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PETITIONER: MOHINDER SINGH

       Vs.

RESPONDENT: THE STATE

DATE OF JUDGMENT: 17/10/1950

BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID MUKHERJEA, B.K. AIYAR, N. CHANDRASEKHARA

CITATION:  1953 AIR  415            1950 SCR  821  CITATOR INFO :  R          1963 SC 340  (19)  D          1963 SC 612  (22)  RF         1963 SC1511  (5)  F          1975 SC1727  (14)  F          1977 SC 472  (5)

ACT:     Criminal  trial--Murder--Ijuries caused by lethal  weap- ons-Duty of prosecution--Importance of expert evidence--Duty to   prove   whole  case--Evidence   wanting   on   material point--Impropriety  of conviction--Proof of  alibi--Standard of               proof--Supreme               Court-Criminal appeal--Interference--Practice.

HEADNOTE: In a case where death is due to injuries or wounds caused by a  lethal  weapon, it has always been considered to  be  the duty of the prosecution to prove by expert evidence that  it was  likely  or at least possible for the injuries  to  have been caused with the weapon with which, and in the manner in which, they are have been caused.   Where  in a case of murder, the prosecution case was  that the  accused shot the deceased with a gun, but  it  appeared likely that the injuries on the deceased were inflicted by a rifle  and there was no evidence of a duly qualified  expert to  prove  that the injuries were caused by a gun,  and  the nature  of the inajuries was also such that the  shots  must have  been  fired  by more than one person and  not  by  one person only, and the prosection had no evidence to show that another person also shot, and the High Court, though realis- ing  that there was thus a gap in the prosecution  evidence, convicted the accused placing reliance on the oral  evidence of 3 witnesses which was not, disinterested:   Held,  that, the present case fell within the rule  laid down in Pritam Singh v. The State ([1959] S-C R. 453)  inas- much as the appellant had been convicted notwithstanding the fact   that evidence was wanting on a most material part  of the prosecution case, and the conviction could not therefore be upheld, 822     Held also, that the standard of proof which is  required

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in  regard  to  the plea of alibi must be the  same  as  the standard which is applied to the prosecution evidence and in both cases it should be a reasonable standard.

JUDGMENT: APPELLATE JURISDICTION: Criminal Appeal No. 10 of 1950.    Appeal  by  special leave from a judgment  of  the  High Court of Punjab (Falshaw and Soni JJ.) dated 30th  December, 1949,  upholding the conviction of the appellant  under  ss. 302  and  307 read with s. 34 of the Indian Penal  Code  and confirming  the sentence of death passed against him by  the Sessions  Judge  of Ferozepore on the 20th  July,  1949,  in Criminal Appeal Case No. 325 of 1949.     Jai  Gopal Sethi (R. L. Kohli, with him) for the  appel- lant.     B.K.  Khanna,  Advocate. General of the Punjab,  (S.  M. Sikri, with him) for the respondent.     1950. October 17.  The judgment of the court was  deliv- ered by     FAZL ALI J.--This is an appeal by special leave from the judgment  of the High Court of Punjab upholding the  convic- tion  of the appellant.  Mohinder Singh, under sections  302 and  307 read with section 34 of the Indian Penal Code,  and confirming  the sentence of death passed against him by  the Sessions Judge of Ferozepore.     The case for the prosecution which has been substantial- ly accepted by the trial Judge and the High Court is briefly as follows.  Sometime in January, 1949, one Bachittar Singh, brother  of Dalip Singh who is said, to have been  murdered, lodged  a complaint before the NaibTehsildar at Zira to  the effect  that a tree belonging to him had been cut by 7  per- sons  including Mohinder Singh, the appellant.  On the  28th February, 1949, which was the date fixed for the hearing  of the  case  before the Naib TehsiIdar, Jita Singh  and  Dalip Singh, the two brothers of Bachittar Singh, were attacked by the  appellant  and one Gurnam Singh, a lad of  17,  near  a Gurdwara at about mid-day, when      823 they  were returning from their field.  Jita Singh was  then carrying a load of fodder on his head while Dalip Singh  had sickles  in  his hand.  Jita Singh was the first to  be  at- tacked  near a tailor’s shop by Mohinder Singh who fired  at him  from behind hitting him on the neck whereupon  he  fell down  together with the bundle of fodder.  Dalip Singh,  who was  following  Jita Singh, then ran backwards  and  he  was chased  by Gurnam Singh round the outer boundary of  a  tank which was close by.  Mohinder Singh ran on the other side of the  tank in the opposite direction and confronted  him  and shot  him  with a gun on the chest whereupon he  fell  down. Meanwhile,  Gurnam  Singh had also reached the spot  and  he fired  with his rifle from a distance of about 4 or  5  feet near  about Dalip Singh’s ear while he was  lying  sideways. The injuries proved fatal and Dalip Singh died on the spot.     The  same day at 3 p.m., Jita Singh went to  the  police station at Dharamkot, which is at a distance of 3 miles from village  Augar,  where the occurrence had taken  place,  and lodged a first information report, charging Mohinder  Singh, with  having  caused injury to him, and Mohinder  Singh  and Gurnam Singh with the murder of Dalip Singh; and the  police after investigating the case sent up a charge-sheet  against the two accused persons.  Thereafter they were tried by  the Sessions Judge of Ferozepore under sections 302 and 307 read with section 34 of the Indian Penal Code. The appellant  was

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sentenced  to death under section 302 and Gurnam  Singh  was sentenced  to transportation for life under that section  in view  of  his youth. They were also sentenced  to  3  years’ rigorous  imprisonment  each  under section  307  read  with section 34 of the Indian Penal Code.     It  appears that Dalip Singh had 6  injuries  altogether which  are described by the doctor who performed  the  post- mortem on his body in these words:-     "  1.  An irregularly round gun shot wound on  the  left temporal region, 1" diameter.  The wound is 22" behind outer canthus  of left eye, its upper portion is at a  level  with the top of the pinna of the left ear, 824  behind it commences at the cartilages of the ear which  are broken.  Brain is visible in the gap of the wound. An area 4 " x 4 " is blackened, the wound being situated in the middle of this area.      2.  A gun shot wound 3/4" X 1/2" on the back  of  right mastoid region, upper end of the wound is 1" behind the root of  the  right ear.  Direction is  vertically  oblique.   On dissection  the  left temporal bone under injury No.  1  is, hole  and its petrous portion shattered. A  linear  fracture extends  upwards and backwards, from the hole into the  left parietal  and  occipital bones. After piercing  through  the left  temporal lobe of the brain the projectile has  pierced through  the  brainstem, and emerged out as  injury  No.  2, holding the mastoid region of the skull on the right side.      3.  A  gun shot wound 3/4" X 5/8" on the left  side  of chest 21/2" above and behind the left nipple and 1/2" behind the  anterior  axillary fold as area 1" below the  wound  is bruised.      4.   A gun shot wound 1/2"X 3/4" on the right  side  of chest  in the mid axillary line. The top of the wound  being 1-3/4"  from the apex of right axilla and 4-3/4"  above  and behind the right nipple.      5.  A gun shot wound 1/2"x 1/4" on the inner aspect  of the right arm, upper end of the wound is 11/4" from the  top of the anterior axillary fold. 6.   A  gun shot wound 3/4"X 1/2" on the front  of  the right  arm.  Its upper end being 21/2" from the top  of  the anterior  axillary  fold.  Its distance from  injury  No.  5 being  1" and it is inter-connected with injury No. 5  under the skin."      The  doctor has stated in his evidence that in all  two projectiles  appeared to have hit Dalip Singh, and  injuries Nos. 1 and 2 were caused by one of them, injury No. 1  being the  wound of entrance and injury No. 2 being the  wound  of exit,  With regard to the other 4 injuries, his evidence  is as follows :-      "Injury  No.  3  is the wound of  entrance  of  another projectile and No. 4 is the wound of its exit.  Wound 825 No.  5 is the wound of its re-entrance and wound No.  6  the wound of its final exit from the body." Jita  Singh  had 4 slight injuries on the back of  the  neck which are said to have been caused by pellets and two  abra- sions below the right elbow and right knee said to have been caused by blunt weapons.     It may be stated here that when the investigating police officer  arrived  at the scene of occurrence,  he  found  an empty  cartridge case at the place where Jita Singh is  said to  have  been fired at, and 2 empty cartridge cases  and  a blood-stained  cap of a cartridge case near the place  where the  dead  body of Dalip Singh  was   lying.   Later,   when Mohinder  Singh  appeared before the police,  he  was  asked

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whether he possessed  a  gun and he produced a  12 bore  gun (exhibit P-16) for which he  held a licence.  The gun    and the  empty   cartridges were  thereupon sent to  Dr.  Goyle, Director of the C.I.D. Laboratory, Phillaur, and the opinion that he submitted may be summed up as follows :--The gun had signs of having been fired but he could not say when it  was fired  last.  The cartridge cases P-10 and P-15  could  have been fired through the gun P-16, but he could not say wheth- er  they were actually fired from that particular gun  or  a similar  gun  or guns.  He did not make  any  experiment  by firing any cartridge from  the gun P-16, nor did he  compare the markings on the empty cartridges P-10 and P-15.     A notable feature of the case is that the occurrence  is said to have taken place in the vicinity  of a Gurdwara  and some houses, but in spite of this fact, not a single  person of  the locality has been cited or examined as a witness  by the  prosecution. The whole case rests on the evidence of  3 witnesses,  viz., Jita Singh, Harnam Singh and  Buta  Singh. Jita Singh, who had been shot at from behind, claims to have seen  the two accused firing at his brother.   Harnam  Singh admittedly lives at a considerable  distance from the  place of occurrence but has stated that he was coming from another village  where  he had gone to fetch some medicine  for  his maternal cousin, when he 826     saw  the  occurrence.   Buta  Singh,  who  is  a   tonga driver,  belongs  to  a  distant  village  and  is  somewhat remotely  related  to  Harnam Singh, and  accounts  for  his presence near the scene of occurrence by saying that he  had come to see Harnarn Singh the evening before.  Harnam  Singh admitted  in his evidence that there was a  dispute  between him and Mohinder Singh nearly a month before the  occurrence about  a wall, but he also says that the dispute ’ had  been amicably settled by the panchayat".  There is nothing before us  to show what the award of the panchayat was and  whether or  not it left any ill-feeling behind.  But, on  the  argu- ments of the counsel and the  apparently trivial motive  for which  Dalip Singh is said to have been murdered,  it  would appear  that  among the class of persons with which  we  are concerned petty quarrels give rise to enmity which does  not die soon or easily.      After  the close of prosecution evidence  in  the  Ses- sions Court, the appellant was examined under section 342 of the Criminal Procedure Code, and he denied that he had fired at  Jita  Singh and Dalip Singh with the gun P-16  and  that Gurnam Singh had fired at Dalip Singh with a rifle. He added that he was not present in village Augur at the time of  the alleged  occurrence but had gone to Zira to attend the  Naib Tehsildar’s  court.   To  establish his plea  of  alibi,  he examined 3 witnesses in the court of the Sessions Judge. The first  witness was the Naib Tehsildar before whom  Bachittar Singh had lodged the complaint, and he stated that when  the case  was called on the 28th February, 1949, 6 or 7  persons appeared  in  court.  He also proved an  application  for  a taccavi loan which purports to have been filed by the appel- lant on the 28th February, 1949, and bears his thumb impres- sion.  He further stated in his evidence that he had  passed orders  on that application on the 28th February but he  did not know Mohinder Singh and therefore could not say who  had produced  that  application before him on  that  date.   The second  witness  for the appellant was  his  brother-in-law, Jogindar  Singh, who had written the  application.   exhibit D-C.  He has stated that       827 Mohinder Singh himself was present in the court of the  Naib

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Tehsildar on the 28th February, 1949, that he had signed the application  (exhibit D-C) and that he was also one  of  the persons who had appeared before the Tehsildar when Bachittar Singh’s case was called out.  The third defence witness is a hand-writing and fingerprint expert. He has proved that  the application (exhibit D-C) alleged to have been presented  to the  Naib  Tehsildar  on the 28th February  bore  the  thumb impression of the appellant, and he has also given  evidence to  show  that certain handwritings which he  was  asked  to compare did not tally. The evidence given by him with regard to these handwritings has a bearing on the assertion made by the  appellant  in a petition filed  before  the  committing Magistrate to the effect that the original service report of the process peon showing that the appellant also was one  of the persons served for appearance before the Naib  Tehsildar on the 28th February, 1949, had been suppressed and  another report  with forged handwriting had been substituted in  its place.     Both  the courts below have held that the alibi has  not been  proved by satisfactory evidence and that  the  charges against the appellant have been made ’out.     It seems that the learned Judges of the High Court  were not at all impressed by the evidence of Dr. Goyle which they characterized  as  unsatisfactory  and they  were  not  also confident  that  the  gun, exhibit P-16, had  been  used  in causing  the injuries to Dalip Singh. This appears from  the folio.wing observations made by them in their judgment:--     "The  gun P-16 was identified by Jita Singh as  the  gun with  which Mohinder Singh fired at him and Dalip Singh  but he  identified the gun because of a brass plate at its  butt end.  We have seen the gun. Its brass plate could be  of  no use for the identification of the gun."     Again,  commenting  on the nature of the  injuries,  the learned Judges observed as follows :-- 828 "Another  difficulty  which is created in this case  is  the nature of injuries found on the body of Dalip Singh   ...... What  kind of bullet it was which, though it  had  blackened the area where it entered the brain showing that it had been fired from not far away, did not shatter the brain we do not know. What kind of projectile it was which entered the  body (which if the evidence as to be believed was fired at from a few feet at Dalip Singh) and passed through the body without shattering  the  inside of the chest  or  causing  extensive damage therein is also not known. Mr. Sethi (counsel for the accused)  quoted Taylor’s book on medical jurisprudence  and Hateher’s   book  on ballistics and argued that  the  firing must have been from a place between 600 and 1,200 yards away in  order that the projectile may  pass through and  through the  body and not shatter it.  That of  course  pre-supposes that  the  barrel  of the gun, using the word  ’gun’  m’   a generic  sense, is grooved which causes a projectile  to  go forward with a rotatory motion of something under a  quarter of a million revolutions a minute and travelling at the rate of   about   2,000  miles  an  hour  when  it   leaves   the gun   .........  We do not know whether the barrel  of  this gun  (exhibit P-16) is grooved or not. It. is a single  bar- relled gun and is country made.  The likelihood is that  the barrel is not grooved."     On  a careful reading of the judgment under  appeal,  it appears  that the learned Judges of the High Court  strongly felt  that  they  had no adequate explanation  in  the  oral evidence  before them for certain puzzling features  of  the injuries on Dalip Singh.  This is exactly what we also  feel in this case, and it seems to us that the evidence which has

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been adduced falls short of proof in regard to a very  mate- rial part of the prosecution case.  in a case where death is due to injuries or wounds caused by a lethal weapon, it  has always been considered to be the duty of the prosecution  to prove  by  expert evidence that it was likely  or  at  least possible  for  the  injuries to have been  caused  with  the weapon  with which and in the manner in which they  are  al- leged to have been caused.  It is      829 elementary  that  where the prosecution has  a  definite  or positive case, it must prove the whole of that case. In  the present case, it is doubtful whether the injuries  which are attributed  to the appellant were caused by  a gun or  by  a rifle.  Indeed, it seems more likely that  they were  caused by a rifle than by a gun, and yet the case for the  prosecu- tion is that the appellant was armed with a gun and, in  his examination, it was definitely put to him that he was  armed with  the  gun P-16.  It is only by the evidence of  a  duly qualified expert that it could have been ascertained whether the  injuries attributed to the appellant were caused  by  a gun  or by a rifle and such evidence alone could settle  the controversy  as  to whether they could  possibly  have  been caused by a fire-arm being used at such a close range as  is suggested in the evidence.  It is clear, and it is also  the prosecution  case,  that only 2 shots were  fired  at  Dalip Singh  and one of the crucial points which  the  prosecution had to prove was that these shots were fired by two  persons and  not by one man, and both the shots were fired  in  such manner  and  from  such distance as is alleged  by  the  eye witnesses.  There is, in our opinion, a gap in the  prosecu- tion  evidence  on a most fundamental point  and  the  error which  has been committed by the courts below is  to  ignore the gap and decide the case merely upon the oral evidence of 3  witnesses, two of whom are mere chance witnesses and  not altogether  independent  persons, and the  evidence  of  the third  witness  is open to criticism on the  ground  of  his partisanship as well as the improbability of his having been able  to see the firing at his brother after he had  himself been  shot at the back of the neck.  The learned  Judges  of the  High Court, after commenting upon the entire  evidence, say in their judgment:-     "  We are thus left with the evidence of the three  wit- nesses of the prosecution together with the state of  wounds as  shown  by  the medical evidence  and  an  unsatisfactory statement of Dr. Goyle."     106 830 They  reject the evidence of Dr. Goyle and they     consider the nature of the wounds to have created a serious dificulty in the case.  Having arrived at these conclusions, it was  a serious thing to rest the appellant’s conviction wholly upon the oral testimony in the case which has remained  unchecked and  unconfirmed by expert evidence. The real  position  ap- pears  to be that the prosecution case cannot be said to  be wholly proved but only partly proved if it is permissible to use  such an expression.  This Court, as was pointed out  in Pritam Singh v. The State (1), will not entertain a criminal appeal  except in special and exceptional cases where it  is manifest  that by a disregard of the forms of legal  process or  by a violation of the principles of natural  justice  or otherwise substantial and grave injustice has been done.  It seems to us that the present case comes within the rule laid down, because the appellant has been convicted notwithstand- ing the fact that the evidence is wanting on a most.material part of the prosecution case.

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   This  is  enough to dispose of this appeal, but  we  are constrained  to say that we are not altogether  happy  about the  manner  in which the plea of alibi put forward  by  the appellant  has been disposed of by the courts below.   Ordi- narily tiffs court will not look beyond the findings of fact arrived  at  by the courts below, but we find  that  in  the present  case  the decision on the plea of  alibi  has  been arrived  at in disregard of the principle that the  standard of  proof which is required in regard to that plea  must  be the same as the standard which is applied to the prosecution evidence and in both cases it should be a reasonable  stand- ard.  It is common ground in this appeal that the  appellant was summoned to appear before the Naib Tehsildar on the 28th February,  1949, which was the date fixed for  dealing  with Bachittar Singh’s complaint.  Ordinarily and without looking at anything else, there should have been nothing  improbable about his appearance before the Naib Tehsildar on that date, but in the present case there is positive (1) [1950] S.C.R. 463. 831 evidence that an application for a taccavi loan bearing that date and also bearing the thumb impression the appellant was put up before the Naib Tehsildar and that was dealt with  by him on that very day. There is also affirmative evidence  of a  witness  to prove that the appellant was present  in  the Naib Tehsildar’s court.  This witness is undoubtedly closely related  to the appellant but his evidence is  supported  by probability  and  a  written document.  One  of  the  points raised  by the prosecution was that the summons for  appear- ance  on  the  28th February was not  served  upon  Mohinder Singh,  but such evidence as there is on the record  bearing on  this point has certain peculiar features.  The  prosecu- tion  having cited the Naib Tehsildar and the Ahlmad  (Bench Clerk) as witnesses in the case gave them up and stated that the former had been won over by the appellant.  This allega- tion  could have been substantiated   in the  cross-examina- tion of the Naib Tehsildar who    was examined as a  defence witness, but nothing was  elicited from him to support  such a  charge.   From  the evidence of the  Naib  Tehsildar,  it appears  that on the 5th July, 1949, the  Public  Prosecutor showed  him  exhibit P.S. (which is an order  directing  the appearance  of  the seven persons  including  the  appellant mentioned  by Bachittar Singh in his complaint,  before  the Naib Tehsildar on the 28th February, 1949). and that he told the  Public Prosecutor that 6 or 7 persons appeared  in  his court. on that date.  After this incident, on the 6th  July, 1949, the Public Prosecutor informed the Court that he would "give up the Naib Tehsildar as he has been won over ".   The evidence  of  the process peon is of a  somewhat  suspicious character,  because  he  has  conveniently  forgotten  every material  detail. The appellant asserted at the  trial  that the original report of the process peon had been  suppressed and  another report had been fabricated and  substituted  in its  place.  An application to this effect was made  by  him before  the  committing Magistrate, and he also  examined  a handwriting expert to prove some of his allegations. Neither of the courts below has dealt with the evidence 832 of this expert.  The evidence of the Investigating   Officer as  recorded  by  the Sessions Judge is  to  the   following effect :--     "P.B.  and P.C. were obtained by me from  the  headquar- ters.  Along  with P.B. and P.C. the Parvana P.S.  was  also received by me.  After going through the zimnis, the witness states that the aforesaid documents P.B., P.C. and P.S. were

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summoned by the committing Magistrate and were not sent  for by  the witness.  On 16th March, 1949, a Foot Constable  was certainly  sent to Zira to bring the said file.   But  since the  file had been sent to the headquarters, therefore,  the said  constable  returned quite  blank.  I  never  inspected this file at the headquarters."     The most material document with which we are  concerned is P.S. which should have contained an endorsement of  serv- ice  of summons on the persons against whom Bachittar  Singh had  complained.   It is clear from the first  part  of  the evidence  of the Investigating Officer that he had  received the  report  of the process peon which was endorsed  on  the back of P.S., from the headquarters, but he says later  that the  papers  were sent for but they did not arrive.   It  is surprising  that when a document was the subject of so  much controversy  he  should  have said by mistake  that  he  had received  it. One of the comments made by the  learned  Ses- sions Judge in dealing with the application alleged to  have been made by the appellant on the 28th February, 1949, for a taccavi loan is that after producing the application  before the  Naib Tehsildar on that date, Mohinder Singh could  have reached  his  village by noon time, but on  this  point  the learned  Sessions  Judge seems to have wholly   ignored  the evidence  of the Naib Tehsildar that he usually  dealt  with such applications between 12 and 4 P.M. on working days, and also the affirmative evidence of Joginder Singh.      In our opinion, there has been in substance no fair and proper  trial in this case, and we are constrained to  allow this appeal, set aside the conviction of the appellant under sections 302 and 307 read with section S4 833 of  the  Indian  Penal Code, and direct that he  be  set  at liberty   forthwith.  In ordinary  circumstances,  we  might have  remanded the case for a flesh trial, but  we  consider that such a course would, in the present case, be unfair and contrary to settled practice, seeing that the appellant  has been  in a state of suspense over his sentence of death  for more than a year.                   Appeal allowed. Agent for the appellant: R.S. Narula. Agent for the respondent: P.A. Mehta.