Holding

The Court held that the FIR, case diary, and memos are not substantive evidence; statements under Section 162 are inadmissible; ocular defence evidence may be accepted after critical scrutiny; conviction on a solitary witness is permissible; sentencing on the same day violates Section 235, so the death sentence is commuted to life imprisonment, with A‑1 and A‑3 convicted and A‑2 acquitted.

Summary

The case concerned the murder of four liquor‑shop workers and the attempted murder of a fifth person. The prosecution relied mainly on the ocular testimony of two injured witnesses (PW‑3 and PW‑4), ballistic evidence linking a rifle owned by the accused A‑1, and circumstantial evidence. The appellants challenged the admissibility of the FIR, police case diary, medical memos and statements recorded under Section 162 of the CrPC, and argued that the conviction rested on uncorroborated, unreliable testimony. The Supreme Court held that the FIR and the diary/memos are not substantive evidence, that statements under Section 162 cannot be used as proof, but that ocular defence evidence, even if uncorroborated, may be accepted after critical scrutiny. It also held that sentencing on the same day of conviction violates Section 235 of the CrPC, necessitating commutation of the death sentence to life imprisonment. Consequently, A‑1 and A‑3 were convicted of murder and attempt to murder, while A‑2 was acquitted, and the appeal was partly allowed.

Issues considered

The admissibility and evidentiary value of the First Information Report (FIR).
The admissibility of police case diary and medical memos as evidence.
The effect of statements recorded under Section 162 of the CrPC on the trial.
The weight to be given to ocular defence evidence without extensive cross‑examination.
Whether a conviction can rest on the testimony of a solitary eyewitness.
The legality of passing sentence on the same day as the finding of guilt under Section 235(2) CrPC.
The appropriate quantum of punishment for the accused, including the death sentence.
The liability of each accused (A‑1, A‑2, A‑3) under Sections 302, 307 and 34 IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 162, s. 174, s. 175, s. 235, s. 366
Indian Evidence Act, 1872s. 11, s. 145, s. 161, s. 162, s. 6
Indian Penal Code, 1860s. 302, s. 307, s. 34
Terrorist Affected Areas (Special Courts) Act, 1984s. 14, s. 15

Subjects

murderattempt to murderocular evidenceFIR admissibilitycase diarySection 162 CrPCdeath penaltysentence commutationevidence lawterrorist affected areas act

Judgment

MALKIAT SINGH AND ORS.
A
v.
STATE OF PUNJAB

APRIL 10, 1991
Yff,
B [A.M. AHMADI, V. RAMASWAMI, K. RAMASWAMY, JJ.]
••'
Terrorist Affected Areas (Special Courts) Act, 1984--Sections 14,
15-Conviction under Section 307 J.P. C. read with Section 34, !PC-
F.I.R. ocular defence evidence, circumstantial evidence, memos sent to
Medical Officer, case diary-Appreciation of-Principles to be fol-
lowed indicated. ,_
c ~
''
Code of Criminal Procedure, 1973-Sections 174, 175, 162-
Police Officer-Powers of-"Previous statement"-Meaning of-
Object of Section 162 indicated-Statement of witness examined during
inquest-Evidential value of.
D
Terrorist Affected Areas (Special Courts) Act, 1984--Sections
14, 15-Conviction under Section 307 read with Section 34, !PC-
Sentence-A warding of-Sufficient opportunity to be given to prosecu-
lion and accused-Awarding sentence on the same day of finding
guilt-Whether contravenes Section 235, Code of Criminal Procedure,
-
,_
l.
';,.""-'
E 1973.
,.
The case of the prosecution was that at about 9.00 p.m. on June 4,
1984, A-1 and A-3 came to the liquor shop of D-3 wherein PW-3, D-1,
D-2 and PW -4 were also present and were vending the liquor. They sold
one bottle of liquor to A-1 and A-3 on credit. After its consumption A-1 ,A
F and A-3 demanded another bottle to which D-3 refused to sell on credit.
Thereon A-1 and A-3 abused them and a quarrel ensued. Both left the
shop in anger. D-1 and D-2 slept on wooden takthposh in front of the
liquor shop. PW-3 and PW-4 climbed the roof of the shop and slept
~ ..
there. During past mid-night of June 4-5, 1984 at about 12.30 a.m., •
PW -3 and PW-4 heard goo shot fire and got up and saw with the
G vigibility of electric light emanating from the house of one Gurbax
Si':f,:, the father of DW-2 that A-1 was firing with rifle at D-1 to D-4
an A-2 and A-3 hitting them with Gandasas (sharp edged weapons). ;!__.
Seeing PW-3 and PW-4 on the terrace A-1 fired at them but they
escaped uninjured and they jumped down. PW -3 jumped towards back
side of the shop and ran towards the village and hid in the school. PW -4
H jumped to thi front side and ran towards the village. A-1 fired at PW-4

' 256
MALKIAT SINGH v. STATE OF PUNJAB 257

I' and A·2 hit him. He received seven bullet injuries fired by A· l on the
A
l backside, of right leg, thigh and left side of the abdomen while he was
'• running. A·2 hit him on the right shoulder and had incised injury. He
~ ran to the house of PW -3 with bleeding injuries, knocked the doot aud

• fell down unconscious. On June 5, 1984 at about 9.00 a.m. the
Chowkidar of the village reached Kotli Police Station and reported to
PW-5, S.H.O. who reduced F.I.R into writing. B

In the F .I.R. the chowkidar stated that he had heard gun:shot
firing from the side of the liquor shop. Due to fear and the prevailing
tense situation he did not come out. Next day morning he saw several
people collected at the liquor shop and saw the dead bodies of D-1 to
D-4 and PW-4 was lying unconscious in the house of DW-3 and he was
asked to report the matter accordingly. c
The defence consented to mark F.i.R., the affidavits of the panch
witnesses and constables, the fire arms licence of A-1 under Ex. p-17
and also the reports of the ballistic expert and chemical examination

..
--.
reports without oral evidence.

The lower court believed the direct evidence of PW-3 and PW-4
D

and the prosecution case that A·l rrred at the deceased with MO 11
rifle, A-2 and A-3 also participated in the attack.

The first accused was convicted under s. 302 read with s. 34, E
I.P.C. for causing the deaths of D-1, D-2, D-3 and D-4 and sentenced to
death subject to comrrmation by this Court. He was also further con-
victed under s. 307 read with s. 34, l.P .C. and sentenced to undergo
rigorous imprisonment for 5 years for attempt to murder PW-4. A-2
and A-3 were convicted under s. 302 read withs. 34, I.P.C for causing
deaths of D·l to D-4 and sentenced to undergo imprisonment for life. F
A-2 and A-3 were convicted under s. 307 read with s. 34 l.P.C. for
attempt to murder of PW-4 and were sentenced to undergo rigorous
imprisonment for 5 years, all the sentences to run concurrently, against
which the accused filed appeal u/s. 14(1) of the Terrorist Afl'ected Areas
I (Special Court) Act, 1984.
G
The appellants contended that the evidence of PW-4 was highly
artificial, unbelievable and untrustworthy; that barring their evidence,
there was no other evidence to connect the appellants with the commis-
sion of the crime; that the omission of the names of the accused in the
case diary and memos would belie the theory of witnesses; that the
appellants were implicated by suspicion and the prosecution had not H
258 SUPREME COURT REPORTS I 1991] 2 S.C.R.

A established the guilt of the appellant beyond reasonable doubt; that the
conviction and sentence by the special court was on the same day, which
contravened the mandatory provision of s. 235 of the Code.

Partly allowing the appeal, this Court,

B HELD: 1. The First Information Report is not substantive
evidence. It can be used only to contradict the maker thereof or for
corroborating his evidence and also to show that the implication of the ''
accused was not an after-thought. [2668-C]

2. Since the examination of first information was dispensed with .,,_
C by consent F .I.R. became part orthe prosecution evidence. [2668-C]

3. Ocular defence evidence, if it is not subjected to critical cross-
examination, is entitled to the same weight as prosecution evidence. But
merely because the prosecution, as usual, made insipid cross-examina-
tion, the defence evidence is not to be believed automatically. [267A-B]
D
4. Witnesses may be prone to speak lies but circumstances will
not. So even though the burden of the defence is not as heavy as of
the prosecution, the oral evidence tendered by the defence must also
be subjected to critical scrutiny and be considered In the light of
the given facts and attending circumstances of the case and human
E probabilities. [267A-C]

5. Corroboration is not a rule of law, but one of caution as an
assurance. The conviction could be made on the basis of the testimony
of a solitary witness. The occasion for the presence at the time of
occurrence, opportunity to witness crime the normal conduct of the
F witness after the incident, the nearness of the witness to the victim, his
pre-disposition towards the accused, are some of the circumstances to
be kept in view to weigh and accept the ocular evidence of a witness. It r
is not the quantum of the evidence but its quality and credibility of the lo
witness that lends assurance to the court for acceptance. [267H-268B]

G 6. The case diary is only a record of day to day investigation of ,i ~.
the Investigating Officer to ascertain the statement of circumstances
ascertained through the investigation. Under Section 172(2) the Court is
entitled at the trial or enquiry to use the diary not as evidence in the
case, but as aid to it in the inquiry or trial. Neither the accused, nor his
agent, by operation of sub-s. (3), shall be entitled to call the diary, nor
H shall he be entitled to use it as evidence merely because the Court
!-
'
MALKIAT SINGH v. STATE OF PUNJAB 259

referred to it. Only right given thereunder is that if the police officer
A
who made the entries in the diary uses it to refresh his memory or if the
Court uses it for the purpose of contradicting such witness, by opera-
·~
tion of s. 161 of the Code ands. 145 of the Evidence Act, it shall be used
for the purpose of contradicting the witness, i.e., Investigation Officer
or to explain it in re-examination by the prosecution, with permission of
the Court. It is, therefore, clear that unless the investigating officer or B
the court uses it either to refresh the memory or contradicting the
investigating officer as previous statement under s. 161 that too after
drawing his attention thereto as is enjoined under s. 145 of the Evidence
~
Act. The entries cannot be used by the accused as evidence. [269C-G] ·
"<

7. The memos sent to the Medical Officer are not evidence except
as record of investigation. It is not a rule of Jaw that the memo should c
bear names with cause title of accused. It is enough if the name of the
injured is mentioned in the memo. [269H-270A]

8. Section 174 of the Code empowers a police officer to investigate
in the presence of two or more respectable witnesses and report only the D
> cause of death and the person if known, that has committed the offence.
--< Section 175 empowers him to summon any person who appears to be
acquainted with the facts of the case and every person so summoned
shall be bound to attend the inquest and answer truely all the questions
'·"·
··• other than questions the answers to which would have a tendency to
expose him to a criminal charge or to a penalty or forfeiture. The E
statement made by. such person is a "previous statement" within the
meaning of s. 162 and it shall not be signed. So the statement made by
such a person to police officer is in the course of the investigation, and
"' when reduced to writing, it shall be used only by the accused to con-
tradict such witness in the manner provided by s. 145 of the Evidence
Act or with the permission of the court the prosecution could use it for F
re-examination oiily to explain the matter referred to in his cross-
examination. [270B-E]

9. S. 162 was conceived to protect ao accused creating an abso-
Jute bar against the previous statement made before the police officer
~ .\-
being used for any purpose whatsoever. The obvious reason is that the G
previous statement ·under the circumstances was not made inspiring
confidence. It enables the accused to rely thereon only to contradict the
witnesses in the manner provided bys. 145 drawing attention of the
witness of that part of the statement intended to be used for contradic-
tion. It cannot be used 'for corroboration of a prosecution or defence
witness or even a court witness, nor can it be used contradicting a H
260 SUPREME COURT REPORTS [1991) 2 S.C.R.

A defence or a court wjtness. The investigating officer is enjoined to for-
ward the inquest report to the Magistrate alongwitb the statement
recorded at the inquest, so that the court would see the record, at the
earliest of the circumstances leading to the cause or the death of the '>-'11'·
deceased and the witness examined during the inquest. [270E-G)

10. The statement of witness PW-3 recorded during inquest is not
evidence. It is a previous statement reduced to writing under s. 162 or
the Code and enclosed to the inquest report and cannot be used by the
prosecution for any purpose including to show the names of the accused
except to contradict the maker thereof, or to explain the same by
prosecution. [270G-H) ,. - '
c 11. On fmding that the accused committed the charged offences,
s. 235(2) of the Code empowers the Judge that be shall pass sentence on
him according to law on bearing him. Hearing contemplated is not
confmed merely to oral bearing but also intended to afford an
opportunity to the prosecution as well as the accused to place before the
D Court facts and material relating to various factors on the question of
sentence and if interested by either side to have evidence adduced to . <
show mitigating circumstances to impose a lesser sentence or aggravat-
ing grounds to impose death penalty. Therefore, sufficient time must be
given to the accused or the prosecution on the question of sentence to
show the grounds on which the prosecution may plead or the accused ·
E may show that the maxim1m1 sentence of death may be the appropriate
sentence or the minimum sentence of life imprisonment may be
awarded, as the case may be. If the accused declines to adduce oral
evidence, it does not prevent to show the grounds to impose lessor
sentence on. [273A-D)

F 12. The sentence awarded on the same day of finding guilt is not
in accordance with the law. [273C-D]

Allauddin v. State of M.P., J.T. (1989) 2 SC 171 andAnguswamy
v. State of Tamilnadu, J.T. (1989) 2 SC 184, referred to.

G CRIMINAL APPELLATE JURISDICTION: Criminal Appeal j 4

No. 490 of 1985.

From the Judgment dated 29.5.1985 of the Judge, Special Court,
Ferozepur in Case No. 62/84, Trial No. 23/85 and FIR No. 154 of 1984.

H U .R. Lalit and Prem Malhotra for the Appellants.
MALKIAT SINGH v. STATE OF PUNJAB [RAMASWAMY, J.] 261

N .S. Das Behl and R.S. Suri (NP) for the Respondent.
A

~
The Judgment of the Court was delivered by

K. RAMASWAMY, J. This appeal under s. 14( 1) of the
Terrorist Affected Areas (Special Courts) Act, 61 of 1984 for short
'the Act' the reference under s. 15(3) thereof ands. 366 of the Code of B
Criminal Procedure, 1973 for short 'the Code' for confirmation of the
death sentence of Malkiat Singh, accused No. 1 in Sessions case No. 62
of 1984, Trial No. 23 of 1985 on the file of the Special Court,
~

,. Ferozepur. The first accused was convicted under s. 302 read with
s. 34, l.P .C. for causing the deaths of Ram Babu, D-1, Sunder Lal,
D-2, Ram Nath, D,3 and Ram Chand; D-4 of each de.ath and
sentenced to death subject to confirmation by this court. He was also
c
further convicted under s. 307 read with s. 34, l.P .C. and sentence to
undergo rigorous imprisonment for 5 years for attempt to murder
Ashok Kumar, PW-4. Sukhdev Singh A-2 and Sohna Singh, A-3 were
convicted under s. 302 read with s. 34, I.P.C. for causing deaths of
D-1, to D-4 and sentenced to undergo imprisonment for life. A-2 and D
• ~
A-3 were convicted under s. 307 read with S. 3411.P .C. for attempt to
murder of PW-4 and were sentenced to undergo rigorous imprison-
ment for 5 years, all the sentences to run concurrently.

Ram Avtar, PW-3 and D-3 Ram Nath, first cousin, had liquor
contract in the village Kotli Ablu from 1983 and 1984. D-2 and PW-4 E
were working in the liquor shop. The wives of D-2 and D-4 are sisters.
D-4 came to see D-2. D-1 was working in the liquor shop at Ablowhad.
A. Since the liquor therein had exhausted he came to Kotli Ablu to sell
the liquor in the shop of D-3. A-1 and A-2 are brothers and are
residents of Kotli Ablu and Sohna Singh, A-3 is their maternal uncle
(mother's brother) and a resident of Rameana situated at a distance of F
8 km. to Kotli Ablu. These are the admitted facts. It is the case of the
prosecution that at about 9.00 p.m. On June 4, 1984, A-1 and A-3
came to the liquor shop of D-3 wherein PW-3, D-1, D-2 and PW-4
were also present and were vending the liquor. They sold one bottle of
liquor to A-1 and A-3 on credit. After its consumption A-1 and A-3
--~ demanded another bottle to which D-3 refused to sell on credit. G
Thereon A-1 and A-3 abused them and a quarrel ensued. Both lef't the
shop in anger. D-1 and D-2 slept on a cot in front of the liquor shop. D-3
and D-4 slept wooden ta~hposh in front of the liquor shop. PW-3 and
PW-4 climbed the roof of the shop and slept there. During past niid-
night of June 4-5, 1984 at about 12.30 a.m. PW-3_ and PW-4 heard gun
shot fire and got up and saw with the .visibility of electric light emanat- H

I
262 SUPREME COURT REPORTS [1991] 2 S.C.R.

ing from the house of one Gurbax Singh whose son was examined on
A
DW-2 that A-1 was firing with rifle at D-1 to D-4 and A-2 and A-3
hitting them with Gandasas (sharp edged weapons). Seeing PW-3 and
PW-4 on the terrace A-1 fired at them but they escaped uninjured and ~
they jumped down. PW-3 jumped towards back side of the shop and
ran towards the village and hid in the school. PW-4 jumped to the front
B side and ran towards the village. A-1 fired at PW-4 and A-2 hit him.
He received seven bullet injuries fired by A-1 on the backside, of
right, leg, thigh and left side of the abdomen while he was running.
A-2 hit him on the right shoulder and had incised injury. He ran to the
house of Gurmail Singh, PW-3 with bleeding injuries, knocked the ~

door and fell down unconscious. On June 5, 1984 at about 9.00 a.m. Jit )'-

Singh, the Chowkidar of the village reached Kotli Police Station and
c reported to PW-5, S.H.O. who reduced Ex. P-24 into writing. In the
F.I.R. he stated ihat he had heard gun-shot firing from the side of the
liquor shop. Due to fear and the prevailing tense situation he did not
come out. Next day morning he saw several people collected at the
liquor shop and saw the dead bodies of D-1 to D-4 and PW-4 was lying
D unconsci_ous in the house of DW-3 and he was asked to report the
matter accordingly. PW-5 after issuing F.I.R. to all the concerned, •
went alongwith police party to the spot at noon and saw the dead ~

bodies. He went to the house of DW-3 and found PW-4 under shock
and unconscious. He sent him for medical examination by PW-2, the
Doctor as his condition was serious. PW-3 on coming to know the
E arrival of the police and <he military people at noon mustered courage
and came out from the school and went to the shop. He was examined
at the inquest and he also attested the statement recorded by the police
at the inquest. PW-5 enclosed the copies of his statement to the ~
inquest reports Ex. P-4, P-6, P-8 and P-10 and sent the dead bodies
with the reports for post-mortem by PW-2 Doctor. He also prepared
F rough sketch of the scene under Ex-Pl/A. He recovered the blood
stained earth and cots etc. under Ex. P-16. He recovered 7 empty and
two live cartridges Ex. M 0/1toM0/9 under panchnama Ex. p-18. He
remained on the spot till 10.30 p.m. and saw the light emanating from
the house of Gurbax Singh and falling at the scene of occurrence. He
sent requisition twice to the hospital to find whether PW-4 was in a fit
G condition for recording his statement. On June 7, 1984 at about 7.00 a.m. ~--
he received an endorsement that PW-4 was in a fit condition to make
the statement. Accordingly he recorded the statement. He sent M.O.S
I to 9 cartridges and pellets recovered from body of D-4 under Ex ..
P-25 to ballistic expert for report. on June 15, 1984 when he was
picketing on the drain of village Chand Bhan at about 3.30 a.m. he
H arrested the appellants and recovered from the person of A-1. Ex.
MALKIAT SINGH v. STATE OF PUNJAB (RAMASWAMY, J.J 263

M 0/11 rifle, 351 bore (semi automatic) of U.S.A. make loaded with
A
two cartridges M 0/12 and M 0/13 under panchnama in the presence of
panch. Pursuant to a statement made under s. 27 Evidence Act by A-3
leading to discover Gandasa M 0/14 was recovered under ex. P-27 and
sent them to the chemical examination and the ballistic reports. Under
Ex. P-28, the Ballistic expert found that the empties Ex. M 0/1 to
M 0/9 had been fired from rifle Ex. M 0/11. Gandasa was stained with B
human blood as per the report Ex P-29. PW-2 who conducted the
post-mortem on D-1 and D-2 found on each of the dead bodies two
gun-shot entry and exit wounds. D-3 and D-4 were found to have 4
• gun-shot lacerated and two incised in juries and 5 lacerated and two
incised injuries respectively. He removed M.O.S. 16 and 17 pellet
from the body of D-4. He issued post-mortem certificates Ex. P-3, P-5, C
P-7 and P-9 respectively. He also examined PW-4. He found as many
as 7 lacerated gun-shot injuries and one incised injury and issued medi-
cal certificate Ex. P-2. Injuries 1 to 7 were caused by gun-shot fire and
injury 8 by a sharp weapon. PW-5 sent two pellets recovered by him
from the body of D-4 to the Ballistic and Chemical Examination. The
defence consented to mark F.I.R., the affidavits of panch witneses and D
constables; the fire arms licence of A-1 under Ex. P-17 and also the
reports of the ballistic expert and chemical examination reports with-
out oral evidence. PW-6, the Deputy Superintendent of Police
supervised the investigation conducted by PW-5. The prosecution
examined 6 witnesses and defence examined 3 witnesses and marked
the documents. The accused were examined under s. 313 and denied E
their complicity and examined DW-1 to DW-3 to prove that the bulb
of Gurbax Singh was not burning and PW-3 was residing at Medhak
and he was brought to Kotli Ablll by the Police and PW-4 was con-
scious and did not disclose the names of the appellants at that time.
The lower court believed the direct evidence of PW-3 and PW-4 and
the prosecution case that A-1 fired at the deceased with M 0/11 rifle, F
A-2 and A-3 also participated in the attack. If also found that M 0/11,
the rifle belongs to A-1 and he fired the deceased and PW-4. Accord-
ingly convicted them for an offences under ss. 302/34 and 307/34
I.P.C. When they were asked under s. 235(2), they declined to lead
evidence and the Sessions Court awarded sentence to the accused as
refered to earlier. G

Shri Lalit, the learned senior counsel for the appellants conten-
ded that the evidence of PW-3 and PW-4 is highly artificial, unbeliev-
able and untrustworthy; barring their evidence, there is no other evi-
dence to connect the appellants with the commission of the crime. The
story that PW-3 and PW-4 climbed on the terrace and were sleeping is H
264 SUPREME COURT REPORTS [1991] 2 S.C.R.

A false as they cannot climb to a height of 8/1/2 ft. PW-3 did not disclose
his witnessing the occurrence to any one till noon. DW-3 the Sarpanch
of Madhok spoke that PW-3 alongwith the panch witnesses were
brought from Madhok in a Jeep by the police, so he is a planted ~-
witness. In support thereof he contends that the specific evidence of
DW-3 in this regard was not challenged in cross-examination. PW-4
B was not examined at the inquest though he was conscious. The police
requisitioned the dog squad to sniff the scene of offence to identify the
unknown accused. PW-5 and PW-2 the Doctor admitted that the omis-
sion of the names of the accused in the case diary and memos would
belie the theory of witnesses. The omission of the names of the
...
...
accused in the cause title (Banam) would clearly show that PW-3 and
PW-4 were not direct witnesses and PW-3 was introduced at a later
c stage and he was not examined at the inquest and that PW-4 did not
identify the appellants. This was also further ·corroborated from the
fact that admittedly Ex. P-24, recited that three unknown assailants
had killed the deceased. Admittedly the dog squad was requisitioned.
The appellants were falsely implicated. As regards PW-4, he further
D contended that as per the evidence of DW-2 son of Gurbux Singh and
DW-3, Gurmail Singh, PW-4 was conscious at that time of his coming
to the house of DW-3 and remained to be conscious. The police did )--·
•
not examine him till June 7, 1984 as the assailants were not known.
There was no light in the house of DW-1 and PW-3 and PW-4 could
not have identified the assailants. The theory of liquor vending is
E doubtful for the reason that the entire State was under curfew on that
day due to blue star operation on June 3, 1984 and no vending would
take place when there is a curfew. If really the appellants 1 and 3 had
taken the liquor on credit, nothing prevented the prosecution to pro- ...J.
duce the chit admittedly taken by D-3. The theory of burning the shop
shows that it is an act of terrorists as was noted in the case diary by
F PW-6. Thus the appellants were implicated by suspicion and the pro-
secution had not established the guilt of the appellant beyond reason-
able doubt. The conviction and sentence by the special court was on
the same day, namely May 29, 1985 which contravenes the mandatory
provision of s. 235 of the Code. In view of the decision of this court in
Allauddin v. State of M.P., J.T. (1989) 2 SC 171 and Anguswamy v.
G State of Tamilnadu, J.T. (1989) 2 SC 184 the sentence of death ~~

awarded to A-1 is illegal. A-2 had no axe to grind against the deceased.
He neither went for drinking at 9.00 p.m. on that day nor had a
quarrel. He bears no motive to kill the deceased or attack PW-4. No
recovery of Gandasa was made from him. PW-3 and PW-4 have no
prior acquaintance with him. Therefore, it was highly doubtful
H whether A-2 had participated in the offence. As regards to the third
MALKIAT SINGH v. STATE OF PUNJAB [RAMASWAMY, J.] 265

appellant (A-3), it is his contention that he is a resident of Rameana. A
PW-3 or PW-4 do not know A-6 at all. Therefore, he may not be able
to have participated in the crime. It was resisted by Mr. Das Bahl,
learned counsel for the State.

The acceptance of the prosecution case rests on the evidence of
PW-3 and PW-4. PW-3 and D-3 had the licence to vend liquor at Kotli B
Ablu. PW-4 and D-2 were vending liquor under them. D-4 came to see
D-2 as they were married sisters. D-1 came and was vending on the fateful
day in the shop. D-1 to D-4 were killed in the intervening night of June
4-5, 1984 is practically admitted from the evidence of DW-3. During
the course of the same transaction PW-4 sustained 7 lacerated gun-
shot in juries and one incised injury is also admitted through the evi- C
dence of DW-2 and DW-3, PW-2. the Doctor's evidence conclusively
established that D-1 and D-2 died due to gun-shot injuries. D-1 and D-2
each had two entry and exit wounds due to gun-shots. D-3 and D-4
also had gunshot lacerated as well as incised injuries. They also died on
the spot due to the in juries which are sufficient to cause death in the
ordinary course of nature. Seven empty and two live cartridge fired D
from M 0/11 rifle of 351 bore of U.S.A. make belonging to A-1 were
recovered from the scene of occurrence. Therefore, the deaths of D-1
and D-2 due to gunshot injuries and D-3 and D-4 due to gunshot and
incised injuries are proved beyond doubt. Equally PW-4 sustained
injuries is also established.
E
The only question is whether the appellants are assailaats. The
conviction of the appellants hinges upon the acceptability of the
>--- testimony of PW-3 and PW-4. Let us first take the evidence of PW-4,
the injured witness whose presence at the time of occurrence stands
confirmed. He is aged about 19 years. He was working in the liquor
shop of D-3 and PW-3 at Kotli Ablu. He is residing in that village was F
not disputed. As stated earlier he sustained 8 injuries (7 gunshot and
one incised} during the course of the same transaction is also indisput-
able, and in fairness, was not disputed by Shri Lalit. His serious attack
is that PW-4 did not disclose the names of the assailants for two days
which would show that he did not either see the assailants or the
assailants were not known him. We find it difficult to accept. His case G
that he jumped from the terrace in front of the shop and he was
attacked by the assailants was not disputed in the cross-examination.
The suggestion that he was sleeping alongwith 0-4 would show that he
could see A-1 who fired at him while he was running away and it
receives corroboration from medical evidence of PW-2 that the
injuries are on the backside while he was chased by the accused. So he H
266 SUPREME COURT REPORTS [1991) 2 S.C.R.

could clearly identify his own assailants as the occurrence did not take
A
place at a fleet or glimpse. In the F.I.R. at the earliest, it was specifi-
cally stated that PW-4 was not in a condition to speak. It would mean
that he was either under shock or unconscious.

The First Information Report given by the Chowkidar was
B admitted in evidence with the consent of the defence. It is settled law
that the First Information Report is not substantive evidence. It can be
used only to contradict the maker thereof or for corroborating his
evidence and also to show that the implication of the accused was not
an after-thought. Since the examination of first informant was dis-
pensed with by consent Ex. P-24, F.I.R. became part of the prosecu-
tion evidence. Under s. 11 of the Evidence Act read withs. 6 the facts
c stated therein namely, PW-4 was not in a speaking condition, could be
used only as a relevant fact of prior existing state of facts in issue as res
gestae of "the earliest information". It is not used to corroborate the
prosecution case, but can be looked into as an earliest information of
the existing condition of PW-4 at 9.00 a.m. on June 5, 1984 i.e. when
D the report was given in Ex. p-24, PW-4 was still unconscious. When
PW-4 had stated that he became unconscious as soon as he came and
tapped the door of DW-3, and fell down, by operation of s. 11 of the
Evidence Act it may be relevant fact of the previous existing condition
that PW-4 continued to remain unconscious till the report was given.
Therefore, the F.I.R. could be used as relevant existing state of fact
E namely the continuous unconscious condition of PW-4 till PW-5
S.H.O. reached and saw him within the meaning of s. 11 read withs. 6
of the Evidence Act. When PW-4 received 7 gun-shot injuries and one
incised injury and ran for life to a distance with bleeding injuries, it
would be quite likely that he would be under severe shock and his
evidence that after reaching the home of DW-3 and knocked the door
F he fell down unconscious appears to be quite natural and probable.
The evidence of PW-5, that on seeing PW-4 in critical unconscious
condition he sent him to the Doctor for medical examination and the
doctor administring sadation appear to be human probabilities and
there is nothing intrinsic to suspect their evidence. Thus PW-4 was not
in a fit condition to give statement till June 7, 1984 at 7.00 a.m. PW-4's
G evidence that he was residing at Kotli Ablu and that he knew the
accused was not disputed in the cross-examination. It is not uncommon
in normal human probability that he was not expected to know the
names of the relations of A-3. When A-1 and A-3 came in that very
night to the shop and quarrelled for non-supply of liquor on credit, it
would be fresh in the memory of PW-4 and as he saw the assailants he
H could have easily recognised A-3.
MALKIAT SINGH v. STATE OF PUNJAB [RAMASWAMY. J.] 267

Undoubtedly, ocular defence evidence, if it is not subjected to
A
critical cross-examination, is entitled to the same weight as prosecu-
tion evidence. But merely because the prosecution, as usual, made
insipid cross-examination, the defence evidence is not to be believed
automatically. Witnesses may be prone to speak lies but circumstances
will not. So even though the burden of the defence is not as heavy as of
the prosecution, the oral evidence tendered by the defence must also B
be subjected to critical scrutiny and be considered in the light of the
given facts and attending circumstances of the case and human prob-
abilities. The evidence on record is clear that PW-4 was left attended,
though was lying with injuries at the house ofDW-3, till the investigat-
ing officer PW-5 came and saw him in critical condition. The normal
human conduct, which is common in the country side, is to give
immediate first aid and then to make inquire of the cause for injuries c
and the persons who caused the same. As DW-3 betrayed such con-
duct,_ make us to suspect the credibility and veracity of his evidence
and of DW-2 that PW-4 was conscious all through and that he did not

- disclose the assailants' names. Therefore, the evidence of DW-2 and
DW-3 that PW-4 was professed to have disclaimed the names of the as-
sailants is unbelievable despite no specific cross-examination was
directed on that as;iect. That apart they did not tender themselves to
be examined by PW-5, the investigating officer. As regards the shed-
D

ding of the light from the house of Gurbax Singh is concerned, there is
uncontroverted evidence of PW-5 that he remained in the village till
9.30 p.m. on June 5, 1984 to see whether the light was emanating from E
the house of Gurbax Singh and found to be so and sufficient for PW-3
and PW-4 to identify the assailants. No cross-examination on this
aspect was directed. Gurbax Singh, the owner of the house was not
examined by the defence. Only his son DW-2, an youngester, came into
the box and perjured the evidence. Therefore, the claim that the light
was not working for three months prior to the date of occurrence, F
cannot be believed. Even assuming that there was no light, eveu then,
PW-4 could identify his own assailants when he was attacked and
chased in the course of the same transaction. Nothing worthwhile was
brought out in the cross-examination to disbelieve his testimony. He
---""' had no axe to grind against any of the accused. To motive to make
false implication of the accused was even suggested. He cannot be G
expected to allow his own assailants to go unpunished and would impli-
cate innocent persons. Moreover the medical evidence of PW-2 fully
corroborated the evidence of PW-4.

It is settled law that corroboration is not a rule of law, but one of
caution as an assurance. The conviction could be made on the basis of H
268 SUPREME COURT REPORTS [ 1991] 2 S.C.R.
•
A the testimony of a solitary witness. The occasion for the presence at
the time of occurrence, opportunity to witness the crime, the normal
conduct of the witness after the incident, the nearness of the witness to
the victim, his pre-disposition towards the accused, are some of the
circumstances to be kept in view to weigh and accept the ocular evi-
dence of a witness. It is not the quantum of the evidence but its quality
B and credibility of the witness that lends assurance to the court for
acceptance. Considered in this light, we have no hesitation to conclude
that PW-4 is a witness of truth and inspires us to believe his evidence.
He would, even in the absence of any light have identified the accused,
who had attacked him and committed the murders of sleeping, unar-
med and innocent D-1 to D-4.
c The evidence of PW-3, though was severly attacked by Shri
Lalit, giving our anxious consideration and subjecting to careful
analysis, we find that the Special Court committed no error in accept-
ing. his evidence. It is common knowledge that the villagers during

-
summer sleep outside the house, court-yard of the house, if any, or on
[j the terrace of the concrete houses. No doubt there is no stairs to the
terrace of the shop whose height is only 8 and 112 feet. PW-4 and PW-3
being young men it is not difficult to climb up and sleep and now it was
proved providential for them. Therefore, the absence of producing,
the quilts or lack of steps is not a serious infirmity to doubt the pre-
sence of PW-3 and PW-4 and that they slept on the terrace of the shop.
E In view of curfew and tense condition in the State, it would be unlikely
that PW-3 would have travelled in the night to Madhok at a distance of
23km.

The evidence on record clearly shows that the defence has freely
used the entries in the case diary as evidence and marked some por-
F tions of the diary for contradictions or omissions in the prosecution
case. This is clearly in negation of and in the teeth of s. 172(3) of the
Code. Section 172 reads thus:

"Diary of proceedings in investigation.-

G (1) Every police officer making an investigation under this
Chapter shall day by day enter his proceedings in the
investfgation in a diary, setting forthwith the time at which the
information reached him, the time at which he began and
closed his investigation, the place or places visited by him,
and a statement of the circumstances ascertained through
H his investigation.
MALKIAT SINGH v. STATE OF PUNJAB [RAMASWAMY, J.] 269

(2) Any Criminal Court may send for the police diaries of a A
case under inquiry or trial in such Court, and may use such
diaries, not as evidence in the case, but to aid it in such
inquiry or trial.

(3) Neither the accused nor his agents shall be entitled to
call for such diaries, nor shall he or they be entitled to see B
them merely because they are referred to by the Court;
but, if they are used by the police officer who made them to
refresh his memory, or if the Court uses them for the
purpose of contradicting such police officer, the provisions
of Section 161 or Section 145, as the case may be, of the
Indian Evidence Act, 1872 (1 of 1872), shall apply."
c
It is manifest from its bare reading without subjecting to detailed
and critical analysis that the case diary is only a record of day to day
investigation of the Investigating Officer to ascertain the statement of
circumstances ascertained through the investigation. Under sub-s. (2)
the Court is entitled at the trial or enquiry to use the diary not as D
evidence in the case, but as aid to it in the inquiry or trial. Neither the
accused, nor his agent, by operation of sub-s. (3), shall be entitled to
call the diary, nor shall he be entitled to use it as evidence merely
because the Court referred to it. Only right given thereunder is that if
the· police officer who made the entries in the diary uses it to refresh
his memory or if the Court uses it for the purpose of contradicting such E
witness, by operation of s. 161 of the Codes. 145 of the Evidence Act,
it shall be used for the purpose of contradicting the witness, i.e. Investi-
gation Officer or to explain it in re-examination by the prosecution,
with permission of the court. It is, therefore, clear that unless the
investigating officer or the Court uses it either to refresh the memory
or contradicting the investigating officer as previous statement under F
s. 161 that too after drawing his attention thereto as is enjoined under
s. 145 of the Evidence Act. The entries cannot be used by the accused
as evidence. Neither PW-5, nor PW-6, nor the court used the case
diary. Therefore, the free use thereof for contradicting the prosecution
evidence is obviously illegal and it is inadmissible in evidence. Thereby
the defence cannot place reliance thereon. But even if we were to G
consider the same as admissible that part of the evidence does not
impinge upon the prosecution evidence.

As regards the omission of the names of the appellants. in the
memos sent to the Medieal Officer PW-2 under Ex. D·13 and 15 it is
also not evidence except as record of investigation. lt is not a rule of H
270 SUPREME COURT REPORTS [1991] 2 S.C.R.

A law that the memo should bear names with cause title of accused. It is
enough if the name of the injured is mentioned in the memo. There-
fore, the omission to refer their names after the word Banam in the
memos sent to the Doctor would not create any doubt that the appel-
lants were later implicated. Equally the prosecution cannot rely on the
B statement of PW-3 enclosed to the inquest reports as substantive evi-
dence, as is done and argued with vehemence by Sri Das Bahl. Section
174 of the Code empowers a police officer to investigate in the pre-
sence of two or more respectable witnesses and report only the cause
of death and the person, if known, that has committed the offence.
Section 175 empowers him to summon any person who appears to be
acquainted with the facts of the case and every person so summoned
C:: shall be bound to attend the inquest and answer truely all the questions
other than questions the answers to which would have a tendency to
expose him to a criminal charge or to a penalty or forfeiture. The
statement made by such person is a "previous statement" within the
meaning of s. 162 and it shall not be signed. So the statement made by
D such a person to police officer is in the course of the investigation, and
when reduced to writing, it shall be used only by the accused to con-
tradict such witness in the manner provided by s. 145 of the Evidence
Act or with the permission of the court the prosecution could use it for
re-examination only to explain the matter referred to in his cross-
examination. It is settled law that s. 162 was conceived to protect an
accused creating an absolute bar against the previous statement made
E before the police officer being used for any purpose whatsoever. The
obvious reason is that the previous statement under the circumstances
was not made inspiring confidence. It enables the accused to rely
thereon only to contradict the witnesses in the manner provided by
s. 145 drawing attention of the witness of that part of the statement
intended to be used for contradiction. It cannot be used for corrobora-
F tion of a prosecution or defence witness or even a court witness, nor
can it be used contradicting a defence or a court wintness. The
investigating officer is enjoined to forward the inquest report to the
Magistrate alongwith the statement recorded at the inquest, so that the
court would see the record, at the earliest of the circumstances leading
to the cause of the death of the deceased and the witness examined
G during the inquest. Therefore, the statement of PW-3 record during
inquest is not evidence. It is a previous statement reduced to writing
under s. 162 of the Code and enclosed to the inquest report and cannot
be used by the prosecution for any purpose including to show the
names of the accused except to contradict the maker thereof, or to
explain the same by prosecution.
H
MALKIAT SINGH v. STATE OF PUNJAB [RAMASWAMY, J.] 271

It is true that DW-1 had stated and was not effectively cross-
A
examined that PW-3 was brought by the police in a jeep alongwith the
Panch. But he was examined at the inquest is evident from the record.
PW-3 was present at 9.00 p.m. at the time of vending liquor on credit
to A-1 and A-3 and the quarrel. PW-4 stated that PW-3 and himself
slept together on the terrace. He was examined at the inquest is cor-
roborated by doctor's evidence that statement of PW-3 recorded under B
s. 162 was enclosed to the inquest reports and sent to PW-2, the
Doctor alongwith the dead bodies. There is ring of truth in the evi-
dence of PW-3. During curfew, in the night he would not have under-
taken to go to Madhok at a distance of 23 km. The attending circum-
stances for coming to the scene of offence appear to be natural and
probable in the ordinary course of human conduct. Having seen that
four of his companions were done to death, the instinct of self- C
preservation and the grip of fear would have made him not to stir out
from the school and mustered courage only when the police and the
military people arrived at the scene at noon. Thus he came to be
examined at the earliest at inquest whereat he disclosed the names and
the participation of the appellants. Thus the evidence of PW-3 would o
lend to corroborate PW-4's evidence.

In addition there is a strong circumstantial evidence against A-1
and A-3. On his arrest on June 15, 1984, M/0/11, rifle was recovered
from A-1. As per Ex. P-17 licence, it belongs to him, the ballistic
report Ex. P-20 establishes that the empty cartridges Ex. M. 1 to M. 7 E
were discharged from the bore of MIO/ 11. This evidence clearly
.established that M/0/11 was used by A-1 in the crime. In his examina-
..\._ tion under s. 313, no explanation was given as to how M/0/11 rifle
could go out from his custody for being used, in committing the crime
by third parties. From its recovery from the person of A-1, it is clear
that it continued to remain in his custody from the time of user in the F
crime till it was recovered from him. These circumstances coupled with
oral evidence of PW-4 and PW-3 clearly establish the complicity of A-1
in committing the offences of murder of D-1 to D-4. As equally A-3
accompanied A-1 to the liquor shop and had quarrel. When A-1 and
A-3 left the shop in anger, it is clear that they left the shop in a huff
- ·" smarting from humiliation at the hands of the contractor from out side G
the state and their staff. To avenge the humiliation heaped upon them,
they animated to finish the prosecution party. Obviously they chose
past mid-night to be sure that all would be asleep and no evidence of
their crime would be available. Thus they have strong motive to kill
the deceased and to make murderous attack on PW-4. Moreover
gandasa was recovered pursuant to A-3's statement under s. 27 of H
272 SUPREME COURT REPORTS [1991] 2 S.C.R.

A Evidence Act leading to its discovery and it contained human blood
though blood group could not be detected due to disintegration. The
two incised in juries each on the persons of D-3 and D-4 as corro-
borated by medical evidence clearly establishes the participation of
A-3 in attacking the deceased. He accompanied A-1 at dead of night to
the liquor shop and killed D-1 to D-4 and attempted to kill PW-4. Thus
B he shared with A-I the common intention to kill the deceased D-1 to
D-4 and attempt to kill PW-4.

The production of the credit chit kept on the table in the shop
would have lent corroboration to the prosecution case of the sale of
liquor to A-1 and A-3 on credit. It is not the prosecution case that it
C was signed by either of the accused. It is now in evidence that it was
burnt out also with the shop, though no definite evidence for cause of
burning is on record, except vague suggestions but denied by the pro-
secution witnesses that the terrosists committed the arson and killings.
From a totality of f~cts and circumstances it cannot be concluded that
terrorists committed the offence.
D
As regards A-2 we have grave doubt of his participation in the
crime. Admittedly, he had no motive to kill any of the deceased or to
attack PW-4. He did not come at 9.00 p.m. on June 4, 1984 to the
liquor shop for drinking. There is no recovery of gandasa from him,
though he was arrested alongwith A-I and A-3. The doubt whether
E A-2 was likely to be a participant in the commission of this grave crime
of four deaths has not been removed from our minds. It is undoubtedly
true that PW-4 had stated that A-2 attacked him with the gandasa but
when he was attacked while he was fleeing for life the possibility of
mistaken indentity of A-2 to A-3 cannot be ruled out. We make it
clear that we are not doubting the veracity of PW-4. In these circum-
F stances A-2 is entitled to the benefit. Accordingly, we hold that A-1 and
A-3 have shared common intention, they had motive to kill the
deceased. They came together, killed the sleeping innocent four
persons D-1 to D-4 and also attempted to kill PW-4.

Accordingly, we hold that A-1 committed the offence of murder
G of D-1 and D-2 punishable under s. · 302; D-3 and D-4's under s. 302 ) ~
read with s. 34 1.P.C. and attempt of murder of PW-4 punishable
under s. 307 read withs. 34, 1.P.C. A-3 shared the common intention
with A-1 and also committed the said offences under s. 302 read with
s. 34; s. 307 read with s. 34 I.P.C. A-3 was given the minimum sen-
tence of imprisonment of life. The sentences were directed to run
H concurrently .
MALKIAT SINGH v. STATE OF PUNJAB [RAMASWAMY, J.[ 273

On finding that the accused committed the charged offences, A
s. 235(2) of the Code empowers the Judge that he shall pass sentence
on him according to law on hearing him. Hearing contemplated is not
confined merely to oral hearing but also intended to afford an
opportunity to the prosecution as well as the accused to place before
the Couft facts and material relating to. various factors on the question
B
of sentence and if interested by either side to have evidence adduced
to show mitigating circumstances to impose a lesser sentence. or
aggravating grounds to impose death penalty. Therefore, sufficient
time must be given to the accused orthe prosecution on the question of
sentence, to show the grounds on which the prosecution may plead or
the accused may show that the maximum sentence of death may be the
appropriate sentence or the minimum sentence of life imprisonment C
may be awarded, as the case may be. No doubt the accused declined to
adduce oral evidence. But it does not prevent to show the grounds to
impose lesser sentence on A-1. This Court in the aforestated Alluddin
and Anguswamy's cases held that the sentence awarded on the same
day of finding guilt is not in accordance with the law. That would
normally have the effect of remanding the case to the Special Court for D
reconsideration. But in the view of the fact that A-1 was in incarcera-
tion for long term of six years from the date of conviction, in our
considered view it needs no remand for further evidence. It is suffi-
cient that the sentence of death awarded to A-1 is converted into
rigorous imprisonment for life. The sentences of death is accordingly
modified and A-1 is sentenced to undergo rigorous imprisonment for E
life for causing the deaths of all four deceased. The conviction of A-1
for attempt to murder PW-4 and sentence of five years' rigorous impri-
~.. sonment is also upheld and all the sentences would run concurrently.
A-2 is acquitted of all charges. The bail bonds are cancelled. He shall
be set at liberty unless he is required in any other case.
F
The appeal is allowed only to the above extent.

V.P.R. Appeal Partly allowed.