Dave, J. - (1.) CRIMINAL Reference No. 6 and 52 arise out of the same case and therefore, both of them are disposed of together.
(2.) THE facts leading to this case are that on the 15th of July 1952 at about 6, P. M. one Santa Singh resident of Santpura village in Tehsil Hanumangarh, lodged a report at that police station Sangaria to the effect that on that day at about 2 P. M. one Gurnam Singh, S/o Lal Singh, Jat Sikh of his village was lying on a cot in a room of his house. His mother and one or two other persons were sitting beside him. At that time Kartar Singh, S/o Vichitra Singh, resident of their village climb-ed the chaki (terrace) which was in front of Gurnam Singh's room and fired a 12 bore gun with intent to kill him (Gurnam Singh ). Gurnam Singh was injured on his thigh, calf and private parts. On a hue and cry being raised, several persons of the village assembled there, but Kartar Singh went to his house soon after the firing and fled away with his gun to some place. This report was taken down by one Pusaram Sharma, Head-constable, but the investigation was conducted partly by P. W. 6 Rameshwar Prasad Head-constable and partly by P. W. 11, Lalchand Sub-Inspector, and the accused Kartar Singh was challaned in the court of the Sub. Divisional Magistrate, Hanumangarh, under sec. 302 I. P. C. The prosecution case against the accused was that on the night preceding the day of occurrence at about 8 P. M. , the accused met Karnel Singh - younger brother of deceased - at a place called Samadh Tomb. The accused made him an offer to drink with him but it was refused. The accused then asked Karnel Singh to stand him a drink but that requeued was also refused. Thereupon, the accused abused Karnel Singh and told him that he would see him. On the next day at about 11 A. M. , two persons. Tarachand and Boga come to the house of the accused to purchase turi. Tarachand had with him a gun and a bandoleer with some cartridges therein. The accused requested Tarachand to give him a cartridge as he wanted to test his gun. Tarachand accordingly gave him a cartridge. The accused then went to Karnel Singh's house. Karnel Singh was not present there, having gone to another village Trimala. His elder brother Gurnam Singh was, however, there, lying on a cot. His mother Har-Kaur and two other persons, namely, Tehal Singh and Chhotu Nai were also present in the room. The accused shouted saying that last night he was abused end so he should be ready. Hearing this, Gurnam Singh got up and just as he stood at the door, the accused fired his gun at him and fled away. Santa Singh, who made the report, was not present at the scene, but came there soon after the incident. He enquired from the deceased about the occurrence and then went to the police station. Gurnam Singh was then taken to Sangaria dispensary. Dr. B. D. Jain advised his attendants to take him to Ganganagar hospital and so he was taken there. On the 16th of July, Gurnam Singh expired at about 3 A. M. According to the prosecution, the accused was missing from his village after this occurrence; he surrendered himself on 25th July, 1952 and then he was arrested. It is said that on 6th August, 1952 a 12 bore indigenous single barrel gun was recovered at the instance of the accused. It was buried deep under ground below a plum tree in the Jungle of Kumba Deengarh. After preliminary enquiry, the Sub-Divisional Magistrate committed the accused to the Court of Sessions Judge, Ganganagar. The case was, however, tried by the Additional Sessions Judge, Ganganagar. He has found the accused guilty of murder and sentenced him to capital punishment under sec. 302 I. P. C, The criminal reference No 6 relates to confirmation of the said sentence The accused has also filed an appeal from the said judgment, which is appeal No. 52. We shall first take up the appal of the accused. Learned counsel for the appellant has urged that there is no reliable evidence against the accused to justify his conviction and that the lower court has ignored material discrepancies and proceeded to convict the accused on suspicion. It is prayed that there is no convincing evidence against the appellant and he should be acquitted of the charge. Learned Government Advocate on the other hand has tried to support the conviction. We have heard their argument at length. There is both direct and circumstantial evidence in this case and it would be proper to deal with the direct evidence first. It does not seem necessary to deal at length with the evidence relating to the fact and cause of the death of Gurnam Singh because it is conceded even by the appellant's learned advocate that there is absolutely no doubt about the fact that Gurnam Singh was fired at on the 14th of July, 1952 and that he expired on account of the injuries, received thereby, on the 16th of July, 1952. P. W. 5 Dr. B. D. Jain, who examined the deceased on the very day of occurrence at 10-15 P. M. at the Sangaria dispensary, found eight gun-shot wounds on his person. P. W. 4, Dr. K. M. Lall, who examined the deceased later at the Ganganagar hospital on the 15th July, 1952, also found eight gun-shot wounds measuring 1/3"x1/3" on various parts of the body of the deceased from his abdomen to his ankle. The prosecution and defence are both agreed on the point that these injuries were caused by a single shot. The main point to be determined therefore is whether it was the appellant who fired at the deceased and whether this firing was accidental or intentional. The direct evidence consists of the statements of P. W. 8 Mst. Harkaur, mother of the deceased, P. W. 10 Chhotu, and two dying declarations of the deceased, Ex. P. 2 and P. 6. As pointed out above, one more witness, Tehal Singh, was said to be present at the site of occurrence but he has not been examined by the prosecution. P. W. 10, Chhotu, admitted his presence at the site at the time of occurrence but according to him it was another Kartar Singh, S/o Varyam Singh, who had come there and abused the deceased and his father Lalsingh. The prosecution got him declared hostile and cross-examined him at length but in vain. It appears from the judgment of the learned Sessions Judge that he has used the statement of this witness which he had given in the committing magistrate's court against the appellant as a substantive piece of evidence. But he should not have done so since the prosecution had taken no steps to got his statement in the court of the committing magistrate transferred on the record of the trial court as required by sec. 288 Cr. P. C. It is conceded by learned Government Advocate that the provisions of sec. 288 Cr. P. C. were not complied with and therefore the statement of this witness in the committing magistrate's court is of no avail to the prosecution in the present state of the trial court's record. The only eye witness left, therefore, is P. W. 8 Mst. Harkaur. She has stated that on the day of occurence in the afternoon she and her son Gurnam Singh deceased were present in the same room. Gurnam Singh was lying on a cot. At that time, the accused came, stood outside the house and called out Karnel Singh to come outside. At this, Gurnam Singh got up and stood in the door of the room. The accused fired at him and went away. The learned Sessions Judge has relied upon the statement of this witness. If her statement could be believed, then there would have been no hitch in maintaining the conviction of the appellant, but on a close scrutiny we think that her evidence is not reliable since her statement is full of discre-pancies. The learned Sessions Judge has remarked that the murder having taken place inside the house, she is naturally the best witness to the incident. We also think that ordinarily she should have been present in the house and if she had stuck to one version of the incident and spoken out the truth, there could be no hesitation in accepting her evidence. It is true that her statement could not be brushed aside simply because of her relationship with the deceased, but we find that unfortunately she is not a witness of truth and it is extremely doubtful if she was present at the spot and that she had seen the assailant who perpetrated the crime. It appears that the learned Sessions Judge has not appreciated that there are very material discrepancies occurring in her statement and they cannot be easily reconciled. In her cross-examination, she was asked if there was any marriage of Harnam Singh's daughter in the village. This question was put to her in order to prove that the marriage party was staying at the Dharamshala which was just in front of her house and she was present at that place instead of her house. In the committing magistrate's court she had deposed that the marriage party had come to the village but she denied this fact in the trial court. When her attention was drawn to her previous statement, she stated that she did not know how she gave that statement in the committing magistrate's court. In the trial court she went to the length of saying that she did not know how far the Dharamshala was from her house. Further, when she was asked if she knew Chhotu and whether she had met him and Tehal Singh on the day of occurrence, she stated that she did not know Chhotu and she did not meet Tehal Singh on that day. On further cross-examination, she stated that Chhotu was staying with them in the same room since morning and that he had come there to shave his son but he was not shaved till the occurrence took place It is not usual for a barber who comes in the morning for a shave to keep on sitting and talking till the afternoon without doing the work for which he had come. It would be an extra-ordinary type of barber who would keep on sitting and talking for the whole day and lose his daily earnings. Similarly when she was asked if firing of the guns was going on in the Dharamshala or outside it, she said that she did not hear any such sound. P. W. 2 Boga himself has stated that firing of guns was going on in the Dharamshala as there was a marriage. It is rather strange that this witness should not hear any sound although she was so near the Dharamshala. It appears that she would not admit anything which she considered would damage the case against the appellant. She was further asked if her son was arrested by the police in connection with abducting Albel Singh's wife or at the time of Hindu-Muslim rights. To this, she gave a reply in the negative. Her attention was, however, invited to previous statement given by her in the committing magistrate's court, where she had admitted that her son was arrested in connection with abducting girls. To this she gave no explanation as to why she had stated to that effect in the committing magistrate's court. According to her statement Santa Singh had a talk with her before he left for the police station to lodge the report and yet it is strange that the names of the eye witnesses were not mentioned in the first information report and it was left conveniently vague by saying that one or two persons were present there. According to the witness, the Chabutri in front of the room is 8 ft. or 9 ft. long and 6ft. or 7 ft. broad and the accused had fired the gun standing near that Chabutri. She says that when the gun was fired, she was on the platform. She had asked the accused not to fire and when the gun was actually fired, she was standing in front of the door of that room. Thus, according to her statement, the deceased was standing in the door of the room and she was also standing in front of that door. It is not easily believable how she could escape unhurt if she were standing in front of the door of the room covering her son, the deceased. Learned advocate for the appellant has argued that the story that the deceased was standing in the door of the room at the time when he was shot, cannot be correct because the blood was found at the edge of the Chabutri outside the room and, therefore, naturally the deceased must have fallen near that edge. If the deceased was standing in the door of the room, then he could fall either just outside or just inside the door and the blood could not possibly be found at the edge of the Chabutri. We shall deal later at greater length that looking to the spread of gun-shot wounds from the abdomen to the ankle of the deceased, the gun must have been fired from a distance of about 80 to 90 feet and the story as related by the witness cannot be correct. For that reason, and also for the discrepancies pointed out above, we think that Mst. Harkaur is not a witness of truth and it was not proper for the learned Sessions Judge to rely on her evidence. We agree with the learned Sessions Judge that an accused can be convicted even on the basis of the evidence of a single eye witness, but such a witness must be of sterling worth. If it is found that the single witness to the occurrence is not sticking to the truth, then it is very unsafe to ignore the discrepancies appearing in his or her statement and convict the accused on that basis alone. As pointed out above P. W. 8 Harkaur does not seem to feel any qualms of conscience in deviating from the truth and therefore we do not consider it proper to rely on her statement. Coming to the next piece of direct evidence, we find that the statement of the deceased was taken down twice after the occurrence and before his death. Once he was examined by the Head Constable Rame-shwar Prasad and that statement is Ex. P-6. Later, he was examined by a Magistrate on the next day of his occurrence and that statement is masked Ex. P-2, In the first statement, Ex. P-6, it was stated by the deceased that when he was lying on the cot in his sitting room, his mother, Chhotu Nai and Kaka alias Tehal Singh were sitting near him. The door of the room was open. At that time the accused, who had a 12 bore gun, shouted from a distance of about 12 paces below the Chabutri as to why he was rebuked last night. He asked the deceased to be alert. As soon as the accused spoke these words, the deceased got up from his cot. Immediately, the accused fired at him with an intent to murder him, In his next statement, Ex. P-2, it was related by the deceased that when he was lying in his sitting room, the accused came and told him that his brother had abused him. The deceased told him that it did not matter and such things often happened among acquaintances, Thereupon the accused fired his gun and it hit him in his abdomen and legs. It is significant that the story given in both the dying declaration is different. From the first statement it appears as if the accused had challenged not the deceased but his brother Karnel Singh because he put a question as to why he was abused last night. The alleged incident of abusing had taken place wish Karnel Singh and not with the deceased and these words could not therefore be addressed to the deceased. Thus, according to the previous version, as soon as the deceased got up from his cot, the accused fired at him. This shows that the accused had fired at the deceased under the impression that he was firing at Karnel Singh and not at Gurnam Singh. The second version, Ex. P-2, shows that an improvement was made on the first story and it was stated that the accused did not fire at Gurnam Singh under the impression that he was firing at Karnel Singh but that there was a mutual talk between the deceased and the accused and, therefore, the accused could be under no false impression that he was talking to Karnel Singh. According to the latter version, the deceased tried to pacify the accused but the accused would not be pacified and he fired his gun as if he wanted to rake the toll of one life from the family. In other words, this statement shows that the accused was intent upon killing somebody from the family and it did not matter to him whether it was Karnel Singh who abused him last night or it was his brother Gurnam Singh to whom he was speaking on the next day. This goes to show that the story given by the deceased himself was not consistent and also that his mind was working under some influence best known to him. The first statement (Ex. P-6) was taken down by a police officer and the statement as recorded leaves an impression as if more care was taken to bring out the essential ingredients of the offence than to record the exact words spoken out by the deceased. This is clear from the following words which have been put in the mouth of the deceased - "no sooner he spoke out these words than I got up from the cot. Immediately Kartar Singh with an intent to murder me fired at me". If the deceased himself had spoken out these words then in our opinion he was not correct because the accused could have an intention of murdering his brother but he could not intend to murder the deceased Gurnam Singh whom he had not seen and with whom he had no talk by that time. This leads us to think that the statement was not written out as faithfully as it ought to have been. Moreover, as pointed out above, both the dying declarations are inconsistent and give different stories and we cannot rely upon any one of them. In the case of Ramnath vs. State of Madhya Pradesh;!) it was observed by their lordships of the Supreme Court that "it is settled law that "it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon the imagination while he was making the declaration". Thus, in the first instance, a dying declaration by itself is not such a strong piece of evidence that conviction of an accused may be safely founded on its basis alone. It is a valuable piece of evidence but it must be further corroborated by some other evidence. When in a case, like the present one, there are more than one dying declaration and they are found inconsistent there is all the more reason that much reliance should not be placed on either of them without further corroborative evidence to support them. The direct evidence is, thus, found to be neither consistent nor reliable. Turning to the circumstantial evidence, we find that great stress is laid by the prosecution on the evidence of P. W. 2 Boga. He has stated that it about 10 or 11 A. M. , he and Tarachand went to the house of the accused and asked him to show his Turi. At that time, Tarachand had a gun and a bandoleer with him. The accused asked him to give him a cartridge as he wanted to test his gun. The accused went out of his house with the gun and returned within two to four minutes. The witness says that he heard a gun fire in this direction and as soon as the accused returned to his house, the villagers also came there and said that the accused had fired the gun. The accused, however, did not say anything regarding this allegation. It may be pointed out that Tarachand has not been produced by the prosecution. The prosecution has also failed to prove if Tarachand had a licensed gun and if so what type of gun he had in his possession. There is no evidence to show that Tarachand had also a 12 bore gun and that the cartridge which he had in his possession could be fitted to the gun of the accused. According to the witness, they had reached the house of the accused at 10 or 11 A. M. and the accused had fired the gun and returned within two or ? four minutes. The incident of Gurnam Singh's murder, according to the prosecution, is said to have taken place at 2 P. M. There is, thus, in the first instance a difference of three hours duration between the time given by this witness and the time given by Mst. Har Kaur. Moreover, it does not seem easily believable that the accused would instead of talking with his customers about the transaction which they wanted to make, ask Tarachand to give him a cartridge and then he would be so hastily as to leave these persons at his house and go to Gurnam Singh's house to commit the murder. In a way, we are asked to believe by the prosecution that the accused is of a very abnormal mind because in the first instance he took the mere refusal to drink as such a grave insult as to provoke him to commit the murder of Gurnam Singh and secondly that as soon as he got first cartridge, he did not care for the transaction and went out to commit the murder immediately. A person with the least sense of reason would not borrow a cartridge and then immediately go out to commit murder without caring that he was creating evidence against himself. The statement of Boga therefore does not appear to us to be reliable especially when it is not corroborated by further evidence of Tarachand which has been withheld.
(3.) THE next piece of evidence is the recovery of the gun at the instance of the accused. This would have been of great value to the prosecution if it had cared to collect further evidence to show that this was the gun with which the offence was committed. It appears from the evidence of P. W. 11 Lalchand that there was slight defect in the ejector of the gun and it obstructed the cartridge. THE mere fact, therefore, that the accused had a gun and that it was recovered from his possession is not of much value for bringing the guilt home to the accused. Another piece of circumstantial evidence against the accused is said to be his conduct after the occurrence. It is pointed out that he absconded from the village and was arrested on 25th July. In this respect, it may be pointed out that no evidence has been produced to show that the accused could not be found out before that date inspite of the endeavour of the police. P. W. 11 says that the accused had surrendered himself on 25th July 1952. If further appears that no question was put to the accused under sec. 342 Cr. P. C. on this point when he was examined in the committing magistrate's court or in the trial court. We cannot rule out the possibility that he might have given a reasonable explanation to show why he was not present in his village after the 14th of July 1952. The circumstance which is not put to the accused during his examination under sec. 342 Cr. P. C. cannot be fairly used against him if it is likely to prejudice him in his trial. As far back as the year 1933, it was observed by their lordships of the Privy Council in the case of Dwarkanath Varma vs. The Emperor (2) that : - "sec. 342, Cr. P. C. Provides that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the court shall question him generally on the case after the witnesses for the prosecution have been examined. And it is the duty of the examining Judge to call the accused's attention to any important point against him and ask for an explanation. " It may also be remarked here that in the charge which was framed against the accused, it was written that he fired the gunshot at Gurnam Singh while he was lying on a cot. This charge was not amended even in the Sessions Court. We do not mean to overemphasize this irregularity but this is pointed out to show that even by the time the case was committed, the prosecution was not able to arrive at a definite conclusion as to how the deceased was hit. The original story as given in the first information report was that the deceased was hit while lying on the cot and the same story seems to have continued even to the stage of framing the charge. The case which the prosecution has, however, tried to set up in the trial court is that the deceased was not lying on the cot when he was hit but had got up from the cot and was standing in the door when the bullet struck him. This version also is not proved as we shall show at a later stage. Lastly, there is evidence of P. W. 9 Karnel Singh about the motive against the appellant. The witness has stated that on account of his refusal to join the appellant in drinking on the previous night, he had got enraged and told him that he would see him. The learned Sessions Judge himself has considered this to be poor evidence and in our opinion also it does not afford any good basis for the motive. It has been vehemently urged by learned Government Advocate that the first information report in this case was made within four hours of the occurrence although the police station was ten miles away from the site of occurrence, that in this report the name of the appellant was pointedly mentioned, that this report has been supported by the evidence of P. W. 8 Mst. Harkaur and since she had no grouse against the appellant, her evidence, together with other circumstantial evidence is enough to maintain the appellant's conviction. It is no doubt true that the first information report was made in this case without and delay and the name of the appellant was also mentioned there. But the informant Santa Singh was not an eye witness to the occurrence and he only narrated what he came to know from others P. W. 1 Santa Singh has stated that he had made this report on the basis of what the deceased had told him but from the evidence of Mst. Harkaur it appears that he had talks not only with the deceased but also with her and other villagers who had collected at the site. Thus, it is clear that he did not base that report on any one statement but he narrated whatever impressions he had formed from all the talks he had with the persons at the site This is further clear from the fact that it was stated in this report that the accused climbed the Choki (terrace) with was in front of the room and than fired his gun. It is quite apparent that this part of the story is definitely wrong because if the accused had fired his gun after climbing the choki then the deceased could not have received injuries covering half the part his body. Since the gun was fired only once, it is clear that the cartridge contained small pellets and they were no less than eight in number because they caused eight different injuries on the body of the deceased In his principles of Medical Jurisprudence (eighth edition), John Glaister says at page233 'after firing, the pellets disperse soon after their exit from the barrel, and this dispersion increases with the range". This means that the greater the distance between the target and the person firing the gun, the lager would be the area of dispersion of pellets. As observed by the some author at page 235 of the same book, "accurate estimation of the pellet patterns at different ranges are not possible, since so much depends upon the idiosyncrasies of individual cartridges. This is due to the fact that the card board wad is so frequently dislodged in an oblique fashion that turbu-lence of the shot within the barrel is caused and this affects the pellet patterns at other than close ranges". Still, on basis of experience and observation, he has given a formula in the following terms: "with regard to the size of the area of wounding produced by a sport ing gun almost irrespective of Choke, an approximate estimate of size, at different ranges, may be obtained by using this simple formula If X= range in yards, than the diameter of the wound = (X+l) inches". According to the prosecution, the gun used in the present case was a 12 bore sporting gun. The height of the deceased is not given anywhere on the record, but even if we take it that he was a short man of 5ft, in height, then the area of dispersion of pellets on his body from his abdomen to his ankle would be about 21ft. (i. e. 30 inches ). On the basis of the above formula, the shot should have ordinarily been fired from a distance of about 22 yards i. e. , 87 feet. The width of the Chabutri in front of the room of the deceased was, according to P. W. 8 six or seven feet. If the assailant had, therefore, climbed the Chabutri and then fired the gun, then the deceased was within a range of six to seven feet from the assailant and the injury on his body should have been on a very small spot. ;