Babu
Singh Vs. State of Punjab [1996] INSC 611 (24 April 1996)
G.B.
Pattanaik (J) G.B. Pattanaik (J) Faizan Uddin (J) Pattanaik, J.
CITATION:
JT 1996 (4) 753 1996 SCALE (4)1
ACT:
HEAD NOTE:
Appellant
Babu Singh along with his younger brother Sadhu Singh stood charged under
section 302 read with section 120-B I.P.C. for hatching a conspiracy at
Calcutta to kill their younger brother Jagrup Singh and killing said Jagrup
Singh in their own house in Village Tiranji Khera in Punjab on 6.11.1981. The
learned Additional Sessions Judge on discussion of the evidence on record came
to hold that the prosecution has utterly failed to establish the charge under
section 120 B of the Indian Penal Code. Accordingly co-accused Sadhu Singh was
acquitted. But on the evidence of PW 14 who was the servant of the deceased and
who had come from Calcutta with him as well as other
corroborating evidence convicted the appellant under section 302 I.P.C. and
sentenced him to imprisonment for life. On appeal being carried by the accused
appellant the High Court of Punjab and Haryana maintained the conviction and
sentence of the appellant in Criminal Appeal No. 748-DB of 1982. Hence the
present appeal.
The
prosecution case as unfolded in the F.I.R. lodged by Bant Singh. PW 5 father of
the appellant is that the deceased as well as two accused persons were doing
their business at Calcutta and there was some dispute amongst
them. In December, 1981 deceased Jagrup Singh and appellant Babu Singh had come
from Calcutta. On 6.12.1981 when Jagrup Singh was
sleeping after taking his meal and father Bant Singh was in the courtyard,
appellant Babu Singh picked up a Takua and entered into the room where Jagrup
Singh was sleeping and dealt two to three
blows on the head of Jagrup Singh. Bant Singh then raised an alarm which
attracted his wife Ram kaur (PW 6) and daughter-in-law Gurmeet Kaur to the
scene of occurrence. The appellant, however, left the place of occurrence after
inflicting blows on Jagrup Singh and Jagrup Singh succumbed to the injuries at
the spot. Bant Singh then informed the Sarpanch, Gurbux Singh, PW 16 who came
to the place of occurrence and thereafter Bant Singh left for the Police
Station along with Sarpanch and lodged a report at 11.15 P.M. which was recorded by the Assistant Sub-Inspector of
Police, PW 18 and was treated as the First Information Report, Exhibit P-G/1.
The said PW 18 immediately went to the spot, prepared the inquest report,
Exhibit P-B, sent the dead body for post-mortem examination and recorded the
statements of some of the prosecution witnesses. The investigation of the case
was taken over from him by the Sub-Inspector of Police, PW 24 on 8.12.1981 who
also recorded the statements of several prosecution witnesses and then
ultimately arrested appellant Babu Singh on 22.12.1981. On completion of
investigation he submitted the charge sheet and on being committed by the
learned Additional Chief Judicial Magistrate, Sangrur, the accused persons were
tried by the learned Additional Sessions Judge.
Sangrur
in Sessions Trial No. 20 of 1982. Though prosecution examined as many as 24
witnesses in support of the prosecution case, PWs 5, 6 and 14 were supposed to
be eye witnesses to the occurrence. PW 16 is the Sarpanch of the Village Panchayat.
Gurbux Singh, PW 16 accompanied Bant Singh to the Police Station for lodging of
F.I.R. PW 23 was a member of Punjab Vidhan Sabha to whom Jai Narayan, PW 14 had
told at 8.30 P.M. on the date of occurrence about the murder of Jagrup Singh
and requested him to inform the family members of the deceased at Calcutta on
telephone and he accordingly had rang up and told the same to Karan Singh, PW
8. PWs 18 and 24 are the two investigating officers. PW 1 is the doctor who had
conducted the autopsy on the dead body of Jagrup Singh. PWs 7 and 22 are the
eye witnesses to an alleged conspiracy between Babu Singh and Sadhu Singh at Calcutta to do away with the deceased Jagrup
Singh. The other prosecution witnesses are the formal witnesses. The learned
Additional Sessions Judge on discussion of evidence of PWs 7 and 22 came to
hold that they are not reliable witnesses and therefore he concluded that the
charge under section 120 B of the Indian Penal Code has not been established by
the prosecution. Accordingly, accused Sadhu Singh who was only charged under
sections 302/120B I.P.C. was acquitted. But so far as appellant Babu Singh is
concerned the learned Additional Sessions Judge relied upon the evidence of PW
14, PW 16 and PW 8 and came to hold that the charge of murder against appellant
Babu Singh has been proved beyond reasonable doubt. He accordingly convicted
him under section 302 I.P.C. and sentenced him to imprisonment for life. On
appeal, the High Court re-appreciated the evidence and affirmed the conviction
and sentence of the appellant. Hence the present appeal.
Mr. Sushil
Kumar, the learned Senior counsel appearing for the appellant raised the
following contentions in assailing the conviction of the appellant:
1. The
prosecution case being one of conspiracy between the two brothers at Calcutta
to do away with the deceased Jagrup Singh and in furtherance of the same
conspiracy Babu Singh appellant having said to have assaulted the deceased by
means of Takua and the charge of conspiracy having been not established by the
prosecution evidence, the charge of murder against appellant also must fail.
2. The
sole star witness Jai Narain, PW 14 though claims to be an eye witness to the
occurrence but was actually not present at the time of occurrence and has been
subsequently brought in which is apparent from the fact that his name did not
find place to be a witness to the occurrence either in the F.I.R. or in the
statement made at the time of inquest and as such no reliance should be made on
the testimony of PW 14.
3. It
is difficult to believe the prosecution case that while the deceased and
accused persons were staying at Calcutta, the accused came all the way to the village in Punjab to commit murder of his brother the
deceased and the entire story appears to be improbable.
4. The
very fact that PW 14 though is said to be a witness to the occurrence and yet
was not examined on 6.12.1981 when PW 18 rushed to the spot of occurrence and infact
was examined by PW 24 on 8.12.1981, no reliance should be placed on his
testimony.
On
examining the evidence on record which were placed before us we do not find any
substance in any of the submissions made by the learned counsel for the
appellant.
At the
outset it may be stated that the father PW 5 and mother PW 6 did not support
the prosecution during trial and therefore the learned Sessions Judge had
permitted the prosecution to confront their statements made to the police
during investigation in accordance with Section 154 of the Evidence Act. We
would now examine the acceptability of the contentions raised by Mr. Sushil
Kumar appearing for the appellant.
It is
undoubtedly true that though the prosecution case as unfolded in the First
Information Report had not made any case of conspiracy to murder but after
investigation while filing charge sheet a case of conspiracy had been made out
and accordingly the two accused stood charged and were tried under section 120
B I.P.C. The evidence on that score being of PWs 7 and 22, the learned Sessions
Judge fully discussed the same and held them to be unreliable. Consequently, it
was held that the prosecution failed to establish the charge of conspiracy. But
merely because the charge of conspiracy failed, the prosecution case so far as
the actual assault being given by appellant Babu Singh cannot be ipso facto
thrown away. We find no substance in the argument of Mr. Sushil Kumar that the
entire prosecution case must fail once charge of conspiracy is not established.
Accordingly, the first contention raised on behalf of the learned counsel for
the appellant must be rejected.
The 2nd
and 4th contention are in fact inter-linked, relating to the acceptability of
the evidence of PW 14. But before examining the evidence of said PW 14 it would
be appropriate to deal with the 3rd contention namely the probability of the
prosecution case. According to the learned counsel for the appellant, since all
the brothers were doing business at Calcutta and they wanted to do away with
the deceased Jagrup Singh, there would be no occasion for coming all the way to
the village home of Punjab and commit murder in their own house which they
could have otherwise done in the city of Calcutta. That there was dispute
amongst the brothers on account of business they are carrying has been well
proved by the prosecution. Merely because the accused persons could have
committed the murder of the brother at Calcutta does not improbabalise the prosecution case that in fact the deceased
brother and other brother also came to Punjab to commit the murder. It is difficult to visualize what operated in the
mind of the accused and why he chose to come to Punjab to commit the murder of the brother. In this view of the
matter the prosecution case has to be adjudged on the basis of the evidence
laid and not by entering into an arena of conjecture. We accordingly do not
find any substance in the 3rd contention raised by the learned counsel for the
appellant.
Coming
now to the 2nd and 4th contentions, it depends upon the assessment of evidence
of PW 14 the sole eye witness to the occurrence. As has been stated earlier the
two other witnesses who had been examined by the prosecution are the father and
mother of the accused and who did not support the prosecution during trial, as
a result of which they were cross-examined by the prosecution, and their
earlier statements have been confronted. So far as PW 14 is concerned one of
the arguments advanced by the learned counsel for the appellant is the fact
that his name did not find place in the F.I.R. as a witness to the occurrence.
F.I.R.
can be used only for the purpose of corroborating or contradicting the maker
thereof. That apart, the F.I.R. was lodged by the father who has stated to have
seen the ghastly occurrence, one son killed the other and at that juncture if
he did not mention the name of Jai Narayan to be a witness to the occurrence,
the evidence of Jai Narayan cannot be doubted on that score. It is well settled
that if the witness is found to be independent and reliable and is believed to
be present during the occurrence then his evidence cannot be rejected on the
sole ground that his name had not been mentioned in the F.l.R. Non-mention of
name of a witness may be an honest omission, inadvertent mistake or may be due
to various other conceivable reasons. lt has been held by this Court in the
case of Nirpal Singh and others vs. State of Haryana. (1977) 2 SCC 131, that the name of the witness examined on
trial not having been given in the F.l.R. though may be of some relevance but
by itself would not entail rejection of his evidence. On examining the First
information Report we find that no mention has been made as to who are the
witnesses to the occurrence. That by itself cannot be the ground to discard the
evidence of witness who stated to have witnessed the occurrence if
intrinsically nothing has been brought out in the cross-examination to impeach
his testimony. In the circumstances we are unable to persuade ourselves to
agree with the submission of the learned counsel for the appellant that
non-mention of the name of Jai Narayan in the F.l.R. is sufficient to impeach
his veracity. Mr. Sushil Kumar also in this connection submitted that even
while conducting inquest over the dead body of the deceased the statement
recorded by the investigating officer does not also indicate the name of Jai Narayan.
According to him the practice followed in Punjab is that while filling up column 12 the brief facts of the case are
recorded and that is what also has been recorded in the present case and said
statement does not indicate Jai Narayan to be a witness to the occurrence. On
examining the inquest report we find that what has been stated to be the proved
facts is the verbatim quoting of the F.I.R. by Bant Singh and since in the F.l.R.
name of Jai Narayan or name of any witness had not been given to be eye witness
to the occurrence question of inclusion of his name in the inquest report does
not arise. That apart, and statement so made to the investigating officer while
conducting inquest would be hit by Section 162 of the Code of Criminal
Procedure inasmuch as this would be a Statement in the course of investigation.
Such a statement therefore can only be utilized for contradicting the witness
in the manner provided by Section 145 of the Evidence Act and for no other
purpose. This being the position of law, non-mention of name of Jai Narayan in
the so called inquest statement is hardly relevant impeaching the statement of
Jai Narayan. Mr. Sushil Kumar then contended that the occurrence. took place on
6.12.1981 and shortly after the occurrence the investigating officer PW 18
arrived at the scene of occurrence but Jai Narayan was examined only on
8.12.1981 and this delay in examination makes his statement vulnerable. On
examining the evidence of PW 14 we find that when the Sarpanch PW 16 and Bant
Singh PW 5 left for the Police Station to lodge the report, PW 14 went to the
MLA, Baldev Singh Mann, PW 23 to request him to book a trunk call to Calcutta and to intimate the family of
deceased Jagrup Singh. He further stated that on his request PW 23 contacted Karan
Singh, PW 8, a friend of Jagrup Singh and intimated about the death of Jagrup
Singh to be conveyed to his family members. According to PW 14 after the
telephone call to Calcutta matured, he went to the bus stand
at Sangrur and then left for Patiala and
from Patiala he went to the village Main to meet Jagrup Singh wife's brother. He informed
about the murder of Jagrup Singh to his brother-in-law at 8 P.M. and thereafter he came back to village Tiranji Khera on the
next morning and the police interrogated him at about 11 A.M. This has been brought out in the cross-examination
of this witness which offers sufficient explanation for the non-examination of
PW 14 on 6.12.1981, and his examination on 8.12.1981. We, therefore, see no
infirmity with the so called delayed examination of PW 14 nor are we in a
position to doubt his evidence on that score. PW 23 the local MLA had clearly
indicated that on 6.12.1981 at about 8.30 P.M. Jai Narayan came to him and told
about the murder of Jagrup Singh and requested him to intimate the fact to the
family members of Jagrup Singh at Calcutta.
Though
he has been elicited in the said cross- examination to impeach the testimony.
His evidence unequivocally establishes the presence of Jai Narayan in the
village on the fateful day and also corroborates the evidence of Jai Narayan as
a contemporaneous statement made to PW 23 and it demolishes the main plank of
the argument of Mr. Sushil Kumar that Jai Narayan was not at all present in the
village and has been subsequently introduced. That apart, though Bant Singh the
father of the accused appellant (PW 5) did not support the prosecution during
trial and was accordingly cross-examined by the prosecution but his statement
to PW 16, Sarpanch immediately after the occurrence to the effect that Babu
Singh, appellant killed Jagrup Singh has been testified by PW 16. PW 8 fully
corroborates PW-23 to the effect that said Shri Man, told him on telephone that
Babu has murdered Jagrup Singh. The comment of the learned counsel for the
appellant so far as PW 8 is concerned is omission in his earlier statement to
the police under Section 161 Crl.P.C. about not telling that Jai Narayan the
servant of Jagrup Singh was standing with him which he had stated in his
evidence in court. In our considered opinion the said omission cannot be held
to be a material omission amounting to contradiction in relation to the
substratum of the prosecution case so as to discard the evidence. We have
carefully scrutinized the evidence of PW 14 who has given a detailed narration
of facts as to how appellant Babu Singh caused injury to Jagrup Singh with Takua
and the blows were being given on the head of the deceased. Though he has been
cross-examined at great length but nothing has been elicited in the
cross-examination to create any doubt about the veracity of PW 14. The said
evidence of PW 14 is corroborated by the medical evidence of PW 14, The said
evidence of PW 14 is corroborated by the medical evidence of PW 1, the doctor
who had conducted the post-mortem examination on the dead body cf the deceased
so far as the specific part of the body on which the Babu Singh assaulted, the
weapon of assault Babu Singh used and the nature of injury thereby caused on
the deceased.
Tn the
aforesaid premises we entirely agree with the conclusion of the learned
Sessions Judge affirmed by the High Court that the prosecution established the
charge of murder against appellant Babu Singh beyond reasonable doubt and the
said conviction and sentence passed against him does not require any
interference by this Court. This appeal is accordingly dismissed. The bail bond
of the appellant stand cancelled and he is directed to surrender to receive the
balance period of sentence and if he fails to surrender appropriate steps may
be taken for his apprehension.
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