrived he breathed his last. The learned Sessions Judge has held the statement of Bakhshish Singh to be inadmissible. The contention of the learned State counsel is that the accused had the opportunity to cross-examine the witness and since he failed to do so, the incomplete nature of the witness''s statement cannot affect its admissibility. It is necessary at this stage to reproduce the order of the committing magistrate made on 20-5-1950:

At the conclusion of the examination-in-chief of Bakhshish Singh, the learned Counsel for the defence stated that he will not cross examine the witness to day as all the eye witnesses should be examined together. The eye-witnesses are four in number. It is 11-30. Today is Saturday. I, therefore, have no alternative but to adjourn the case to 5-6-1950.

On Saturday courts are required to work up to 30-30 in Summer and by the time the examination-in-chief of Bakhshish Singh was concluded it was 11-30. Three more eye witnesses were present on that day and none of them could be taken up because of the court time being over. It is not stated by the State counsel that the Magistrate intended to continue to work even after 11-30. The counsel of the accused did not say that he would not cross-examine the witness or that he would reserve the cross-examination. He only represented to the court that on account of the fact that three more eye-witnesses were to be examined, he might be permitted to cross-examine Bakhshish Singh on the day, when the other witnesses would come into the witness box. That request was acceded to and the case adjourned to 5-6-1950. In addition the ground of the court time having been over was also there. According to Section 33 of the Evidence Act, evidence given by a witness in a judicial proceeding is relevant for the purposes of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding, the truth of the fact which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the'' way by the adverse party or if his presence cannot be obtained without any amount of delay, or expense which, under the circumstances of the case, the Court considers unreasonable. This provision is, however, controlled by three provisos, namely, (i) that the proceedings were between the same parties or their representatives in interest; (ii) that the adverse party in the first proceeding had the right and opportunity to cross-examine; (iii) that the question in issue was substantially the same in the first as in the second proceeding.

We are in this case concerned with the scope and applicability of the second proviso, whether the adverse party in the first proceeding had the right and opportunity to cross-examine. The admission into evidence of the examination in chief of the witness unless it was tested by cross-examination by the adverse party is, according to this proviso, prohibited. It is not disputed: that the accused has u/s 208, Sub-clause (2), Criminal P.C. the right to cross-examine the prosecution witnesses. The unfinished statement of Bakhshish Singh would have been admissible if the opportunity to cross-examine him had been offered to the accused but was not availed of by him. In other words if the opportunity to cross-examine was offered the statement would not be inadmissible because the accused did not cross-examine him. There can be no doubt that cross-examination provides a very effective way of bringing out the truth or the circumstances favourable to the accused from the witness''s mouth. If no opportunity to cross-examine is given, the evidence necessarily remains untested and incomplete. In the present case, however, the note under the statement of Bakhshish Singh referred to above and the brief order of the court (committing magistrate) of that date show that the opportunity to cross-examine was deferred. The other three witnesses and Bakhshish Singh were bound down to appear on the next date viz. 5-6-1950. Bakhshish Singh was to appear for cross-examination by the accused. His evidence was evidently not closed on 20-5-1950 and the opportunity to the counsel of the accused to cross-examine did not lapse.

In the above circumstances, we are unable to hold that the accused had failed to avail of the opportunity offered for cross-examination of Bakhshish Singh. The second proviso to Section 33 of the Evidence Act must stand in the way of the reception of Bakhshish Singh''s statement in evidence. The prosecution has failed to establish the guilt of the respondents by clear and convincing evidence. The appeal is, therefore, rejected.

Chopra, J.

I agree.