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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. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  killers  of an advocates clerk arranged a  funeral pyre  by themselves and cremated the victim in the sight  of his  bereaved  widow  and son.   Police  charge-sheeted  six persons  including  the appellants for those acts.  But  the Sessions  Court  acquitted  them  all.  As  the  High  Court reversed  the  order of acquittal as against the  appellants and  convicted them for murder they filed this appeal as  of right  under  Section 379 of the Code of Criminal  Procedure (for short the Code).  We heard detailed arguments of Shri Uday  Umesh  Lalit,  Advocate  for the  appellants  and  Ms. 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.