Rajendra Saxena, J.@mdashThese two appeals arise out of the judgment dated 16th February, 1990 passed by the learned Additional Sessions Judge, Raisinghnagar and as such those are being decided by a common judgment.
2. Appellant Mal Singh and Gurumukh Singh and co-accused Inder Singh faced trial before the learned trial Judge for the offences under Sections 302/34 and 460 I.P.C., who by his impugned judgment found appellants Mal Singh and Gurumukh Singh guilty for the offences u/s 302, read with 34, I.P.C. and 460, I.P.C. and setenced each one of them to life imprisonment and a fine of Rs. 500/- and in default to further undergo R.I. for one year on the first count and seven years rigorous imprisonment and a fine of Rs. 500/-; in default to further undergo rigorous imprisonment for one year on the second count, and further directed that their substantive sciences shall run concurrently. However, he acquitted co-accused Inder Singh.
3. Briefly the factual matrix on which the prosecution case stands is that on 15-11-1987 at about 10-11 a.m.. P.W. 2 Dalip Singh, P.W. 3 Chand Singh, P.W, 11 Raja Singh and P.W. 1 Gurbachan Singh residents of village Thandcwala came to the Dhani of P.W. 15 Daljeet Singh, Sarpanch and informed him that in the night intervening the 13th and 14th November, 1987, they had heard sounds of gun shots from the house of Naseeb Singh Jat Sikh, that in the morning they found that the main gate of his house was closed, however, its window was open, that none of the inhabitants of his house came outside, that thereupon villagers assembled and when they peeped into the house, they saw the dead body of Naseeb Singh lying on the threshold of his room, while the dead bodies of his brother Nichhetra Singh and mother were lying in pool of blood on two cots and that the deceased persons had multiple injuries. Thereupon, Daljeet Singh sentatelephonic message to the S. H. O., P.S.. Raisinghnagar. It appears that P.W. 17 Rajendra Singh, S.I. reached village Thandewala on the same day at about 3 p.m. when Daljeet Singh gave him an oral information on which F.I.R. Ex.P. 22 was drawn. Daljeet Singh told the S.I. about the said incident. He also informed that appellant Mal Singh, who is the elder brother of deceased Naseeb Singh and Nichhetra Singh and son of deceased Smt. Balveer Kaur, had committed the murder of one Prakash Singh, the cousin of P.W. 11 Raja Singh some time in the year 1977 and after trial was convicted and undergoing life imprisonment in the Central State Farm Open Jail, Jetsar, that about four years prior to the alleged incident deceased Naseeb Singh and Nichhetra Singh brought the wife of appellant Mal Singh to their house on the assurance that they would give her the share of appellant Mal Singh in the land to her but they illegally kept her with them for about 2-3 months. Daljeet Singh further informed that about 3''/2 years prior to the alleged incident, appellant Mal Singh was released on parole, that when he came to his village Thandewala, he convened a panchayat, wherein he and deceased Naseeb Singh and Ninehhetra Singh mutually partitioned their agricultural land, that appellant Mal Singh also demanded his share in the Theka amount of the land from them, but the latter declined to accede his demand and that thereupon another panchayat was convened, wherein deceased Naseeb Singh and Nichhetra Singh categorically refused to give any share to him. Daljeet Singh further informed that thereupon appellant Mal Singh had accosted his brothers Naseeb Singh and Nichetra Singh that they had illegally kept his wife and asked them either to leave village Thandewala after selling their respective shares in the land or to settle the account of his share in the land. Daljeet Singh further informed the said S. I. that some unknown persons had murdered the aforementioned three deceased persons, whose dead bodies were lying in the house and that villagers have also discovered some foot impressions at the place of occurrence. On the basis of F.I.R. Ex. P.22 Crime No. 231/87 for the offences u/s 302, read with 34 I.P.C. and u/s 27, Arms Act was registered at Police Station, Raisinghnagar.
4. P.W. 17 Rajendra Singh after inspecting the site, prepared site-plan Ex.P.2 and memo thereof Ex.P. 2-A. He seized one twelve bore live cartridge and three twelve bore empty cartridges lying on the cots vide seizure memo Ex.P. 3 from the room, where the dead bodies of deceased persons were lying. He prepared the memo of the dead bodies Ex.P.4, Ex.P.5 and Ex.P.6 and their panchayatnamas Ex.P.7, Ex.P.8 and Ex.P.9. He noticed some foot'' impressions on the southern-western side of the house of the deceased persons. However, he did not lift the moulds of those foot impression on that day.
5. P.W. 12 Dr. M. P. Agarwal conducted the medico legal autopsies on 15-11-1987 at the house of the deceased persons and prepared post-mortem reports Ex.P. 15, Ex.P.16 and Ex.P.17.
6. On the dead body of Naseeb Singh, Dr. M. P. Agarwal found an incised wound on the right temporo-fronto-parietal region resulting into fracture of skull bone and cutting of brain matter, which was coming out. He also found two lacerated wounds of entry, oval in shape with inverted edges having scorching and tattooing on the right side of the chest causing fractures of ribs and eight lacerated wounds of exit having irregular and everted edges on the right infra scapular region besides other abrasions detailed in post-mortem report Ex. P. 15. The doctor removed nine pellets from those injuries and opined that the cause of death of Naseeb Singh was gun shot injuries on the chest and sharp edged weapon injury on the scalp leading to massive laceration of right lung, brain matter and vital centress with haemorrhage and shock.
7. Dr. Agarwal found as many as ten incised wounds, a lacerated gun shot wound of entry with inverted edges, big and oval shaped with scorching and tattooing on the left side of the chest and a lacerated wound of exit near the outer angle of right scapula on the dead body of Nichhetra Singh besides other injuries detailed in post-mortem report Ex. P. 16 and opined that the cause of death of Nichhetra Singh was fire arm injury on chest leading to laceration of his heart, lung and brain with haemorrhage and shock. He also removed four pellets and cork pieces from the dead body of Nichhetra Singh.
8. The doctor found a gun shot lacerated wound of entry with inverted edges, oval in shape having scorching and tatooing on the right lower (10th rib) and hypochondrium and skin scorching burns and powdered deposition on an area 1 1/4 x 1" on right side of front of chest 1" above the said entry wound on the dead body of Smt. Balveer Kaur. He took out two pellets and four cork pieces from her abdominal cavity. As per post-mortem Ex.P. 17, he opined that the cause of her death was gun shot injury leading to massive laceration of her liver, intra-abdominal haemorrhage and shock.
9. It appears that on 15th November, 1987,P.W. 18 Abdul Aziz, S.H.O., Police Station, Raising Nagar went to the place of occurrence along with P.W. 4 Laxman Mohan, Dog Master, B.S.F. and his ''dog named Timmy'', He lifted moulds of three bare foot impressions and one left ''Mody Jyoti'' (shoe) impression from outside the wall of the house of deceased persons and sealed those moulds vide seizure memo Ex. P. 36. It is alleged that the dog ''Timmy'' was made to sniff those foot impressions and the said dog tracking the smell came outside the village Thandewala and stopped just ahead an electric transformer, where the house of co-accused Inder Singh was situated nearby Abdul Aziz, S.H.O. seized the blood stained appeaarels of deceased persons vide seizure-memos Ex.P.32, Ex.P. 33 and Ex.P. 34 and the blood stained ''Dari,'' ''Gadela'' and ''Khes'' from the cot, where the dead body of Smt. Balveer Kaur was lying vide seizure memo Ex.P.35. He also seized the gun licence of deceased Naseeb Singh vide seizure memo Ex.P.31 from that room. However, his gun was not found there.
10. It is the case of the prosecution that on 15-11-1987 Abdul Aziz, I.O. alongwith P.W. 4. Laxman Mohan, Dog Master and dog ''Timmy'' went in a police jeep and reached the Central State Farm Open Jail, Jetsar. A test parade of the inmates of the said Jail was arranged, wherein the said dog ''Timmy'', after sniffing/tracking the smell caught hold the hands of appellants Mal Singh and Gurumukh Singh. It is also the case of the prosecution that after the said test parade, the appellants made extra judicial confessions about their guilt before the jail staff namely P.W. 7 Shanker, P.W. 5 Deva ram, P.W.9 Nathu Ram, P.W. 6 Babu Lal and P.W. 18 Bheem Singh. Thereafter appellants were shifted from the said open jail, Jetsar to the Sub Jail, Raisingh Nagar and were formally arrested on 18-11-1987. It is alleged that appellant Mal Singh in pursuance to his information memo dated 18-11-1987 Ex.P. 39 got recovered a twelve bore gun having one cartridge'' in its barrel and ten live cartridges in a bandolier from a shrub of ''Shinia'' (wild growth) plants near the Vijay Nagar Road on the same day, which were seized and sealed vide recovery memo Ex. P. 19. Appellant Gurumukh Singh in pursuance to his information memo dated 18-11-1987 Ex. P.49, also got recovered one blood stained axe from a nearby shrub, from where the said twelve bore gun and cartridges were recovered. The said axe was also seized and sealed vide recovery memo Ex.P.20.
11. On 25-11 -1987 the I.O. also lifted the specimen moulds of foot impressions of appellants and co-accused Inder Singh in presence of P.W. 16 Sant Kumar, Executive Magistrate and sent those alongwith the moulds of the chance foot impression to the Finger Print Bureau, Rajasthan, Jaipur. After comparison and examination, the Director, Finger Print Bureau vide his report dated 8/15-6-1988 Ex. P. 45 opined that the chance foot impression mould marked Atallied with the specimen right foot impression mould marked A-2 of suspect Mal Singh, that the chance foot impression marked B tallied with the specimen right foot impression mould marked C2 of suspect Inder Singh and that the chance foot impression mould marked ''C tallied with the specimen right foot impression mould marked B2 of suspect Gurumukh Singh.
12. The Assistant Director (Ballistic), State Forensic Science Laboratory, Rajasthan, Jaipur, to whom the sealed packets of twelve bore gun, lead buck shots, twelve bore live cartridges and pieces of wads were sent, after examination vide his report dated 27-5-1989 opined that the said twelve bore SBBL gun was a serviceable fire-arm and had been fired. However no definite time of its last fire could be ascertained. He further opined that the three twelve bore cartridges cases had been fired from the said gun and that the buck shots, wads/wad pieces could have been come out from the said gun. The Ballistic Expert vide his report dated 7-7-1989 Ex.P.49 also opined that the big sized and multiple holes present on the shirts and Jhumpher of the deceased persons and the ''Khes'' had been caused by lead shots fired from firearm and that the presence of products of combustion of gun powder around the holes indicated that the shots had been fired from close range. After completion of the Investigation the police submitted a challan before the Additional Chief Judicial Magistrate, Raisingh Nagar, who committed the case to the learned trial Judge.
13. The appellants and co-accused Inder Singh denied the indictment and claimed trial. The prosecution examined as many as twenty witnesses. The appellants denied the circumstances appearing against them in the prosecution evidence. They asserted that the dog did not identify them after sniffing, that the S. H. O.. Police Station, Raisingh Nagar had taken their moulds of foot prints 3-4 times, that they did not go to the place of occurrence and that on the night of the alleged occurrence they were lodged inside the Jetsar Jail. They further asserted that P.W. s Raja Singh and Daljeet Singh bore enmity with them, that they are innocent persons and that they have been falsely implicated. However they did not adduce any evidence in their defence. After trial, the learned Sessions Judge convicted the appellants for the offences under Sections 302/34 and 460 I.P.C. and sentenced them in the manner indicated ad ultra, but acquitted co-accused Inder Singh. Hence this appeal.
14. We have heard Sarva Shri Doongar Singh and H. S. Kharlia for the appellants and Shri V. R. Mehta, the learned Public Prosecutor for the State at length and carefully perused the record of the trial Court.
15. Shri Doongar Singh strenuously contends that the learned trial judge has not scrutinised the prosecution evidence in the light of available checks on record, that there is not a shred of evidence to prove that the appellants had left the CSF Jail, Jetsar in the night intervening 13th and 14th November, 1987, that the story of alleged extra judicial confessions has not been proved at all, that the alleged recovered gun and the axe were not produced in the Court and that the alleged place of recovery was admittedly an open place, accessible to all and sundry, hence the said recoveries are apparently forged and fabricated. According to him, the prosecution has miserably failed to prove that chance foot impressions were found near the house of the deceased persons or that mould thereof were lifted by the I. O., because even the motbirs of the memo Ex. P. 36 have not proved the contents thereof. Shri Doongar Singh submits that the necessary link evidence to establish that the sealed packets of moulds of the chance foot impressions and the sealed packets of moulds of specimen foot impressions were sent to the Finger Print Bureau. According to him, the Sessions Judge has committed an illegality in relying on the prosecution evidence, which is quite vague, incomplete and unreliable for convicting the appellants.
16. Shri Kharlia vehemently asserts that in this case the F.I.R. is a post investigation document, that in fact there were no foot impression available near the house of the deceased persons, that the evidence of dog tracking adduced by the prosecution is inconsistent, contradictory and unworthy of reliance and that as per the statement of P.W. 4 Laxman Mohan, Dog Master, the gun was recovered on 15-11-1987 and the said gun was placed in his jeep by the police. Therefore, in such circumstances, the alleged recovery of the said gun on 18-11-1987 at the instance of appellant Mal Singh and the alleged recovery of axe at the instance of Gurumukh Singh are clearly planted, forged and concocted. He also submits that there has been an abnormal/inordinate delay in sending the gun and cartridges to the F.S.L. and the moulds, for which no explanation has been given. According to him the deceased persons were the brothers and mother of appellant Mal Singh and the alleged motive to kill them has not been proved at all. Thus, it is a case of no evidence and the learned trial Judge has committed a grave error and illegality in holding the appellants guilty.
17. On the other hand, Shri V. R. Mehta, the learned Public Prosecutor supports the impugned judgement and reiterates the reasonings given by the learned trial Judge.
18. We have given our most anxious and careful consideration to the rival contentions. In this case the homicidal deaths of Naseeb Singh, Nichhatra Singh and their mother Smt. Balveer Kaur are not in dispute. P.W. 12 Dr. M. P. Agarwal has proved their postmortem examination reports Ex.P. 15, Ex. P. 16 and Ex. P. 17.
19. There is no direct evidence and the whole case hinges on circumstantial evidence. In a case based on circumstantial evidence, the well crystalised law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and those circumstances must be conclusive in nature. More-over the established facts should be consistent only with the hypothesis of the guilt of the accused alone and totally inconsistent with his innocence:
20. The learned Sessions Judge has held that from the testimony of P.W. 11 Raja Singh and P.W. 15 Daljeet Singh, the enmity of appellant Mal Singh against his brothers deceased Naseeb Singh and Nichhatra Singh was well proved and that appellant Gurumukh Singh, who was-also a life convict and undergoing sentence in the CSF Open Air Jail, Jetsar had assisted appellant Mal Singh in committing their murder. He has held that the dog, being an intelligent animal after sniffing foot prints at the place of occurrence and tracking the smell, had caught hold of the hands of appellants during the test parade conducted in the said jail and that as per Finger Print Bureau reports, the moulds of the chance foot impressions lifted from the place of occurrence tallied with the moulds of specimen foot impressions of appellants. Thus, those circumstances were sufficient to prove that the appellants had left the said Jail in the night intervening 13th and 14th November, 1987 and that after committing the crime they had come back in the said jail next day morning. He has further held that the recovery of the gun and the cartridges at the instance of appellant Mal Singh and the recovery of blood stained axe at the instance of appellant Gurumukh Singh stand proved and that as per report of the Ballistic Expert the said gun was serviceable fire arm and that the empty cartridges recovered from the place of occurrence could have been fired from the said guaand as such the prosecution had successfully brought home the offences under Sections 302/34 and 460, I.P.C. against the appellants.
21. Now let us scan, analyse and evaluate the evidence recorded in this case and find out whether the aforementioned circumstances stand proved beyond reasonable doubt or not ?
MOTIVE:
22. P.W. 11 Raja Singh states that he is the son of deceased Smt. Balveer Kaur''s real sister and as such appellant Mal Singh and deceased Naseeb Singh and Nichhatra Singh are his cousins. He deposes that on 23 9 1977, appellant Mal Singh had committed the murder of his elder brother Prakash Singh and his uncle Jarnail Singh, that he (Raja Singh) had also sustained a gun shot injury in that incident and that after trial Mal Singh was awarded life sentence, which he was undergoing as a convict in the CSF Open Air Jail, Jetsar. He states that about five years prior to the alleged incident i.e. in the year 1982, Naseeb Singh and Nichhatra Singh had brought Mal Singh''s wife from her parents'' house under the pretext that they would give land to her, but instead they illegally detained and kept her as their wife, that thereupon Mal Singh''s father-in-law instituted a criminal case against them and the police recovered Mal Singh''s wife and entrusted her to Mal Singh''s father-in-law. However, the prosecution has not cared either to examine Mal Singh''s wife or his father-in-law or to file any document regarding her alleged recovery and entrustment. The prosecution has, thus with-held these material witnesses and documentary evidence to prove the alleged enmity of appellant Mal Singh with his deceased brothers and mother. P.W. 11 Raja Singh further deposes that thereafter Mal Singh was released on parole, that he came to village Thandewala and demanded his share in the land from Naseeb Singh and Nichhatra Singh, who refused to oblige him and that thereupon Mal Singh convened a panchayat, wherein Daljeet Singh, Sarpanch, Hakam Singh and one person by name Fauji were present. This witness clearly admits that he was not present in that panchayat, which had taken place in the house of Gurudev Singh, Master. However, he deposes that in the said panchayat, appellant Mal Singh had threatened his brothers that they should either leave the village after selling their land or should pay the amount of his share in the land before he is released from the jail, failing which he would not spare them. Since Raja Singh was not present in the said panchayat, his testimony is based on hearsay evidence, which is inadmissible in evidence.
23. On the other hand, P.W. 15 Daljeet Singh specifically states that in the said panchayat, appellant Mal Singh had not given any threat to his brothers Naseeb Singh and Nichhatra Singh nor asked them to leave the village. However, Mal Singh had asked them to give the land of his share, because after the expiry of the period of his parole, he would have to go back to the jail and in that contingency he would not be able to manage about his land. Thus, P.W. 15 Daljeet Singh does not support the statement of P.W.I 1 Raja Singh. The said panchayat had taken place about five years prior to the alleged incident i.e. in the year 1982. Therefore, simply by asking his share in the land, by no stretch of imagination it can be held that he had the motive to commit the murder of his brothers and mother. More-over, the prosecution has not cared to examine Gurudev Singh, in whose house the said panchayat was convened or Hakam Singh or Fauji, who allegedly participated therein.
24. P.W. 11 Raja Singh in his examination-in-chief does not state that two panchayats were convened. However, in his cross-examiantion, he invents a new story and deposes that though he was not present in the first panchayat, he was present in the second panchayat, which was convened near the Dharamshala and that at that time Mal Singh had asked for his share, but Naseeb Singh had refused. However, no other prosecution witness corroborates the testimony of Raja Singh to prove the factum of second panchayat.
25. P.W. 1 Gurubachan Singh, who is the neighbour of the deceased persons, specifically deposes that deceased Naseeb Singh did not keep appellant Mal Singh''s wife in his house. He also does not have any knowledge about any panchayat alleged to have been held for deciding the share of Mal Singh''s land. Raja Singh clearly admits that after murder of his brother Prakash Singh, his relations with appellant Mal Singh have not been cordial and that he had also deposed against him during the trial of his brother''s murder case. Hence in our considered opinion'', P.W. 11 Raja Singh is not an independent witness. On the other hand, he bears animosity with appellant Mal Singh. He has also given inconsistent statements at different stages. He is, therefore, not at all a reliable witness.
26. Besides this, not a fringe of evidence has been led by the prosecution to show as to why appellant Mal Singh bore enmity with his mother deceased Smt. Balveer Kaur. The learned trial Judge has conveniently ignored the aforementioned material facts and significant inconsistencies and contradictions in the statements of P.W. 11 Raja Singh and P.W. 15 Daljeet Singh and committed an illegality in holding that appellant Mal Singh bore enmity with his brothers Naseeb Singh and Nichhatra Singh and that in a panchayat convened by him had threatened not to spare them. It may also be mentioned that there is not an iota of evidence to establish any motive for the appellant Gurumukh Singh to have committed the murders of the deceased persons. In such cicumstances, the alleged motive for the crime has not been proved at all.
EVIDENCE REGARDING LEAVING THE CSF JAIL:
27. The prosecution has not produced any witness, who had seen appellants leaving the CSF Open Jail, Jetsar in the night intervening 13th and 14th November, 1987 or seen them in village Thandewala or any where outside the said jail during that period. Thus, there is no direct evidence on this score.
28. P.W. 6 Babu Lal, who is the Head Warder of CSF Open Jail, Jetsar, deposes that as per the attendance register of the inmates of the said jail, appellants Mal Singh and Gurumukh Singh were marked present on 13-11-1987 and 14-11-1987, that the said attendance register is maintained regularly, properly and correctly and that even during the night the jail staff keeps watch on the convicts in the jail. In his re-exammation, he states that the attendance in the jail is taken at 6 a.m. and 6 p.m. every day. He also states that if a convict after getting his attendance marked in the attendance register goes out of the jail and returns before the next morning then his movements can only be ascertained by the attendance register. This witness has been declared hositle. P.W. 9 Nathu Ram, Warder, deposes that the life convicts are kept in CSF Open Jail, Jetsar, that they are also allowed to keep their families, that the convicts stay in their respective huts and that if any convict goes away from the jail in the night and returns early morning then his movements can not be ascertained. However, in his cross-examination he asserts that even during the night, the jail staff checks the convicts in their huts. He further deposes that on the night intervening 13 and 14-11-1987 at about 1 a.m. he had checked the inmates of the jail and found appellants Mal Singh and Gurmukh Singh present in their huts. However, this witness has not been declared hostile and we do not find any valid reason to disbelieve his sworn testimony. The learned trial Judge has, thus, convenienty ignored the statement of P.W. 9 Nathu Ram, Warder that he had checked and found the appellants in their respective huts on the night intervening 13th and 14th Nov., 1987. He has held that since the chance foot prints lifted from the place of occurrence tallied with the specimen foot impressions of the appellants, it was established that the appellants had left the said jail in the night intervening 13th and 14th Nov., 1987 and that they reached Thandewala village and after committing the crime returned in the said jail next morning before their attendance was taken. It may be mentioned here that village Thandewala is about 70 Kms away from the CSF Open Jail, Jetsar. There is not a shred of evidence to establish that the appellants used any vehcile to travel a distance of 140 kms in up and down journey.
29. It was the case of the prosecution that P.W. 8 Malkit Singh, whose police statement Ex. P. 13 was recorded as late as on 6-1-1988, had stated that on 14-11-1987 at about 5 a.m. when he was going in his jeep carrying passengers from Raisingh Nagar to Vijay Nagar, he had seen appellants Mal Singh and Gurumukh Singh a bit ahead of octroi post, Vijay Nagar and given them lift and left them at the Bajuwala Stand and that he had charged Rs. 10/- from them. However, during trial, P.W, 8 Malkit Singh does not support the prosecution case. He was declared hositle. He has categorically disowned portions A to B of his police statement Ex. P. 13 and stated that he even does not know the appellants. Thus, the prosecution has failed to prove that the appellants were seen by P.W. 8 Malkit Singh, who had given them lift in the morning of 14-11-1987/ there is no other evidence on this score. In such circumstances, the learned trial Judge on the basis of mere surmises and conjectures, and without any legal evidence, has wrongly held that the appellants had left the CSF Open Jail, Jetsar in the night intervening 13/14-1-1987 and after committing the crime at village Thandewal returned early next morning in the said jail. Thus, these circumstances relied upon by the learned trial Judge have not been proved at all and the same can not be employed to connect the appellants with the crime.
EVIDENCE REGARDING DOG''S TRACKING:
30. P.W.4 Laxman Mohan, Constable, Dog Master, 62-B Battalion, B.S.F. Sriganganagar deposes that he is working as a dog master for the last 17 years, that on 15-11-1987, he was called to village Thandewal along with his dog ''Timmy'' by the police in the investigation of a murder case, that he found dead bodies of two male persons and a female there, that he got sniffed his dog ''Timmy'' the foot prints, which were covered nearby the place of occurrence, that after tracking the smell the said dog went up to an electric transformer situated about Vi km away from the place of occurrence and that thereafter the said dog also went upto one house situated about 20-25 paces from the transformer. He states that thereafter he alongwith the dog was taken by the police parties in their jeep to Central State Farm Open Jail, Jetsar, on the same day, where about 20-22 persons were got collected by the jail staff, that he left the dog ''Timmy'' for tracking the smell of the place of occurrence and that thereafter the said dot; identified appellants Mal Singh and Gurumukh Singh in the first round. In his cross-examination, he , stales that he had reached the village Thandewala on that, day at about 11-12 Noon, where 7-8 foot impressions were found covered, that all those foot impressions were inside the four walls of the house, where the dead bodies were lying. On the other hand, P.W.19 Abdul Aziz P.W.s have stated that there was not foot print/foot impression inside the four walls of the house of the deceased persons, because the floor thereof was plastered and that the foot prints/ impressions were found outside the boundary wall of the house. Thus there is a significant and material contradiction between the testimony of Laxman-Mohan and Abdul Aziz.
31. P.W. 4 Laxman Mohan says that he along with the S.H.O. and the Dy. S. P. had left Thandewala in a police jeep, that they reached the CSF Open Jail, Jetsar the same day at about 2 p.m. and that the test parade of the prisoners was got conducted at about 3.30/4 p.m. He specifically deposes that after the said dog identified the appellants after sniffing, the police took them in their custody and took them to another jail, where in the way a gun was got recovered by the police at the instance of the appellants. He further states that the said gun was kept in the jeep in which he was travelling and that he returned to Raisingh Nagar the same day i.e. 15-11-1987 at about 6 p.m. He also does not remember whether the foot impressions, which the dog had sniffed in the house of the deceased persons, were impressions of boots-or chappals or ''juti.''
32. On the other hand, P.W. 5 Deva Ram, Jail Warder, deposes that on 15-11-1987 the Dy. S. P., and S. H.O. along with one B.S.F. personnel having a dog with him had come to the CSF Open Jail, that they inquired about appellant Mal Singh and that the ''Hawaldar'' below his whistle and all the prisoners assembled there. He further deposes that thereafter the dog was taken out from the police jeep and that the dog look 3-4 rounds of those prisoners, but did not catch any person. This witness was declared hostile. P.W. 5 Deva Ram had denied portions A to B of this police statement Ex. P. 10 and specifically states that the said dog did not identify the appellants. He also specifically deposes that the appellants were transferred from the Open jail, Jetsar to Sub Jail, Raisinghnagar on the same day i.e. on 15-11-1987 after the test parade. Thus, this witness does not support the prosecution story.
33. P.W. 6 Babu Lal, Hawaldar of the said Jail deposes that he had shown the attendance register of the prisoners of the said Jail to the Dy. S. P., who had come along with a BSF Personnel and a dog, that the inmates of Jail were got assembled, that the Dog Master had some conversation in English with the Dy. S. P. and that thereafter the dog was made to take round of those prisoners, who caught hold of appellant Mal Singh and that except Mal Singh, the dog did not catch any other prisoner. This witness has also been declared hostile. He denies portions A to B of his police statement Ex. P.I 1. In his cross examination, Babulal specifically deposes that before the identification parade was conducted, the said dog had gone inside the huts of the convicts-including those of appellants Mal Singh and Gurumukh Singh and that thereafter the dog had caught hold of appellant Mal Singh. He further deposes that the dog had taken 4-5 rounds of the convicts before identifying appellant Mal Singh. Thus, again there is material inconsistency between his testimony and that of P.W. 4 Laxman Mohan. More over, this possibility can not be ruled out that the said dog was made to sniff the smell of the hut of appellant Mal Singh prior to the test parade.
34. P.W. 7 Shanker Lal, who was posted as a Warder in Sub Jail, Raisingh Nagar and had gone to CSF Open Jail, Jestar on 15-11-1987 to deliver the Dak (mail) deposes that the Dy. S. P. had come in a police jeep, that the inmates of the jail, numbering 30-35, were got collected and that the said dog did not catch hold of any of those prisoners. This witness was also declared hostile. He denies portions A to B of his police statement Ex. P. 12. He, therefore, does not corroborate the testimony of P.W. 4 Laxman Mohan.
35. P.W. 9 Nathu Ram, Warder, states that the police had come along with the BSF personnel and a dog and that 10-12 convicts were made to stand in a line, but he does not say that the said dog had identified any of the appellants. As mentioned earlier this witness has not been declared hostile and there is no reason to disbelieve his sworn testimony.
36. P.W. 18 Bhim Singh, who was also a Warder in the said Jail, specifically says that the dog did not identify any of the convicts after smelling them. This witness was also declared hostile. He denies portions A to B of his police statement Ex. P.28. He has, however, admitted his signatures on memo of test parades Ex. P.29 and Ex.P. 30, but clearly states that it has been wrongly mentioned therein that the dog had caught hold of the hands of appellants Mal Singh and Gurumukh Singh. Therefore he also does not support the prosecution case.
37. P.W. 19 Abdul Aziz, I.O., has invented a new story. According to him P.W. 4 L. Mohan had brought two dogs and one of those two dogs named ''Timmy'' identified appellants after smelling them in the CSF Open Jail, Jetsar. However, in his cross examination he states that the other dog was not made to sniff the inmates of the jail. Thus, the prosecution evidence about the dog''s tracking and sniffing and identifying the appellant is replete with material contradictions and the same does not inspire confidence.
38. In
39. In the. instant case. P.W. 41. Mohan does not depose even a signle word to show that the dog ''Timmy'' was a trained dog or was given sufficient and adequate training in smell tracking. He also does not say about ''Timmy''s past achievement in smell tracking. Hence ''Timmy'' can not be presumed to be a trained dog.
40. In
41. In the case on hand, P.W. 6 Babu Lal, Head Warder specifically states that before the test parade was arranged in the jail, the dog had gone to the various huts including the huts of appellants, it may be just possible that the said dog might have picked up the scent from the huts of the appellant thereafter pointed out towards them. In this case as per statement of P.W. 4 Laxman Mohan, the dog had picked up the scent from the 7-8 foot impressions, which were lying covered inside four walls of the house of the deceased persons, whereas P.W. 19 Abdul Aziz has stated that he had lifted the foot impression outside the four walls of the house of deceased persons and there was no foot impression inside the house, because the floor thereof was plastered. In such circumstances, it is abundantly apparent that the prosecution evidence regarding the dog''s traking in this case is incomplete, inconsistent, self-contradictory and unreliable. Hence the learned trial Judge has also committed a patent illegality in relying on this circumstance.
REGARDING ALLEGED EXTRA JUDICIAL CONFESSION MADE BY THE APPELLANTS :
42. It was the case of the prosecution that after the test parade by the dog inside the CSF Open Jail, the police party went towards the huts of the convicts and that thereafter the appellants made extra judicial confessions of their guilt to the jail staff namely Shanker, Deva Ram, Nathu Ram, Babu Lal and Bhim Singh. But P.W. 5 Devaram does not say anything about the alleged extra judicial confession. P.W. 6 Babu Lal specifically denies portions C to D of his police statement Ex. P. 11 to the effect that the appellants had made extra judicial confession about their guilt. P.W. 7 Shanker Lal also categorically denies portions C to D of his police statement Ex. P. 12 and states that one of the appellants had made any extra judicial confession before him. P.W. 9 Nathu Ram has not uttered a single word about the, alleged extra judicial confession. He was also not declared hostile, nor was confronted with his police statement. Likewise P.W. 18 Bhim Singh, Warder also does not utter a single word about the alleged extra judicial confession. Therefore, there is not an iota of evidence to prove that the appellants had made any extra judicial confession about their guilt.
RECOVERY OF TWELVE BORE GUN. CARTRIDGES AND AXE:
43. P.W. 4 Laxman Mohan, Dog Master deposes that on 15-11-1987 after the test parade by the dog, the police took the appellants in their possession and took them to Raisingh Nagar in a separate jeep, that on the same evening the appellants got a gun recovered from a place in the way and that the said gun was kept in his jeep. P.W. 5 Deva Ram, Warder also states that the appellants were shifted to Sub Jail, Raisingh Nagar immediately after the test parade by the dog in the Jail. On the other hand, P.W. 19 Abdul Aziz, 1.0. says that he arrested appellants Mal Singh and Gurumukh Singh on 18-11-1987 from the Raisingh Nagar Sub Jail vide arrest memos Ex.P. 37 and Ex.P.38 and that after their arrest, they volunteered informations Ex.P.39 and Ex.P. 40 and that on the same day in pursuance thereof appellant Mal Singh got recovered one twelve bore gun, wherein a live cartridge was loaded in its barrel and bandoiler containing ten live cartridges, which were lying concealed in a shrub of ''Shinia'' plants on the right side of the Vijay Nagar Road at about 1 Km away from the Octroi Post of Vijay Nagar in presence of motbirs Pooran Singh and Heera Lal vide recovery memo Ex.P. 19 and that those articles were seized and sealed. Abdul Aziz further states that on the same day at about 5.15 p.m. appellant Gurumukh Singh got a blood stained axe recovered, which was concealed in a nearby shrub of ''Shinia'' plants in presence of the aforesaid motbirs vide seizure memo Ex.P. 20. However, P.W. 14 Pooran Singh specifically deposes that he neither knows the appellants nor they got recovered any twelve bore gun, cartridges or the axe in his presence. This witness was declared hostile. He, however, admits that the I.O. hadjirocured his signatures on memos Ex.P.19, Ex.P.20 and Ex.P.21. The prosecution has not produced another motbir Heera Lal. If the statement of P.W. 4 Laxman Mohan, Dog Master, is believed then the twelve bore gun had already been recovered in the evening of 15-11-1987 and in such circumstances the alleged recovery of gun vide recovery Memo Ex. P. 19 becomes meaningless and gravely suspicious. The places of alleged recoveries were also open and accessible to all and sundry.
44. In Banwari Lal v. State of Rajasthan 1992 Cri LR (Raj.) 92, Abdul Aziz, I.O. was alleged to have recovered a pistol and a Kassi, weapons of offence, in presence of two motbirs, but none of them was examined by the prosecution to prove the recovery. It was held that in the absence of examination of the motbirs and keeping in view the conduct of the I.O., it was not safe to accept his testimony regarding the alleged recoveries.
45. In the instant case also, one of the motbirs Heera Lal has not been produced by prosecution, while the other motbir has specifically stated that no recovery was made in his presence. Moreover there exist contradictions of Himalayan magnitude about the date and place of alleged recovery of the gun. In such circumstances, the alleged recoveries of gun, cartridges and the axe at the instance of appellants Mal Singh and Gurumukh Singh respectively become highly suspicious.
46. Moreover, the said gun and the axe have not been produced in the Court. In Satpal v. State of Rajasthan 1992 Cri LR (Raj.) 76, the weapon of offence viz. gandasi alleged to have been recovered at the instance of the accused was not produced before the trial Court. The I.O. was not asked to identify the gandasi alleged to have been recovered five days after the arrest of the accused. It was held that the non-production of the weapon of offence before the trial Court did not advance the prosecution case and such recovery did not connect the accused with the crime.
EVIDENCE REGARDING FOOT IMPRESSIONS :-
47. P.W. 11 Raja Singh states that on the day of alleged occurrence, he had gone to the house of deceased persons, where he found one bare foot impression and another boot impression at the place of occurrence, which he had covered and that thereafter he had gone to Daljeet Singh, Sarpanch and informed him about the incident. In his cross examination, he states that there were more foot prints, which were covered by other persons, that one of the foot prints was outside the window of the main gate, while another foot print was near the wall of the house on the street. He specifically deposes that there was no foot impression inside the house of the deceased persons, because the floor thereof was (sic) moulds of those foot impressions on 14-11 -1987.
48. P.W. 13 Gurucharan Singh says that he did not see any foot impression outside the house of Naseeb Singh. He was declared hostile. He denies portions A to B of his police statement Ex. P. 18. Thus, he does not help the prosecution.
49. P.W. 15 Daljeet Singh, Sarpanch clearly deposes that the police did not lift moulds of any foot impression in his presence, that when the police arrived, about 300-400 persons had collected there outside the house of the deceased persons and that he did not see any foot impression outside the house of the deceased persons.
50. P.W. 17 Rajendra Singh, S. I., who had inspected the place of occurrence on 14-11-1987 admits'' that he did not lift the moulds of the foot impressions on that day because it had become dark and that Abdul Aziz, S.H.O., who was on leave on 14-11-1987 arrived there on the next day. He also does not state that he had made all precautions to ensure that the foot impressions were preserved intact and not tampered with.
51. P.W. 19 Abdul Aziz deposes that on 15-11-1987, he had lifted three bare foot impressions and one foot impression of ''Mody Juti'' of left foot from the street outside the wall of the house of the deceased persons in presence of motbir Chand Singh and Dalip Singh. But P.W. 3 Chand Singh does not utter a single word about the lifting of moulds of the foot and ''Juti'' impressions outside the house of the deceased persons in his presence. As a matter of fact, the prosecution has not cared to get the memo Ex. P.36 proved from motbirs or to confront them with the contents thereof. P.W. 3 Chand Singh was not even declared hostile. It is, therefore, evident that this case has been conducted in a very slipshod and perfunctory manner by the prosecution. Thus, the existence of foot impressions in the street outside the wall of the house of the deceased persons and lifting the moulds thereof has not been well satisfactorily proved by the prosecution rather the prosecution evidence on this Court is quite vague, inconsistent, incomplete and unworthy of credence.
52. P.W. 20 Het Ram, F.C. states that on 7-3-1988 he was given twenty packets by the Mal Khana Incharge of Police Station, Raisingh Nagar for depositing those in the F.S.L., but the Finger Print Bureau deposited only nine packets, while returned the other packets with written objections. Thereafter, he again deposited the nine packets on 11-5-1988 ''in F.P.B., but again one packet of moulds of foot impressions was returned by the F.P.B., because the mould had cracked. He proves the Rojnamcha entries Ex. P.50 to Ex. P. 54. The prosecution did not produce the F.P.B. receipts of those packets of the moulds to prove that all the packets containing moulds of chance and specimen foot impressions were received by the F.S.L. intact. Thus, the necessary evidence to the effect that all the packets of the moulds of the chance foot impressions and the moulds of the specimen foot impressions were kept in sealed condition and those were deposited intact in sealed condition is also missing in this case.
53. In Gopal Ram v. State of Rajasthan 1989 Cr LR (Raj.) 68, it has been held that if the moulds of the shoe prints were not sealed or were sent to the Finger Print Expert in such an unsealed condition that their comparison is useless and planting of the prints at spot can not be ruled out. In such circumstances, the F.P.B. report Ex. P.45 looses its evidenciary value. Moreover the comparison of foot impressions is a weak type of evidence.
54. In the case on hand, a perusal of Finger Prints Bureau Report Ex.P. 45 reveals that though the alleged moulds of chance print were lifted by the I.O. on 15-11-1987 and the moulds of specimen of foot impression of the appellants and co-accused were taken on 25-11 -1987, but those were sent to the Finger Prints Bureau as late as on 10-5-1988. Similarly the gun and axe were allegedly recovered on 18-11-1987, but those were sent to the Ballisitc Expert as late as on 11-4-1988. The Investigation Officer has not given any explanation whatsoever for this inordinate delay in sending those crime articles to the Finger Print Bureau and the F. S. L. This inordinate delay also weakens the prosecution case.
55. In
56. In Het Ram v. State of Rajasthan 1974 WIN (UC) 137 it has been emphasized that the reasonable explanation in sending the crime articles to the F.S.L. with delay is necessary and that in absence of such explanation the prosecution case becomes doubtful.
57. In
58. Hence for the reasons mentioned above, from the prosecution evidence adduced in this case, none of the circumstances held to be proved by the learned trial Judge stands established beyond reasonable doubt. In our considered opinion, the learned trial Judge has not scrutinised the prosecution evidence in the light of available checks on record and has clearly committed illegality of fact as well of law in convicting the appellants for the offences under Sections 302/34 and 460 I.P.C.
59. In the premises of above discussion, these appeals are allowed and the conviction and sentences passed against appellants Mai Singh and Gurumukh Singh are hereby set aside. The appellants arc acquitted of the offences under Sections 302/34 and 460, I.P.C. They shall be set at liberty forthwith, if not required in any other case. Jail authorities be informed accordingly.
