Singh & Ors Vs. State of Rajasthan  INSC 482 (14 September 2000)
THOMAS, J. & R.P. SETHI, J. THOMAS, J.
The killers of an advocates clerk arranged a funeral pyre by themselves and
cremated the victim in the sight of his bereaved widow and son. Police
charge-sheeted six persons including the appellants for those acts. But the
Sessions Court acquitted them all. As the High Court reversed the order of
acquittal as against the appellants and convicted them for murder they filed
this appeal as of right under Section 379 of the Code of Criminal Procedure
(for short the Code). We heard detailed arguments of Shri Uday Umesh Lalit,
Advocate for the appellants and Ms.
Doshi, Advocate for the State of Rajasthan.
Singh was an advocates clerk who was murdered in the vicinity of his own house
by using a pistol and other lethal weapons at about 7 P.M. on 29.6.1981. The prosecution case is the following:
Hukam Singh (who was ranked as A.1 in the trial court) and his brother Harnam
Singh (A.5) and the latters sons Jaswant Singh (A.2) and Balwant Singh (A.4)
had some axe to grind against deceased Munshi Singh. On the evening of the
fateful day Munshi Singh alighted from a bus near his house and was proceeding
to his house. His son Bhupender Pal (PW.4) took over a bag of cattle-feed which
his father brought from the bazar and he too was walking a little ahead of his
father. All the appellants were at the bus stop variously armed. On sighting
the deceased one among the appellants (Hukam Singh) made an exhortation to
finish him off and then Darshan Singh (who died before the trial started) fired
his pistol which hit the deceased on his back. He slumped down on the spot.
the above mishap befallen his father PW.4 Bhupender Pal rushed to rescue him. Munshi
Singhs wife on hearing the commotion flew down from her house and reached her
husband. All the accused assaulted both of them as well as the deceased. Then
the assailants dragged the deceased along the ground and brought him to their
courtyard. They made a pyre with firewood splinters and put the body of Munshi
Singh on it and set it ablaze while his wife and son were looking on aghast.
police was alerted and they reached the spot but to find only the burnt
remaining of Munshi Singh and the smouldering embers of the dying pyre. They
extinguished the flames and salvaged whatever remained on the corpse. A team of
doctors conducted post-mortem examination among whom PW.8 Dr. Rajendra Kumar
gave evidence that the dead body reached such a stage of burnt condition that
it was impossible to form an opinion regarding the cause of death. However,
they recovered a metallic substance from the skeleton which could be the
embedded remnant of firing the pistol.
Singh, when examined by the Sessions Judge under Section 313 of the Code
admitted that he killed the deceased. But he advanced a contrary version like
this: He and Darshan Singh saw the deceased grappling Bharama Bai and the lady was
crying. Then Darshan Singh fired at the molesting Minshi Singh. When his son Bhupender
Pal (PW.4) and his wife Ram Pyari(PW.5) reached the spot Hukam Singh and his
associates forcibly prevented them from removing Munshi Singh from the spot. He
also admitted that the dead body of Munshi Singh was subsequently cremated by
the Sessions Court nor the High Court found the said version of Hukam Singh to
be true. He did not care to examine Bharama Bai nor make any attempt to
substantiate the version put forward by him. The courts therefore did not
attach any credence to the aforesaid belated version put-forth by Hukam Singh
at the fag end of the trial.
Pal (PW.4) and Ram Pyari (PW.5) were the two eyewitnesses examined by the
prosecution. The fact that they were present at the scene of occurrence could
not be disputed nor the same has been disputed by the accused.
sustained injuries at the hands of the assailants and the doctor who noted such
injuries had testified about them in the court as PW.9. The version spoken to
by PW-4 in court is substantially a reiteration of the version which he
supplied to the police as early as 8.40 P.M. on the same night. That became the basis for the FIR. The Sessions
Court refused to believe the testimony of those witnesses on the erroneous
perception that they are interested witnesses. The only premise for dubbing
them as interested witnesses is that they were the kith and kin of the
deceased. Why should such witnesses be termed as interested witnesses? If they
had seen the occurrence they would certainly have the interest to bring the
offenders of the murder of their breadwinner to book. Normally the kith and kin
of the deceased, if they had seen the occurrence would not absolve the real
offenders and involve innocent persons for that murder. [Vide Dalip Singh vs.
State of Punjab (1954 SCR 145), Guli Chand vs.
State of Rajasthan 4 SCC 158)].
that as it may, the promptitude with which the First Information Statement was
lodged as done by PW.4 in this case, give such an assurance that he would have
told the police the true version of the incident.
First Information Statement PW.4 mentioned that one Inder Singh and one Budh
Ram Nayak have also seen the incident. The Investigating Officer included those
two persons as witnesses to the occurrence when the final report was laid. But
in the Sessions Court they were not examined by the Public Prosecutor. The
Sessions Judge frowned at the prosecution for not examining those witnesses.
The High Court noted that non-examination of those witnesses was due to an
application submitted by the Public Prosecutor that those two witnesses did not
support the prosecution version.
that aspect learned Judges of the High Court made the following observations:
opinion, it is the discretion of the Public Prosecutor to examine the
witnesses, whom he likes. It is not necessary for the prosecution to examine
each and every witness to prove a particular fact. When the Public Prosecutor
came to know that Inder Singh and Budh Ram would not depose in favour of the
prosecution, he was justified in giving them up by moving an application in the
court that the witness had joined hands with the accused. There was nothing
wrong in the conduct of the Public Prosecutor. The fact that the two witnesses
have not been examined, does not detract the testimony of Ram Pyari and Bhupender
Umesh Lalit, learned counsel for the appellants made a criticism against the
Public Prosecutor for not examining those two witnesses, as they were the only
independent witnesses. Learned counsel contended that the Public Prosecutor can
not withhold the evidence of such independent witnesses in a case of this
nature as the remaining witnesses were the close relatives of the deceased
person. The discretion of the Public Prosecutor in choosing the witnesses for
examination cannot include the freedom to keep away such independent witnesses
from being examined, argued the counsel.
other hand, Ms. Anjali Doshi, learned counsel who argued for the State,
submitted that the Public Prosecutor did not commit any impropriety in not
examining those two witnesses. When he learnt that those two witnesses would
speak against the prosecution version he sidestepped them and it is the prerogative
of the Public Prosecutor not to examine such persons as prosecution witnesses;
it is open to the Public Prosecutor to report to the court about his decision
not to examine any person as prosecution witnesses particularly when he got
report through his own sources that those witnesses were won over by the
accused, according to the learned counsel for the State.
trials before a Court of Sessions the prosecution shall be conduced by a Public
Prosecutor. Section 226 of the Code enjoins on him to open up his case by
describing the charge brought against the accused. He has to state what
evidence he proposes to adduce for proving the guilt of the accused. If he knew
at that stage itself that certain persons cited by the investigating agency as
witnesses might not support the prosecution case he is at liberty to state
before the court that fact. Alternatively, he can wait further and obtain
direct information about the version which any particular witness might speak
in court. If that version is not in support of the prosecution case it would be
unreasonable to insist on the Public Prosecutor to examine those persons as
witnesses for prosecution.
the case reaches the stage envisaged in Section 231 of the Code the Sessions
Judge is obliged to take all such evidence as may be produced in support of the
clear from the said Section that the Public Prosecutor is expected to produce
evidence in support of the prosecution and not in derogation of the prosecution
said stage the Public Prosecutor would be in a position to take a decision as
to which among the persons cited are to be examined. If there are too many
witnesses on the same point the Public Prosecutor is at liberty to choose two
or some among them alone so that the time of the court can be saved from
repetitious depositions on the same factual aspects. That principle applies
when there are too many witnesses cited if they all had sustained injuries at
the occurrence. The Public Prosecutor in such cases is not obliged to examine
all the injured witnesses. If he is satisfied by examining any two or three of
them, it is open to him to inform the court that he does not propose to examine
the remaining persons in that category. This will help not only the prosecution
for relieving itself of the strain of adducing repetitive evidence on the same
point but also helps the court considerably in lessening the workload.
has come to make every effort possible to lessen the workload, particularly
those courts crammed with cases, but without impairing the cause of justice.
situation in a case where the prosecution cited two categories of witnesses to
the occurrence, one consisting of persons closely related to the victim and the
other consisting of witnesses who have no such relation, the Public Prosecutors
duty to the court may require him to produce witnesses from the latter category
also subject to his discretion to limit to one or two among them. But if the
Public Prosecutor got reliable information that any one among that category
would not support the prosecution version he is free to state in court about
that fact and skip that witness being examined as a prosecution witness.
open to the defence to cite him and examine him as defence witness. The
decision in this regard has to be taken by the Public Prosecutor in a fair
manner. He can interview the witness before hand to enable him to know well in
advance the stand which that particular person would be adopting when examined
as a witness in court.
Judge Bench of this Court has stated the above legal position thirty five years
ago in Masalti vs. State of Uttar Pradesh
[AIR 1965 SC 202]. It is contextually apposite to extract the following
observation of the Bench:
not unknown that where serious offences like the present are committed and a
large number of accused persons are tried, attempts are made either to terrorise
or win over prosecution witnesses, and if the prosecutor honestly and bona fide
believes that some of his witnesses have been won over, it would be
unreasonable to insist that he must tender such witnesses before the court.
said decision was followed in Bava Hajee vs. State of Kerala [AIR 1974 SC 902]. In Shivaji Sahabrao
of Maharashtra [1973 (2) SCC 793], Krishna Iyer J., speaking for a three Judge
Bench had struck a note of caution that while a Public Prosecutor has the
freedom to pick and choose witnesses he should be fair to the Court and to the
truth. This court reiterated the same position in Dalbir Kaur vs. State of Punjab [(1976) 4 SCC 158].
Umesh Lalit alternatively contended that even if Hukam Singh and Darshan Singh
are found responsible for the murder of Munshi Singh that would not warrant any
need to tag the remaining appellants with the murder of the deceased by means
of either Section 149 or Section 34 of the IPC. According to the learned
counsel, if the acts attributed to them (that they dragged the deceased up to
their chowk and put his body on the pyre and set him ablaze) are true, the
offence of which they are liable to be convicted cannot escalate beyond Section
bestowed serious consideration to the above contention. If the evidence of PW4 Bhupender
Pal and PW.5 Ram Pyare is believable the role played by each of the appellants
can be discerned with reasonable degree of certainty. It is not as minor as
sought to be dubbed by the learned counsel. Starting with their convergence at
the bus stop, presumably waiting for the return of the deceased after his days
work, the fact that all were variously armed, the fact that they all joined
together in inflicting blows on the fallen victim and also on his wife and son
who rushed to the rescue of their bread-winner, and the fact that they all
jointly dragged the deceased up to the pyre and set him ablaze are very
material in deciding whether they all had the common object of liquidating the
deceased on that very evening.
scrutiny of the evidence and consideration of the arguments seriously pressed
into the service by the learned counsel we have no reason to dissent from the
finding arrived by the Division Bench of the High Court that all the appellants
are liable to be convicted of the offences found against them. We, therefore,
affirm the conviction and sentence passed on them and dismiss this appeal.