Holding

The conviction cannot be sustained; the appellant is entitled to the benefit of doubt and is acquitted.

Summary

Rajinder Singh was charged with murder under Section 302 IPC and illegal use of a pistol under Section 27 of the Arms Act for allegedly shooting Chamkaur Singh, who later died of injuries. The prosecution relied on two eye‑witnesses (Harbans Singh and Hakam Singh) and two dying declarations of the deceased, one recorded by a former magistrate and another by a sub‑inspector, both of which contained inconsistencies and were recorded after the victim had been sedated. The investigation was found to be tainted: the FIR was delayed, material local witnesses were not examined, and the names of the eye‑witnesses were introduced only in the second dying declaration. The Sessions Judge acquitted the appellant, but the High Court set aside the acquittal and convicted him. The Supreme Court held that the evidence was not free from doubt, the accused’s abscondence could not be taken as proof of guilt, and the benefit of doubt must be given, thereby acquitting the appellant and allowing the appeal.

Issues considered

The High Court’s reversal of the Sessions Court acquittal despite doubtful evidence.
Whether the eye‑witness testimonies and the two dying declarations constitute reliable evidence.
Whether the accused’s abscondence can be treated as a factor establishing guilt.
Whether the benefit of doubt principle applies in this case.

Legislation cited

Arms Act, 1959s. 25, s. 27, s. 54, s. 59
Code of Criminal Procedure, 1973s. 379
Indian Penal Code, 1860s. 302, s. 307, s. 34

Subjects

murderbenefit of doubtdying declarationeye‑witness testimonyabscondencecriminal procedureevidence reliabilityconviction reversal

Judgment

A RAJINDER SINGH @ KADA
v.
STATE OF PUNJAB ~

APRJL 21, 1992

B [MADAN MOHAN PUNCHHI AND B.J~. JEEVEN REDDY, JJ.]

Criminal Law: )...-

Indian Penal Code, 1860-Section 302-0ffence of Murder-Presence
c of eye witnesses at the scene of occu"ence not free from doubt-Investigation
in doubt as to the culprit-Introduction of second dying declaration with
names of eye witnesses-Despatch of FIR after recording of second dying
declaration-Contradictions in two dying declarations-Investigation not free
from taint-Material witnesses-Not examined-Whether High Court justified
~
·in reversing trial court's decision acquitting the accused-Absconding of ac-
D cused-Whether per se establishes guilt-Whether accused entitled to benefit
of doubt.

The .appellant was alleged to have fired a shot from his pistol hitting
the left flank or one 'C' who rushed inside PW.3's house and b.id himself
by chaining the door from inside. PW.3 and another person raised alarm,
E
but the appellant escaped from the place or occurrence with his pistol.
PW.4 who had also arrived at the spot .saw the occurrence. While PW.3
went to the village Police Station and lodged the First Information Report, -~
two other persons took the injured person to the City Civil Hospital, where
PW.2, the doctor, attended on the injured person, who remained in the
F hospital for about 13 days, and ultimately succumbed to the injury. PW.2,
who performed the autopsy or the deceased, opined that the d1!8th was due
to toxemia and shock resulting from peritonitis, as a consequence of fire
arm injury in which the small gut was injured, and that tb.e injury was
sufficient to cause death in the ordinary course or nature.
,0-
G
The appellant was charged under Section 302 IPC and Section 27 of
the Arms Act, 1959, for the murder and. for making use of a pistol for an
unlawful purl>ose.·The appellant was declared absconder. He was arrested
when in possessiob -Ota·i>istol 40 months after the incident.

H The prosecution supported its case .by production of two eye wit·
f-
514
RAJINDER SINGH v. STATE 575

nesses, PWs 3 and 4. It also introduced two dying declarations, one A
recorded by PW.14, the then Executive Magistrate, and the second
recorded .by PW.15 the S.I. of Police Station of the village in which the
incident took place. Besides, the fact of accused's absconding after the
incident was also pressed into service. The Sessions Judge, placed no
reliance either of the occular version or the dying declarations and ac-
B
quitted the appellant. However, on appeal, by the State, the High Court set
aside the acquittal and convicted the appellant under Section 302 IPC and
Section 27 of the Arms Act, and sentenced him to life imprisonment and
a fine of Rs.2,000 and, in default, a further perio~ of one year's rigorous
imprisonment and also one year's rigorous imprisonment respectively.
c
Allowing the appeal of the accused, by giving benefit of doubt, this
court,

HELD: 1.1 The presence of the two witnesses, PWs. 3 and 4, at the
scene of occurrence is not free from doubt. The investigation was in doubt D
as to who was the culprit. As a first step, the theory of the first dying
declaration was introduced without taking somebody independent, like the
doctor, into confidence. The investigation later introducted the story of
another dying declaration. This one was with the aid of the doctor, but this
brought in the names of the two eye-witnesses to figure at a time when
everything was manageable from the official point of view in reporting the E
matter to the l\fagistrate. The investigation also, in the instant case,
therefore, is not free from taint. The High Court, therefore, was not right
in setting aside the trial court's decision and convicting the appellant.
(584 F~H, 585 A]
~.
v F
1.2 There are contrasting features in the two dying declarations. The
presence of PW.3 and PW.4 at the scene of occurrence had not been men-
tioned specifically in the first dying declaration. HoWever, their names got
introduced in the second dying· declaration. Besides, the brother of the
appellant had been introduced in the second dying declaration as a co-
culprit. Though the City Police was present in attendance at the hospital, G
after it had been informed of the arrival of the injured there, it was not
prepared to carry the burden of getting recorded a dying declaration. In this
situation, it is rather dramatic that PW.14 should jump into the fray without
having been asked by anyone officially, under proper documents, to record
the statement of the injured at 6.45 p.m. and without complying with the H
516 SUPREME COURT REPORTS [1992) 2 S.C.R.

A essential formalities of making an application to the doctor, disclosing bis
identity, seeking his opinion as to the fitness of the injured to make a
statement, and if permitted, having recorded the statement of the injured in
r·-
the presence of the doctor. The role of PW.14, even if the suspicinn enter·
tained by the Sessions Judge on his veracity on the basis of his judicial
career is left aside, is suggestiv~ of an overdoing, shared by the police to not
B let go a crime against their fellow policeman unpunished. It is also p.tain that
while introducing the expression "other persons" to be present in the first
dying declaration it was like drawing a blank cheque to be filled in at a later
stage conveniently,. in order to plug in convenient witnesses, if the ones
mentioned already were not prepared to support the prosecution. The effort
c in that regard was to say the least naive, if not clumsy. [582 F-G; 583 A-DJ

The. dying declaration recorded by PW.15, S.I. of the Village Police
Station on the following morning also demonstrates that by that time
PWs.3 and 4 bad been tied up as willing witnesses. [583 DJ

D 1.3 PW.3, one of the two eye-witnesses has said that the reason for
his being at the spot was that he had gone to the house of his friend for
taking a plough. He lives in the east of the village whereas the house of the
friend is towards the west of the village. He appears to be a chance witness
altogether. There could be plenty of ploughs to be borrowed in his own ,
E neighbourhood. So far as the second eye-witness, PW.4 is conicerned his
house is towards the south of the place of occurrence and there intervened
about 150 houses between the two places. He too is a chance witness.
[584 B-CJ

1.4 Nobody from the locality was examined by the prosecution.
F Material witnesses, who were claimed to have seen the occurrence and
removed the injured to the hospital in their jeep, were not examined by the
prosecution. It is due to the second dying declaration recorded by PW.15
the S.I. of the Village Police Station that the names of these two i.e. PWs.
3 and 4 came in the forefront, and on accomplishing such a fiai, the F.I.R.
G was written thereafter and the report despatched the next day at 8.00 p.m.
to the Magistrate afterwards. There was, in the interval, plenty of time to
withhold the despatch of F.I.R. till the story could be woven, concerning
as it was, a fellow policeman. [584 D-EJ

1.5 The First Information Report was shown to have hen recorded on
H the day of the, incident at 6.15 p.m. under section 307/34 IPC and under
RAJINDER SINGH v. STATE (PUNCHHI, J.] 577

section 25/27/54/59 of the Arms Act, 1959 and despatched to the Magistrate A
--( the following day at 8.00 p.m., much after recording of the second dying
declaration, and received by the Magistrate still two days later at 10.05 a.m.
The investigation stretched its timings. The version was improved. It was
.said that after the occurrence when the appellant ran away with his pistol,
he was joined near the kikar trees by his brother, who too is a Constable in
the police. He is suggested to have been waiting for the appellant as an aide.
Then both of them are said to have fled away. Since the appellant was shown
to have been absconding, the brother of the appellant was hurriedly put up
for trial for offence under section 302/34 IPC. The Sessions Judge, however,
discharged the brother of the appellant. This apparently was an attempt to
try the appellant in absentia, but the effort failed. [583 E·H] - c
1.6 The abscondence of the accused is not a determining factor, and
not one which could outweigh the other material appearing on the record.
It by itself does not establish the guilt of the appellant beyond reasonable
doubt. [585 BJ
D
l.7 In the circumstances, the appellant is extended the benefit of
doubt and acquitted. [585 CJ

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
531of1981.
E
From the Judgment and Order dated 11.3.1981 of the Punjab and
Haryana High Court in Criminal Appeal No. 1044 of 1979.

A.N. Mulla, T.L. Garg and N.D. Garg for the Appellant.

Ranbir Singh Yadav and R.S. Suri (N.P.) for the Respondent. F

The Judgment of the Court was delivered by

~. PUNCHHI, J. This appeal under section 379 of the Criminal Proce-
dure Code is directed against the. judgment and order dated March 11, G
1981 of the Punjab and Haryana High Court at Chandigarh in Criminal
Appeal No.1044 of 1979.

The appellant herein, Rajinder Singh, was charged under section 302
IPC and under section 27 of the Arms Act for causing the murder of
Chamkaur Singh and for making use of a pistol for an unlawful purpose, H
578 SUPREME COURT REPORTS (1992] 2 S.C.R.

A before the Sessions Judge, Ferozepur. He was acquitted by the learned
Sessions Judge on February 9, 1979. On State appeal to the High Court
the_ afquittal was set aside and the appellant was convicted wider section
302 IPC and was sentenced to life imprisonment as alsc to pay a fine of
Rs.2000 or in default further rigorous imprisonment for one year. The fine,
if realised, was ordered to be paid to the heirs of Chamkaur Singh
B deceased. He was also convicted under section 27 of the Arms Act and
sentenced to undergo rigorous imprisonment for one year.

The prosecution case is that Chamkaur Singh, since dece~sed, and
the appellant herem belonged to village Ghall Khurd. The deceased had
c four brothers. One of them, namely, Thana Singh, had died 20 days before
the occurrence on account of taking liquor. The deaceased suspected that
the appellant had administered poison to Thana Singh in liquor. On
December 20, 1974, just before sunset, the deceased came from the side
of the bus stand to his village. Harbans Singh P.W.3 was standing in front
·n of the house of one Jagtar Singh for taking a plough and he beckoned the
deceased to come to him. At that moment, the appellant is stated to have
come from the side of the lane and made Chamkaur Singh deceased stop,
accusing him that he had talked ill of him to some shopkeeper but Cham-
kaur Singh denied having done so. Thereupon Chamkaur Singh moved
forward towards his house accompanied .by one Darbara Singh. The appel-
E lant at that juncture took out his pistol from underneath the blanket, with
which he had wrapped himself, and fired a shot hitting the left flank of
Chamkaur Singh. After receiving the shot Chamkaur Singh rushed inside
the house of Harbans Singh Sansi and hid himself by chaining the door
from inside. Harbans Singh P.W.3 and Darbara Singh raised alarm saying
F "do not kill" "do not .kill" but the appellant escaped from tlhe place of
occurrence with his pistol. Hakam Singh, P.W.4 had also arrived at the spot
from the side of his fields and saw the occurrence. Two others, Mohinder
Singh and Gura Singh, took Chamkaur Singh to the Civil Hospital
Ferozepur while Harbans Singh to P.W.3 went to the Police Station Ghall
Khurd, in the same village, and lodged the First Information Report. On
G arrival at the hospital Dr. S.I.S. Sandhu P.W.2 attended to him. Chamkaur •'
Singh remained in the hospital for about 13 days till January 2, 1975 when
he died. It fell to the lot of Dr. Sandhu again to perform the autopsy of
the deceased. In the opinion of Dr. Sandhu the death of Chamkaur Singh
was due to toxemia and shock as a result of peritonitis as a consequence
)....
H of fire arm injury in which the small gut was injured. According to the (
RAJINDER SINGH v. STATE [PUNCHHI, J.] 579

doctor the injury was sufficient to cause death in the ordinary course of A
nature.

The prosecution further alleges that the appellant could not be
arrested and was declared an absconder. It is only on April 12, 1978, about
40 months later, that he was arrested at a check-post in another part of
district Ferozepur and at that time he was holding a pistol. It was taken B
··_,;( into possession as well as the ammunition found on his person.

When the case we sent up for trial after completion of investigation,
the prosecution supported its case by product~on of two eye witnesses,
Harbans Singh P.W.3 and Hakam Singh P.W.4 to give the occular version. C
It also introduced in evidence two dying declarations of the deceased. One
was said to have been made on December 20, 1974 to Shamsher Singh,
P.W.14 who then posted as Judicial Magistrate, First Class, Ferozepur. He A
was no more .a Magistrate when his statement was recorded at the trial.
The other one was of December 21, 1975 recorded by S.I. Vasdev P.W.15. D
Besides, the absocondence of the accused was pressed into service. The
learned Sessions Judge however placed no reliance on either the ocular
version or the dying declarations and acquitted th~ appellant, but he was
reversed by the High Court. The exercise in the instant appeal is to examine
whether the High Court was justified in interfering in the acquittal of the
appellant. E

As said before, Chamkaur Singh had been taken to the Civil Hospi-
tal, Ferozepur the same day, i.e., December 20, 1974. On his arrival, Dr.
S.l.S. Sandhu, Surgical Specialist, Civil Hospital, Ferozepur sent message
Ex.P.B. al 6.00 p.m. to the S.H.O. Police Station Ferozepur city, intimating F
the arrival of the injured. The Hospital and the Police Station are opposite
each other. Another message Ex. P.C. was sent likewise at 6.20 p.m.
suggesting recording of the dying declaration of Chamkaur Singh since his
condition was serious. At 10.30 p.m. vide application Ex.PD S.I. Vasdev
asked the opinion of Dr. Sandhu whether Chamkaur Singh was fit to make G
statement, but the doctor opined that the injured was not fit to make a
statement. Then on the next day on 21.12.1974, again opinion was sought
by the Police to that effect at 11.00 a.m. and then the doctor declared
Chamkaur Singh fit to make a statement. Dr. Sandhu claimed to have
ordered giving pethedin injection to the injured by way of sedation on the
arrival of the injured in the Hospital, and another injection on 21-12-74 at H
580 SUPREME COURT REPORTS (1992] 2 S.C.R.

A 4.00 p.m. That was the reason that on the earlier day, i.e. on 20-12-1974, ·
when his opinion was sought about the ability of the injured to make a
statement, he had opined that he was unfit to make a statement due to
sedation. It is worthy of notice at this stage that it was Vasdev S.L attached
to Police Station Ghall Khurd who responded to the need of recording a
-,..-.
-
dying declaration a_nd not the police of Police Station Ferozepur City. It is .....
B also worthy to note that Chamkaur Singh himself was a constable serving ,..,...._
in the office of S.P. Ferozepur City. From the medical report Ex.P J., Dr.
Sandhu, when called again as a court witness, explained that Chamkaur .
Singh was conscious when he was brought for examination at 6.15 p.m. and
at that time he was fit to make a statement although his condition was
,....
c serious. He however went on to say that he had ordered a pathedine
injection to be given to the patient so that he goes to sleep, which injection
should have had its effect after half an hour.
--(. ~.

The first dying declaration of the deceased, as said b~re, was
recorded by Shamsher Singh P.W.14. According to Shamsher Smgh P.~.14
D he received a police application on the basis of which he went to the
Hospital in order or record the dying declaration of the deceased at 6.45
p.m. Having reached there he obtained the opinion of Dr. Sandhu regard-
ing fitness of Chamkaur Singh to make a statement. Noticeably no docu-
ment was prepared by P.W.14 in that regard. He claimed to have prepared
E his own proceedings in the form of a memorandum Ex.P.N. and noted
therein that Dr. Sandhu had certified Chamkaur Singh to be fit to make a
statement and that on his pointing out Chamkaur Singh he had recorded ~
the dying declaration of the deceased. The. memorandum Ex.P.N. itself
contains the dying declaration of Chamkaur Singh which is pointed as Ex.
F P.N.2. P.W.14 claims that it was recorded on the dictation of the injured,
which was read out to him after recording and to which injured put his
-
signatures. This dying declaration is to the following effect:

"My brother Thana Singh had died earlier. He was poisoned

G
in liquor. Now I have come to know as to who had done it.
Earlier I did not know. I wanted to go from my headquarters
after taking leave but could not get an opportunity. Today, I
got down at Ghall Khurd Bus Stop. Darbara Singh member
-
H
Panchayat was with me. Rajinder Singh accused came there.
He said that I had talked something about him to some shop-
keeper. I replied in the negative. I proceeded and then saw I
~
' ...
RATINDER SINGH v. STATE [PUNCHHI, J.] 581

back that the accused took out a pistol from under neath his A
___......
blanket. He fired, which hit me on the left side of my flank. I
entered some one's house but the accused ran away.' Jagat
Singh, Jagtar Singh, Darbara Singh and many other people had
come there."

.~.
P.W.14 further stated that the dying declaration was sent by ,him to B
~ theArea Magistrate but corrected himself that Police Station Ghall Khurd
fell within his jurisdiction and stood shifted to another Magistrate. He also
stated that he had resigned from the post of Judicial Magistrat~, First
Class, Ferozepur. He while giving his evidence described himself as a
practising advocate at Kharar, a tehsil town. In his memorandum Ex. P.N. c
besides his version and narration, there is no signature of Dr. Sandf?.u even
though his name prominently figures in it. Even after recording it Dr.
Sandhu was not asked to certify the recording of it. According to P.W.14
~ there was no necessity for .it- becuase he was himself satisfied that, Cham-
kaur Singh was fit to make a statement all through. Memorandum Ex.P.N.
was not put to Dr. Sandhu or he even apprised to know its contents. The
D
prosecution dare not risk it. Dr. Sandhu may have totally de~ied his
involvement in the recording of the first dying declaration. Another sig-
nificant factor emerging from the first dying declaration is that the names

-- of the two eye-witnesses Harbans Singh P.W.3and1-{akam Singh P.W.4 do
not find mentioned as persons who had seen the occurrence. Others were E
so named .
.... ~
The second dying declaration is claimed to have been recorded by
SJ. Vasdev, P.W.15 of Police Station Ghall Khurd. As he says, on 20-12-
1974 at 6.15 p.m. he recorded the First Infmmation Report at the instance F
of Harbans Singh P.W.3. After recording it he went to the spot and
recovered therefrom an empty cartridge. He recorded the statements of
Hakam Singh P.W.4 at that time. He then went to Civil Hospital, Ferozepur
reaching there at 9.30 p.m. He then made application Ex. P.O. at 10.30
'_....., p.m. enquiring from the doctor about the fitness of Chamkaur Singh to
make a statement. The opinion being negative, he ventured again on the G
next day at 11.00 a.m. This time the doctor's opinion was positive and then
he recorded the dying declaration Ex.P.O. The dying declaration recorded
by P.W.15 reads like thus:

"I am a constable in the police, on 20-12-19741 came on leave H
582 SUPREME COURT REPORTS (1992) 2 S.C.R.

A to Ghall Khurd. I came by bus, Darbara Singh was with me. \r-
He and I came in front of the house of Harbans Singh. Accused
Rajinder Singh came from the front side. He was having a
blanket around. He said that I had talked to a shop keeper
about him. I told him that some-one had misled him. I
proceeded forward and looked backwards. The accused took
B out his pistol and fired towards me: After that I started raising
raula. The shot fired by accused hit me on my left flank and I
'y
got injured. Out of fear I entered the house of Harbans Singh
Sansi. I bolted the door from inside .. Jagtar Singh son of
Joginder Singh, Harbans Singh son of Sawan Singh Jats, Hakam
c Singh son of lsher Singh had seen the occurrence. Rajinder
Singh fled away with the pistol from the spot. He ran towards
kikar -trees. Where Kewal Singh brother, was waiting for him.
They both ran away. They had both connived to kill me. The --<
cause of enmity is that on 21-12-1974 my brother Thana Singh
died by taking liquor. I later on came to know that Rajinder
D
Singh had poisoned him in liquor due to which the ·death
occurred. As I could not know earlier. I could not proceed
further. On Diwali night my brother Balam Si~gh and Rajinder
Singh gambled. Rajinder Singh won some money. I had got that

E
amount returned from Rajinder Singh. While I was injured
state, Gurnam Singh son of Hari Singh and Mohinder Singh
son of Arjan Singh of Ghall Khurd took me in a jeep and got
me admitted in the hospital."
:+ ..
As is evident there are contrasting features in the two dying decla-
rations. The presence of Harbans Singh P.W.3 and Hakam Singh P.W.4, .....
F
as said before, had not been mentioned specifically in the first dying
declaration. In the second dying declaration, the names of those two
witnesses got introduced. It is yet to be seen whether Harbans Singh and
Hclcam Singh, P.W.s can be said to be realiable witnesses whose presence ~-
at the spot could be taken as established. Besides in the second dying
G declaration the brother of the appellant, by the name of Kewal Singh, had
been introduced as a co-culprit. ThO'Ugh it is the admitted case of the
prosecution that Police Station City stood informed of the arrival of the
injured at the Hospital, and that ASI Rajinder Kumar of City Police Station
(
had come there with Constable Ashok Kumar to be given the bag of clothes
~
H of the injured on 20-12- 1974, it indicates that even though the Ferozepur
RATINDER SINGH v. STATE [PUNCHHI, J.] 583

--( police was there in attendance, it was not prepared to carry the burden of A
getting recorded a dying declaration. In this situation, it -is rather dramatic
that Shamsher Singh, P.W.14 should jump into the fray without having been
asked by anyone officially, under proper documents, to record the state-
ment of the injured at 6.45 p.ni. and without complying with the essential
formalities of making an application to the doctor, disclosing his identity,
-..( seekiag-liis opinion as to the fitness of the injured to make a statement,
B
and if permitted having recorded the statement of the injured in the
presence of the doctor. The role of Shamsher Singh P.W.14, even if we
~~
---,,, leave aside the suspicion entertained by the Sessions Judge on his veracity
-' on the basis of his judicial career, seems to us suggestive of an overdoing,
shared by the police to not let go a crime against their fellow policeman c
unpunished. It is also plain that while introducing the expression "other
,_
•)- persons" to be present in the first dying declaration it was like drawing a
blank cheque to be filled in at a later stage conveniently, in order to plug
in convenient witnesses, if the ones mentioned already were not prepared
to support the prosecution. The effort in that regard was to say the least
D
naive, if not clumsy. The dying declaration recorded by SI Vasdev on the
following morning also demonstrates that by that time Harbans Singh and
'
Hakam Singh had been tied up as willing witnesses.

The First Information Report was shown to have been recorded on
20-12-1974 at 6.15 p.m. under section 307/34 IPC and under section E
~-
25/27/54/59 of the Arms Act. It is shown to have been despatched to the
Magistrate the following day on 21.12.1974 at 8.00 p.m. much after the
recording of the second dying declaration. It is shown to have been
received by the Magistrate still two days laier on 23-12-1974 at 10.05 a.m.
The· investigation stretched its timings. The version was improved. It was
F
said that after the occurrence when the appellant ran away with his pistol,
he was joined near the kikar trees by his brother Kewal Singh, who too is
-..4. a Constable in the police. He is suggested to have been waiting for the
appellant as an aide. Then both of them are said to have fled away. Since
the appellant was shown to have been absconding, Kewal Singh brother of
the appellant was hurriedly put up for trial for offence under section 302/34 G
IPC. The learned Sessions Judge, Ferozepur, however, discharged the
accused Kewal singh on 9-9-1975 vide his decision in Sessions Case No.66
...(_ of 1975: This apparently was an attempt to try the appellant in absentia,
but the effort failed.
H
584 SUFREME COURT REPORTS (1992) 2 S.C.R.

A We have also gone through the evidence of the two eye witnesses.
Harbans Singh P.W.3 when detailing the version said that after talking to
the appellant, Chamkaur Singh along with Darbara singh moved forward
towards their house and when Chamkaur Singh turned back he was hit by
pistol shot fired by the appellant. His reason for being at the spot was that
he had gone to the house of one Jagir Singh for taking a plough. He lives
B in the east of the village where as the house of J agir Singh is towards the
west of the village. Though he says that his house and that of Jagir Singh
was about 20 houses apart, the defence suggestion was that about 200
~'
houses intervene. He appears to be a chance witness altogether. There r
could be plenty of ploughs to be borrowed in his own neighbourhood. So
c far as Hakam Singh P.W.4 is concerned, his house is towards the south of
the place of occurrence and there intervened about 150 houses between
his house and the place of occurrence. He too is a chance witness. Nobody
from the locality was examined by the prosecution. Material witnesses like
Darbara Singh, Jagat Singh and Jagtar Singh, as well as Guna Singh and
D Mohinder Singh, who were claimed to have seen the occurrence and
removed the injured to the hospital in their jeep, were not examined by the
prosecution. It is due to the second dying declaration recorded by SI
Vasdev P.W.15, that the names of these two i.e., Harbans Singh and Hakam
Singh came in the forefront, and on accomplishing such a fiat, the F.l.R.
seems to have been written thereafter and the report despatched on 21-12-
E 1974 at 8.00 p.m. to the Magistrate afterwards. There was in the interval
plenty of time to withhold the despatch of F.I.R. till the story could be
woven, concerning as it was, to a fellow policeman.

Thus it appears to us that the presence of these two witnesses
F Harbans Singh and Hakam Singh at the scene of occurrence is not free
from doubt. The investigation was in doubt as who was the culprit. As a
first step, the theory of the first dying declaration was introduced without
taking somebody independent, like Dr. Sandhu, into confidence. The in-
vestigation later introduced the story of another dying declaration. This one
was with the aid of Dr. Sandhu, but this brought in the names of the two
G eye witnesses to figure at a time when everything was manageable from the
official point of view in reporting the matter to the Magistrate. The
investigation also in the instance case therefore appears to us to be not free
I
from ta.int. The views of the learned Sessions Judge, Ferozepur in acquit-
~
ting the appellant as compared to those expressed by the High Court have
H been weighed again by us with the evidence on record, and we tend to
RAJINDER SINGH v. STATE [PUNCHHI, J.] 585

agree with the learned Sessions Judge, dis-agreeing with the views ex- A
pressed by the High Court, so as to acquit the appellant.

The abscondence of the accused relied upon by the High Court.
remians of no consequence. In the first place it is not a determining factor

- and not one which could outweigh the other malarial appearing on the
record. It by itself does not establish the guilt .of the appellant beyond
reasonable doubt.
B

For the views afore-expressed, we find it difficult to sustain the
conviction of the appellant. Accordingly he is extended the benefit of doubt
and acquitted. The· appeal is accordingly allowed.

N.P.V. Appeal Allowed.