Santokh Singh & Anr. V/S State of Punjab CRIMINAL APPEAL NO. 2079 OF 2008 SEPTEMBER 1, 2010

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2079 OF 2008


Santokh Singh & Anr. ... Appellants
VERSUS
State of Punjab ...Respondent



JUDGMENT

SURINDER SINGH NIJJAR, J.

1. The two appellants in this Criminal Appeal have

challenged the judgment of the Punjab and Haryana

High Court in Criminal Appeal No. 885-DB of 2003,

whereby the High Court upheld the conviction of the

appellants for the offence under Section 302 read with

Section 34 IPC sentencing them each to undergo

imprisonment for life with a fine of Rs. 1,000/- with a

direction to further undergo RI for six months in case of

default of payment fine.






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2. The prosecution case is that Inspector Harvinder

Singh, Station House Officer, Police Station, Civil Lines,

Amritsar, alongwith other officials including Balwinder

Singh, ASI, Tarsem Singh, Constable, Bikram Singh,

Constable, happened to be present at Chowk Ciivil Lines,

Amritsar, in connection with patrolling during the night

of 14.7.2002. At about 10.45 p.m., Rajiv Kumar son of

Prem Nath Sharma resident of House No. 75/5, Gulati

Road, Amritsar Cantt, met them. He gave them a written

application dated 14.7.2002 (Ex. PE) giving the details

about the death of Sanjay Kumar @ Shammi. On the

basis of the complaint, FIR (Ex. PD) was registered at the

Police Station, Civil Lines, Amritsar at 11:30 p.m.

The deceased, cousin of the complainant, was working in

Air Force MES as FGM and was residing in MES Quarter

No. 23/4. He was Secretary of an Employees' Union.

He, however, left the aforesaid Employees' Union.

Two days later, he became the President of INTUC Union.



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Accused (1) Santokh Singh, President of Employees'

Union, (2) Sawarn Kumar (President of Employees'

Union), GE Amritsar (3) Jagsher Singh Bhola, General

Secretary, (4) Gurdev Singh, FMGHS II came to the

quarter of the deceased in the presence of the

complainant. They said that they wanted to discuss

something about the disputes of the Union.

They, therefore, took Sanjay alongwith them. Thereafter,

Arjinder Pal Singh @ Prince, owner of a Hotel came to

their house and told them that Sanjay has been shot

dead. In the complaint, it is stated that the complainant

had full confidence that all the four persons who had

called Shammi from his house had made Shammi drink

liquor and while he was under the influence of liquor,

they had shot him dead after snatching his pistol.

Endorsement Ex.P/1, was made on this statement by the

Inspector and sent to the police station through

Constable Bikram Singh. FIR (Ex. PE/3) was recorded

on the basis thereof by Balbir Singh, SI. His signature



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on the same was identified by Inspector Harvinder Singh

when he appeared as PW-12 in the case.



3. The place of the incident, Hotel Genesis in the

Cantonment area of Amritsar, was then visited by the

Inspector alongwith other officials. The complainant

Rajiv Kumar was also taken alongwith the police party.

Santokh Singh and Sawarn Kumar were arrested from

the spot. Licensed pistol of Sanjay Kumar was found

lying near the dead body. One empty, one missed

cartridge and three live cartridges were also recovered

therefrom. Prithipal Singh, Sub Inspector (Finger Prints

Expert) was called at that place and the pistol was got

examined from him. It was opined by him that no

decipherable finger print impressions were found.

Santokh Singh and Sawarn Kumar (hereinafter referred

to as "the appellants") were got medically examined and it

was found that they had not consumed any drug or

alcohol. The post mortem on the dead body of



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Sanjay Kumar was duly performed and the dead body

was handed over to his relatives. The other two accused

Gurdev Singh and Jagsher Singh @ Bhola had,

thereafter, surrendered in the Court. They were formally

arrested in this case on 25.7.2002. During the

investigation, no witness came forward to give an

eye witness account as to how the weapon was snatched

from Sanjay and how he was shot with the same weapon.

The investigation, however, concluded that the four

accused had called Sanjay Kumar from his house. It

appears that extra judicial confession was made by

Jagsher Singh @ Bhola and Gurdev Singh before one

Vipin Kumar son of Mulakh Raj, resident of Ram Tirath

Road, Amritsar to the effect that they had killed

Sanjay Kumar. It was also stated that on 13.7.2002 in

the presence of Prince Masih, son of Buta Masih, all the

four accused persons, had condemned Sanjay Kumar for

leaving the Union and joining INTUC. They had also said

that they will have to do something in that connection.



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The report of the Forensic Science Laboratory indicated

that the pistol recovered from the site of incident was

found to be in working condition. It also indicated that

shots had been fired from the very same pistol. They

were duly put on trial for the offence under

Section 302/34 IPC and Section 25 of the Arms Act. At

the trial, it was stated by Dr. Gurmanjit Rai (PW-1) that

he had conducted the post mortem examination on the

dead body of Sanjay Kumar @ Shammi on 15.7.2002

at 11.50 a.m. He had proved the post mortem report

(Ex. PA). The report mentions that the following injuries

were noticed on the deceased:-

"1. Lacerated wound 1.5 x 1 cm with inverted
margins was present on right side of head,
4 cms. lateral to out end of eyebrow.
Abrasion color was present at the lower
margin of wound. Clotted blood was
present.

2. Lacerated wound of 1.8 x 0.8 cm was
present on left side of head in the temporal
region, 5 cms above pinna of ear. Margins of
wound were found everted Clotted blood was
present."




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The cause of death, in the opinion of the doctor, was

laceration of brain, vital organ, as a result of

communicating injuries no. 1 and 2, which was sufficient

to cause death in the ordinary course of nature. The

time that had elapsed between the injuries and death

was opined to be few minutes and between death and

post mortem was 24 hours.



4. A number of witnesses were examined by the

prosecution in support of its case. Upon closure of the

prosecution evidence, the statement of the appellants

were recorded under Section 313 Cr.P.C. All the

allegations were denied by them. Jagsher Singh @ Bhola

and Gurdev Singh stated that they were innocent and

had been falsely implicated. Appellant No. 1, Santokh

Singh stated thus:-

"The allegations against us are totally false.
Deceased was of aggressive nature and also living
under depression. He used to have unpredictable
swings of behaviour. He was drug addict and was
facing criminal cases. He remained in hospital for
treatment also. The allegations of my alongwith
other going to his house and to bring him are

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incorrect. He met us in restaurant. All of a
sudden, he fired on his head may be to show false
valour. It all is so sudden and sad, which feelings
in him culminated in this act are difficult to tell.
But he was depressed and aggressive and possible
drug influence. Police on site inspection also
agreed with it, but scenario of place of occurrence
was changed. We got totally perplexed. I am
innocent."


Appellant No. 2 gives the same version as appellant

no. 1.



5. Upon examination of the entire evidence, the trial

court convicted all the four accused under Section 302

read with Section 34 IPC and they were sent to undergo

imprisonment for life and to pay a fine of Rs. 1,000/-

each under Section 302 read with Section 34 IPC. In

default of payment of fine, the defaulter accused would

further undergo RI for a period of 6 months. The

aforesaid judgment of the trial court was taken in appeal

by the four convicts.




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6. The High Court upon re-examination of the entire

evidence has confirmed the findings recorded in the

impugned judgment qua appellant No. 1, Santokh Singh

and appellant No. 2 Sawarn Kumar. However the

co-accused Jagsher Singh @ Bhola and Gurdev Singh

were acquitted of the charge under 302 read with

Section 34 IPC. It is in these circumstances, that the

two appellants have challenged the aforesaid judgment in

this appeal.



7. We have heard the learned counsel for the parties.

Mr. K.T.S. Tulsi, learned senior counsel for the

appellants submitted that this is undoubtedly a case of

suicide which has been deliberately twisted by the

prosecution into a case of murder. Learned counsel

submitted that deceased was suffering from chronic

Schizophrenia. He had been regularly receiving

treatment for mental illness at the Bhatia Neuro

Psychiatric Hospital, Amritsar. Deceased was also a drug



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addict. Learned counsel has placed strong reliance on

the statement made by Dr. J.P.S. Bhatia (DW-1). It is

submitted by the learned senior counsel that due to his

illness, behaviour of the deceased was wholly erratic and

unpredictable. It is not possible to know the reason as to

why he may have shot himself. According to the learned

counsel, the medical evidence would tend to suggest that

he had suicidal tendencies. Mr. Tulsi further submitted

that in this case, the prosecution has gone out of the way

to fabricate the case against the appellants. The

appellants had no motive whatsoever to kill the deceased.

Even if there was slight disagreement with regard to the

Union activities, the same would not provide a motive

strong enough to commit the murder of the deceased. He

submitted that the appellants had very cordial relations

with the deceased. They had, in fact gone to his house to

resolve any outstanding issues. He has pointed to

a number of circumstances which would show that the

police has acted in a partisan manner. According to



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Mr. Tulsi, the entire sequence of events given by the

prosecution is unbelievable. First and foremost, there is

no eye-witness. The FIR has been ante timed. It was in

fact not recorded at 11.35 as stated in the record. The

inquest was conducted on 15.7.2002 that would mean

that it was conducted sometime after midnight of the

night of 14/15.7.2002. In the inquest report, the names

of the accused appellants are not mentioned. It is

submitted that the arrival of the police is ante timed.

This is evident from the general diary which records that

the police left for the scene of the crime at 11.30 p.m.

The position of the body has been shifted. The empty

cartridge of the missed shot was not recovered till the

following day. This had been planted to justify the plea

that two shots were fired. There is no evidence that the

appellants had removed the finger prints. Therefore, the

prosecution is suppressing the genesis of the incident.

According to the learned senior counsel, the evidence of

the witnesses is wholly unreliable. The witness tend to



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change the stand to suit the circumstances. Counsel

further submitted that this being a case of circumstantial

evidence, the prosecution has to prove that the

circumstances on the record would be inconsistent with

the innocence of the appellants. Learned counsel

submitted that there has been definite tempering with

the evidence. Even according to the prosecution

witnesses, the deceased was first seen sitting on a chair

with his head on the table. The pistol was said to be

lying at the feet of the deceased. Thereafter, it is sought

to be projected that the deceased was lying on the floor.

According to the learned senior counsel, the cumulative

effect of the inherent weaknesses in the investigation and

tampering of evidence would lead to the clear conclusion

that the appellants had been falsely implicated. Learned

senior counsel further submitted that the prosecution

cannot be permitted to take advantage of the fact that the

pistol recovered did not have any fingerprints on it. It

cannot lead to the conclusion that the appellants had



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deliberately removed the fingerprints. Learned senior

counsel also submitted that merely because more than

one shot was fired would not lead to the conclusion that

the firing was not done by the deceased himself. Learned

senior counsel also submitted that the recovery of the

empty shells on the following day is itself suspect. The

possibility of the same having been planted by the

investigating agency cannot be ruled out.



8. On the other hand, Mr. Kuldip Singh, appearing for

the State of Punjab submitted that the prosecution has

proved the case beyond reasonable doubt. Learned

counsel submitted that there is no break in the sequence

of events. It has been proved on the record that there

was Union rivalry. The appellants were resentful for the

fact that the deceased had joined INTUC after leaving

their Union. They had gone to his house and brought

him to the hotel. They had got the deceased drunk.

Thereafter, they committed the murder. According to the



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learned counsel, if the deceased had shot himself, there

was no question of two shots being fired. Learned

counsel further pointed out that the evidence of the

illness of the deceased is non-existent. The record

produced by Dr. J.P.S. Bhatia (DW-1) is a clear

fabrication. It has been prepared just to help the

appellants. Undoubtedly, the deceased was taking drugs

for which he had received some treatment but he was not

a psychiatric case as projected by the appellant.



9. We have considered the submissions made by the

learned counsel for the parties. The trial court examined

the entire evidence threadbare. From the evidence of the

witnesses, it has been established that Shammi had been

shot dead with his own licensed pistol. The incident had

taken place at Genesis Hotel. Accused persons including

the appellants herein were present in the dining hall on

the same table as Shammi. The divergence between the

version given by the prosecution and the version of the



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appellants was duly noticed by the trial court. According

to the prosecution, the shots were fired by someone

amongst the accused persons in furtherance of common

intention of all of them to murder Shammi. The defence

version on the other hand is that Shammi being a person

of unstable temperament due to his mental illness had

committed suicide. The trial court, in order to, rule out

the possibility that the appellants have not been falsely

implicated meticulously noticed the facts which were

proved by the prosecution.



10. On a careful appreciation of the evidence, it was

found by the trial court, and confirmed by the High Court

that Shammi was an active participant in the Union

activities. He had been the Secretary of the Employees'

Union. Rajiv Kumar reiterated the facts about the Union

activities of the deceased, Shammi, in his evidence. He

stated that he was present in the house of the deceased

when the accused reached there at about 8.45 p.m. He



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was still at the house when Prince, the hotel owner, came

and told them that Shammi had been shot dead, in his

hotel. Both Rajiv Kumar and the widow of the deceased

Indira Rani (PW-5) had stated that Shammi had taken

the pistol alongwith him. He was in the habit of keeping

the pistol in the dub of his pants. She also stated that

after hearing the news about the murder of her husband,

she became unconscious. Vipin Kumar, PW-6 had

narrated about the extra judicial confession made by

Jagsher Singh @ Bhola about having committed the

murder of Shammi. All these witnesses were

cross-examined at length, but nothing was brought on

the record, which would tend to show that their evidence

cannot be believed or trusted. The trial court also

noticed that in the statements made under Section 313,

at least two of the accused had admitted that Shammi

had met them in the restaurant. They had also stated

that all of a sudden, he had shot himself in the head,

may be to show false valour. It was stated that Shammi



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was depressed and aggressive and was possibly under

the influence of drugs. The trial court noticed that all the

accused persons were present in the hotel. They sat on

one table. Shammi, as usual had his licensed pistol in

the dub of his pants. Even though, there is no direct

evidence of the shooting, it has been established by the

statement made by the owner of the Hotel, i.e., Prince.

He had clearly stated that he was sitting in his cabin

while the deceased and the accused were being attended

by a waiter of his Hotel, Ram Singh. Then all of a

sudden, he heard a sound, he thought as if some part of

the cooler had broken down but immediately thereafter

the accused persons tried to run away. However, the

waiter Ram Singh and two others managed to capture

two of them. Soon, it was found that someone among the

four persons had fired at Shammi, who was found dead

on his seat.




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11. Noticing the absence of fingerprints on the pistol the

trial court concluded that the fatal shot had not been

fired by the deceased. His fingerprints were bound to be

present on the pistol in case the shot had been fired by

him. The fingerprint expert in his report has clearly

stated that the pistol had been wiped clean. The trial

court, in our opinion, rightly concluded that the

fingerprints were in all probability wiped away by the

assailant to remove the evidence of his fingerprints.

There is no reason for any other person to remove the

finger prints. We are unable to accept the far fetched

suggestion of Mr. Tulsi that the fingerprints have been

removed to rule out the possibility of the deceased having

shot himself. There is no evidence on the record to show

that any other person had handled the pistol, in the

interval between the shooting and the arrival of the

police. Furthermore, there is no reason as to why the

police would wipe away the incriminating finger prints.




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12. The trial court also noticed that the post mortem

report nowhere mentions that there was any blackening

or tattooing of any area surrounding the fatal wound.

The trial court, therefore, concluded that the possibility

of suicide stands completely ruled out. The only inference

is that it was a case of homicide. The shot was fired by

someone, from amongst the accused appellants. It has

also come in evidence that in fact two shots were fired.

The empty shell of the first one which missed was

recovered some distance away from the body of the

deceased. Taking stock of the entire evidence, the trial

court has concluded that the circumstantial evidence

adduced by the prosecution formed a complete chain

which leads to the conclusion, consistent only with the

guilt of the accused and inconsistent with their

innocence.



13. The conclusions arrived at by the trial court have

been confirmed by the Division Bench of the High Court.



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The High Court noticed in extenso the evidence of Indira

Rani, PW-5, wife of the deceased. She had categorically

stated about the manner in which the four accused had

come to their house and had requested her husband to

accompany them. They had said something about having

discussions about the functioning of the Union. She had

also stated that when her husband left with the

appellants, he was carrying his licensed pistol with him.

She had admitted that in her statement under

Section 161 Cr.P.C., she had not mentioned that

Rajiv Kumar was present when the accused persons had

come to the house and she had also not given

information that her husband was also the Secretary of

the Employees' Union and later on he had joined as a

President of INTUC. She also admitted that she had not

mentioned to the police that the owner of the hotel,

Prince, had told her that her husband had been shot

dead by the four persons with whom he had gone. She

had, however, stated that after Prince had informed her



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about the death of her husband, she had become

unconscious. She recovered only during the night. She

denied the defence version that the accused had never

visited the house. The High Court also noticed the

evidence of Vipin Kumar, PW-6, before whom, the

accused Jagsher Singh @ Bhola and Gurdev Singh had

made the extra judicial confession at about 11.00 p.m.

on 18.7.2002. The High Court then recounted in detail

the testimony of the owner of the hotel Arjinder Pal

Singh @ Prince (PW-7). In essence, he has stated that

the four appellants had come with the deceased and had

sat on one table in the dining hall. All of a sudden, he

heard the sound of a gun shot. At first, he thought may

be the cooler in the dining hall had broken down. He saw

the accused persons starting to run away from the

restaurant. Two of them were over-powered by the

waiters, while the other two ran away. He, confidently,

gave the names of the accused, who had come to the

hotel. He went to the house of the deceased and



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informed his wife about the murder. He categorically

states about the arrival of the police at about

11.00 / 11.15 p.m. His statement was recorded and he

narrated the incident to the police. He also stated that

the father of the deceased had reached the hotel before

the arrival of the police. However, the wife reached a

little later. According to this witness, the police had sent

the dead body for post mortem. They interrogated the

staff and recorded the statement. In his

cross-examination, he has stated that his restaurant was

licensed for serving liquor. He had himself gone to the

area where the dead body of Shammi was lying on the

floor. He had noticed the glasses and other crockery

lying on the table. However, he did not notice whether

those glasses contained any liquor. The police did not

take the crockery, which was lying on the table into

possession. He stated that the deceased was bleeding

from the mouth. However, he did not see any blood

stains lying on the table or on the clothes. The



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Photographer, PW-8 stated that in the Photograph

(Ex. P16) alongwith the other utensils, only one glass

appears to be visible and no other glass was seen on the

floor. He, however, admitted that in (Ex. P14), it can be

seen that one carton of Bag Piper whiskey and one

bucket of ice are lying on the floor near the dead body.

According to him, the pistol and other ice bucket were

seen lying on the table. Therefore, there were two ice

buckets on the site of the incident. He has denied that

any bottle can be seen lying on the site near the dead

body in the photograph (Ex. P13). This witness stated

that he had reached the site at about 12.15 to 12.13 a.m.

at night, i.e., after midnight.



14. In our opinion, the conclusions of the trial court

and the High Court cannot be said to be manifestly

erroneous. There is clear evidence that the appellants

had gone to the house of the deceased to bring him out of

the house for the purpose of committing his murder. The



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reason given, of an effort to sort out the Union disputes,

was merely a ruse to bring the deceased out of his house.

Mr. Tulsi has submitted that the appellants were on good

terms with the deceased otherwise they would not have

gone to his house. Therefore, this motive of Union rivalry

is a concoction of the prosecution. Learned counsel

submitted that the wife of the deceased mentioned Union

rivalry for the first time in the Court. We do not see

much substance in the submission. It appears that there

was serious rivalry between the two Unions. Only two

days prior to the shooting, the deceased had left the

Union of the appellants and become the President of

INTUC. Had the deceased not apprehended any danger

from the accused persons, he would certainly not have

taken the pistol with him. His wife, who appeared as

PW-5 has clearly stated that he had specifically asked to

take the pistol with him.




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15. Mr. Tulsi has also submitted that the prosecution

had miserably failed to collect any material evidence from

the scene of the crime. Rather, they have tried to help

the prosecution by literally shifting the body of the

deceased. According to him, even the prosecution

witnesses themselves, have said that the deceased was

sitting on the table with the head on the table. However,

according to the police, the body was lying on the floor

and the pistol was lying some distance away.



16. We are unable to agree with Mr. Tulsi. There is no

reason why the police as well as the prosecution would

go out of the way to falsely implicate or prosecute the

appellants. Both the trial court and the High Court upon

appreciation of the evidence have concluded that there is

evidence to show that the accused and the deceased were

carrying liquor with them. The glasses and the chicken

curry were served to them at the hotel. The High Court

also concluded that the presence of the carton of



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Bag Piper whiskey would clearly show that the deceased

had consumed alcohol. Thereafter, the deceased was shot

in the head with his own pistol. Whether the pistol was

snatched away by one of the accused persons or was

handed over by the deceased, is neither here nor there.

The fact of the matter is that the deceased was shot with

his own pistol. There was no blackening or tattooing of

the skin surrounding the wound.



17. Mr. Tulsi laid considerable amount of emphasis on

the fact that the deceased was a psychiatric patient. He

was stated to be suffering from schizophrenia. He had

placed reliance on the evidence given by Dr. J.P.S.

Bhatia. We are of the considered opinion that both the

Courts have rightly rejected the evidence given by DW-1.

The patient admission and treatment register produced

seems to be a most unreliable document. It has been

maintained in a slip shod manner. There are no

systematically maintained entries, either about the



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particulars of the patient, the disease or the treatment.

This witness admitted that there is some overlapping in

the entries. The document does not inspire any

confidence. By no stretch of imagination can it be said to

be reliable document. This apart there is no evidence

indicating the particular expertise of Dr. Bhatia. Even

according to his evidence there was only preliminary

diagnosis of the medical condition of the deceased. There

was no proof of any expert clinical examination of the

deceased. From the above it cannot be said that the

deceased was suffering from chronic schizophrenia. This

plea has been rightly rejected by both the courts below.



18. We may notice the scenario which emerge from the

proven facts, on record:-



The deceased and the accused were working in the same

organization. They were office bearers of the same Union.

Two days before the incident, the deceased alongwith the



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Union of the appellants and become the President of the

rival union. They, therefore, resented the action of the

deceased. They formed a common intention to eliminate

the deceased. They went to the house of the deceased

and invited him to accompany them to resolve the Union

disputes. They took him to Hotel Genesis where they

consumed liquor; they were also served food by the hotel

staff. At some point of time the pistol of the deceased

was taken by one of the appellants. It is wholly irrelevant

whether it was voluntarily given by the deceased or taken

by the assailant. Thereafter, one of the accused persons

shot the deceased in the head with his own pistol. They

then wiped the fingerprints on the pistol and threw the

pistol down next to the body of the deceased. They tried

to escape. This would tend to indicate towards the guilt

rather the innocence of the appellants. Two of them were

captured just outside the hotel, the other two managed to

escape. The injury on the deceased does not indicate

that he had shot himself. The injuries show that the shot



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has not been fired at point blank range. There is no

tattooing or blackening of the skin surrounding the entire

wound. The consumption of liquor cannot be doubted in

view of the evidence given by the waiter, who served the

food. This waiter had clearly stated that the visitors had

brought the liquor with them. They were only given the

glasses and the buckets of ice. They had also ordered

chicken curry, which was duly given to them. To ensure

that the waiter does not become an eye witness to the

murder, he was conveniently removed from the dining

hall. They told him to go and get two more chapattis. He,

therefore, went into the kitchen of the hotel. While, he

was coming out of the kitchen, he heard the sound of

gunfire. Although, this witness was declared hostile, it is

consistent with the prosecution version. Even otherwise,

the carton of Bag Piper whiskey is quite visible in one of

the photographs.




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19. All these circumstances taken together clearly form

such a continuous and unbroken chain as to leave no

manner of doubt that the deceased was shot dead by one

of the appellants. The cleaning of the pistol to remove

the fingerprints is a circumstance which is a strong

pointer to the guilt of the appellants.



20. In our opinion, the judgment of the trial court as

also of the High Court do not call for any interference.

The appeal is, therefore, dismissed.




..................................J.
[B.Sudershan Reddy]




...................................J.
[Surinder Singh Nijjar]
NEW DELHI,
SEPTEMBER 1, 2010.