' Z. A. CHANNA , J.-Appellant Gut, a farmer by profession, was tried by a learned Additional Sessions Judge, Hyderabad, alongwith two co-accused, Abdullah and Saindinno, in respect of an offence under section 302 read with section 34 of the P. P. C. For committing the murder of Taj Muhammad and while the two co-accused were acquitted, the learhed Additional Sessions Judie, by his judgment delivered on 31.7-1975, convicted the appellant of the offence under section 302, P. P. C.
And sentenced him for the said offence to imprisonment for life. The learned Additional Sessions Judge did not impose capital punishment on the appellant in view of the facts that the appellant was a young man, his father was murdered 8 or 9 years previously and the murder by the appellant, in the view of the Additional Sessions Judge, was committed in retaliation for the murder of appellant's father.
2. The incident which has given rise to this appeal occurred on 10-9-1971, at about 3-00 p.m., on the Katcha road leading from Tando Qaisar to Hyderabad, at a distance of about 5 miles from Tandojam police station. The case of the prosecution is that on that day, deceased Taj Muhammad, his brother Qadir Bux and their caste-fellow, Fais Muhammad, had gone to Bhindo village to attend the marriage feast of Sadiq Abro's son. After taking meals at the aforesaid village, they were returning to their village, when on the way, near the garden of Sher Muhammad Thebo, deceased Taj Muhammad, who was a few paces ahead of his two companions, was attacked with hatchets by the appellant and the two acquitted accused, who are said to have been hiding in the nearby 'Devi' bushes. The deceased was given a number of hatchet blows by the appellant and his two companions within the view of Qadirbux and Fab Muhammad, but they did not dare to intervene because they were threatened by the appellant and his companions. After the appellant and his companions had left. Qadirbux and Faiz Muhammad approached the deceased and found that he had succumbed to his injuries. Leaving Faiz Muhammad with the body of the deceased, Qadir Bux went to Tando Qaiser village, about two miles away from the scene of offence, where he informed Taj Muhammad's son, Hakim Ali, about the murder of the latter's father. Hakim Ali accompanied Qadir Bux to the scene of offence, where a number of villagers had gathered, and after seeing the dead body of his father repaired to Tando Jam Police Station where he lodged his first information report the same day at 6-30 p.m., which was recorded by Additional S. H.
0. Ahmed Khan, who accompanied the that informant to the scene of offence, 3, The motive for murder is said to be the fact that some 7 to 8 years prior to this incident a quarrel had taken place between the deceased and Juman Dhamach the father of the appellant, in which quarrel Jumman had received a fatal blow at the bands of the deceased. The deceased was tried in respect of that incident, but was acquitted. The present murder is said to have been in retaliation. For the murder of the appellant's father by the deceased.
4. The Additional S H. 0, prepared mashtrnama of the scene of offence and secured the blood- stained earth from the wardat and a bloodstain ad towel which was lying under the head of the deceased. After preparing inquest report, he sent the dead body to the Medical Officer, Civil Hospital, Hyderabad, for post-mortem examination. On the same day he recorded the statements of P Ws. Qadit Bux, Pais. Muhammad and Abdul Rehman-> 5, Further investigation in the case was conducted by S. H.
0. Abdul Aaia He arrested the two co-accused Abdullah and Shinhoon and secured from their possession the clothes which they were wearing. These clothes, however, did not appear to have any visible blood stains on them, He also secured a hatchet from the house of co-accused Abdullah, This hatchet also did not appear to have any blood stains thereon. On 12-9 1971, the S. H.
0, arrested appellant Gul and secured the trousers and shirt which he was then wearing. There were washed blood marks on both the items of clothing, On the same day, the S. H. 0,, at the pointation of the appellant, secured a blood-stained hatchet from the house of the appellant. The hatchet was found concealed in a rolled-up bedding on a cot in the house of the appellant. The S. H. a sent the blood-stained earth secured from the wardat and the hatchets and clothes secured from the possession of the appellant and the two cc-accused to the Chemical Analyser to the Government, whose report indicates that blood of human origin was detected on all the items except the Shalwar secured from the possession of cc-accused Abdullah. On 20-10-1971, the S, H.
0. Challaned the appellant and the two co-accused.
6. The autopsy on the deceased was conducted by Dr- Noorul Hassan, Medical Officer Incharge of the Civil Hospital, Hyderabad. He found as many as 12 incised wounds on the head, neck, shoulders and other parts of the body of the deceased. In consequence of these injuries the temporal bone, the parietal bone and the occipital bone of the deceased had been fractured, his brain, meninges, trachea, carotid vessels, opsophagus and spinal cord were cut and the fourth and fifth cervical vertebrae were fractured. In the opinion of the doctor as many as 5 Injuries on the deceased were individually and collectively sufficient to cause death in the ordinary course of nature. He has further opined that the probable time between the deceased receiving the aforesaid injuries and his death was about 5 minutes and the interval between his death and the post-mortem was about 18 to 20 hours. The doctor has further deposed that the stomach of the deceased contained 2} ox of send-digested meals.
7. The defence af the appellant is one of bare denial. He has denied that he either participated in the fatal attack on the deceased or that any blood-stained clothes or hatchet were recovered from his possession or his house. He has claimed that he has been falsely implicated by the prosecution witnesses who are closely related to each other and to the deceased and are thus interested witnesses.
8, The case against the appellant rests on, firstly. The ocular testimony of Qadirbux and Fait Muhammad 1 secondly, the corroborative testimony of first informant Hakim All l thirdly, evidence in regard to the recovery of, blood-stained clothes and hatchet from the appellant, and lastly, upon the evidence to show that the appellant had a motive for killing the deceased.
9. The evidence in regard to motive was attacked by the learned counsel for the appellant on the ground that the incident in which the father of the appellant was killed occurred more than 7 to 8 years back, and therefore, it was unlikely that after this long period the appellant would still be harbouring such deep grievance against the deceased as to kill him. It is admitted by first informant Hakim Ali that the appellant and the two co-accused had been visiting their village of and on that they were cultivating lands in their neighborhood and also he had met them on some occasions but they had offerred him no violence. In the circumstances, we consider it rather unusual that the appellant should have suddenly, after lapse of such a long time, felt such a deep revenge for his father's death as to kill the deceased, Furthermore, it is in admitted position that as a result of the incident in which the father of the appellant was killed, counter cases were sent up to the Court, in one set of which the deceased and the first informant alongwith others were the accused while in the other the appellants' party were the accused, but both cases ended in an acquittal. Thus, the burden for the fight must be shared by both the parties though possibly the appellants' party may have fell the more aggrieved on account of the death of the appellant's father. The complainant has deposed that after the acquittal of the deceased, the appellant's party bad been issuing threats to him and he had sent applications in this behalf to the Superintendent of Police. These applications, however, have not been produced and consequently there is no support to his contention that such applications in fact were sent by him, and if so, when. In any case, because of the aforesaid incident it is clear that there was and animosity between the parties and it is in this light that we must consider the testimony of the eye-witnesses and the corroborative evidence, So far as the ocular evidence is concerned, it is furnished by P. Ws. Qadirbux and Faiz Muhammad, who claim to have been returning with the deceased to their village and to having seen the fatal assault on the deceased. They have admitted that they did not intervene to save the deceased because the appellant and his companions threatened to kill them if they intervened or approached. So far as P. W. Qadirbux is concerned, he is the brother of the deceased and in view of the previous enmity between the parties could be considered as an interested witness, hostile to the appellant. P. W. Faiz Muhammad, however, apparently appears to be only a caste-fellow of the deceased and a disinterested witness. However, P. W. Qadirbux, in his evidence in the lower Court, with which he was confronted, has admitted that Faiz Muhammad is his distant cousin. As such Faiz Muhammad too would appear to have a certain amount of interest in the complainant's party.
It was by reason of the relationship of the eyewitnesses with the complainant and their interest in him that the Additional Sessions Judge did not place implicit reliance on their testimony and acquitted the two co-accused because there was no evidence against them to corroborate the ocular testimony. We consider that in the circumstance of the case, the learned Additional Sessions Judge's approach to the case was quite sound. A further oircumatance which makes us to hesitate to place implicit reliance on the ocular testimony is that their appears to be a certain amount of contradiction between the medical evidence and the ocular testimony in regard to the time when the deceased took his meals. According to P. We. Qadirbux and Fab! Muhammad they left the village of Qadirbux Abro half-an-hour after taking meals and they had hardly covered a distance of three survey numbers from that village when the deceased was assaulted. Though they have not stated when exactly the deceased took his meals, it could only have been a short while before these two witnesses took their meals. However, according to the Medical Officer, the deceased appeared to have taken his last meals about 4 to 5 hours prior to his death. If the evidence of the Medical Officer is to be relied upon then the story of the deceased having gone to the village of Sadiq Abro and participated in the feast given by him would appear to be highly doubtful. This circumstance, however, is by no means conclusive as in -the first place, it is not A known exactly what was the food of which the deceased had partaken, and secondly, because according to Modi the process of digestion may continue even after death. However, in view of the above circumstances, it would not be possible to place implicit reliance on the ocular testimony, in the absence of strong corroborative testimony.
11. The corroborative testimony in the instant case is regarding the recovery of blood-stained shirt and shaiwar from the person of the appellant and the securing of a blood-stained hatchet from his house at his pointation, B Evidence in regard to these recoveries has been given both by S. H. O.
Abdul Aziz and mashir Allah Wasayo. They have both testified that the clothes secured from the appellant appeared to have been washed but the blood stains were still visible. They have further testified that the bloodstained hatchet was secured from a rolled-up bedding in the house of the appellant, A person does not ordinarily keep a blood-stained hatchet in a rolled-up bedding unless it has been used in the commission of a crime. Similarly, the washing of blood-stained clothes, in the absence of satisfactory explanation, could be indicative of the fact that the person wearing such clothes was involved in a fight or an attack, These two pieces of evidence thus would have provided very strong corroboration to the ocular testimony if it had been established that the blood on the hatchet and the clothes of the appellant was of human origin. To establish this fact the prosecution have produced the report of the Chemical Examiner, No doubt, this report is positive and is to the effect that blood of human origin was found on the aforesaid articles, but this report suffers from two serious defects In the first place, according to the report human blood was found on the hatchet and the clothes secured from acquitted accused Sanhyoon as well as from the shirt secured from acquitted accused Abdullah. This opinion stands in sharp contradiction to the testimony of S. H. 0, Abdul Aziz and mashir Allah Wasayo that no blood was noticed on any of these items. Of course, there may be cases where on visual examination no blood may be noticed on an article, but microscopic or chemical examination of the article may disclose blood, but in such a case it is necessary to bring on record that such examination was in fact carried out. No such evidence has been brought on the record of this case. A much more serious defect in the report of the Chemical Examine is that the report does not bear the signature of th Chemical Examiner who bad conducted the examination but it is a copy attested by his successor in office. Possibly, the original copy of the report c was lost and hence another copy, attested by the successor Chemical Examinor, was produced in Court. However, the attested copy is not admissible in evidence under section 510, Cr. P. C The said section makes admissible only that report of the Chemical Examiner which is under his hand and bears his signature.
12. In Pearey Lai v. Emperor (1), all that was produced 6r; record was a little scrap of paper on which it was written in some body's handwriting
(1) AIR 1938 Lab 496 ' that the Chemical Examinees report shows that these packets contained cocaine. It was held that this was not legal evidence and cannot be a substitute for the original certificate, as "the provisions relating to the production of a report by the Chemical Examiner in place of the Chemical Examiner's own personal appearance in Court are special provisions of the Code and must be strictly adhered to."
13. In Muhammad Shaft v. Crown (1), a report signed by the Second Assistant to the Imperial Serologist and Chemical Examiner, was held inadmissible. In that case it was observed that in order that a document should be admissible under section 510, Cr. P. .0 r. It should not only purport to be a report, by a Chemical Examiner but it should in addition be under the band of a Chemical Examiner to Government
14. We may also refer to a ruling from the Indian jurisdiction though we are conscious of the fact that the interpretation of section 510, Cr, P. C by the Indian Supreme Court is some what different from the settled view which our Courts have taken in regard to the scope and purpose of this section,. In State of Orissa v. P. Parratitam (2) it was held, following the decision in State v. Karts Gope (3), that what is admissible under section 510, Cr. P. C. Is the original report signed by the Chemical Examiner and not a copy of the report_
15. On the view that we have taken of the language of section 510, Cr. P. C., we are in respectful agreement with the above decisions. Si the original report signed by the Chemical Examiner has not been produced o by the prosecution, the report is clearly inadmissible under section 510, Cr, P.
C Mr, Manzoor Hussain, the learned counsel appearing for the State, submitted that a copy of the report could be admissible, upon proper proof, if the original is lost. However, in the instant case, there is neither evidence to show that the original report of the Chemical Examiner has been lost nor has the copy of the report been proved in accordance with law. The object of section 510, Cr. P.
C. Appears to be. On the one hand, to save the Chemical Examiner to Government, who has to test numerous articles and give a number of reports, from having to appear in Court to testify about the correctness of his report, but on the other hand also to ensure that the report is signed by the Chemical Examiner who has actually conducted the examination and who, from personal knowledge, could certify to the correctness of the results embodied in the report, and who could be summoned to give evidence in support of his report, if it was considered necessary. The result of the non-compliance of section 510, Cr. P. C. In regard to the alleged report of the Chemical Examiner is that there is no proof on record p that the blood-stains on the clothes and the hatchet secured from the possession of the appellants are of human origin.
16 No doubt, we could have taken steps either to have the original report produced or at least to have the copy of the report on record duly proved, but in the first place, no such request has been made to us, secondly, It is highly improbable that the original report would still be available after such lapse of time, and lastly, we consider that it would be inappropriate for us at this late stage to fill the lacuna in prosecution case,
17. For the reasons stated by us above, we are of the opinion that their prosecution have failed to establish the guilt of the appellant beyond anyi
(1) PLD 1949 Lah. 17 (2) AIR 1963 Orissa 5g
(3) AIR 1954 Pat. 131 ' reasonable doubt, the benefit of which doubt must be given to the appellant We would accordingly accept his appeal and acquit him and direct that he should be forthwith released, if not required in any other case.