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PETITIONER: BABU SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       24/04/1996

BENCH: G.B. PATTANAIK (J) BENCH: G.B. PATTANAIK (J) FAIZAN UDDIN (J)

CITATION:  JT 1996 (4)   753        1996 SCALE  (4)1

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK, J.      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

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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

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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

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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

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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

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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.