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2005 DIGILAW 44 (JK)

Jagdish Singh Alias Kinna v. State

2005-02-28

PERMOD KOHLI, Y.P.NARGOTRA

body2005
1. By this common judgment, Criminal Appeal filed by the accused-appellant Jagdish Singh and Criminal reference made by the learned Additional Sessions Judge, Jammu are being disposed of. 2. The appellant-accused Jagdish Singh alias Kinna was tried under FIR NO: 326/91 registered at Police Station, R.S.Pura for commission of offences under Section 302RPC and 4/27 Indian Arms Act, before the Court of learned Additional Sessions Judge, Jammu. He has been convicted for the said offences and sentenced to undergo imprisonment for life and a fine of Rs. 25,000/- for the offence under Section 302 RPC and three years Rigorous imprisonment and fine of Rs. 1000/- for the offence under Section 5/27 Indian Arms Act. Both the sentences have been made to run concurrently, in default of payment of the fine, the accused appellant has been ordered to suffer further imprisonment of four years and six months for both offences respectively. On realization of the fine, the same has been ordered to be given to the next kins of the deceased, as compensation. The judgement was passed by learned trial court on 8.12.1998. 3. The case of the prosecution before the trial court was that on 11-12-1991 the deceased Ranbir Singh, accused Jagdish Singh alias Kinna were members of the marriage party (Barat) of Yash Singh S/O Budhi Singh and were going to Chamney Chack. When the marriage party reached there, the accused started raising wild shouts (Bablies). The deceased Ranbir Singh objected, whereupon an altercation started between them. The other members of the marriage party, who were also members of the same Bradari intervened, as a result of which, fued between the two was averted. The accused, however, declared that he would not leave Ranbir Singh and as and when he finds an opportunity, he would kill him. After the marriage ceremony was over, the baratis returned back in two buses to village Sidder. After reaching at village Sidder the Baratis started retuning to their respective houses, whereas PW-Shamsher Singh, father of the deceased, Darshan Singh, Soba Singh, Satpal Singh and Sham Singh started down-loading the dowry articles from roof-top of the bus. Ranbir Singh (deceased) also left for his house. The time was about 10.00. At about 10.15/10.30 P.M. cry of Ranbir Singh deceased was heard by PWs, who were engaged in down-loading the dowry articles. The deceased called his father for help saying Bachao-Bachao�. Ranbir Singh (deceased) also left for his house. The time was about 10.00. At about 10.15/10.30 P.M. cry of Ranbir Singh deceased was heard by PWs, who were engaged in down-loading the dowry articles. The deceased called his father for help saying Bachao-Bachao�. On haring the cry of deceased, PW Shamsher Singh accompanied by Soba Singh &Darshan Singh ran towards the place from where the cry had come. PW Sham Singh at that time was taking the driver of the bus to his house to serve him a cup of tea. PW Shamsher Singh, father of the deceased was having a Torch. In the light of the Torch, the accused was seen giving blow after blow of the kirch on the person of the deceased. The moment the witnesses reached near Ranbir Singh, the accused ran away from the scene of occurrence. The father of the deceased PW-Shamsher Singh took the falling Ranbir Singh in his arms. The injured told his father Pitaji Kinna Mar Gaya- Hospital Pahunchao�. (Kinna has injured me, take me to the hospital). Ranbir Singh had been seriously injured and was bleeding profusely. PW-Sham Singh and driver of the bus had also reached there. The injured was put in the bus and taken to R.S.Pura hospital where the Doctor on duty advised them for immediately shifting the injured to Saddar Hospital at Jammu for treatment. PWs Darshan Singh, Soba Singh and Satpal Singh took the injured Ranbir Singh in the bus to Jammu Hospital, whereas PW Shamsher Singh, father of the injured went to Police Station R.S.Pura and lodged FIR at 2300 hours i.e. after about half an hour of the occurrence. The police registered FIR-EXPWMA for commission of the offence under Section 307 RPC read with Section 4/27 Indian Arms Act. A copy of the FIR was sent to and received by the court of Munsiff, Judicial Magistrate, R.S.Pura at 10.10 A.M on the next day i.e. 12.12.1991. After registration of the case, the police went on the scene of occurrence and when the Investigating Officer was about to leave for Jammu, where the injured had been taken, near Old Bus Stand, R.S.Pura, he found the bus in which the injured had been taken, was coming back with the dead body of deceased Ranbir Singh. The injured Ranbir Singh when had reached Saddar Hospital, Jammu Doctor had declared him as Brought Dead�. The injured Ranbir Singh when had reached Saddar Hospital, Jammu Doctor had declared him as Brought Dead�. On finding that the injured had already succumbed to the injuries, the offence under Section 302 RPC was added in the FIR and the investigation was commenced. During the investigation, the police prepared the site-plan and seized the dead-body, got the post mortem conducted and the clothes of the deceased were seized. The dead body was handed over to the Legal heirs. Plain earth as well as blood stained earth was taken and seized from the scene of occurrence. The accused was arrested. During the investigation, the accused made disclosure statements EXPSSC-5 on 16-12-1991 in presence of PWs Soba Singh and Darshan Singh, and on the same date in pursuance of disclosure statement at the instance of the accused, recovery of Kirch was effected from cattle-shed of the accused. After completion of the investigation, charge sheet for trial of the accused for commission of offence under Section 302 RPC and 4/27 of Indian Arms Act was instituted before the court of Munsiff, Judicial Magistrate, R.S.Pura on 10-09-1992, the offence being triable by the court of Session, the Judicial Magistrate 1st Class, R.S.Pura committed the case for trial to the court of learned Sessions Judge, Jammu and the learned Additional Sessions Judge, Jammu for trial of the accused. After hearing the prosecution and the defence, the learned trial court framed charge for commission of offence under Section 302 RPC and 4/27 Indian Arms Act against the accused. The accused pleaded not guilty, hence the prosecution was directed to lead the evidence. The prosecution, in order to prove the guilt of the accused, examined PWs Shamsher Singh, Sham Singh, Satpal Singh, Soba Singh, Darshan Singh, Prithvi Raj, Shanti Saroop, Mohd. Aslam Inspector Police, Dr. Kanta Devi and Dr. V.K. Verma. 4. It was not disputed before the trial court by the defence that accused had died homicidal death. As per the evidence of Dr. V.K. Verma, who performed the autopsy of the deceased, was found to be having the following injuries: - 1. A stab wound in praecodiem about 1� inside left nipple 1 * ½� vertically placed. 2. Stab would inferolateral part of the chest on left side just above the left hypochontrium in the mid exillary lines size 1� * ½�. 3. V.K. Verma, who performed the autopsy of the deceased, was found to be having the following injuries: - 1. A stab wound in praecodiem about 1� inside left nipple 1 * ½� vertically placed. 2. Stab would inferolateral part of the chest on left side just above the left hypochontrium in the mid exillary lines size 1� * ½�. 3. Stab wounds six in numbers on the lateral aspect upper part of left thigh, horizontally placed, size of each wound ½� * ½� *1. 4. Stab wound on the medial aspect of the inner side of the right thigh size 2� * ½�. 5. Stab wound on the left side of the face about 10 CM from the left angle of the mouth size 2� * ½� bleeding plus. The wound transverses the old cavity. 6. Thorax explored-injury No.1 passes from skin to muscles, medical part of left lung, ploural cavity pentrates the right ventricle anterior wall. Depth of the stab about 3�. The stab is vertically placed. Thoracei cavity fill of anti-mortem blood clots. 7. Abdomen explored - The spleen penetrated from left side 1, ½� * 1� * 1�. Peritorial cavity full of blood.� 5. In the opinion of the Doctor, hemorrhage and shock consequent upon the injuries caused to heart and spleen was the cause of the death within 24 hours before the autopsy. The injuries had been caused by the sharp penetrating object. The cause of the death of the deceased was thus injuries No.1 and 2. The case of the prosecution was that it was the accused, who had caused fatal injuries on the person of Ranbir Singh. For proving its case, the prosecution mainly relied upon the evidence of Eye-witnesses namely, PW Shamsher Singh, Soba Singh, Darshan Singh, Sham Singh and Satpal Singh. The oral dying declaration of the deceased was also sought to be proved from the evidence of these Eye-witnesses. The prosecution also sought to establish guilt of the accused, on basis of the recovery of the weapon of offence, pursuant to the disclosure statements of the accused. 6. PW-Shamsher Singh, who is informant, also while giving the sequence of events, in which the occurrence took place, has stated in the Chief Examination about the altercation which took place between the accused and the deceased in the Barat. 6. PW-Shamsher Singh, who is informant, also while giving the sequence of events, in which the occurrence took place, has stated in the Chief Examination about the altercation which took place between the accused and the deceased in the Barat. Regarding the actual occurrence he has stated that when Baratis were returning to their houses after getting down from the buses, he accompanied by Darshan Singh, Soba Singh, Satpal Singh, and Sham Singh were down-loading the dowry articles from the buses, the deceased was returning to his home, from a distance he heard cry of the deceased Ranbir Singh, asking for help. On hearing the cry, they immediately rushed towards that side and in the light of the Torch, they saw accused Jagdish Singh alias Kinna inflicting blows after blows upon the body of his son. He and his companions tried to catch the accused but he fled away from the scene of occurrence. When he held his son in his arms, his son told him that Kinna accused had inflicted injuries and he be immediately taken to hospital. He took out the turban and wrapped it on the injuries of the deceased. The legs of the deceased were also bleedings. He was taken to R.S. Pura hospital where he was told that injured be taken immediately to Jammu so he put the injured in the bus and sent him to Jammu hospital while he himself went to Police Station and lodged oral report-EXPW-SS. 7. PW-Sham Singh also deposed in Chief examination firstly about altercation, which had taken place between the deceased and the accused while the marriage party was going to the house of the bride at Chamney Chack in which the accused had declared that on finding opportunity he would kill the deceased. Regarding the sequence of actual occurrence, he has deposed that when baratis after getting down from the bus had left for their houses, some of the persons got engaged in down loading the dowry articles from the bus. He took the driver and cleaner of the bus to his house for serving tea. When he was going towards the village, he heard the cry Bachao Maar Diya�. He alongwith driver and cleaner of the bus came back and found the deceased bleeding profusely in the arms of Shamsher Singh, father of the deceased. He took the driver and cleaner of the bus to his house for serving tea. When he was going towards the village, he heard the cry Bachao Maar Diya�. He alongwith driver and cleaner of the bus came back and found the deceased bleeding profusely in the arms of Shamsher Singh, father of the deceased. The deceased had said that Kinna accused had injured him and he be taken to the hospital immediately. They put the injured in the bus and took him to R.S. Pura Hospital where Doctor said that he be immediately taken to Jammu Hospital then they put the injured on the stretcher and took him to Jammu hospital in a bus. In Jammu hospital, Doctors examined him and declared that the injured had died on the way, so they brought him back to R.S. Pura. When they reached R.S. Pura Chowk, Shamsher Singh and police was present there. 8. PW-Satpal Singh is another eye-witness who has also deposed in chief examination that when the Barat was going for Milni, the accused raised wild shout (Babli) which was objected to by Ranbir Singh who was also one of the Baratis asked him not to do that on which altercation took place between the two. The accused declared that he would kill him on finding opportunity. That after taking meals, Barat returned by bus to village Sidder and when he, Shamsher Singh, Sham Singh, Soba Singh and Darshan Singh were un-loading the dowry articles from the bus, they heard the cry of deceased Ranbir Singh, Pitaji Bachao, Kinna Maar Gaya�. He, Shamsher Singh, Soba Singh, Sham Singh and Darshan Singh ran towards that side. Shamsher Singh lit the torch. They saw that accused Kinna was inflicting injuries with a Kirch upon the body of Ranbir Singh. When they were about 10-11 feet away, the accused Kinna ran away from the spot. The condition of Ranbir Singh was very bad. He asked his father to take him to the hospital. 9. PW-Soba Singh had also deposed in the same terms about the occurrence. According to him, also when the Barat party had reached near the house of Devi Lal, the accused Kinna started raising wild shouts, the deceased Ranbir Singh asked him not to do the same, due to which altercation started between the two but he and other members of the Barat intervened and stopped the fued. According to him, also when the Barat party had reached near the house of Devi Lal, the accused Kinna started raising wild shouts, the deceased Ranbir Singh asked him not to do the same, due to which altercation started between the two but he and other members of the Barat intervened and stopped the fued. The accused Kinna declared that he would kill the deceased. After taking meals at the house of Devi Lal, the Barat returned back to village Sidder, where Darshan Singh, Satpal Singh, Shamsher Singh and he started down-loading the dowry articles. When they were doing so, they heard the cry of the deceased Ranbir Singh saying Bachao-Bachao, Kinna Maar Gaaya�, whereafter they went towards that side. Shamsher Singh had a torch. From 10-12 feet from the scene of occurrence, they saw the accused giving blow after blow of Kirch that they saw occurrence in the light of the torch of Shamsher Singh. According to him, when he reached near the spot, the accused ran away. 10. PW-Darshan Singh has also stated in the Chief Examination about the occurrence in similar terms. PWs, Soba Singh & Darshan Singh are witnesses of the disclosure statements recovery of the weapon of offence. Both of them in their statements supported the case of the prosecution that the accused made the disclosure statement in pursuance of which, at the instance of the accused, the weapon of offence, a Kirch, came to be recovered. 11. PW-Dr. V.K. Verma, after examination of the weapon of offence opined that the injuries found on the person of the deceased could possibly be caused by the weapon shown to him. Learned trial court accepted the evidence of the prosecution witnesses and held that the prosecution had succeeded in proving the case beyond all reasonable shadow of doubt and accordingly, convicted and sentenced the accused as already stated. 12. It may be mentioned here that after the closure of the prosecution evidence statement of accused under Section 342 Cr.P.C. was also recorded, in which the accused put up simple denial to the circumstances appearing against him in the evidence. 12. It may be mentioned here that after the closure of the prosecution evidence statement of accused under Section 342 Cr.P.C. was also recorded, in which the accused put up simple denial to the circumstances appearing against him in the evidence. But despite simple denial, he entered upon the defence and examined DWs Balkar Singh & Yog Raj to prove that he was not arrested by the police of R.S. Pura but was arrested by these witnesses who are police officials from Gandhi Nagar, Police Station and produced before the Superintendent of Police, Jammu, who had handed over him to the police of P/S Gandhi Nagar, Jammu. The evidence tendered in defence on the face of it has no bearing or relevance to the case of the prosecution, or the defence version. 13. We have heard learned counsel for the appellant Mr. Sunil Sethi and Mr. B.S. Salathia, AAG for the State and with the assistance of learned counsel for the parties, we have gone through the evidence recorded during the trial of the case. 14. Mr. Sethi, learned counsel for the appellant seeks to challenge the findings of the learned trial court on the basis of which the accused has been convicted, primarily, on the following three grounds: - (a) The evidence of the Eye-witnesses is not reliable because of serious contradictions. (b) The occurrence is alleged to have been seen by the Eye-witnesses in the light of the torch of PW-Shamsher Singh but the torch has not been seized during the investigation. The Non-seizure of the torch makes the story of the prosecution doubtful as it was pitch-dark on the night of December 11, the accused, therefore, could not have been identified. (c) The deceased could not have spoken the alleged dying declaration in view of the number of serious injuries and, therefore, the evidence of the prosecution witnesses in this behalf is not reliable. 15. The contention of Mr. Salathia learned Additional Advocate General, however, is that the Eye-witnesses have given consistent account of the occurrence in their testimonies. Their credibility has not in any manner been impeached by lengthy cross-examination to which they were subjected and, therefore, according to him the learned trial court was perfectly justified on their evidence to hold the accused guilty. 16. Salathia learned Additional Advocate General, however, is that the Eye-witnesses have given consistent account of the occurrence in their testimonies. Their credibility has not in any manner been impeached by lengthy cross-examination to which they were subjected and, therefore, according to him the learned trial court was perfectly justified on their evidence to hold the accused guilty. 16. It has not been disputed that the deceased has died homicidal death on account of the injuries inflicted on his person. It is also not disputed that injuries No.1 and 2 found on the person of the deceased were sufficient in the ordinary course to cause death of the deceased. Who caused the injuries on the person of the deceased, is the question falling for consideration before us. 17. The case of the prosecution before the learned trial court was that it was the accused only who caused the injuries. Learned trial court has relied upon the witnesses produced by the prosecution for holding the accused guilty. 18. Mr. Sethi, learned counsel for the appellant submits that evidence of the eye-witnesses is not reliable in view of the contradictions appearing in their evidence. According to him PW-Shamsher Singh has said that he heard the cry of his son saying ˜Pitaji Bachao Bachao™ and when he reached near his son and took him in his arms he told that Kinna accused had inflicted the injuries he be taken to the hospital. Whereas PW Satpal Singh and Soba Singh have stated that when they were unloading the dowry articles from the bus they heard the cry of the deceased saying Pitaji Bachao Kinna mar gaya hai� so there is material contradiction between the two as such none of them can be believed. 19. The contradiction pointed out in our considered opinion is only minor and does not go to the root. All the eye-witnesses is one voice have stated that they heard the cry of the deceased calling for help. The presence of the eye witnesses is natural as all of them including the deceased and the accused had returned after attending the brat. There is not even a slightest suggestion by the defence to these witnesses in the cross-examination that they were not present on the spot after the return of the brat. The presence of the eye witnesses is natural as all of them including the deceased and the accused had returned after attending the brat. There is not even a slightest suggestion by the defence to these witnesses in the cross-examination that they were not present on the spot after the return of the brat. Therefore even if there is some contradiction about the words in which the deceased cried for help it cannot be accepted that the deceased had not cried for help at all. In every criminal case discrepancies here and there in the deposition of the witnesses made in the court are bound to occur in the natural course of things. The credibility of the witnesses can be affected only when the contradiction goes to the root that is to say it makes the version improbable or casts a serious doubt about the presence of a witness on spot. In A.I.R. 1981 S.C. 1237, ˜Krishna Pillai Sree Kumar and V. State of Kerala™, the Supreme Court has observed: - 11. It is not doubt true that the prosecution evidence does suffer from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing to be seen in whether those inconsistencies, etc., go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the congruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases which does not appear too have been followed by the learned Sessions Judge; and that is the reason why he landed himself into wrong conclusions, as has been pointed out by the High Court.� 20. It has been next submitted by Mr. Sethi learned counsel for the appellant that there has been delay of about 24 hours is recording the statements of the eye-witnesses U/S 161 Cr.P.C., therefore, their testimonies do not merit reliance as the witnesses had the opportunity of deliberating on the issue and introduce untrue facts in their statements. He has argued that P.W. Shamsher Singh was all along available to the Police more particularly after lodging of the FIR at 11.00 p.m. to 2.00 a.m. when the dead body of the deceased was brought back. He has argued that P.W. Shamsher Singh was all along available to the Police more particularly after lodging of the FIR at 11.00 p.m. to 2.00 a.m. when the dead body of the deceased was brought back. Similarly the order eye witnesses were also available to the Police. Their names had been disclosed in the F.I.R. They were accompanying the dead body of the deceased still their statements under Section 161 Cr.P.C. were not recorded immediately and were recorded on the next day after the performance of last rites of the deceased. 21. Delay in recording the statements of the witnesses during investigation per se in our view is not sufficient of discredit the evidence of the eye-witnesses if their evidence is found otherwise reliable. In ˜Mohammed Vs. State of Karnatka™, 1991 Cr.L.J, 14 it has been held by Karnatka High Court that the fact that investigating officer did not record the statements of the witnesses immediately does not discredit their evidence when their evidence is otherwise reliable. We fully agree with the view of the Karnatka High Court. P.W. Shamsher Singh, who is eye-witnesses of the occurrence lodged the F.I.R. within thirty forty minutes of the occurrence giving consistent account of the occurrence. His evidence is in accord with the earliest version of the occurrence. The names of the other eye witnesses were also disclosed in the F.I.R. The evidence of other eye witnesses named in the first information report is also in accord with the account of occurrence given by P.W. Shamsher Singh. Their presence on the spot has not been disputed by the defence in their cross-examination. Therefore in our considered opinion only on account of delay in recording their statements the evidence of the eye witnesses does not deserve to be rejected. 22. Mr. Sethi also argues that the eye witnesses™ evidence appears to be false for the reason that after having received serious injuries like injury No.1 and 2 the deceased would not have been in position to say to his father P-W Shamsher Singh that ˜Kinna™ (accused) had injured him to take him to hospital. He refers to the evidence of P.W. Dr. V.K. Verma who is cross-examination has stated: - That injuries to the heard accompanied by other injuries may not cause instantaneous death. He refers to the evidence of P.W. Dr. V.K. Verma who is cross-examination has stated: - That injuries to the heard accompanied by other injuries may not cause instantaneous death. Because of the injuries stated above, the deceased might have not ability to communicate properly to others because of pain and other consequences of the said injuries. Due to shock, which could have been of the injuries received by deceased, the deceased may have lost the speaking force. The deceased due to shock might have developed the following complicacies: 1. Apasia; which means Lost, complete lost of speech. 2. Deliriaus; which means what ever speak is all confused which may not be correct. 3. Dysphasia; what ever speaks may be incorrect.� 23. The evidence of the Doctor is being opinion evidence and not evidence of a witnesses of fact has only corroborative value. Doctor has not opined that after receiving the injuries there was absolutely no possibility of deceased™s having spoken at all. In his opinion the deceased might not have the ability to communicate properly to others. This may have been the possibility but on the basis of such possibility alone it cannot be certainly said that the deceased could not have spoken at all. The deceased is alleged to have spoken very few words. The possibility of his having spoken those words in our opinion cannot be ruled out simply on the basis of aforesaid opinion of the Doctor. 24. Mr. Sethi further argues that the occurrence allegedly took place at the spot in complete darkness of the night. The eye-witnesses have claimed that they saw the accused in the light of the torch, which was lit by P.W. Shamsher Singh father of the deceased. The Torch used for identifying the accused has not been seized by the investigation Officer. The failure of the investigating officer to seize the torch is indicative of the fact that there was no torch at all and if there was no torch the eye-witnesses could not have seen the accused committing the murder of the deceased. According to Mr. Sethi the assailant could be some one else but because of suspicion of his involvement he was framed for the murder and to give the story a natural touch the story of torch has been introduced by the eye-witnesses. 25. Mr. According to Mr. Sethi the assailant could be some one else but because of suspicion of his involvement he was framed for the murder and to give the story a natural touch the story of torch has been introduced by the eye-witnesses. 25. Mr. Sethi argues that in the absence of torch the version of eye-witnesses has been rendered unbelievable and even improbable as due to darkness it was not possible for them to have identified the assailant. He submits that from the non-seizure of the torch in any case story of the prosecution has been rendered doubtful. In support of his submission he relies upon 1982 CAR 96 (S.C), which was also cited, by the defence before the trial court but according to Mr. Sethi learned trial court has not given any reasons in the judgment for not following the same. According to Mr. Sethi the said authority applies to the case from all corners and angles. 26. Before we refer to the aforesaid authority it be seen that all the eye witnesses have claimed that they saw the occurrence in the light of torch which P.W. Shamsher Singh was having and who had lit the same P.W. Shamsher Singh in Chief examination has specifically stated about the fact of his having a torch and having lit the same after hearing the cry of his son and in light of the torch he saw the accused inflicting kirch blows on the person of the deceased. Despite of his taking such a positive stand the defence has not put a single question to challenge his stand. There is not even a suggestion to the witnesses made by the defence in cross-examination that he was not having the torch at all and his version is false. Same is the case of other eye-witnesses. 27. Version of a witnesses can be shown to be false or doubtful either from the answers given by the witnesses in cross-examination or by showing that the stand is totally improbable in the circumstances of the case. For instance if A claims to have seen the occurrence at 11 P.M and if it is shown that A at 11 P.M. was present at some other place than the place of occurrence, then it would be highly improbable for him to have seen the occurrence. 28. For instance if A claims to have seen the occurrence at 11 P.M and if it is shown that A at 11 P.M. was present at some other place than the place of occurrence, then it would be highly improbable for him to have seen the occurrence. 28. In the present case there is nothing in cross-examination from which it can be said that version so given by the eye-witnesses is not acceptable. The defence here is trying only to improbablise the version of the witnesses on the ground of non-seizure of torch by the investigating officer, without disputing the version of the witnesses in cross-examination. 29. Learned Trial Court has not accepted the aforesaid contention of the defence. According to learned trial court the presence of the eye-witnesses was natural on the spot, the fact of torch light stood mentioned in the F.I.R., therefore, version of the eye witnesses could not be disbelieved and the case relied upon by the defence (that is the authority being relied upon here too) is not applicable in the facts of the case and was covered by A.I.R. 1981 S.C. 1217. 30. The authority 1982 CAR 96 (S.C.) has not been produced before us by the learned counsel for the appellant. We have not been able to lay our hands on the same, as it is also not available in our library. Learned trial court has quoted the same in the judgment as follows: - 12. PWs 1 and 2 are stated to have flashed their torch lights and to have seen the two persons running away from the scene of occurrence after they had heard the alarm of the injured Gul Bahar near the railway line. The torches have not been produced in evidence and the Investigating Officer PW 12 would say in his evidence that he saw those torches and returned them to the home-guards. It is not known why the Investigating Officer PW 12 thought it fit to return the torches with the aid of which the home-guards are stated to have seen the two persons running away from the scene of occurrence though that will be a relevant piece of material evidence in the case.� 31. Their Lordships in the afore-quoted observations have not said the non-seizure of torches rendered the whole case of the prosecution doubtful. Their Lordships in the afore-quoted observations have not said the non-seizure of torches rendered the whole case of the prosecution doubtful. In A.I.R. 1981, S.C. 1217, which has been relied upon by the trial court, it has been held: - 3. The only point urged before us is that as there is no mention of the torch-light in the FIR or in the statements of the witnesses before the Police the presence of torch was not proved. Hence it would not have been possible to identify the appellants. Even if this omission is there it loses its significance in view of the direct testimony of P.Ws. 3, 4 and 7 who state that when they reached the spot they found the torch burning which clearly shows that the version of P.W.I that he had a torch with him in the light of which he had identified the appellants is correct.� 32. In our considered view, their Lordships in the case 1982 CAR 96(Supra) have not enunciated the preposition of law that non-seizure of torches would be sufficient to discredit the truthful testimony of eye-witnesses. In our opinion the evidence of eye witnesses cannot be discarded simply on the ground of non-seizure of torch by the investigating officer more particularly when assertion of the eye-witnesses that they saw the occurrence in the light of the torch has not been challenged by the accused in cross-examination of these witnesses and the fact of having seen the accused inflicting kirch blows upon the deceased in the light of the torch stands mentioned in the F.I.R. lodged within thirty minutes of occurrence. In ˜Shrishail Nageshi Pare Vs. State of Maharashtra™, A.I.R. 1985, S.C. 866, their Lordships held: - The evidence of the eye witnesses, if accepted, is sufficient to warrant conviction though in appropriate cases the court may as a measure of caution seek some confirming circumstances from other sources. But ordinarily, the evidence of a truthful eye witness is sufficient without anything more to warrant a conviction and cannot, for instance, be made to depend for its acceptance on the truthfulness of other items of evidence such as recovery of weapons etc. at the instance of the accused by the police.� 33. Therefore the submission of learned counsel for the appellant that evidence of eye-witnesses has become unreliable because of non-seizure of torch by the investigating officer is not acceptable. at the instance of the accused by the police.� 33. Therefore the submission of learned counsel for the appellant that evidence of eye-witnesses has become unreliable because of non-seizure of torch by the investigating officer is not acceptable. The omission of the investigation officer to seize the torch in the circumstances of the case cannot be taken in favour of the accused. In ˜Ram Bihari Yadav Vs. State of Bihar™, A.I.R. 1998, S.C., 1850, the Supreme Court has observed: - 13. Before parting with this case we consider it appropriate to observe that though the prosecution has to prove the case against the accused in the manner stated by it and that any act or omission the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused, yet in a case like the present one where the record shows that investigating officers created a mess by bringing on record Exh. 5/4 and GD Entry 517 and have exhibited remiss and/or deliberately omitted to do what they ought to have done to bail out the appellant who was a member of the police force or for any extraneous reason, the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium for the wrongs of the prosecution designedly committed to favour the appellant. In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice�. 34. Mr. Sethi learned counsel for the appellant has also contended that in the statement of the accused recorded under Section, 342 Cr.P.C. the accused was not put the circumstance appearing in the evidence of the eye-witnesses that he was seen by them in the light of the torch inflicting blows of Kirch upon the person of the deceased but was put in question that he inflicted the Kirch blows on the person of the deceased. Mr. Mr. Sethi argues that omission of the trial court to put the circumstances of having been seen in the light of torch is fatal. We do not agree with Mr. Sethi. All incriminating circumstances appearing in the prosecution evidence are required to be put to the accused so as to afford him an opportunity to explain the same. The vital circumstance appearing the prosecution evidence was that he inflicted Kirch blows upon the person of the deceased. The manner in which the witnesses had seen the accused was only explanatory circumstances. The entire evidence of prosecution had been read over and explained to the accused therefore in the circumstances merely non-putting of the fact of the witnesses seeing the accused in the light of the torch appears to us to be inconsequential especially when eye-witnesses account that they saw the accused in the light of the torch has not been challenged by the accused in their cross-examination. No prejudice can be said to have been caused to the accused by not putting the said circumstance to him. 35. We have gone through the evidence of eye-witnesses whose presence on the spot is natural and has not been disputed by the accused. They have given consistent account of the occurrence, their Credibility and truthfulness has not in any manner been impeached by cross-examination, their evidence is found to be fully reliable. Due corroboration has been provided by medical evidence. From the direct evidence of P.W. Shamsher Singh, fully corroborated by P.Ws Sat Pal Singh, Soba Singh and Darshan Singh the prosecution has cogently, consistently and completely proved its case against the accused beyond any shadow of doubt. Beside the direct evidence, the prosecution has also proved the guilt of the accused by proving the dying declaration of the deceased. P.W. Shamsher Singh™s version that deceased had told him that Kina accused attacked him is in our view is fully acceptable as the same has found the necessary corroboration from the evidence of PWs Sham Singh and other eye witnesses. The finding of the trial court that accused is responsible for the murder thus does not warrant any interference. Therefore, there is no merit in appeal of the appellant. We dismiss the same and up-hold and confirm the conviction and sentence of the accused and accordingly accept the reference of the learned trial court. The finding of the trial court that accused is responsible for the murder thus does not warrant any interference. Therefore, there is no merit in appeal of the appellant. We dismiss the same and up-hold and confirm the conviction and sentence of the accused and accordingly accept the reference of the learned trial court. The accused shall suffer the sentence imposed by the trial court.