Baghel Singh v. State — 1975 DIGILAW 188 (RAJ)

KUDAL, J.—Accused-appellant Baghel Singh has been convicted under Section 302 IPC by the learned Sessions Judge, Alwar for having committed the murder of one Dalu Ram by firing with his pistol at him. On 25.4.1973, the learned Sessions Judge sentenced the accused-appellant to imprisonment for life. Feeling aggrieved against his conviction, the accused appellant has filed the present appeal. 2. The facts of the prosecution case, in brief, are that there was a fair at Sali-serh on 25-4-1973. The deceased Dalu Ram, aged 18 years, also went to see the fair. Two Sardars, who were said to be pick-pockets, visited the fair One of the Sirdars was wearing black "tehmat" of "chek" design, white shirt and a green turban having a black cloth bag in his hand. He had hair and beard. The other Sardar did not have any beard or hair, and he was wearing a blue trousers, and a bush-shirt of sky colour. The Sardar wearing trousers was caught red-handed while trying to pick the pocket of a man. A lathi-blow was dealt on the Sardar who was trying to pick the pocket of a man. Thereupon, the Sardar wearing the "tehmat" took out a pistol from his pocket and fired at him. PW/3 Ram Singh, Head Constable, heard the rumour and reached the spot. He found Daluram lying on the ground in an unconscious state. Daluram was sent to the hospital at Alwar in a bus. The Sardar who had fired the pistol ran away towards the hills. He was chased by the Police Constables, but could not be apprehended, PW/3 Ram Singh, Head Constable wrote down a First Information Report (Ex. P/9), and sent it to the Police Station Sardar Alwar through the constable Mangej Singh. The prosecution case is that constables PW/5 Lachhi Ram and PW/7 Hukam Chand chased the accused, but the accused, could not be found. An empty of a fired cartridge was found on the spot which was seized vide memo Ex. P/10 in the presence of Motbir Kalu PW/8. The accused presented himself at about 4.30 p.m. on 30 4-1973 He was arrested vide memo Ex. P/17. An empty of a fired cartridge was found on the spot which was seized vide memo Ex. P/10 in the presence of Motbir Kalu PW/8. The accused presented himself at about 4.30 p.m. on 30 4-1973 He was arrested vide memo Ex. P/17. On 3.5.1973, the accused gave information that he had concealed his small black bag containing a pistol and two live cartridges, and a small chintz cloth beneath a stone which was situated on the Jheer pound on the hill near which there is one tree of Salar and "thor". After completing the investigation, a challan was put up against the accused in the Court of Addl. Munsiff Magistrate No 1, Alwar, who conducted the preliminary inquiry, and committed the accused to the Court of Session. 3. The prosecution examined 12 witnesses in all in support of its case. The statement of Dr. P.S. Agrawal, which was recorded in the committing Court, was taken on record, and marked as PW/13. 4. The statement of the accused under Section 342, Cr.P.C. was recorded. He stated that he had gone to village Soharka on 23.4.1973 to attend the marriage, and that he returned from there on 27/4/1973. He had gone to the Police Station on 28/4/1973, and was kept there for three days, and was shown to the witnesses, and there after he was sent to the jail. 5 On behalf of the accused-appellant, it was contended that the prosecution has miserably failed to bring the guilt home to the accused. It was also contended that the identification proceedings were totally farce, and on such a sham and farce identification proceedings, the accused-appellant cannot be linked with the crime. It was also contended that no independent witness has been examined by the prosecution. No witness has been examined from amongst the people who had collected at the spot where the deceased Daluram was fired at, and no one has been produced from amongst the persons who are alleged to have chased the accused-appellant while running towards the hill. It was also contended that the recovery of the empty of the fired cartridge is also of a highly suspicious character, and it cannot inspire any confidence of the Court. It was further contended that the main prosecution witnesses have contradicted themselves on material particulars, and on such a weak prosecution evidence, the conviction of the accused appellant cannot be sustained. 6. It was further contended that the main prosecution witnesses have contradicted themselves on material particulars, and on such a weak prosecution evidence, the conviction of the accused appellant cannot be sustained. 6. On behalf of the State, it was contended that the recovery of the pistol and the black bag at the instance of the accused conclusively establishes the guilt of the accused. It was further contended that the opinion of the Ballistic Expert PW/1 G.R. Prasad establishes that the cartridge was fired by the pistol recovered by the police at the instance of the accused. It was further contended that the recovery of the turban Art. 10, which was identified by the prosecution witnesses, also leads to the conclusion that the accused was the person who fired at the deceased Daluram. It was also contended that the identification proceedings were conducted in a proper manner, and there is nothing on record to warrant an inference that the identification proceedings were either sham or farce in character. It was, therefore, contended that the guilt of the accused-appellant has been brought home squarely and there are no grounds warranting any interference by the appellate Court in the order of conviction by the learned Sessions Judge. 7. PW/1 Dr. G.R. Prasad is the Ballistic Expert. He has stated that he had received the sealed parcels from S.P. Alwar on 14/5/1973. The seals of the parcels were intact, and tallied with the specimen seals sent with the forwarding letter. The parcel marked B contained one 12-bore country made pistol, while the parcel marked A contained one 12-bore K.F. Special fired cartridge case. The mechanism of the pistol Art. 3 was examined by him, and was found to be in working order. Six 12-bore cartridges taken from the laboratory stock were test fired from the pistol. After a thorough examination under the microscope, the witness came to the conclusion that the cartridge case C-1, Art. 1 was also fired from the pistol W-l Art. 3. One photo micrograph and its negative showing the identity of the characteristic points in the scrap mark of the firing pin of the pistol W-l on the test cartridge case T-5 Art. 9 and the evidence cartridge case Art. 1 produced in the Court to illustrate the identity of one of a set of points, showed that both these cartridges were fired from the same pistol. 8 Dr. 8 Dr. P.S. Bijjan PW/2 examined Daluram on 25-4-73 at 530 p.m. in the General Hospital, Alwar. The following injuries were found on his person — (1) Multiple wounds of entry of pellets with inverted margins and air escaping from the neck wounds. Area 16 cm. x 10 cm on the anterior part of the neck and right side of chest above the nipple. (2) A lacerated wound 2 cm x 2-1/2 cm inner side of left clavicle. (3) Multiple abrasions are 6 cm in front of the left arm. 9. In the opinion of the Doctor, injury No. 1 was dangerous and was caused by a firearm. Injuries No. 2 and 3 were simple, and were caused by blunt weapon. All the wounds were bleeding. Injuries No. 2 and 3 could be caused by a fall on the ground. Injuries No.2 and 3 individually or collectively were not fatal. The injured was examined by this witness, and the certificate Ex.P/8 was issued by him certifying that the injured was in a position to give a statement. His statement was recorded by the police at 6.00 p.m. The injured made the statement voluntarily. The injured could not sign the statement as his right hand was under drip as glucose saline was being administered to him. 10. PW/3, Ram Singh Head Constable stated that on 25/4/1973, he was on duty in connection with the arrangements of the "mela" at Selliserh. At about 3 30 p.m. he heard the rumours that a person has been fired at, and that the person who fired at was a Sardar. When the witness reached the spot of occurrence, he found one person in an unconscious state lying there. He sent the injured to the hospital, and also sent the FIR. He also found an empty of a fired cartridge which he picked up. and gave it to the SHO when he came. He could not state the names of the persons who were near the injured. He learnt that the assailant had run away, and was chased by police constables, Hukam Chand and Lachhi Ram, The witness further stated that he did not incorporate this fact in the First Information Report as he did not consider it necessary. Nobody from the crowd told the witness the name of the accused. All that he was told was that he was Sardar. Nobody from the crowd told the witness the name of the accused. All that he was told was that he was Sardar. He also did not state in his statement before the police that he recovered the empty of the fired cartridge. Be sides, the Police Constable Hukam Chand and Lachhi Ram, five or seven other people were also chasing the accused. One Heera Lal told these two police constables that the name of the Sardar was Baghel Singh. 11. PW/4 Shri G.L. Mahajan was the SDM, Rajgarh on 2/5/73. The identi-fication parade was held by him. He mixed eight other persons alongwith the accused-appellant Baghel Singh. He had tied cloth on the beard of the accused and of the other eight persons. The Police Constable Hukam Chand identified Baghel Singh correctly. Later on, Police constable Lachhi Ram came for identifying the accused, but he could not identify him. He has further stated that he had not written the description of these eight persons in the identification proceedings. 12, PW/5 Lacchi Ram is police constable. He was on duty on 25/4/1973- At about 3 p.m., he heard the noise that somebody has pick-pocketed. When he started moving towards the site of occurrence, he heard the report of a fire. He saw that a Sardar of black colour has fired. He started running after hearing the fire. Seeing this, the witness also started running towards the site of occurrence But he could reach there with great difficulty as there was a huge crowd. Police Constable Hukam Chand also came there. The Sardar who fired, reloaded his pistol and then ran away. Lachhi Ram along with Hukam Chand started chasing the Sardar. So many other persons were also chasing him. The Sardar was putting on a green turban, and had a bag in his hand, and was putting on a tehmat" bearing squares. The accused climbed upon the hill from near the house of Heera Lal Chamar. Heera Lal Chamar told that the name of the Sardar was Baghel Singh, that he was resident of Sawari-ka-bas. The assailant Sardar could not be apprehended that day. The witness could not identify the assailant Sardar in the identification parade in the first attempt. All the persons who were included in the identification parade had a "pagan" on their heads, and the beards were covered with a cloth. The assailant Sardar could not be apprehended that day. The witness could not identify the assailant Sardar in the identification parade in the first attempt. All the persons who were included in the identification parade had a "pagan" on their heads, and the beards were covered with a cloth. The witness denied having stated before the committing Court that he heard the report of the fire, and that the crowd had encircled the accused and the injured. From the public 200 or 250 people were chasing the assailant. Some of these persons were ahead of these two police constables and the other were behind them. He has further stated that when they were chasing the assailant, they could only see the back of the accused, and when the accused used to look on the back side, then only his face could be seen. The witness does not recollect whether the accused had dropped the empty of the fired cartridge at the site or he had taken it with him when he reloaded the pistol. 13. PW/6 Randheera is a motbir in whose presence the accused took out the bag hidden under the stones, and gave it to the police. In the bag, were found a pistol, two cartridges and a cloth. 14. PW/7 Hukam Chand was the other police constable who was on duty in Salliserh fair on 25-4-1973. He heard the noise that a pick pocket has been caught. As soon as he started going towards the site of the occurrence, he heard the report of a fire. He saw a Sardar firing. After having fired once the Sardar reloaded his pistol. The crowd tried to catch hold of the Sardar, but he scared them by saying that he would fire if anybody wanted to catch him. The Sardar then ran away towards the hill He was chased by Lachhi Ram and the witness Hukam Chand People from the public were also chasing him, but he could not be apprehended. The accused was putting on a white shirt, and a black "tehmat", with squares, and was putting on a green turban. The "pagari" Art. 10 is the same "pagari" which the accused was putting on. The witness has correctly identified the accused in the identification parade. The witness stated that he had wrongly stated in the committing Court that the crowd had encircled the assailant and the injured. The "pagari" Art. 10 is the same "pagari" which the accused was putting on. The witness has correctly identified the accused in the identification parade. The witness stated that he had wrongly stated in the committing Court that the crowd had encircled the assailant and the injured. The witness started chasing the accused after he had reached near the crowd. Nobody from the crowd told him that the name of the accused is Baghel Singh. The witness had seen the accused clearly at the site. He had also seen the beard of the accused, and he had also seen that accused is neither a child, nor an old person, but was a young man In the committing Court, the witness has stated that he wrongly stated that he had not given the description of the accused in his police statement, when, in fact, he had given the description of the accused in his statement before the police. He could not say how many persons had beards who were mixed with the accused at the identifica-tion parade. Only two persons resembled the colour of the accused. When the accused was being chased, only his back was visible. Four police constables, viz., the witness, Lachhi Ram, Mangej Singh and Pooran were chasing the accused. 15. PW/8 Kalu is also a motbir. Site-plan Ex. P/13 was prepared in his presence, and was signed by him. The Head Constable had picked up a fired empty from the site, which he gave to the SHO, for which a seizure memo was prepared. The witness further stated that the Head Constable had picked up the fired empty, and had sealed it when the SHO came. This was picked up from near a well which is behind the hillock known os "mataji-ka-garh". The witness did not see any earth soiled with blood. 16. PW/9 Bodan is the father of the deceased, who identified the dead body. 17. PW/10 Heera Lal saw a Mav riming towards the hill who was being chased by 4-5 Mavs. The witness was declared hostile at the request of the Public Prosecutor. 18. PW/11 Narain is the SHO, who conducted the investigation and charge-sheeted the accused. 19. PW/12 Laxmi Narain was the incharge of the Sadar Kotwali, Alwar on 25.4.1973. 17. PW/10 Heera Lal saw a Mav riming towards the hill who was being chased by 4-5 Mavs. The witness was declared hostile at the request of the Public Prosecutor. 18. PW/11 Narain is the SHO, who conducted the investigation and charge-sheeted the accused. 19. PW/12 Laxmi Narain was the incharge of the Sadar Kotwali, Alwar on 25.4.1973. At the site, the Head Constable Ram Singh picked up the empty and gave it to the SHO, who seized the same vide seizure memo Ex. P/10. The accused was named by the police constables Lachhi Ram and Hukam Chand. He has further stated that after the arrest, the accused was kept in judicial lock-up, and was not shown to any person till the identification proceedings were over. On 3-5-1973, the accused had informed the witness that he had kept a pistol in a small black bag along-with two cartridges, and a cloth, and that he had kept this bag near a "kund" under a stone, and that he could get the articles recovered. The information memo Ex. Ex, P/21 was recorded by him. The witness further stated that the accused led him to the place where the articles were hidden, and took out a ":thela" from that place, and gave it to the police. It was further stated that the cartridge and the pistol recovered were sealed and the packets were sent to to ballistic Expert. He has further stated that the seals remained intact when these articles were kept in police station. The sample of the seal was also sent alongwith the letter to the Ballistic Expert. The statement of Heera Lal was recorded by the witness during investigation. Heera Lal had named the accused, though, Heera Lal had not given the fathers name of the accused The statement of Arjun Singh, the father of the accused, was not recorded by the witness. The witness further stated that Arjun Singh and Kartar Singh did not present the accused in the police station on 28.4.1973. The accused was presented by them only on 30/4/1973. Nobody lodged complaint with him that he has been pick-pocketed but it did come to his notice that somebodys pocket has been picked and that he wanted to get the pick-pocket arrested. At that very time, a Sardar lady come there by whom the injury was caused. The accused was presented by them only on 30/4/1973. Nobody lodged complaint with him that he has been pick-pocketed but it did come to his notice that somebodys pocket has been picked and that he wanted to get the pick-pocket arrested. At that very time, a Sardar lady come there by whom the injury was caused. He denied that the Head Constable Ram Singh had picked up the fired empty before he arrived at the site, and he gave it to him on his arrival. 20. PW/13 Dr. P.S. Agrawals statement was recorded before the committing Court. He has stated that the patient was admitted in the General Hospital, Alwar at 4.15 p.m. The patient was in a shocked condition, and died in the hospital at 8.40 p.m. on 25.4.1973. The patient had the following injuries on his person :— (1) Gun shot wounds in an area 16 cm X 10 cm on right side chest upper part, neck internally with margin black and inverted. Surrounding skin was normal. These were the wounds of entry. (2) Abrasion in an area 6 cm x 2 cm on left arm anteriorly upper part with blood clots. (3) Abrasion 2-1/2 cm x 2 cm on left clavicle with blood clots. On opening the body, he found the following injuries — (1) Subcutaneous and muscular haemotoma in an area 12 cm x 5 cm under the injury right side the chest with laceration of structures. Lead pelletes were found embeded and 5 were removed and preserved. 2. Trachea was found punctured at two places. 3. Plural cavity on right side contained about 15 ounces of blood with puncture of pleura and lung at many places, where lead shots were embedded and 6 of them were removed and preserved. 21. The death occurred due to gun shot. He had handed over the lead pel-lets in a sealed phial to the police for their necessary action. 22. The statement of the accused under Section 342, Cr.P.C. was recorded on 24.9.73. The accused pleaded not guilty. He had stated that he had gone to attend marriage in Sirohi on 23.4.1973 from where he returned on 27-4-1973. The Head Constable Kanhaiya Lal and police constable Hardwarilal told his father that he is being required by the police. He was detained at the police station on 28-4-1973, and was kept there for 2-3 days. 23. He had stated that he had gone to attend marriage in Sirohi on 23.4.1973 from where he returned on 27-4-1973. The Head Constable Kanhaiya Lal and police constable Hardwarilal told his father that he is being required by the police. He was detained at the police station on 28-4-1973, and was kept there for 2-3 days. 23. The accused examined DW/1 Arjun Singh, DW/2 Kartar Singh and DW/3 Pooran in support of his case. DW/1 is the father of the accused. He stated that he had taken the accused Baghel Singh to the Police Station on 28-4-1973; that Baghel Singh was detained in the "thana", and he alongwith Kartar Singh was sent back; that the arrest of the accused was not shown till 30.4.1973, and in the meantime, the accused was shown to all the witnesses. 24. DW/2 Kartar Singh was the person who went to the Police Station along with Arjun Singh and the accused on 28-4-1973. He returned in the evening of 28.4.1973, but the accused was detained, and during this period, the accused was shown to the witnesses. 25. DW/3 Pooran has stated that Baghel Singh is son of his brother-in-law. He had come to his village in connection with the marriage of his daughter on 24th, and was with him till 27th. 26. Ex. P/8 is the dying declaration made by Dalu Ram. He has stated that he had gone to see the fair at Silliserh. He reached the fair at about 12 noon. There he saw two Sardar pick pockets who were loitering there. One of the Sardars was wearing a black "tehmat" with squares, white shirt and a green "pagari" and had a black bag in his hand, and had hair and beard. The other Sardar was putting on a pant of blue colour, and a shirt of sky colour. The Sardar putting on the pant wanted to pickpocket a man, and therefore, he caught hold of him, and gave a lathi stroke. On this the other Sardar took out a pistol from hiS bag and fired at him, as a result of which he fell down. PW/2 P.S. Vijjan has stated that the statement was made voluntarily, and was recorded at 6 p.m. 27. On this the other Sardar took out a pistol from hiS bag and fired at him, as a result of which he fell down. PW/2 P.S. Vijjan has stated that the statement was made voluntarily, and was recorded at 6 p.m. 27. The learned counsel for the accused-appellant has relied on Laijam Singh vs. Emperor (1), wherein it has been held that an identification made of a man, who is said to have been wearing a beard at the time of offence and whose beard is concealed or absent at the time of identification, is by no means convincing, and when it stands alone, must be regarded as an unstable piece of evidence. 28. Reliance was also placed on Maula Dad vs. Emperor (2), wherein it has been held that where identification evidence is given, the evidence cannot be relied upon if the witness who identified the accused had not previously given some description of the persons which coincided with the actual facts. 29. Reliance was also placed on Ram Narain Singh vs. State of Punjab (3), wherein it has been held that failure to report discovery of empty cartridges from the spot falsifies the prosecution case as to place of occurrence and manner of attack. It was further held that if testimony of key witnesses is rejected as untrue and improbable then testimony of others corroborating their story would not improve the prosecution case. 30. The accused-appellant was correctly identified by the police constable PW/7 Hukam Chand, but was not so identified by the police constable PW/5 Lachhi-Ram. The accused bad hair and beard. The other eight persons who were mixed in the identification parade did not have beard, and as such, a cloth was tied to cover up the beards. There were only two persons who had the resemblances of the colour of the skin or their faces with that of the accused. In Laijam Singh vs. Emperor (1) such an identification parade has been held to be not one which can inspire the confidence of the Court. 31. While the accused was running towards the hill, he was being chased by the persons from the crowd, and by four police constables, namely, Lachhi Ram, Hukam Chand, Mangej Singh and Pooran. Police constables Mangej Singh and Pooran have not been produced in evidence. 31. While the accused was running towards the hill, he was being chased by the persons from the crowd, and by four police constables, namely, Lachhi Ram, Hukam Chand, Mangej Singh and Pooran. Police constables Mangej Singh and Pooran have not been produced in evidence. Hukam Chand stated that when he was chasing only the back of the accused was visible. Lachhi Ram has stated that when the accused was running towards the hill only his back was visible; but when he was looking at the back, his face was visible. A large number of people from the crowd were also chasing the accused. Some of these persons were ahead of the police constables, and some of them were following the police constables. No person has been produced on behalf of the prosecution either from the site of occurrence, or from those who were chasing the accused. 32. As a matter of fact, it should not have been difficult for the prosecution to have examined some independent witnesses from the site of occurrence and from among those persons who were chasing the accused. The person who was being pick-pocketed has also not been produced. The Sardar lady who is alleged to have appeared on the site, as stated by the SHO, has also not been produced. 33. According to the prosecution witnesses the accused was named by Heera Lal Chamar. When he was examined as PW/10 he has given altogether a new story stating that he saw a "may" running towards the hill and was being chased by four or five "mays". 34. The prosecution witnesses have stated that the deceased Dalu Ram became unconscious on the spot. He was admitted in the hospital at 4 15 p.m. According to the dying declaration, he is said to have regained consciousness at 6 p.m., and has given the statement. Though, he was literate, only his thumb impression has been obtained as a drip was being given in his right hand. 35. Police Constable PW/5 Lachhi Ram has stated that the accused was putting on a "pagari" Art. 10 is the same "pagari" which he was putting on at that time. He has identified Art. 10 for the first time in the Court. No identification parade was held for the "pagari" Art. 10. The identification for the pagari Act. 10 for the first time in the Court is of no evidentiary value. He has identified Art. 10 for the first time in the Court. No identification parade was held for the "pagari" Art. 10. The identification for the pagari Act. 10 for the first time in the Court is of no evidentiary value. 36. Ex. P/21 is the information memo under Section 27 of the Evidence Act by the accused to the SHO on the basis of which a black bag, two cartridges, and a piece of cloth and the pistol were recovered at the instance of the accused. The information memo has not been attested by any attesting witness. The recovery of the bag containing the pistol was in the presence of Randheera and Ram Singh, Ram-Singh has not been produced. Randheera being an old man felt tired, and sat behind at a distance of 2 fields from the place from where the bag was recovered. He went to the site after taking rest. Thus, we are left with the sole testimony of the SHO Laxmi Narain with regard to the recovery of the bag containing the pistol. The bag was recovered from an open place near the "kund" on the hill. 37. There are serious contradictions with regard to the recovery of the fired empty. There is no mention of this fired empty in the FIR. There is also discrepancy in the statement of PW/3 Ram Singh, and the other two witnesses, PW/8 and PW/12 as to when the empty was lifted from the ground. PW/3 Ram Singh stated that the empty was lifted before the arrival of the SHO, and when the SHO arrived he produced the same. PW/8 Kalu has stated that the Head Constable Ram-Singh has lifted the empty from the spot in his presence, and it was packed and sealed before the arrival of the SHO. Laxman Singh, SHO, PW/12 has stated that the empty was lifted after his arrival on the place of occurrence. There has also been no mention of the empty in Ex.D/l, the statement before the police and in the statement before the committing Court. 38. Laxman Singh, SHO, PW/12 has stated that the empty was lifted after his arrival on the place of occurrence. There has also been no mention of the empty in Ex.D/l, the statement before the police and in the statement before the committing Court. 38. Following the view taken in Ram Narain Singh vs. State of Punjab (3), if the testimony of the key witnesses is rejected as untrue and improbable then the testimony of others corroborating their story would not improve the prosecution case, and the failure to report the discovery of the empty cartridges from the spot in the FIR also casts a serious doubt on the prosecution version. 39. Taking an overall view of the entire prosecution version, it is exceedingly difficult to hold that the prosecution has succeed in bringing the guilt home to the accused. For the reasons stated above, the accused is entitled to the benefit of doubt. 40. In view of these circumstances, the appeal filed by the accused-appellant deserves to be accepted. The conviction and sentence of the accused under Section 302 IPC is hereby set aside. The accused is in custody. He shall be released forthwith if not required in any other case.