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PETITIONER:

HUKAM SINGH AND ORS.

Vs.

RESPONDENT:

STATE OF RAJASTHAN

DATE OF JUDGMENT: 14/09/2000

BENCH:

K.T. THOMAS, J. & R.P. SETHI, J.

JUDGMENT:

THOMAS, J.

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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.

Anjali Doshi, Advocate for the State of Rajasthan.

Munshi 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:

Appeallnt 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.

Seeing 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.

The police was alerted and they reached the spot but to

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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.

Hukam 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 them.

Neither 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.

Bhupender 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.

They 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

(1974 3 SCC 698) and Dalbir Kaur Vs. State of Punjab (1976

4 SCC 158)].

Be 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.

In the 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

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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.

Regarding that aspect learned Judges of the High Court made

the following observations:

In our 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 Pal.

Shri Uday 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.

On the 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.

In 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.

When 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 prosecution.

It is clear from the said Section that the Public Prosecutor

is expected to produce evidence in support of the

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prosecution and not in derogation of the prosecution case.

At the 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.

Time has come to make every effort possible to lessen the

workload, particularly those courts crammed with cases, but

without impairing the cause of justice.

The 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.

It is 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.

A four 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:

It is 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.

The said decision was followed in Bava Hajee vs. State

of Kerala [AIR 1974 SC 902]. In Shivaji Sahabrao Bobade vs.

State 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].

Sri Uday 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

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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 201 IPC.

We 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.

On a 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.