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PETITIONER:

SUKHWANT SINGH

Vs.

RESPONDENT:

STATE OF PUNJAB

DATE OF JUDGMENT28/03/1995

BENCH:

MANOHAR SUJATA V. (J)

BENCH:

MANOHAR SUJATA V. (J)

AGRAWAL, S.C. (J)

HANSARIA B.L. (J)

CITATION:

1995 AIR 1380 1995 SCC Supl. (2) 262

JT 1995 (3) 506 1995 SCALE (2)496

ACT:

HEADNOTE:

JUDGMENT:

DR. ANAND, J.:

1. The appellant was tried for an offence under Section

302 IPC in connection with the murder of one Ajmer Singh on

11.7.1984 at about 7.30 p.m. The learned Judge Special

Court, Ferozepur convicted him for the said offence and

sentenced him to suffer life imprisonment. Through this

appeal, under Section 14 of the Terrorists Affected Areas

(Special Courts) Act, 1984, the appellant has challenged his

conviction and sentence.

2. According to the prosecution case, the appellant is

married to the sister of Pal Singh. An engagement had been

brought about through the instrumentality of the appellant

between the daughter of Pal Singh and Lakhmir Singh son of

Kashmir Singh. The deceased, Ajmer Singh and his brother,

Gurmej Singh PW 3 were on friendly terms with Kashmir Singh

but for some reason or the other, that engagement was

snapped and Lakhmir Singh was married to some other girl

about 3 days prior to the occurrence. The appellant

suspected that Ajmer Singh deceased and his brother Gurmej

Singh PW were responsible for the snapping of the

engagement. On 11.7.1984 at about 7.30 p.m., Gurmej Singh,

PW 3 accompanied by Ajmer Singh, deceased and Raghbir Singh,

PW4 were going to the fields to answer the call of nature

and when they reached near the bridge on the village pond,

the appellant came from the opposite side wearing the robes

of a Nihang and exhorted that he would teach them a lesson

for getting the engagement snapped. Immediately thereafter

the appellant took out a pistol from underneath the chola

(robes) that he was wearing and fired a shot at Ajmer Singh.

On alarm being raised by Ajmer Singh, PW3 and PW4, the

appellant fled away alongwith the pistol. One Major Singh,

PW5 who was also present in the nearby field also witnessed

the occurrence. Ajmer Singh was removed to the haveli and

while he was being shifted to the Hospital at Malout, in the

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tractor trolley of Kashmir Singh, he expired. On reaching

the hospital, the doctor pronounced Ajmer Singh dead. On

information being sent by Dr. Sant Singh, Ex. P-5 about the

arrival of Ajmer Singh deceased at the hospital to the

police station, Shri Raghubir Singh, ASI PW6 proceeded to

the hospital and recorded the statement of Gurmej Singh, Ex.

P-4 at about 11.45 p.m. The statement was sent to the police

station for registration of a case and on its basis formal

FIR Ex.P-4/B was drawn up. A case under Section 302 IPC and

Section 25 Arms Act was registered at 12.10 a.m. on

12.7.1984.: A copy of the special report was sent to the

Ilaqa magistrate and was received by him on 12.7.1984 at

about 6.30

499

a.m. After preparing the inquest report Ex.P-2, the dead

body was dispatched for postmortem which was performed by

Dr. Sant Parkash Singh, Sr. Medical Officer PW1 on July 12,

1984 at about 11.00 a.m. The doctor found fire arm injuries

on the deceased and opined that the death had been caused

due to shock and haemorrhage as a result of injury No. 1,

which was found to be sufficient in the ordinary course of

nature to cause death. During the investigation by ASI

Raghubir Singh, PW6the rough site plan of the place of

occurrence was prepared. From the spot, blood stained earth

as well as an empty were collected vide memo Ex. P-8. The

same were secured in separate sealed parcels. The appellant

was arrested on 8.8.1984 and at the time of his arrest, he

was found to be carrying with him a pistol and 7 live car-

tridges which were seized by the police.

3. At the trial, the prosecution examined Dr. Sant Parkash

Singh, PW1 Draughtsman Ajit Sharma, PW2, Gurmej Singh, PW3

and Raghubir Singh, ASI PW6. Raghubir Singh PW4 and Major

Singh PW5, the two other eye witnesses were tendered for

cross examination only. The appellant denied the

prosecution allegations against him in his statement under

Section 313 Cr.P.C. The appellant was thereafter, convicted

and sentenced for the offence under Section 302 IPC. The

case under Section 25 Arms Act was separately tried.

4. Learned counsel for the appellant submitted that the

solitary eyewitness examined at the trial by the

prosecution Gurmej Singh, PW3 could not be relied upon, as

not only he being the brother of the deceased was interested

in the prosecution case but also because his evidence stood

belied by the medical evidence which showed that the stomach

and the bladder of the deceased were empty thereby sug-

gesting that the injuries had been received by the deceased

after he had answered the call of nature and not before as

suggested by Gurmej Singh, PW3. Learned counsel also

submitted that in Rukka Ex. P-5 which was sent by the

doctor to the police station, it was recorded that the dead

body had been brought to the hospital by Raghbir Singh and

Major Singh and the name of Gurmej Singh was conspicuous by

its absence which went to show that Gurmej Singh PW3 was not

present at the time of occurrence or when the deceased was

removed to the hospital. According to the learned counsel,

the non-examination of Raghbir Singh, PW 4 and Major Singh,

PW5 by the prosecution, who were only tendered for cross-

examination, is a serious infirmity in the prosecution case

and renders it unsafe to uphold the conviction of the

appellant on the basis of the uncorroborated testimony of

Gurmej Singh, PW3.

5.Gurmej Singh, PW3, is the elder brother of the deceased.

lie is the solitary eye witness examined by the prosecution.

The absence of his name from rukka Ex. P-5, sent by the

doctor to the police station immediately after the arrival

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of the dead body in the hospital creates some doubt about

the presence of Gurmej Singh at the place of occurrence at

the time when the deceased would have accompanied the in-

jured to the hospital. The identification of the deceased

by Gurmej Singh and Major Singh PWs at the time of

postmortem examination of the deceased which has been relied

upon by learned counsel for the State, can not cure the

defect of the absence of the name of PW3 from Ruqqa

500

Ex.P-5 because the postmortem examination was conducted the

next day on 12-71984 at 11.00 a.m. There is no explanation

available on the record, nor has any been offered before us

to explain the absence of the name of PW3 from Ruqqa Ex.P-5

in which it was recorded that Raghbir Singh and Major Singh

had brought the deceased to the hospital.

6. That the deceased died as a result of fire arm injuries

is not disputed but what has been challenged is whether the

occurrence took place in the manner described by Gurmej

Singh PW3 and whether Gurmej Singh PW3 is an eye witness.

The first information report was recorded by Raghubir Singh

PW6 on the basis of the statement of Gurmej Singh, Ex.P-4

which was recorded at the hospital at about 11.45 p.m. on

11.7.1984. The possibility that Gurmej Singh PW3 might have

arrived at the hospital later on after learning about the

removal of his deceased brother to the hospital by Raghbir

Singh and Major Singh cannot be ruled out. Moreover, we

find that the special report reached the Ilaqa magistrate on

the next day at 6.30 a.m. There is no explanation, available

on the record about the delay in receipt of the special

report by the Ilaqa Magistrate. When admittedly the court

of the Ilaqa Magistrate and the police station are quite

close to each other. The fact that at thetimeof postmortem

examination the stomach and the bladder were found empty,

though suggestive of the position that contrary to what

Gurmej Singh, PW3 deposed, the deceased had answered the

call of nature before he was shot at, but cannot be

conclusive of it, as the possibility that the deceased might

have defalcated and urinated after the receipt of injuries

and before his death cannot ruled out.

7.The prosecution in this case came up with a positive case

that besides Gurmej Singh, PW3, Raghbir Singh PW4 and Major

Singh PW5 had also witnessed the occurrence. The names of

these two witnesses are also mentioned in the rukka Ex. P-5

as the persons who had brought the dead body to the

hospital. Their evidence in the circumstance of the case

was essential for unfolding of the prosecution case. The

prosecution however did not examine them and tendered them

for cross-examination by the accused at the trial but they

were not cross-examined by the accused. From the record of

the trial court we find that both PW4 and PW5 had been ten-

dered for cross examination "in the light of the

observations of the Supreme Court in the case of Jaggo AIR

197 1, SC 1586. " We are at a loss to appreciate how a wit-

ness could be cross-examined, when he has not been examined

in chief that is to say, when there is nothing in relation

to which he could be cross-examined.

8.It will be pertment at this stage to refer to Section 138

of the Evidence Act which provides :

"138. Order of examinations. Witnesses shall

be first examined-chief then (if the adverse

party, so desires) crossexamined, then (if the

party calling him so desires) re-examined.

The exmination and cross-examination must

relateto relevant facts but the cross-

examination need not be confined to the facts

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to which the witness testified on his

examination-in chief.

Direction for re-examination. The re-

examination shall be directed to the ex-

planation of matters referred to in cross-

examination; and if new matter is, by per-

mission of Court, introduced in re-exami-

501

nation, the adverse part), may further cross-

examine upon that matter.

9. It would, thus be seen that Section 138 (supra) envisages

that a witness would first be examined in chief and then

subjected to cross-examination and for seeking any

clarification, the witness may be re-examined by the

prosecution. There is, in our opinion, no meaning in

tendering a witness for cross examination only. 'rendering

of a witness for cross-examination, as a matter of fact,

amounts to giving up of the witness by the prosecution as it

does not choose to examine him in chief however, the

practice of tendering witness for cross-examination in

Session Trials had been frequently resorted to since the en-

actment of the Code of Criminal Procedure, 1898. The reason

behind taking recourse to such a practice, which undoubtedly

is inconsistent with Section 138 (supra), is not for to

seek. Under that Code as it stood prior to its amendment by

Act 26 of 1955 a full-fledged magisterial enquiry was to be

held, in a case which was triable exclusively by the Court

of Sessions or the High Court, in accordance with the

procedure laid down in Chapter XVIII thereof and in that

enquiry prosecution was required to examine all its wit-

nesses. Under Section 288 of that Code the evidence of the

witnesses so recorded by the Committing Magistrate could be

treated, at the discretion of the Session Judge, as

substantive evidence at the trial. More often than not, the

prosecution tak ing advantage of the above provision, use to

asks for and obtain leave of the Sessions Court to treat the

depositions of thesr witnesses whom they did not intend to

examine afresh, recorded in the committal enquiry as its

evidence in the trial and then tender them for cross-

examination. In other words, the prosecution brought on

record of the trial court and relied upon the testimonies of

some of the witnesses recorded at its instance before the

Committing Magistrate as its evidence during the trial and

then tendered them for cross-examination by the defences.

It will be pertinent to mention here that Act 26 of 1955

which amended the Code of 1898 restricted the examination of

prosecution witnesses in the committal enquiry in respect of

cases instituted on police report only to those who were to

give an ocular version of the incident only.

10.The question as to whether such a practice was legal and

valid in view of Section 138 (supra) and, if so to what

extent and in what manner it could be adopted came up for

consideration by different High Courts.

11. In Veera Koravan and others v. Emperor [AIR 1929 Madras,

906] a Division Bench of the Madras High Court opined that

merely tendering of a prosecution witness for cross-

examination is not a practice which should be encouraged

specially in a murder case as the procedure would be unfair

to an accused.

12. In Sadeppa Cireppa Mutgi and others v. Emperor (AIR

1942 Bombay, 37) Beaumont, C.J. speaking for the Division

Bench of the Bombay High Court opined :

"'The other Kakeri witness is Shambu, (Ex.

34), and a very irregular course was adopted

with regard to him. He way tendered for

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cross-examination. The practice of tendering

witnesses for cross-examination which is no

doubt often adopted, is inconsistent with

S.138, Evidence Act, which says that witness

shall be first examined-in-chief and then, if

ad-

502

verse party so desires, cross-examined, and

if, the party calling him so desire, re-

examined. It is obvious that if a witness is

examined by the defence without having given

any evidence-in-chief, he is not being cross-

examined, by whatever name the process may be

described. The practice of tendering for

cross-examination should only be adopted in

cases of witnesses of secondary importance.

Where the prosecution have already got suffi-

cient evidence on a particular point, and do

not want to waste time by examining a witness

who was examined in the lower Court, but at

the same time do not want to deprive the

accused of the right of cross-examining such

witness, they tender him for cross-

examination. But, I think, strictly speaking,

the witness ought to be asked by the

prosecution, with the consent, of course, of

the pleader for the accused, and the leave of

the Judge, whether his evidence in the lower

Court, is true. If he gives a general answer

as to the truth of his evidence in the lower

Court, he can be cross-examined on that. But

he must in some way be examined-in-chief

before he can be cross-examined. However, the

practice of tendering a witness for cross-

examination certainly should not be employed

in the case of an important eye-witness."

Emphasis supplied)

13.A Full Bench of the Bombay High Court in Emperor v.

Kasamally Mirzalli (AIR 1942 Bombay, 71) approved the

opinion of Beaumont, C.J. (supra) and " condemned" the

practice of tendering a witness for cross-examination in no

uncertain terms.

14.A Division Bench of the Punjab High Court in Kesar Singh

and another v. the State (AIR 1954 Punjab, 286) after

analysing the provisions of Sections 137 and 138 of the

Evidence Act, followed the law laid down by the Full Bench

of the Bombay High Court in Kasamalli's case (supra) and

observed :

"The other witness of this fact is Jai Ram

P.W.21 who was tendered for cross-examination,

but he was not cross-examined. That again in

my opinion is no evidence. The law in regard

to examination of witnesses is contained in

Section 137 and 138, Evidence Act. There is

no provision in that Act for permitting a

witness to be tendered for cross-examination

without his being examined-in-chief and this

practice is opposed to S. 138 of the Act. "

(Emphasis ours)

15. In Dhirendra Nath v. State (AIR 1952 Calcutta, 621), a

Division Bench of the Calcutta High Court held:

"There is a type of case where witnesses of a

secondary importance who have been examined

before the Committing Magistrate arc not

called before the Sessions Court, because the

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prosecution considers that it has already had

a sufficient body of evidence on the poin

t

concerned and then in fairness to the defence,

it those witnesses for cross-examination. But

the fact that the witness is tendered for

cross-examination means and implies that there

has been some examination-in-chief. As far as

I can see, the only Practical way in which a

witness can be tendered for cross-

examination is by asking him generally,

may be bya single question, in the sessions

court as to whether the statements made by

him before the committing Magistrate were

true and on his answering in the affirmative,

tendering the evidence given in the committing

Magistrate's court which would then serve

as the examination-in-chief. Unless the

examination-in-chief is brought on the

record in that fashion, I cannot understand on

what the defence will cross-examine the

witness tendered for cross-ex-

503

amination. It does not appear from the record

in this case that the evidence of the witness

before the Committing Magistrate was brought

on the record at all. In these circumstances,

tendering for cross-examination seems to me to

have been almost meaningless."

16. In Chotta Singh v. State (AIR 196 Punjab, 120), the

Punjab High Court held:

"Tendering a witness for cross-examination. is

almost tantamount to giving up a witness.

There is nothing in law that justifies such a

course. The trial courts adopt this manner of

examining witnesses simply to lighten their

burden, but it is not realised that in a

serious case like the present murder case when

the learned trial Judge failed to examine

Wazira P.W.5, he was very seriously remiss in

his duty."

17. A Division Bench of the Kerala High Court in

Thazhathethil Hamsa v. State Kerala (AIR 1967 Kerala, 16)

observed:

"In this connection we wish to clarify the

mistaken impression which the teamed Judge

seems to have entertained about the propriety

of the procedure adopted by the prosecution in

tendering eye-witnesses for cross-examination.

PW10 who had given evidence in the Committing

Court as an eye-witness was tendered for

cross-examination in the Sessions Court after

he made a bald statement that he has correctly

stated all he knew about the incident in the

enquiry, Court. The learned Judge has

evidently relied on an observation made by the

Patna High Court in Manzurul Haque v. State of

Bihar, AIR 1958 Pat 422 to find that such a

procedure is proper. But it is really not.

The very decision relied on by the learned

Judge started by enunciating the principle

thus :

" The practice of tendering witnesses leads to

considerable confusion and is to be

deprecated. A material witness should not be

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merely tendered but should be sworn and asked

to give evidence by the prosecution.

Tendering if at all should be confined to

witnesses of secondary importance. "

18. Thus, it is seen that the Bombay Kerala, Calcutta,

Madras and Punjab High Courts have notwithstanding the

provisions of Sections 288 of the Code of 1898 consistently

taken the view that there is no procedure whereby the

prosecution is permitted to tender a witness for cross-ex-

amination only, without there being any examination-in-chief

in relation to which, such a witness can be cross examined.

The practice of tendering a witness for cross-examination

has been consistently discouraged and even condemned by

those High Courts and in our opinion rightly. Our attention

has not been drawn to any judgment of any other High Court

which may have taken the contrary view.

19.In the State of U.P. and another v. Jaggo alias Jagdish

and others (AIR 1971 SC, 1586) which has been referred to

and relied upon by the prosecution and the trial court for

adopting the procedure of tendering PW4 and PW5 for cross

examination only in our opinion, has not been properly

appreciated and has been misapplied. That judgment cannot

be read to lay down, as a matter of legal preposition, that

a witness can be "tendered" for cross-examination even

without there being any examination in chief If there is

some earlier statement of the witness recorded by a

competent court or an affidavit filed in the trial court and

the witness testifies to the correctness of that earlier

statement at the trial, it (in certain cases of witnesses of

a formal nature) as noticed earlier be per-

504

missible to tender him for cross-examination after he is

sworn to the correctness of the earlier statement, because

in thateventhat earlier statement is treated as the

examination-in-chief of the witness but that is not the same

thing as tendering a witness for cross-examination only,

without there being any cxamination-in-chief on the record.

In Jaggo's case (supra) a Bench of this court was

considering the question whether the mere presentation of an

application by the prosecution to the effect that a certain

witness had been "won over" was conclusive of the allegation

that he had been so "won over" and the prosecution was

therefore relieved of its obligation to examine him at the

trial. The preposition was negatived and it was in that

context, that this court observed :

"On behalf of the appellant it was said that

Ramesh Chand wa won over and therefore the

prosecution could not call Ramesh. The High

Court rightly said that the mere presentation

of an application to the effect that a witness

had been won over was not conclusive of the

question that the witness has been won over.

In.such a case Ramesh could have been produced

for cross-examination by the accused. That

would have elicited the correct facts. If

Ramesh were an eye-witness the accused were

entillwd to test his evidence particularly

when Lalu was alleged to be talking with Rames

h

at the time of the occurrence."

(Emphasis ours)

20. The Division Bench, therefore was considering a

peculiar fact situation in that case and even in that

context it was observed that the witness "could have been

produced for cross-examination by the accused" and that "the

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accused were entitled to test his evidence." The

observations of the Division Bench in Jaggo's case,

therefore, do not support the view that a material witness

can be "tendered" for cross-examination only. The

observations from a judgment of this Court cannot be read in

isolation and divorced from the context in which the same

were made and it is improper for any Court to take out a

sentence from the judgment of this Court, divorced from the

context in which it was given, and treat such an isolated

sentence as the complete enunciation of law by this Court.

The judgment in Jaggo.v (supra) has in our opinion been

misappreciated and that judgment cannot beinterprcted as a

sanction from the Supreme Court to the prosecution to adopt

the practice of tcndering a witness for cross-examination

only, without there being any examinationin-chief,

inrelation to which the witness has to be cross-examined.

All that the judgment In Jaggo's case (supra) emphasises is

that the mere ipsi dixat of the prosecutor that a particular

witness has been won over is not conclusive of that

allegation and the Court should not accept the same

mechanically and relieve the prosecutor o his obligation to

examine such a witness. It was for this reason suggested by

the Bench that where the prosecution makes such an

allegation, it must keep the witness in attendance and

produce him to enable the defence to cross examine such a

witness to test his evidence as well as the allegations of

the prosecution and bring out the truth on the record.

After the coming into force of the Criminal Procedure Code,

1973, which replaced the Code of 1998, recording of evidence

in commitment proceedings have been totally dispensed with

and section 299 of that Code has been emitted.

Consequently, the course suggested by some of the High

Courts in the earlier quoted judgments

505

regarding tendering of a witness for cross-examination who

had been examined in the committal court, is also no more

relevant or available. The Jaggo's case, which was decided

when the Code of 1898 was operating in the field could not,

therefore, be pressed into service by the trial court while

dealing with the instant case tried according to the Code of

1973. Thus, considered it is obvious that the trial court,

wrongly permitted the prosecution to tender PW4 and PW5 for

cross-examination only. Both PW4 and PW5 were, according to

the prosecution case itself, eye witnesses of the occurrence

and had removed the deceased to the hospital. Their evi-

dence was, of a material nature which was necessary for the

unfolding of the prosecution story. The effect of their

being tendered only for cross examination amounts to the

failure of the prosecution to examine them at the trial.

Their non-examination, in our opinion, seriously affects the

credibility of the prosecution case and detracts materially

from its reliability.

21. There is yet another infirmity in this case. We find

that whereas an empty had been recovered by PW6, ASI

Raghubir Singh from the spot and a pistol alongwith some

cartridges were seized from the possession of the appellant

at the time of his arrest, yet the prosecution, for reasons

best known to it, did not send the recovered empty and the

seized pistol to the ballistic expert for the examination

and expert opinion. Comparison could have provided link

evidence between the crime and the accused. This again is

an omission on the part of the prosecution for which no ex-

planation has been furnished either in the trial court or

before us. It hardly needs to be emphasised that in cases

where injuries are caused by fire arms, the opinion of the

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Ballistic Expert. is of a considerable importance where both

the fire arm and the crime cartridge are recovered during

the investigation to connect an accused with the crime.

Failure to produce the expert opinion before the trial court

in such cases affects the creditworthiness of the pros-

ecution case to a great extent.

22.From a critical analysis of the material on the record,

we find that it would not be safe to rely upon the sole

testimony of PW3 Gurmej Singh, the brother of the deceased,

without independent corroboration in view of the infirmities

pointed out by us above which render his testimony as not

wholly reliable and since in the present case no such

independent corroboration is available on the record, it

would be unsafe to rely upon the testimony of PW3 only to

uphold the conviction of the appellant. The prosecution has

not been able to establish the case against the appellant

beyond a reasonable doubt. The trial court, therefore, fell

in error in convicting and sentencing the appellant. His

conviction and sentence cannot be sustained. This appeal

consequently succeeds and is allowed. The conviction and

sentence of the appellant is set aside. The appellant is on

bail. His bail bonds shall stand discharged.

507