PETITIONER: TORI SINGH Vs. RESPONDENT: THE STATE OF UTTAR PRADESH DATE OF JUDGMENT: 12/09/1961 BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C. CITATION: 1962 AIR 399 1962 SCR (3) 589 ACT: Criminal Trial-Sketch Map-Marks placed on basis of statements of witnesses to sub-Inspector-Admissibility of Code of Criminal Procedure, 1898. (V of 1898), s. 162. Murder-Sentence-Son killing at instigation of father Sentence of death, if inappropriate. HEADNOTE: The deceased was going to his field and passed by a platform on which T and his father B were sitting, T carrying a pistol with him. As he passed by the platform B instigated T to shoot the deceased down and T shot him. T and B were tried for the murder and were convicted on the basis of the testimony of eye witnesses and the dying declaration of -'the deceased. B was sentenced to imprisonment for life and T was sentenced to death. The appellant contended that if the deceased was at the spot marked by the Sub-Inspector on the sketch map he could not have received the injuries as stated by the eye witnesses. It was further urged that the sentence of T should be reduced to imprisonment for life as he had acted under the influence of his father. Held, that, the marks made on the sketch map by the Sub- Inspector on the basis of statements made by witness" to him were inadmissible under s. 162 Code of Criminal Procedure and the appellant could not use them to found any argument as to the improbability of the deceased being hit in the manner stated by the witnesses if he was standing at the spot marked on the sketch map, 581 Bhagirathi Chowdhury v. King Emperor, A.I.R. 1926 Cal. 550, Ibra Akanda v. Emperor, A.I.R. 1944 Cal. 339 and Santa Singh v. The State of Punjab, A.I.R. 1956 S. C. 526,referred to. Held, further, that there was no reason to interfere with the sentence of death passed on T. T was a mature man of 25 and he was sitting armed with a pistol along with his father obviously having planned the murder with his father. though he shot at the instigation of his father, he could not be considered a young boy in his teens who was completely under the influence of his father. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal- No. 38 of
1961.
Appeal by special leave from the judgment and order dated
October 28, 1960 of the Allahabad High Court in Criminal
Appeals Nos. 1310 and 1389 of 1960 and Referred No. 80 of
60.
C. B. Agarwala and K. P. Gupta, for the appellants.
G. C. Mathur and C. P. Lal, for the respondent.
1961. September 12. The Judgment of the Court was
delivered by
WANCHOO, J.-This is an appeal by special leave against the
judgment of the Allahabad High Court. The appellants are
father and son and live in village Patrasi. The deceased
Sohanlal also lived in the same village. He is said to have
been murdered on the morning of December 2, 1959, after sun-
rise. About two years before the incident one Sunder had
filed a criminal case against the deceased. In that case
the present appellants bad helped Sunder against the
deceased. The deceased was acquitted. One Chetram was a
witness for the deceased, in that case. Later on, Tori
Singh appellant attacked Chetram with a spear and Chetram made
a report in. that connection against Tori Singh. Sohanlal
was helping him in that matter, and in, consequence there
was enmity between Tori Singh and his father Budhi Singh,
appellants, and the deceased.
582
It is said that on the morning of December 2, 1959, the
deceased was going to the fields outside the village in
order to ease himself. He passed by, a platform which is on
a cross-road in the village. The appellants were sitting on
the platform, Tori Singh carrying a pistol with him. As the
deceased passed by the platform, Budhi Singh instigated Tori
Singh to shoot him down.Thereupon Tori Singh shotgun
Sohanlal who was hit in the lumbar region. Sohanlal then ran towards his
house while the two appellants fled away.
Sohanlal was thereafter taken to the police station where he
made a report against the appellants. He also made a
statement before the investigating officer and his dying
declaration was recorded by a magistrate. Sohanlal died on
December 3, 1959. The appellants had absconded during
investigation. They were prosecuted after their arrest.
The appellants did not dispute that there, was bad blood
between them and the deceased but their case was that they
were not responsible for this murder and had nothing to do
with it.
The main evidence against the appellants consisted of the
statements of four witnesses, namely, Babunath, Chhannu,
It warm and Khamani, and the dying declarations made by the
deceased before his death. The Additional Sessions Judge
who tried the case relied on the evidence of Babunath,
Itwari and Khamani and on the dying declarations ; he did
not, however, place reliance on the statement of Chhannu.
He found the two appellants guilty under s. 302 read with s.
34 of the Indian Penal Code and sentenced Tori Singh to
death as be was the man who had shot at Sohanlal and Budhi
Singh to imprisonment for life.
There were two appeals to the High. Court by the two
appellants and the learned Judge also made a reference for
confirmation of the sentence of death. A suggestion ‘was
made during’ the course of trial that one Chhiddu was
responsible for
583
the murder, particularly as he was said to have made a
confession. Chhiddu was, however, ‘not examined by the
trial court. The High Court, therefore, in the interest of
justice, examined Chhiddu and took his statement into
consideration alongwith the prosecution evidence in order to
judge the guilt of the appellants. The High Court agreed
with the trial court in its conclusion that Babunath,
Khamani and Itwari were credible witnesses and reliance
could be placed on the dying declarations made by the
deceased. It further accepted the evidence of Chhannu which
had not been relied upon by the trial court. It considered
the evidence of Chhiddu and was of opinion that evidence was
false. It therefore dismissed the appeals and confirmed the
sentence’ of death passed on Tori Singh after making slight
modification in the sections under which the convictions
were recorded. The application of the appellants for leave
to appeal having been dismissed, they obtained special leave
from this Court ; and that is how the matter has come up
before us.
The main point urged on behalf of the appellants before us
is that if one looks at the sketch map Ex. Ka-9 on which
the place where the deceased is said to have been hit is
marked and compares it with the statements of the
prosecution witnesses and the medical evidence, it would be
extremely improbable for the injury which was received by
the deceased to have been caused on that part of the body
where it has been actually caused, if the deceased was at
the place marked on the map. It has also been urged that
according to the medical evidence, the wound of exit was at
a higher level than the wound of entry showing that the
bullet hit obliquely and that it was extremely improbable
that the bullet should have passed from down below upwards
through the body, Considering that Tori Singh was on a
platform and thus at a higher level than the deceased.
584
We are of opinion that neither of these arguments has any
force. Let us first take the contention that it was most
unlikely that the deceased would be hit on that part of the
body where the injury was actually received by him, if he
was at the spot marked in Ex. Ka-9. The validity of this
argument depends mainly on the spot which has been marked on
the sketch-map Ex. Ka-9 as the place where the deceased
received his injuries. In the first place, the map itself
is not to scale but is merely a rough sketch and therefore
one cannot postulate that the spot marked on the map is in
exact relation to the platform. In the second place, the
mark on the sketch-map was put by the Sub-inspector who was
obviously not an eyewitness. to the incident. He could only
have put it there after taking the statements of the eye
witnesses. The marking of the spot on the sketch-map is
really bringing on record the conclusion of ‘.the Sub-
inspector on the basis of the statements made by the
witnesses to him. This in our opinion would not be
admissible in view of the provisions of s. 162 of the Code
of Criminal Procedure., for it is in effect nothing more,
than the statement of the Subinspector that the eye-
witnesses told him that the deceased was at such and such
place at the time when he was hit. The sketch-map would be
admissible so far as it indicates all that the Sub-inspector
saw himself at the spot; but any mark put on the sketch..
map based on the statements made by the witnesses to the
Sub-inspector would be inadmissible. in view of the clear
provisions of s. 162 of the Code of Criminal Procedure as it
will be no more than a statement made to the police during
investigation. We may in this connection refer to
Bhagirathi Chowdhury v. King Emperor,(1), where it was ob-
served that placing of maps before the jury. containing
statements of witnesses or of information received by the
investigating officer preparing the map from ‘Other persons
was improper, and that the
(1) A. I. R. 1926 Cal. 550.
585
investigating officer who made a map in a criminal case
ought not to pat anything more than what he had seen
himself. The same view was expressed by the ‘Calcutta High
Court again in, [bra A kanda v. Emperor (1), where if was
held that any information derived from witnesses during
police investigation, and recorded in the index to a map
must be proved by the witnesses concerned and not by the
investigating officer, and that if such information is
sought to be proved by the evidence of the investigating
officer, it would manifestly offend against s. 162 of the
Code of Criminal Procedure.
This Court had occasion to consider the admissibility of a
plan drawn to scale by a draftsman in which after
ascertaining from the witnesses where exactly the assailants
and the victims stood at the time of the commission of
offence, the draftsman put down the places in the map, in
Santa Singh v. The` State of Punjab (2). It Was hold that
such a plan drawn to scale was admissible if the witness
corroborated the statement of the draftsman that they showed
him the places ‘and would not be hit by s. 162 of the Code
of Criminal Procedure. In. that raw there was another sketch
prepared by the Sub-inspector which was ruled out as
inadmissible under s. 162. The sketch-map in the present
case has been prepared by the.’ Sub-inspector and the place
where the deceased was hit and also the places where the
witnesses were at the time of the. incident were, obviously
marked by him on the map on, the basis of the statements
made to him by the witnesses. In the circumstances these
marks on the map based on the statements made to the Sub-
iuspector are inadmissible under s. 162 of the Code of
criminal Procedure and cannot be used to found any argument
as to the improbability of the deceased being hit on that
part of the body where be was actually injured, if he was
standing at the spot marked on the- sketch-map.
(1) A. X. P. 944 Cal. 939.
(2) A. I. R. C. 526.
586
We have however still to examine the argument on behalf of
the appellants that’ it was extremely unlikely that the
deceased would. have been hit on that part of the body,
leaving out of account the sketch-map and spots marked on it
by the Sub-inspector. The argument is that the evidence of
the witnesses was that the deceased was facing or
going to wards east when be was hit and therefore it was
most unlikely that he would, be hit on the left side of the
lumbar’ region where he was actually hit. There is no doubt
that if the deceased was towards the west or north-west of
the platform when he was hit, the chances of his being bit
on the left side of the lumbar region would be very slight;
but if he was to the east or north-east of the platform it
would only be a matter of chance if he was hit on the left
side of the lumbar region or on the right side, ‘and the
argument, would lose all force if he was slightly towards
the east or north-east of the platform. Let us therefore
look at the evidence of the witnesses in this connection.
Babunath stated that the deceased’ was at a distance of 5 or
6 paces from the platform towards the east and was facing
towards the east while the appellants were towards the’
west of Sohanlal. If that is so it is only a matter of
chance whether the deceased would be hit on the left side of
the lumbar region or the right side. Chhannu stated that the
deceased had passed the platform and had gone 5 or 6 paces
beyond when he was shot and that he was towards the east at
the time The sketch-map shows that there was a pond towards
the east and’ the deceased was obviously going towards that
pond. The evidence of Chhannu therefore shows that the
deceased was in all probability towards north-east of the
platform when the shot.,was fired and if so be could have’
been on either side of the number region. Itwari stated
that the deceased was going the platform and was hit when he
had gone some: distance beyond the platform. He did not
which way the deceased
587
was going whether north or east. His evidence therefore
cannot be used to show that the deceased could not have been
struck on the left side of the lumbar region. Khamani
stated that the deceased bad gone 5 or 6 paces beyond the
platform and was towards the east of the assailant. If that
is so there would be nothing improbable if the shot hit
towards the left side of the lumbar region. There’ is
nothing therefore in the evidence of the witnesses which
would show that it was next to impossible for the shot fired
from the platform to have bit the deceased on the left side
of the lumbar region. The whole argument on this aspect of
the matter therefore based as it was on the spot marked on
the map must fail, for the evidence of the witnesses which
we have noticed above, does not show that the position of
the deceased was such that he could not have been hit on the
left side of the lumbar region.
The other contention in this connection is that the medical
evidence shows that the wound of exit was higher than the
wound of entry, and this means that the bullet must have
traveled from down below upwards. The witnesses are not
quite consistent as to whether the shot was fired by Tori
Singh while he was sitting on the platform or while he stood
on the platform or after he got down from the platform. The
High Court has accepted that the shot was fired while Tori
Singh was sitting on the, platform and therefore according
to the High Court the chances were that the bullet would
travcl upwards through the body. But apart from this, the
medical evidence is not that the bullet traveled in a
straightline through the body. If the medical evidence bad
been that the bullet travelled in a straightline through the
body from the wound of entry to the wound of exit, it might
have been said that the course of the bullet was from down
below upwards. However, the evidence of the doctor is that
the movement of the bullet through the body was very zigzag.
Therefore, it cannot be said that
588
the shot must necessarily have been fired from’ a lower
position than where it hit the body of the’ deceased. This
is apart from the fact that the course of a bullet may be
deflected on entering the body because of the resistance
from tissues and more particularly from bones if it meets
any bone on the way. Therefore the position from which the
shot was fired cannot be said to have much importance in
this case and the discrepancies which have been noticed by
the High Court would not in our opinion affect the value of
the evidence given by the witnesses.
It was also urged that the witnesses should not have been
believed because they were partisan or chance witnesses; in
particular it was stressed that the High Court has not given
convincing reasons for believing Chhannu who had not been
relied upon by the trial court. Leaving out the evidence of
Chhannu, we have still the evidence of three other witnesses
belonging to this very village who gave reasons why they
were. present near the spot though they live some distance
away. These three witnesses. have been believed by the
trial court as well as by the High Court and we see no
reason to disagree with the estimate of their evidence by
the two courts; nor (lo we see any reason to disagree with
the estimate by the two courts of the value of the dying
declarations in this case.
As for the evidence of Chhiddu, we agree with the estimate
of the High Court that he being A cousin of Tori Singh was
prevailed upon to make a confession. He could do so almost
with impunity, because the, prosecution case definitely was
that the assailants were only the two appellants and no one
else. The only evidence that. was referred to in this
connection is the statement of the deceased, in the dying
declaration that Chhiddu was a cousin of Tori Singh (vide
Ex. Ka-8).It is not clear why the deceased said so; but in
any case it cannot be inferred from this that the deceased
was naming him because he was the man who had shot him.
589
In the circumstances when both the courts have accepted the
evidence of three of the eye- witnesses and the dying
declarations there is in our opinion no-:cause for
interference with their conclusion that the incident took
place in the manner alleged by the prosecution. The
conviction of the appellants must therefore be upheld.
Lastly, it was urged that we might consider reducing the
sentence of Tori Singh to imprisonment for life on the
ground that he acted as he- did under the influence of his
father. There is no doubt that Tori Singh shot at the
deceased at the instigation of his father; but he is a
mature man of 25 and the evidence shows that he was sitting
with the pistol along with his father. Obviously therefore
\murder must have been planned between the father and the
son, as they were apparently expecting that the deceased
would pass that way in connection with his morning
ablutions. Tori Singh cannot be considered to be a young
boy in his teens who would be completely under the influence
of his father, and in the circumstances we see no reason to
interfere “With the sentence of death passed on him by the.
trial court and confirmed by the High Court. ‘The appeal
fails and is hereby dismissed.
Appeal dismissed.
590