Pritam Singh And Anr. vs The State Of Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 4 November 1955

Coram: Bhagwati

In this case the Court noted that the appeal with special leave was filed by two men, one identified as Pritam Singh, son of Surain Singh, hereafter referred to as Pritam Singh Fatehpuri, and the other identified as Pritam Singh, son of Ladha Singh, hereafter referred to as Pritam Singh Lohara, against the conviction and death sentence imposed on them by the learned Additional Sessions Judge of Amritsar and upheld by the High Court of Punjab at Simla. Both appellants were charged with having, together with Kartar Singh alias Mal and Gurdial Singh alias Karnail Singh, who were described as absconders, on the evening of 2 May 1953, acted in concert to murder Chanan Singh Orara and Sardul Singh by shooting them with firearms. The prosecution evidence described the sequence of events as follows: at approximately six o’clock in the evening on that date, Pritam Singh Lohara and Kartar Singh boarded Lorry No. P N A-2404 at the bus stand in Amritsar. Chanan Singh Orara and his nephew Sardul Singh were also travelling in the same vehicle. Subsequently, Pritam Singh Fatehpuri and Gurdial Singh entered the lorry en route and took seats that had already been reserved for them by the two men already on board. When the vehicle approached the village of Bohoru, the driver halted the lorry on request, and the four accused disembarked. Pritam Singh Fatehpuri and Gurdial Singh positioned themselves on the right side of the vehicle, adjacent to the seat occupied by Chanan Singh in the front row just behind the driver, while Pritam Singh Lohara and Kartar Singh moved to the left side next to Sardul Singh. At that moment all four brandished small firearms; Pritam Singh Fatehpuri and Gurdial Singh opened fire on Chanan Singh, and Pritam Singh Lohara and Kartar Singh opened fire on Sardul Singh, resulting in the immediate deaths of both victims. It was further established that Sardul Singh possessed a licensed rifle, exhibited as Ex. P-14, which had been lent to him by Chanan Singh Orara for the journey, and that Pritam Singh Fatehpuri seized this rifle. Chanan Singh Orara also carried a licensed revolver, shown as Ex. P-56, hanging from his neck, which was removed by Pritam Singh Lohara. After the killings the four accused fled towards a canal, intercepted four cyclists on the road, stripped them of their bicycles to accelerate their escape, and later abandoned the bicycles at various locations before disappearing. The driver of the lorry, identified as Pritam Singh, son of Maqsudan Singh, proceeded to the Saddar police station in Amritsar and filed a report at seven forty-five p.m. on the same day. The Sub-Inspector Om Prakash arrived at the scene at eight thirty p.m. and commenced the investigation, recording statements from the passengers who had been present in the lorry at the time of the incident.

After the offence was reported, the investigating officer entered the scene and recorded statements from the various passengers who had been present in the lorry. Among those examined was a police constable named Thakar Singh, whose testimony supplied a clue leading to the identification of one of the alleged perpetrators. Investigators discovered eight footprints in a field close to the incident site and, on 3-5-1953, they took moulds of those prints. On the same day, moulds were also taken of four additional footprints located in a field near the canal bank at some distance from the original spot. By around noon on 3-5-1953 the authorities learned the identity of Pritam Singh Fatehpuri and, at approximately 3:30 p.m., they raided his residence in Kaulsar, Amritsar City. The house was locked and the suspects were not present; the lock was broken and a search was conducted in the presence of witnesses. During the search a bush-shirt, marked as Exhibit P-34, was found hanging on a peg and a pair of shoes, Exhibit P-29, lay on the floor; the bush-shirt bore bloodstains. Despite exhaustive searches of all likely locations, Pritam Singh Fatehpuri could not be apprehended, and legal proceedings under Sections 87 and 88 of the Criminal Procedure Code were initiated against him. On 26-5-1953, the investigating officer received information regarding Fatehpuri’s whereabouts and positioned a picket on the Ganda Nala in the village area of Gumanapura during the night of 26-27 May 1953. At about three in the afternoon, Fatehpuri emerged from the side of Gumanpura, was intercepted, and taken into custody; he was carrying a rifle, Exhibit P-14, slung over his shoulder along with fifteen cartridges in his ammunition pouch. The rifle and cartridges were seized and a recovery memo was prepared, witnessed by individuals including Sohan Singh (PW-47) and Milka Singh (PW-46). An identification parade for Pritam Singh Fatehpuri was conducted in the Amritsar District Jail on 29-5-1953 under the supervision of Magistrate First Class K.K. Puri. The accused refused identification by constables Thakar Singh and Raj Pal Singh, claiming personal enmity with the former and asserting he had already been shown to the witnesses. Nonetheless, witnesses Gurdip Singh identified the accused as one of the murderers of the two deceased, and Dial Singh identified him as one of the two men who halted the lorry at the railway crossing; no other witness could positively identify him. A second identification parade held on 6-6-1953 by Magistrate First Class M. Isa Das in the same jail resulted in no identification by any of the witnesses. Subsequently, Pritam Singh Lohara was arrested at Faridkot on 9-6-1953, transferred to Faridkot Jail the same day, and interrogated there on 22-6-1953 by the investigating officer, who obtained a statement that he had buried two revolvers wrapped in a bush-shirt inside a tin near a bush in the vicinity of the village Dipsinghwala.

The accused informed the police that he had hidden two revolvers by wrapping them in a bush-shirt and placing the wrapped shirt inside a tin that was laid beside a bush in the vicinity of the village of Dipsinghwala. His statement was reduced to writing and the police party was then led by the accused to a field in the Dipsinghwala area. Acting on his directions, the officers proceeded to a spot by the side of a bush that the accused pointed out, excavated a tin marked as Exhibit P-57 and discovered inside it the two revolvers, identified as Exhibits P-48 and P-56, still wrapped in the bush-shirt. The recovered articles were taken into police possession, properly documented and secured. On the basis of this recovery a separate case under the Arms Act was registered in Faridkot against the accused. The First Class Magistrate of Faridkot convicted the accused under Section 19 (f) of the Arms Act. That conviction, however, was set aside by the Additional Sessions Judge of Amritsar, who subsequently acquitted the accused of the charge.

On 17 June 1953 an identification parade was conducted in the District Jail at Faridkot with reference to Pritam Singh Lohara. Before the parade began, the accused objected to having to walk during the identification process. Sixteen witnesses were called one by one to pick out the accused from the row in which he and his twelve companions were seated. Eleven of the witnesses identified the accused correctly, while the remaining witnesses were unable to do so. On the same day a second parade was held in the same jail for the purpose of identifying the footprints of Pritam Singh Lohara. The accused selected four other inmates from the jail and, together with them, walked on a specially prepared sandy ground inside the jail, all wearing shoes. Two trackers, Sohan Singh and Sajjan Singh, were asked to identify the footprints and they correctly matched the prints to those of one of the four culprits they had previously seen near the village of Bohoru. The bush-shirt, marked as Exhibit P-34, was forwarded to the Chemical Examiner and the Serologist, whose reports indicated that it was stained with human blood. The prosecution then led the testimony of several passengers who had travelled in the lorry that was involved in the incident, and also examined Pritam Singh, son of Maqsudan Singh, the driver of the lorry. All of these persons were eye-witnesses. Among the witnesses were Constable Thakar Singh (PW-1) and Constable Raj Pal (PW-2), who were travelling in plain clothes to Jhabal in the same lorry, and Dial Singh, son of Chanan Singh Orara, who testified that Pritam Singh Fatehpuri and Gurdial Singh had stopped his lorry to board but allowed it to proceed when they did not find their companions travelling with them. The driver, Pritam Singh, turned hostile and had to be

In the course of the trial the prosecution cross-examined the witness who had previously given a description of the culprits in the First Information Report. The witness testified that he had not identified Pritam Singh Fatehpuri during the identification parade conducted in the District Jail at Amritsar on 29 May 1953. He further alleged that the witnesses who had identified Pritam Singh Lohara at Faridkot had travelled to Faridkot two days before the parade, and that Shri Om Prakash had shown the accused to those witnesses in the jail’s Deorhi prior to the parade. Observing this conduct, the Court examined the description recorded in the First Information Report and compared it with the accused standing in the dock. The Court found that one of the descriptions corresponded with Pritam Singh Fatehpuri and held that this correspondence was sufficient to identify him. In doing so the Court quoted its own observation: “Anyhow, the description given in the First Information Report is by far more apt than inapt in its application to Pritam Singh Fatehpuri accused.” Regarding the pair of shoes exhibited as Exhibit P-29, the accused was examined under Section 342 of the Criminal Procedure Code. The examination proceeded in the form of a question-and-answer session recorded as follows: “Q. Do the pair of shoes Ex. P-29 and the bush-shirt Ex. P-34 belong to you? A. No. I have never worn them. Q. Do the shoes Ex. P-29 fit your feet? A. I do not know. Q. Are you prepared to show whether they fit your feet? A. Yes.” The accused then placed the shoes on his feet in Court, complained that they felt tight, but, to the appearance of the Court, the shoes seemed to fit his feet.

The learned Additional Sessions Judge also turned his attention to Pritam Singh Lohara. The Judge made the accused walk before him and observed that the accused moved with a distinct limp, a limp that on earlier occasions had been far less pronounced; the Judge opined that ordinarily the limp was only slight. The description of Pritam Singh Lohara contained in the First Information Report, when read together with the testimony of other eyewitnesses, was considered adequate to fix the identity of this accused as one of the murderers who participated in the killings of Chanan Singh Orara and Sardul Singh. Taking into account the collective testimony of eye-witnesses, the evidence of identification, the footprints, the recovered items, and the fact that both Pritam Singh Fatehpuri and Pritam Singh Lohara had absconded after the incident, the Judge concluded that the guilt of both accused was established. The three assessors assisting in the trial unanimously affirmed the view that both accused were guilty of the murders. Consequently, the learned Additional Sessions Judge convicted both Pritam Singh Fatehpuri and Pritam Singh Lohara of the offences charged and sentenced each of them to death, subject to confirmation.

By the High Court the entire body of evidence was examined and the criticisms raised by the counsel for the accused were considered. For the accused Pritam Singh Fatehpuri the High Court organised the evidence into six separate categories: identification, recovery of a revolver from a safe in his house together with other items that he admitted belonged to him, recovery of a rifle that had been taken from the deceased Sardul Singh, track evidence, the finding of a bush-shirt, and his absconding after the incident.

The identification evidence was found to be weak because, of the sixteen witnesses present at the first identification parade held on 29 May 1953, only two witnesses, namely Gurdip Singh and Dial Singh, actually identified the accused, while the two constables who were present refused to do so. At the second parade held on 6 June 1953 none of the five witnesses present were able to identify him. Nevertheless the High Court held that the identification made by Gurdip Singh and Dial Singh was satisfactory and could be relied upon. The court observed that “If this was the only piece of evidence perhaps it would have been unsafe to convict as standing by itself it might not have been sufficient, but as I shall show later there are other pieces of evidence which go to support the case for the prosecution.” The court added that it was convinced that the identification had been carried out in a very straightforward manner and that the identification by Gurdip Singh and Dial Singh could not be dismissed as casual or the result of a mere change.

The recovery of the bush-shirt and the shoes from the accused’s house was also deemed proved by the testimony of the search witnesses. The bush-shirt, marked as Exhibit P-34, bore stains of human blood and was treated as further corroboration of the accused’s participation in the offence. The rifle, marked as Exhibit P-14 and taken from the deceased Sardul Singh, was found on the person of the accused when he was arrested during the night of 26-27 May 1953. The High Court accepted the evidence of the search witnesses Milka Singh (PW 46) and Sohan Singh (PW 47) even though their credibility had been challenged on the ground that they were regular police witnesses who assisted in many raids and searches.

The track evidence was found to be sufficient to link the accused with the crime. The shoes recovered from his house were held to belong to him, and the moulds of the footprints taken at the crime scene matched the impressions made by those shoes. Moreover, the shoes were shown to fit the accused, a fact noted by the learned Additional Sessions Judge when examining the accused under Section 342 of the Criminal Procedure Code. Thus, the High Court concluded that the combined evidence from identification, recovered weapons, track evidence, the blood-stained shirt, and the accused’s flight after the crime established his guilt.

In the case of Pritam Singh Fatehpuri, the High Court set out the material that it considered to establish the guilt of the accused. The Court stated that “Thus the evidence against Pritam Singh Fatehpuri which in my opinion has been established is:” and then listed three principal points. First, the Court observed that footprints discovered at the scene corresponded to a pair of shoes that were found in the accused’s house; those shoes were said to fit the accused and were recovered together with other articles that the accused claimed as his own, although he offered a different explanation for their presence that the Court did not accept. Second, the Court noted that a blood-stained shirt was also recovered from the accused’s residence. Third, the Court recorded that the accused was found to be on the run and, when he was finally arrested, a rifle that had been carried by the deceased Sardul Singh was found on him, without any satisfactory explanation as to how he had come into possession of that weapon. In addition to these three items, the Court mentioned the identification evidence supplied by a passenger on the bus in which both the accused and the deceased had travelled, as well as identification by two constables who were not named in the First Information Report but who testified under oath that they were present on the bus; the Court held that cross-examination had not demonstrated that their statements were false. Finally, the description of the accused given in the First Information Report was found by the trial judge to match the accused. After considering all of the foregoing, the High Court concluded that the conviction of Pritam Singh Fatehpuri was proper.

Regarding the second accused, Pritam Singh Lohara, the High Court organized the prosecution’s case into five distinct categories of evidence. The first category comprised eye-witness testimony, including the statements of police constables Thakar Singh and Raj Pal, whose credibility the High Court accepted despite objections raised by counsel for the accused. The second category involved identification evidence, which the defence characterised as “got up” because the accused alleged that, prior to the formal identification parade, he had been shown to the witnesses by Shri Om Prakash in the Deorhi of Faridkot Jail. Of the sixteen witnesses who attended the parade, eleven identified the accused; the defence argued that the witnesses had inspected the accused’s face for a particular mark that had allegedly been communicated to them by Shri Om Prakash before they could make an identification. The High Court examined these criticisms and, notwithstanding them, held that the identification evidence was satisfactory and could be relied upon. The third category consisted of the footprint evidence; the Court accepted that the impressions made by the shoes—provided to the accused in the District Jail for a test walk on a specially prepared sandy patch—matched the moulds of the footprints recovered at the scene. The fourth category concerned the recovery of a revolver, and the fifth category related to the fact that the accused had been absconding before his eventual arrest. After evaluating all five categories, the High Court found the totality of the evidence against Pritam Singh Lohara to be convincing.

In that case, the High Court observed that the gait of the accused had left footprints that were especially characteristic of him, and it held that the tracks discovered at the scene were the footprints of Pritam Singh Lohara. The Court explained that these impressions corroborated the prosecution’s narrative that the accused had participated in the murders. Regarding the recovery of exhibit P-14, the learned Additional Sessions Judge had declined to rely on the earlier acquittal of the accused under the Arms Act, noting that any opinion expressed in that judgment was neither binding on him nor relevant under the Indian Evidence Act. After reviewing the prosecution’s evidence, the judge concluded that the recovery of exhibit P-14 had been proved against the accused and that it linked Pritam Singh Lohara to the incident. The High Court, however, referred to the observations of Lord MacDermott in Sambasivam v. Public Prosecutor (1950 A.C. 458) at page 479, which stated that an acquittal by a competent court is binding and conclusive in all later proceedings between the same parties, invoking the maxim “res judicata pro veritate accipitur.” Accordingly, because the appellant had been acquitted in the first trial of the charge of possessing ammunition, the prosecution was required to accept that verdict and could not challenge it in the subsequent trial. In view of the circumstances surrounding the recovery of the revolver exhibit P-14 and the earlier acquittal under Section 19(f) of the Arms Act, the High Court ruled that this piece of evidence could not be used against the accused.

The High Court further held that the remaining evidence against Pritam Singh Lohara—namely the testimony of eye-witnesses who said they saw him board the bus, commit the murders, and flee the scene, the identification of the footprints, and his subsequent absconding—was entirely satisfactory and sufficient to sustain a conviction. Consequently, the Court affirmed that the conviction of Pritam Singh Lohara was proper. The High Court therefore dismissed the appeals filed by both Pritam Singh Fatehpuri and Pritam Singh Lohara, found no ground to disturb the death sentences imposed on them, and confirmed those sentences. Both appellants subsequently obtained special leave to appeal to this Court, and the present appeal arose from that permission. Counsel for the appellants, Shri J.G. Sethi, appeared on their behalf.

The appellants initially challenged the admissibility of the recoveries of the revolver identified as Exhibit P-56 and the rifle identified as Exhibit P-14, contending that neither of these recoveries could be relied upon as corroborative evidence against the accused. Exhibit P-56 was said to have been recovered on the basis of information supplied by Pritam Singh Lohara and was alleged to have been unearthed from a field in the vicinity of the village Dipsinghwala. It was further alleged that the revolver had been taken from the person of Sardul Singh by Pritam Singh Lohara after Sardul Singh had been shot in a motor lorry. The persons who witnessed the recovery were Shri Om Prakash, the investigating officer, together with Bakshish Singh and Shamsher Singh. These three individuals, along with Joginder Singh, Gurcharan Singh and Dara Singh, had been examined in the trial of Pritam Singh Lohara for an offence under the Arms Act. Although the First Class Magistrate of Faridkot convicted him at the first instance, the Additional Sessions Judge of Faridkot, on appeal, examined the evidence of various witnesses, afforded the accused the benefit of doubt and consequently acquitted him. The judge observed that the abundance of defence evidence, taken together with all the circumstances set out in the judgment, raised serious doubts as to whether Pritam Singh Lohara had ever been removed from police lock-up and taken to the alleged place of recovery, and that the whole case appeared to have been conceived in a shadowy setting full of mystery.

When the prosecution presented its case in the present proceedings, it cited Joginder Singh, Gurcharan Singh and Dara Singh as witnesses, but each of those individuals had been unavailable for one reason or another, leaving only Shri Om Prakash and the two recovery witnesses Bakshish Singh and Shamsher Singh to be examined. Shri Om Prakash was described as an unreliable witness, and it was pointed out that his having paid Rs 40 to the driver of the jeep out of his own pocket, without charging the government, suggested that he had not gone to the spot where the recovery of Exhibit P-56 was alleged to have taken place, nor had he taken Pritam Singh Lohara there. The prosecution also relied upon an article published in The Tribune on 11-5-1953, identified as Exhibit D-A. That article reported that the murder of Chanan Singh Orara had been traced, that the arrest of Dara, a notorious smuggler, had led to the recovery of three pistols hanging on the wall of a village well at Lopoki police station, that one of those pistols had been identified as having been worn by Jathedar Chanan Singh, who together with his nephew Sardul Singh had been shot dead in a bus on 2-5-1953, and that the police had also recovered from Chogawan a rifle carried by Sardul Singh. It was urged that if this news item was correct, Exhibit P-56 could not have been recovered from the field near Dipsinghwala as alleged, and therefore must have been foisted on Pritam Singh Lohara by the police in order to provide a circumstantial piece of evidence against him.

In the present case the prosecution alleged that the rifle marked as exhibition P-14 had been improperly placed on Pritam Singh Lohara by the police in order to create a circumstantial link against him. The Court noted that the High Court, on appeal, had observed that such a circumstance could not be used against Pritam Singh Lohara because the law, as explained in the passage from Lord MacDermott’s judgment, required that evidence obtained in that manner be disregarded. Consequently, if the alleged planting of exhibition P-56 could not be relied upon, the recovery of the rifle exhibition P-14 was likewise of no legal consequence. The trial had been a joint one involving both accused and the rifle, the latter having been described as one of the pistols supposedly taken from the wall of the village well at Lopoki police station after the arrest of a smuggler named Dara. The two individuals who testified that exhibition P-14 had been seized from Pritam Singh Fatehpuri at his arrest on the night of 26-27 May 1953 were Milka Singh and Sohan Singh. Both witnesses were portrayed as police auxiliaries who were readily available for every search and raid carried out in the area. The record showed that Milka Singh participated in four searches, while Sohan Singh took part in as many as seven raids and searches within a single year, leading the Court to regard them as “stock” witnesses whose testimony could not be trusted. The Court further observed that the High Court’s dismissal of criticisms directed at these witnesses was unsatisfactory, because it ignored the fact that they had repeatedly assisted the police in numerous operations and that the High Court’s reliance on the absence of any financial reward to the witnesses was not a reliable test of their truthfulness. On the request of counsel, the Court examined the overall circumstances surrounding both searches and concluded that neither the recovery of exhibition P-56 nor that of exhibition P-14 had been satisfactorily proved, rendering the circumstantial evidence relied upon by the prosecution against both accused completely without value.

Regarding the recovery of exhibition P-56 and the admissibility of evidence related to it, the Court distinguished the situation from that of the rifle exhibition P-14, which had been taken from Pritam Singh Fatehpuri at the time of his arrest. The Court held that no reliance could be placed on the article printed in the issue of The Tribune dated 11-5-1953. Apart from confirming that such an article existed, the record did not establish that three pistols, including the revolver exhibition P-56 and the rifle exhibition P-14, had actually been recovered as described. Consequently, the article could not be used to substantiate any claim concerning the existence or recovery of those weapons. The Court therefore treated the evidence concerning exhibition P-14 as standing on a different footing from that concerning exhibition P-56, emphasizing that the lack of corroboration from the newspaper source left the alleged recovery of the rifle unproven.

P-14 was discovered embedded in the wall of the village well that lies within the jurisdiction of the Lopoki police station. The only way in which the defence could make use of the newspaper article that reported this recovery was to argue that an unidentified person, acting as a correspondent for The Tribune, had published a news-item containing this information, thereby prompting the Court to examine the circumstances surrounding the alleged recoveries and to scrutinise the prosecution’s evidence with great care. The testimony of Shri Om Prakash could not be dismissed merely because the learned Additional Sessions Judge of Faridkot had earlier acquitted the accused Pritam Singh Lohara of the charge under the Arms Act, nor could the testimony of the other witnesses be substantially damaged by that acquittal. The Court held that the evidence of the witnesses Bakshish Singh and Shamsher Singh concerning the recovery of Exhibit P-56 and the evidence of Milka Singh and Sohan Singh concerning the recovery of Exhibit P-14 must be evaluated independently. The latter two witnesses could be relied upon against the accused only if the Court was satisfied that their testimony was reliable. Both the learned Additional Sessions Judge and the High Court examined the statements of Milka Singh and Sohan Singh and concluded that, despite the criticisms raised by the defence counsel, the Court could rely upon their evidence. Although the High Court’s reasons for rejecting those criticisms were not as thorough as might have been desired, the fact remained that both the trial Court and the High Court found the witnesses credible. Exercising its jurisdiction in a special leave appeal, the Court declined to depart from the lower courts’ appreciation of the evidence. The Court expressed the view that the testimony of Milka Singh and Sohan Singh established that Exhibit P-14 had been recovered from Pritam Singh Fatehpuri at the time of his arrest on the night of 26-27 May 1953, and that this recovery provided a strong piece of circumstantial evidence against him.

Regarding Pritam Singh Lohara, the recovery of Exhibit P-56, although supported by the testimony of search witnesses Bakshish Singh and Shamsher Singh and others, was not deemed sufficient by the learned Additional Sessions Judge of Faridkot, on appeal, to prove his guilt for the offence under the Arms Act. During the trial, several defence witnesses were examined on behalf of Pritam Singh Lohara, including Dara Singh, who was described in the article of The Tribune dated 11-5-1953 as a notorious smuggler. The learned Additional Sessions Judge was persuaded by this defence evidence and characterized the statements of Shri Om Prakash and another police officer as the product of over-zealous officials. Consequently, the Judge found considerable doubt regarding Lohara’s guilt and acquitted him, a decision that signified the prosecution’s failure to establish his possession of the revolver identified as Exhibit P-56.

Having considered all of the material placed before it, the Court concluded that a serious doubt remained about the guilt of Pritam Singh Lohara. On that basis, the Court acquitted him of the charge that had been framed against him. The acquittal signified a determination that the prosecution had not succeeded in proving that Lohara possessed the revolver marked as Exhibit P-56. Possession of that particular firearm was a central issue that the prosecution needed to establish before a conviction for the alleged offence could be sustained. Because the prosecution failed to meet that burden, and in view of the observations of Lord MacDermott that had been quoted earlier, the Court held that the fact could not be proved against Lohara in any further proceedings between the Crown and him. Accordingly, the Court expressed the view that the High Court had been correct in rejecting the evidence concerning the alleged recovery of Exhibit P-56 in relation to Lohara, and that the evidence against him must be assessed without reliance on that claimed recovery.

The counsel for the appellants then assailed the identification evidence presented against both accused persons. With respect to Pritam Singh Fatehpuri, the record showed that two identification parades had been conducted, one on 29 May 1953 and another on 6 June 1953. In the first parade, sixteen witnesses were present; the two constables, Thakar Singh and Raj Pal, were refused by the accused, and of the remaining witnesses only Gurdip Singh and Dial Singh were able to positively identify him. It was submitted that seventeen witnesses had failed to identify the accused, while five witnesses identified a different individual, Jagir Singh, who was entirely unrelated to the case. Consequently, roughly ninety-five percent of the witnesses did not identify the accused. The argument further emphasized that, given this high margin of error, the testimony of Gurdip Singh and Dial Singh alone could not be deemed sufficient for identification, particularly because the driver, Pritam Singh, who should have observed the accused at the time of the incident, had given an unsatisfactory description in the FIR and had not identified the accused during the parade. While the Court recognised the force of this criticism, it could not overlook the fact that both lower courts had relied on Gurdip Singh’s testimony as adequate to establish the identity of the accused, and had similarly treated Dial Singh’s evidence as sufficient. These courts therefore arrived at concurrent findings of fact that both Gurdip Singh and Dial Singh had satisfactorily identified Pritam Singh Fatehpuri, and that their evidence remained available to the prosecution. The identification of Pritam Singh Lohara was likewise attacked as unsatisfactory. A specific charge was levelled against Shri Om Prakash, alleging that he had shown Lohara to the identification witnesses in the Deorhi of Faridkot Jail two days before the identification proceedings.

The Court observed that most of the witnesses who succeeded in identifying the accused at the identification parade had closely examined his face and looked for a distinctive mark before they could make a positive identification. In this context the limp in the gait of the accused was highlighted as an important characteristic. It was argued that, because the accused had a limp and one leg shorter than the other, it was surprising that none of the witnesses present in the lorry at the time of the incident noticed this condition when the accused fled. The Court was not impressed by this criticism. The existence of the limp had been proved before the learned Additional Sessions Judge, who even made his own observation that when the accused was made to walk in his presence the limp was particularly evident, although on earlier occasions it had not been so conspicuous. The Court held that, although the limp was certainly present, it was not necessarily striking enough to attract the notice of the witnesses who were in the lorry during the incident. It was highly probable that, in the confusion of the episode, the witnesses were concentrating on the events occurring in the lorry and on their own safety rather than on the gait of one of the culprits, who immediately after the incident ran away while seizing the cycles of four persons he encountered during his escape. Consequently, the fact that the witnesses did not mention the limp, nor did the driver in the FIR made to the police immediately afterwards, was not considered of material consequence. Both the lower courts were satisfied with the result of the identification parade concerning the accused and recorded that he had been positively identified as one of the perpetrators. Thus, the identification of both accused persons was held to be established and accepted as circumstantial evidence that could be used against them.

It was further contended that the track evidence was unsatisfactory and should not have been relied upon by the lower courts. The argument was advanced that the science of footprint identification was still in a very rudimentary stage and, therefore, could not provide a reliable clue to the identity of the culprits. The shoes recovered during the search of the accused’s house had not been proven to belong to him, and in the absence of satisfactory proof of ownership, any comparison of the impressions made by those shoes with the moulds prepared from the footprints at the scene could not reliably establish the accused’s participation. The Court noted that there was, moreover, a further circumstance in regard to him which was very vehemently

The appellant’s counsel criticised the procedure followed under Section 342 of the Criminal Procedure Code, whereby the learned Additional Sessions Judge asked the accused to try on a pair of shoes that had been seized from his house in order to determine whether they fitted him. When the accused placed the shoes on his feet inside the courtroom, he complained that they felt too tight. Nevertheless, the judge recorded an observation that, to all appearances, the shoes quite fitted the accused’s feet. The appellant argued that this observation was not legitimate and should not be used against him. The counsel further contended that the track evidence alone was sufficient to identify Pritam Singh Fatehpuri as one of the culprits. The Court rejected this contention, holding that although the science of foot-print identification is indeed rudimentary and cannot be relied upon heavily, the track evidence may still be considered as a circumstance that, when read together with other material, points toward the identity of the offender, but it is not by itself sufficient to secure a conviction.

The Court observed that the shoes in question had been recovered during the search of the accused’s residence, and the recovery was proved by the testimony of the search witnesses, whose evidence was accepted by both the trial courts. Although the accused claimed that he was not residing in the house but had merely rented it to an acquaintance, there was evidence that he and his wife were present in the house as late as 10 a.m. on 9-6-1953, the day the search was conducted. If this evidence is accepted, it establishes a prima facie ownership of the shoes by the accused, making it legitimate to compare the impressions made by the seized shoes with the moulds prepared from the footprints found at the scene. The learned Additional Sessions Judge, seeking further assurance, attempted to have the accused try on the shoes under Section 342. The Court noted that the accused could have lawfully refused to comply, as no provision mandates such a demonstration. However, the accused consented, and the shoes appeared to fit his feet. Realising that this result could be adverse to his defence, he complained that the shoes were too tight. The judge, contrary to the accused’s complaint, recorded that the shoes quite fitted his feet. This type of evidence was strongly criticised by the appellant’s counsel as being improper and prejudicial to the defence.

The Court observed that the evidence regarding the fitting of the shoes was not supported by the provisions of Section 539B of the Criminal Procedure Code, nor by any other legal authority, and that it prejudiced the accused’s defence. The learned Additional Sessions Judge was not authorised to substitute his personal view or observation for admissible evidence, because such a view could not be subjected to cross-examination and the accused could not be required to explain it. Although the demonstration of the shoes on the accused’s feet had been carried out with his consent, the only objection that could legitimately be raised was against the judge’s remark that “to all appearance they quite fitted the feet of the accused even though he complained that the shoes were too tight for his feet.” That remark could not be used by the prosecution to advance its case beyond the simple fact that the shoes appeared to fit the accused despite his complaint of tightness. The Court held that this was an ocular demonstration, and the result of such a demonstration could be considered by the judge and the assessors, who were free to draw their own conclusions while taking into account the accused’s contemporaneous complaint about the tightness. Furthermore, the Court noted that the testimony of the track-makers, the recovery of the shoes from the accused’s house, and the correspondence between the footprints and the moulds prepared from those footprints were sufficient, on their own, to establish the identity of the footprints and to link them to Pritam Singh Fatehpuri as one of the perpetrators. In the case of Pritan Singh Lohara, the Court found no prior statements from any witness or from the driver that Lohara had a limp, yet the track evidence showed a distinctive outward gait in which the right foot was placed more outward than the left. This pattern was characteristic of a limp attributed to Lohara and was further demonstrated by the impressions he made while walking in the District Jail on a specially prepared sandy patch. Both lower courts had accepted this track evidence as sufficient to identify Pritan Singh Lohara as one of the culprits, and the Court affirmed that appreciation of the evidence.

In this case, the Court agreed with the findings of the lower courts that the track evidence linked the accused to the crime and it accepted that the track evidence formed a circumstance available to the prosecution against both Pritam Singh Fatehpuri and Pritam Singh Lohara. The appellant counsel mounted a severe attack on the testimony of police constables Thakar Singh and Raj Pal. Although Constable Thakar Singh was a member of the police force and had known Pritam Singh Fatehpuri before the incident, he failed to disclose Fatehpuri’s name at the time the driver, Pritam Singh, was questioning the passengers at the scene. Consequently, the FIR recorded only the limited description that the driver could give of Fatehpuri. The identity of Fatehpuri was later uncovered when Constable Thakar Singh supplied a clue to Shri Om Prakash, and only after this clue was provided could the name of the accused be ascertained. Neither Constable Thakar Singh nor Constable Raj Pal identified themselves at the spot nor assumed charge of the investigation; they revealed their identities only when Shri Om Prakash obtained their statements. The Court recognised that these criticisms might raise some doubt about the reliability of the two constables, but it held that the doubts did not destroy the credibility of their evidence. After giving due consideration to the surrounding circumstances and to the objections raised, the Court observed that both the trial court and the appellate court below had accepted the testimony of the constables. The Court therefore concluded that it was not its function to re-weigh or re-appreciate the witnesses’ evidence in a manner that would lead to a contrary conclusion. While hearing the appeal on special leave, the Court stated that it would not lightly interfere with the lower courts’ appreciation of the evidence, and it found no feature of the present case that would compel it to overturn the earlier findings.

The Court also noted that the appellant counsel had severely criticized the facial identification made by the learned Additional Sessions Judge. The judge had compared the description of the accused contained in the FIR with the appearance of the two accused when they stood in the dock, and he recorded that the comparison amounted to a positive identification. The counsel for the appellants submitted that this method of identification was on a par with the physical proof derived from the demonstration of fitting the shoes to the feet of Pritam Singh Fatehpuri while the accused was being examined under Section 342 of the Criminal Procedure Code. They argued that the Additional Sessions Judge was not empowered to draw such a conclusion about the identity of the culprits on the basis of his own observation, and that his observation should not substitute for evidence that could be tested by cross-examination or by allowing the accused to explain the findings during the examination. The Court observed that it shares the same reservations regarding this facial identification as it expressed concerning the earlier issue of the shoe-fitting demonstration. Nevertheless, the Court pointed out a material difference between the two situations. In the shoe-fitting exercise, the assessors who performed the demonstration were themselves witnesses and could potentially have been influenced by the visual impression of the fitting. By contrast, the facial identification relied solely on the judge’s personal observation, without the presence of independent witnesses to the comparison. The Court therefore considered that the judge’s inclusion of his personal observation in the judgment, without subjecting it to cross-examination or giving the accused an opportunity to explain, was not appropriate.

The Court observed that, unlike the earlier incident involving the fitting of shoes to the feet of the accused, the facial identification relied upon by the learned Additional Sessions Judge was based solely on his personal impression. The judge had recorded this observation in his judgment while describing the various circumstances that implicated the accused. The Court considered that it was not proper for the judge to substitute his own visual impression for evidence that should be subject to cross-examination. Such observation could have been tested in court, and the accused should have been given an opportunity to explain it if the matter had been examined under Section 342 of the Criminal Procedure Code. Because no such examination or cross-examination was conducted, the Court held that the judge was not authorised to incorporate his personal observations into the factual record and to base his conclusions upon them. Nevertheless, the Court expressed the view that, even if those observations on facial identification were disregarded, the record still contained ample material evidence that supported the judge’s findings against both accused persons.

The Court further noted that both accused persons had evaded authorities after the incident, remaining absent from their usual residences from 2 May 1953 until the night of 26-27 May 1953 in the case of Pritam Singh Fatehpuri and until 9 June 1953 in the case of Pritam Singh Lohara. No satisfactory explanation was offered by either of them for this prolonged absence, and despite diligent police efforts, they could not be located. The Court held that this act of absconding, when considered together with the other incriminating facts, strongly indicated their culpability. After carefully considering the arguments presented by counsel for the appellants, the Court concluded that the High Court had correctly assessed the evidence against each accused and that the prosecution had successfully proved their guilt with respect to the charges. Accordingly, the Court dismissed the appeal, upheld the convictions, and confirmed the death sentences imposed on each accused, directing that the sentences be executed in accordance with law.