|CITATION||1953 AIR 415|
|COURT||Supreme Court of India|
|JUDGES/CORAM||Justice S. Fazal Ali|
|DATE OF JUDGEMENT||17.10.1950|
In the present case, an appeal was filed before the Supreme Court to set aside the order of conviction by the Lower court and the High court. In a criminal case, it is the duty of the prosecution to prove the case made against the accused beyond a reasonable doubt in order for him to be convicted of that crime. In this case, however, the evidence that is being relied upon by the prosecution is of only 3 eyewitnesses that too have not been corroborated by the experts, and hence their burden to prove their involvement beyond reasonable doubt has not been disposed off.
The facts of the case are as follows: One Bachittar Singh, brother of Dalip Singh who is said, to have been murdered, lodged a complaint before the Naib Tehsildar at Zira to the effect that a tree belonging to him had been cut by 7 persons including Mohinder Singh, the appellant. On the 28th February 1949, which was the date fixed for the hearing of the case before the Naib Tehsildar, 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 they were returning from their field. 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. Thereafter they were tried by the Sessions Judge of Ferozepore under sections 302 and 307 read with section 34 of the Indian Penal Code.
Summary of court decision and judgment
The appellant was 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.
In the post- mortem report several injury marks were sustained by the deceased and the way those marks were on the body it led to believe that the shot was made by a rifle rather than a gun, the prosecution has provided that the deceased was shot with a gun and not a rifle, however, the actual case seems to be different. Further, the nature of the injuries was also such that the shots must have been fired by more than one person and not by one person only, and the prosecution had no evidence to show that another person also shot, and the High Court, though realizing 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. Another suspicious feature was that the incident took place in the vicinity of a Gurdwara and some houses; however, no eyewitness can be corroborated for except for the 3 witnesses cited in the case.
On proper reading, we can clearly demarcate that no clear reasons have been provided by the prosecution for the puzzling injuries on Dalip Singh and even the evidence which has been adduced falls short of proof in regard to a very material 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 alleged to have been caused. Indeed, it seems more likely that they were caused by a rifle than by a gun, and yet the case for the prosecution 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 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. The Supreme Court allowed the appeal and set aside the conviction for the appellant under section 302 and 307 read with section 34 of the IPC.