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PETITIONER: GURMEJ SINGH AND ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT16/07/1991

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) RAMASWAMI, V. (J) II FATHIMA BEEVI, M. (J)

CITATION:  1992 AIR  214            1991 SCR  (2) 966  1991 SCC  Supl.  (2)  75 JT 1991 (3)    90  1991 SCALE  (2)69

ACT:      Indian  Penal  Code-Section 302 read with  Section  34- Conviction  based on the evidence of close  relatives  being interested testimony-Whether valid.      Non-examination of one of the eye-witnesses-Effect of.

HEADNOTE:      The  appellants  and the deceased  Harnam  Singh,  were neighbours and had strained relations on account of  passage of   sullage   water  and  elections.   According   to   the prosecution, they had quarrelled over the passage of sullage water  a few months before the incident; the appellants  had diverted  their  sullage  water towards  the  house  of  the deceased  and the latter had protested and frustrated  their effort,  with the result the water collected in a pool  near the  house  of the appellants which  infuriated  them.   The appellants  attacked and murdered Harnam Singh on the  night between  6th  and  7th June, while he was  sleeping  at  his tubewell  alongwith P.Ws 2 and 3 and one Narain  Singh  (not examined);  P.  Ws 2 and 3 were sleeping at  a  distance  of about  15  karams while Narain Singh was sleeping  near  the deceased.  The prosecution alleged that Gurmej Singh fired a shot  from close range at the deceased while he was  asleep; Gian Singh struck a Gandasi blow on the chest and Bur  Singh gave  a  Dang blow on the arm.  After making sure  that  the victim had died, the appellants fled away. P. Ws 2 and 3 did not  raise  any  alarm  as  they  were  threatened  by   the appellants  that they would be killed in case they made  any hue and cry. P. W. 2 lodged the F.I.R. and disclosed therein the  names of the appellants only as assailants.  Two  other persons  Sucha  Singh and Santokh Singh were also  shown  as arrested for the commission of this crime though their names did  not figure in the F.I.R. According to  the  prosecution witnesses,  these persons were falsely implicated by P.W.  8 Sub-Inspector.   The appellants alongwith these two  persons were  put  up for trial.  The trial  Judge  acquitted  these persons  as  having  been falsely  involved  and  no  appeal against  their acquittal was preferred.  However  the  Trial Court  relying  on the evidence of  P.Ws,  convicted  Gurmej Singh  under  Section 302, I.P.C. and the  other  two  under

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Section 302/34 I.P.C. and sentenced all                                                        967 the  three to imprisonment for life and also  imposed  token fines.   The  appellants appealed against  their  conviction before  the  High Court but the Division Bench of  the  High Court  dismissed  their appeal.  They have  now  filed  this appeal   against  their  conviction  and   sentence,   after obtaining special leave.      Dismissing the appeal, this Court      HELD:  It is true that Narain Singh was  sleeping  near the  deceased when the latter was shot at Narain  Singh  was indeed  a witness to the occurrence and ordinarily we  would have  expected the prosecution to examine him.   Dropping  a witness  on the specious plea that he was won  over  without laying  the foundation therefor is generally to  be  frowned upon. [973E]      The  defence  at  no  point  of  time  questioned   the prosecution  statement that Narain Singh was won over.   The courts  below  accepted the prosecution  statement  in  this behalf.   The  judgment of both the courts  reveal  that  no submission   was  made  before  them  regarding   the   non- examination of this witness.  If an objection was raised  at the earliest point of time, the prosecution may have  called him to the witness stand.  His presence was not required  to unfold the prosecution story.  That had been done by P.Ws. 2 and 3. Therefore, the non-examination of Narain Singh cannot reflect on the credibility of P.Ws. 2 and 3. [973G-974A]      Both the courts were right in coming to the  conclusion that the contradictions brought on record from the statement of PWs 2 and 3 can have no evidentiary value. [977B]      There is no substance in the criticism levelled by  the learned Counsel for the appellants that the prosecution  had shifted  its case at the trial from the one narrated to  the police  in  the course of  investigation.   The  prosecution version  is that immediately after the incident PW2 went  to the  residence of his father P.W. 4 and informed  him  about the incident.  This conduct of P.W. 2 is quite natural.  The evidence  of P.W. 2 stands corroborated by the  evidence  of P.W.  4  P.W.  2 therefore hired a tempo and  left  for  the police  station  and promptly lodged the  first  information report.   It  must be realised that P.W. 2 had no  time  for manipulation as he had reached the Police Station, which was at a distance of 12 Km. before 8.30 a.m.  He would not  have named the assailants if he had not seen them.  There was  no reason for him to falsely implicate the appellants since  he bore  no  grudge against them; it was just the  reverse.   A copy of this report had reached the concerned                                                        968 Magistrate  by  about  11.15. a.m.  This  first  information report  also  lends  corroboration to  his  testimony.   The medical  evidence tendered by  P.W. 1 also corroborates  the version of P.Ws. 2 and 3.  There is, therefore, no infirmity in  the approach of the two courts below in  convicting  the appellants. [977D-G]      Sahaj Ram v. State of U.P., [1973] 1 S.C.C. 490;  Hallu JUDGMENT: Singh  &  Ors.  v. State of Punjab,  [1976]  1  S.C.C.  750; Kartarey v. State of U.P., [1976] 1 S.C.C. 172; Ishwar Singh v.  State of U.P., [1976] 4 S.C.C. 355; A.N. Rao  v.  Public Prosecutor, Andhra Pradesh, [1975] 4 S.C.C. 106 and State of U.P.  v. Hari Prasad & Ors., {1974} 3 S.C.C.  673,  referred to.

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&      CRIMINAL  APPELLATE JURISDICTION: Criminal  Appeal  No. 778 of 1979.      From  the  Judgment and Order dated  21.6.1979  of  the Punjab and Haryana High Court in Crl. A. Nos. 120 and 163 of 1977.      Frank Anthony and Sushil Kumar for the Appellants.      R.S. Suri for the Respondent.      The Judgment of the Court was delivered by      AHMADI, J. Harnam Singh, Sarpanch of Village  Naushera, was  murdered on the night between 6th June, 1976  while  he was sleeping at his tubewell to guard the wheat bags stacked in his filed. PW 1 Dr. Malhotra who conducted the autopsy at about 4.15 p.m. on 7th June, 1976 found four injuries on the person of the deceased, namely, (i) a lacerated  penetrating circular  would,  1/4’’  in  diameter,  with  black  margins inverted on right middle back, 3’’from mid-line and 9’’ from iliac crest, (ii) a vertical bruise 6’’ X 1/2’’ on the front of  right  forearm  running downwards  and  outwards,  (iii) beuises  in  the area of 5’’ X 1’’ on the  front  and  inner aspect  of  right upper-arm above the elbow  joint,  running forwards, outwards and downwards and (iv) an abrasion 5’’  X 1’’  on the right side of the chest, 5’’ from  mid-line  and 3’’  from  the  clavicle running downward  and  inward.   On opening  the first would it was found that the 8th  and  9th ribs  were fractured posteriorly; the diaphram and  superior surface  on the left lobe of the liver were  lacerated;  the heart  was  lacerated  into pieces and  the  third,  fourth, fifth,  sixth and seventh ribs of the left side were  broken anteriorly.  The exit wound was 8’’ X 4’’ on the left  upper chest just                                                        969 above  the  nipple.   Death  was on  account  of  shock  and haemorrhage  resulting from the bullet injury.  This  injury No. 1 was stated to be sufficient in the ordinary course  of nature to cause death.  The other injuries were possible  by a  hard and blunt weapon and were simple in  nature.   Death was  instantaneous.   Both  the  Courts  below,   therefore, rightly concluded that death was homicidal.      The  prosecution  case, briefly stated,  was  that  the appellant  and  the  deceased who  were  neighbours  in  the village  had quarrelled over the passage of sullage water  a few months before the incident.  The appellants had diverted their  sullage water towards the house of the  deceased  and the  latter had protested and frustrated their  effort.   On account of this obstruction the sullage water collected in a pool near the house of the appellants which infuriated them. On  account  of  this  incident as  well  as  past  election rivalries  the  relations  between the  appellants  and  the deceased  were so soured that on the night of  the  incident the three appellants went armed with weapons to the tubewell of  the deceased where the latter was sleeping to guard  his wheat stacked in bags.  Gurmej Singh was armed with a rifle, Gian  Singh was armed with Gandasi and Bur Singh  carried  a Dang.   The  prosecution  alleged  that  Gurmej  Singh   had concealed the rifle in the Chadar wrapped around him and  on reaching the place where the deceased was sleeping on a  cot he threw off the chadar and shot the deceased at point blank range.   The incident was witnessed by three  persons.   PW2 Swaran  Singh,  nephew of the deceased, PW3 Fauja  Singh,  a close  relative  of the deceased and one Narain  Singh  (not examined)  who  too were sleeping in  the  field.   Actually Narain  Singh was sleeping near the deceased whereas  PWs  2 and  3  were sleeping at a distance of  approximately  10/15 karams  therefrom.  the prosecution did not  examine  Narain

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Singh on the plea that he was won over.  The evidence of PWs 2  and 3 shows that they got up on hearing some movement  in the filed and they saw the three appellants near the cot  of the  deceased.  They were able to identify them  because  of the  existence  of  an  electric  light  at  the   tubewell. According  to them on reaching near the cot of the  deceased Gurmej  Singh fired a shot from close range at the  deceased who  was still sleeping in his cot.  Thereafter  Gian  Singh struck a Gandasi blow on the chest of the deceased  followed by a Dang blow on the right arm by Bur Singh.  Gurmej  Singh is  stated to have warned others not to get up  unless  they wanted to be killed.  On account of this warning PWs 2 and 3 did not run to the rescue of the deceased for fear of  being killed.   After making sure that their victim was dead,  the appellants  fled away.  PW 2 Swaran Singh then went  to  the house  of  his  father PW4 Waryam  Singh  and  narrated  the incident.  PW2 accom-                                                        970 panied  by Gurdas Singh, Lambardar, then went to the  Police Station at about 8.30 a.m. on 7th June, 1976 and lodged  the first  information  report. PW8 Sub-Inspector  Kartar  Chand Singh  then reached the place of occurence, held an  inquest on  the dead body of the deceased, lifted the blood  stained earth  from  the place of occurrence and then  recorded  the statements of PW3 Fauja Singh, Narain Singh and others. Gian Singh  and Bur Singh were arrested on 2nd July,  1976  while Gurmej  Singh  was arrested on 7th July, 1976.   It  appears that two more persons, namely, Sucha Singh and Santokh Singh (original  accused  Nos. 1 and 4,  respectively)  were  also shown  as arrested for the commission of this crime  on  2nd July.  1976 although their names were not disclosed  in  the first information report.  The allegation of the prosecution witnesses  PWs  2, 3 and 4 is that these  two  persons  were falsely  involved  as PW8 Sub Inspector Kartar  Chand  Singh wanted  to save his skin as he was found to  have  illegally and  wrongly detained them at the police station.   We  will deal with this aspect later but suffice it to say that  both the courts below have come to the conclusion that they  were falsely  involved  in  the  commission  of  this  crime   by fabricating  statements of PWs 2 and 3 under Section 161  of Criminal Procedure Code (‘the Code’ for short).  In view  of this  conclusion  reached by both the courts, the  said  two persons were acquitted.  No appeal was preferred challenging their  acquittal.   The Trial Court convicted  Gurmej  Singh under section 302 IPC and the other two under Section 302/34 IPC and sentenced all the three to imprisonment for life and also  imposed  token fines.  Against  their  conviction  the present three appellants filed an appeal which was dismissed by  a Division Bench of the High Court on 21st  June,  1979. It  is  against this finding of guilt recorded by  both  the courts   below  that  the  present  three  appellants   have preferred this appeal by special leave.      Mr.   Frank  Anthony,  counsel  for   the   appellants, submitted  that  there  were  three  eye-witnesses  to   the incident  even according to the prosecution case and out  of them  Narain  Singh  was nearest to the  deceased  when  the incident  occurred  on that dark night in the  field.   This Narain  Singh alone was an independent witness and  yet  the prosecution did not examine him on the specious plea that he was  won over.  The other two eye-witnesses.  PWs 2  and  3, are  admittedly close relatives of the deceased and  out  of them  the  presence  of PW3 is extremely  doubtful  being  a resident of a nearby village.  At any rate he can be  termed as  a chance witness and in all probability he came  to  the filed  from his village after learning about  the  incident.

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Besides, since the incident occurred on a dark night and the evidence  that the electric light at the tubewell was on  at that hour is extremely doubtful, it is                                                        971 difficult  to  believe  that  PWs 2 and  3  saw  the  actual incident  from a distance of 10/15 karams and were  able  to identify the assailants.  Said counsel, the conduct of  both these  eye-witnesses is not normal since they did not  raise an alarm even though they depose to have woken up on hearing some  movement in the field.  They could have cautioned  the deceased  and Narain Singh about the entry of third  parties in  the  field  since they were  there  precisely  for  that purpose.  They have tried to explain their unnatural conduct on  the  plea that the appellant Gurmej Singh had  raised  a ‘lalkara’ that anyone trying to come near the deceased would be  killed.  But this ‘lalkara’ was after the event and  not before, while the conduct of the eye-witnesses before the in incident is unnatural if they had actually got up on hearing some  movement of third parties in the field.  Else it  must be  accepted  that they got up on hearing the gun  fire  and before  they could go near the deceased, the assailants  had fled  away.  In this situation the evidence of Narain  Singh assumes  importance as he was most competent to  unfold  the true version regarding the incident, being just by the  side of the deceased at the time of the incident.  The failure to call him to the witness stand was, counsel submitted, unfair to the defence as it deprived the defence of the opportunity to elicit the true version regarding the offence.  Lastly he submitted that the prosecution has not place any material on record nor has it stated any reason in its written report in support of its conclusion that he had been won over.  In any event,  it is hazardous to base a conviction on  the  highly interested  testimony of PWs 2 and 3, particularly when  the motive  alleged  by  the  prosecution  for  implicating  the appellants is very weak.  Besides the evidence of PWs2 and 3 suffers from several infirmities.      Counsel for the State submitted that this Court  should not disturb the concurrent findings of fact recorded by  the two  courts and the reliance placed by them on the two  eye- witnesses whose evidence is corroborated by PW4.  He pointed out  that  both  the courts below had  recorded  a  positive finding that the electric light was on at the tubewell which provided sufficient light to enable PWs 2 and 3 to  identify the  assailants even from a distance of 10/15  karams.   The assailants were not strangers to PWs 2 and 3 and, therefore, their  evidence  on  the  question  of  identity  cannot  be doubted.   The  prosecution had stated the  reason  for  not examining  Narain Singh and if the defence had any doubt  in that behalf it could have requested the court to examine the said  witness as a court witness rather than keeping  silent and then raising a belated grievance.  In short he supported the line of reasoning adopted by the two courts below.                                                        972      It must be conceded at the outset that the  prosecution se  hinges  on the credibility of PWs2 and 3.   PW2  is  the nephew  of the deceased.  PW3 is the maternal cousin of  PW2 and  ws  closely  related to the deceased  as  the  latter’s daughter  Piari  was his younger brother’s wife.  PW3  is  a resident  of a neighbouring village lying at a  distance  of three  miles from the village of the deceased.   Ordinarily, therefore,  PW3 would not be expected to be present  at  the scene of occurrence but according to him he had gone to  see P.W. 2 and after having his meals both he and PW 2 had  gone to the tubewell of the deceased.  PW 3 claims  that he  woke up  at  about 3.00 a.m. as he was to return to  his  village

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when  he  saw the three persons and identified them  as  the appellants.   He does not speak of any ‘lalkara’ or to  have got  up on hearing footsteps as desposed by PW2 but  he  too did  not raise any alarm or try to caution the deceased  and Narain Singh who were sleeping 10/15 karams away.  After the incident  he  went  to the village  to  inform  his  younger brother’s  wife about the death of her father  and  returned with  her  to  the village by which  time   the  police  has arrived.   In  these circumstances the question  is  whether absolute reliance can be placed on PWs 2 and 3 regarding the involvement of the appellants?      Mr.   Frank  Anthony,  the  learned  counsel  for   the appellants, firstly submitted that the incident occurred  on a  dark  night in an open field at about 3.00 a.m.  when  as shown by the defence through the evidence of two independent witnesses  DW  1 and DW 2 the electricity had  tripped  and, therefore, the prosecution witnesses could not have seen the assailants  from  a  distance of about  10/15  karams.   He, therefore,  submitted  that  the claim  of  the  prosecution witnesses that they had identified the assailants on account of the presence of electric light at the tubewell is clearly belied  by the evidence of DWs 1 and 2. DW 1 Kewal  Krishan. Sub-Station  Attendant,  Punjab  State  Electricity   Board, Gurdaspur,  stated  that  on 7th  June,  1976  the  electric current  had  broken down at about  2.35 a.m.  and  was  not restored  till  5.50 a.m.  In support of this  statement  he produced  certain  entries from the register but  on  cross- examination  he  admitted  that  the  log  sheets  were  not available  and  it  was noticed that the  register  was  not properly bound and the threads of the previous binding  were broken and fresh binding was done raising a suspicion  about the  register  having  been tampered with.   DW2  Inder  Pal Singh,  SDO, Subarban-Gurdaspur, merely reiterated what  DW1 had  stated.  The courts below suspected the correctness  of the entry in the register.  But that apart, the High   Court was  right in saying that the time of 3.00 a.m. was  a  mere estimate  of eye-witnesses PWs 2 and 3 and neither  of  them had  verified the time with any wrist watch so as  to  vouch for its accuracy.  PW 2 had                                                        973 categorically stated that a 200 watt bulb was on at the time when the incident in question occurred.  He does not  depose to  have checked the time with his wrist watch or  with  the wrist  watch of PW3. Infact PW3 has deposed that he was  not wearing  a  wrist  watch  at  the  time  of  the   incident. Therefore, the estimate of time given by PWs 2 and 3  cannot be  taken  as  accurate and it is quite  possible  that  the incident occurred before the tripping of supply of  electric energy took place.  We are, therefore, not impressed by  the contention  of Mr. Anthony that the evidence of DWs 1 and  2 belies  the  version of PWs 2 and 3 that they were  able  to identify the appellants because of existence electric  light at  the tubewell.  Besides, it must be remembered  that  the appellants were no strangers to these prosecution  witnesses to make their identification by them difficult.      It was next submitted by Mr. Anthony that Narain Singh, an  independent witness, was deliberately dropped  for  fear that  he would reveal the truth and expose the falsehood  of PWs 2 and 3.  He submitted, relying on the decision of  this Court in Sahaj Ram v. State of UP, [1973] 1 SCC 490 that the prosecution should, in fairness, have produced this  witness since  he was one who would have unfolded the  true  version regarding  the  incident as he was in the  vicinity  of  the deceased.  The presence of blood at the scene of  occurrence establishes,  beyond any manner of doubt that  the  incident

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occurred at the place pointed out by PWs 2 and 3. It is true that  Narain Singh was sleeping near the deceased  when  the latter was shot at. Narain Singh was indeed a witness to the occurrence  and  ordinarily  we  would  have  expected   the prosecution  to  examine  him.  Dropping a  witness  on  the specious plea that he won over without laying the foundation therefore is generally to be frowned upon.  Counsel for  the appellants,  therefore, submitted that an adverse  inference should  be drawn against the prosecution for its  deliberate failure to examine Narain Singh.  But it must be  remembered that  the  investigating  office had  recorded  the  further statement of Narain Singh under section 161 of the Code  for involving the two acquitted persons who were nowhere in  the picture.  Narain Singh was, therefore, not likely to support the  prosecution version.  The defence at no point  of  time questioned  the prosecution statement that Narain Singh  was won  over.   The  courts  below  accepted  the   prosecution statement  in this behalf.  The judgment of both the  courts reveal that no submission was made before them regarding the non-examination of this witness.  If an objection was raised at  the  earliest point of time, the  prosecution  may  have called  him  to  the witness stand.  His  presence  was  not required  to  unfold the prosecution story.  That  had  been done by PWs 2 and 3.  Therefore, the non-                                                        974 examination   of   Narain  Singh  cannot  reflect   on   the credibility of PWs 2 and 3.      Counsel   for  the  appellants  next   submitted   that according to the prosecution applellant Gian Singh was armed with  a  Gandasi  and he is alleged to  have  given  a  blow therewith  on  the  chest of  the  deceased.   Ordinarily  a Gandasi  blow  would  cause an  incised  wound  whereas  the deceased had an abrasion 5’’ X 1’’ on the chest caused by  a hard  and  blunt substance.  According to  counsel  normally when  a  witness deposes to the use of a  particular  weapon there is no warrant for supposing that the blunt side of the weapon  was  used  by the assailant.   In  support  of  this contention  counsel invited our attention to two  decisions, namely,  Hallu & Ors. v. State of MP, [1974] 4 SCC  300  and Nachhattar Singh & Ors v. The State of Punjab, [1976] 1  SCC 750.  In his submission, therefore, the injury found on  the chest could not be attributed to Gian Singh who is stated to have  used the Gandasi.  We see no merit in this  contention for  the simple reason that the prosecution  witnesses  have categorically stated that Gian Singh used the blunt side  of the  Gandasi.  If the prosecution witnesses were  silent  in this  behalf  the submission of counsel would  have  carried weight.   But where the prosecution witnesses  categorically state that the blunt side of the weapon was used there is no room  for believing that the sharp side of the weapon  which would  be  normally  used  had  in  fact  been  used.    The observations in the aforesaid two judgments do not lay  down to the contrary.  In fact in the first mentioned case it  is clearly  stated  that  if  the  prosecution  witnesses  have clarified the position, their evidence would prevail and not the  normal inference.  Counsel, however, made  a  grievance that the prosecution had not tried to elicit the opinion  of PW  1 Dr. Malhotra on the question whether such an  abrasion was possible by a Gandasi blow. According to him, as held by this  Court in Kartarey v. State of U.P., [1976] 1  SCC  172 and  Ishwar Singh v. State of UP, [1976] 4 SCC 355,  it  was the  duty  of the prosecution to elicit the opinion  of  the medical-man  in  this  behalf.  PW1 clearly  stated  in  the course  of his examination-in-chief that injuries Nos. 2,  3 and 4 were caused by a blunt weapon.  It is true that he was

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not  specifically asked if the chest injury could have  been caused  by  the  blunt side of the Gandasi.   It  cannot  be gainsaid  that the prosecution must endeavour to elicit  the opinion  of the medical-man whether a particular  injury  is possible by the weapon with which it is alleged to have been caused  by showing the weapon to the witness.  In  fact  the Presiding Officer should himself have elicited the  opinion. However,  in  this case it should not make  much  difference because  the  evidence of PWs 2 and 3 is acceptable  and  is corroborated by the first information report as well                                                        975 as PW 3. If the medical witness had also so opined it  would have lent further corroboration.  But the omission to elicit his opinion cannot render the direct testimony of PWs 2  and 3 doubtful or weak.  We, therefore, do not see any merit  in this  submission.   In  fact  if  we  turn  to  the   cross- examination  of PW1 we find that the defence case  was  that these three injuries were caused by the rubbing of the  body against a hard surface, a version which has to be stated  to be rejected.      It  was  next contended that PWs 2 and  3  being  close relatives   of  the  deceased  could  not  be  relied   upon particularly because their version regarding the incident is not corroborated by independent evidence and it is extremely doubtful if they could have identified the assailants from a distance of about 10/15 karams.  We have already dealt  with the  latter part of this submission.  We have no  hesitation in  agreeing with the two courts below that they could  have identified the assailants who were no strangers to them from that  distance of 10/15 karams since the electric  light  at the  tubewell  was switched on.  Once the  evidence  of  the prosecution  witnesses  regarding  existence  of  light   is accepted, there is no difficulty in accepting their evidence regarding  identification.   The  presence of PW  2  at  the tubewell cannot be doubted as it was he who went to PW 4  in the  early hours and then travelled a distance of  about  12 km.  to  the police station where he lodged  his  complaint. Since  PW3  was  visiting  PW2 it was  natural  for  him  to accompany the latter to the field.  Both the courts accepted their  evidence and we see no reason to discard the same  on the  specious  ground that they  are  interested  witnesses. Their  evidence  has been subjected to  close  scrutiny  but nothing adverse is found to doubt their credibility.      The  next submission of counsel for the  appellants  is that  the evidence regarding motive is weak and,  therefore, it is not possible to believe that the appellants would kill the  deceased  on account of a minor quarrel  regarding  the passage of sullage water which had taken place a few  months back.   In this connection he invited our attention  to  the decisions  of this Court in A.N. Rao v.  Public  Prosecutor, Andhra  Pradesh,  [1975] 4 SCC 106 and State of UP  v.  Hari Prasad & Ors., [1974] 3 SCC 673.  This submission cuts  both ways.  It the evidence regarding motive is not  sufficiently strong  as argued by the counsel for the appellants,  it  is difficult to believe that PWs 2 and 3 would go out of  their way  to  falsely  involve the appellants.  But  it  must  be realised that there were election disputes and the  deceased had  successfully  contested the  election  against  Dalbeer Singh  who  was the candidate of Gian Singh, Bur  Singh  and others.  This old enmity coupled with the incident regarding the passage of sullage water in regard to which                                                        976 proceedings  under section 107/151 of the Code were  pending is the motive alleged by the prosecution and we do not think it  is  so weak that it would not prompt the  appellants  to

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kill  their  rival.  The decisions on which  counsel  places reliance can, therefore, have no application in the  special facts and circumstances of the present case.      Counsel  for  the appellants then  submitted  that  the evidence  of  PWs  2  and 3 which  is  corroborated  by  the evidence  of PW4 to whom the incident was narrated   by  PW2 cannot be believed in view of the contradictions brought  on record from their statements recorded under section  161  of the Code. As stated earlier both the Courts have come to the conclusion  that these statements are a  fabrication.   Both the courts below have given cogent reasons for reaching this conclusion.    In  particular  the  High  Court  has   after examining  the  record of the habeas corpus  petition  shown beyond  any  manner  of doubt  that  PW8  had  intentionally prepared  false  statements of all these  eye-witnesses  for falsely  involving Sucha Singh and Santokh Singh since  they were  wrongly  and illegally detained by him in  the  police station,  a  fact which was noticed by the  Court’s  Warrant Officer who had visited the police station on 2nd July, 1976 at about 5.15 p.m. He was initially told that no such person or  persons  had been detained inthe  police  station.   The Warrant  Officer, however, searched the police  station  and noticed  the presence of these two and other  persons.   It, therefore,  became  necessary  for PW  8  to  explain  their presence  in the police station since it was alleged in  the habeas  corpus petition filed on 30th  June, 1976 that  they were  illegally  detained.   The  Court  had  appointed  the Warrant  Officer  to  verify  this  allegation.   PW8   had, therefore,  to cover up the illegal detention of  these  two persons.   So  he substituted statements purported  to  have been  made  by  PWs 2 and 3 under section 161  of  the  Code involving  the  said two persons in the  commission  of  the crime  although  their  names did not figure  in  the  first information  report.  The courts below,  therefore,  rightly came  to the conclusion that the contradictions  brought  on record  on  the basis of these statements cannot  shake  the credibility of the two eye-witnesses to the occurrance.   It must   be  realised  that  immediately  after  two  of   the appellants  were  arrested on 2nd July,  1976,  PW2,  Swaran Singh  had gone to the police station and had  informed  PW8 that  the said two persons, namely, Sucha Singh and  Santokh Singh  were wrongly detained. PW2 lost no time and  followed it up by filing an affidavit in the trial court on 3rd July, 1976  alleging that the investigating agency was  trying  to favour Gurmej Singh and had for that purpose fabricated  his statement  as also the statements of other  witnesses  under section  161 of the Code.  In his evidence before the  court also PW2 stated that                                                        977 he  had informed the police officials that Sucha  Singh  and Santokh  Singh were in no way concerned with the  crime  and had  been  wrongly named by the police to  bail  out  Gurmej Singh.  It is also difficult to believe that PW 2 would give a  total  go-by  to  his  immediate  version  in  the  first information report while making his statement under  section 161  of  the Code.  We are, therefore, of the  opinion  that both the courts were right in coming to the conclusion  that the contradictions brought on record from such statements of PWs  2  and  3  can have  no  evidentiary  value.   Counsel, however,  submitted  that  the inference drawn  by  the  two courts  below  is falsified by the fact that DSP  Oujla  had verified the investigation papers on 10th June, 1976 and had given  a  direction  that Gurmej Singh should  be  shown  in column  No. 2  There is, however, nothing on record to  show that Oujla had counter-signed these two statements which are

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used  for contradicting the two  eye-witnesses.   Therefore, the  mere  fact that Oujla had  verified  the  investigation record  on 10th June, 1976 cannot come to the rescue of  the appellants.   There  is,  therefore,  no  substance  in  the criticism levelled by the learned counsel for the appellants that the prosecution had shifted its case at the trial  from the   one   narrated  to  the  police  in  the   course   of investigation.      The  prosecution version is that immediately after  the incident  PW2  went to the residence of his father  PW4  and informed  him  about the incident.  This conduct of  PW2  is quite  natural.  The evidence of PW2 stands corroborated  by the evidence of PW4.  PW2 thereafter hired a tempo and  left for  the  police  station  and  promptly  lodged  the  first information  report.   It must be realised that PW2  had  no time for manipulation as he had reached the Police  Station, which was at a distance of 12 Km. before 8.30 a.m. He  would not  have  named  the assailants if he had  not  seen  them. There  was  no  reason  for him  to  falsely  implicate  the appellants since he bore no grudge against them; it was just the  reverse.   A  copy  of  this  report  had  reached  the concerned   Magistrate  by  about  11.15.a.m.   This   first information   report   also  lends  corroboration   to   his testimony.   The  medical  evidence  tendered  by  PW1  also corroborates  the version of PWs 2 and 3. We, therefore,  do no see any infirmity in the approach of the two courts below in convicting the appellants.      For  the above reasons we see no merit in  this  appeal and  dismiss the same.  The appellants who are on bail  will surrender to their bail forthwith. Y.Lal.                                      Appeal dismissed.         ?         1