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PETITIONER: NARAIN AND TWO OTHERS

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 04/12/1958

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. GAJENDRAGADKAR, P.B.

CITATION:  1959 AIR  484            1959 SCR  Supl. (1) 724  CITATOR INFO :  R          1977 SC 472  (23)

ACT:        Criminal Trial-Material witness, who is-Failure to  examine-        Effect   of-If  amounts  to  rejection  of   evidence-Indian        Evidence Act, 1872 (1 of 1872), s. 167.

HEADNOTE: Several persons attacked and seriously injured one M.  After assaulting  him the assailants were carrying him  away  when M’s  brother R came to rescue him and in self  defence  shot dead  one  of the assailants and carried M  away.   For  the assault  on M eight persons, including the appellants,  were tried for offences under (1)  (1862) C.P. 12 C.B.N.S. 161; (1862)133 R.R. 311.                             725 ss.  148, 307 and 364 both read with ss. 140 and 34  Of  the Indian Penal Code.  At the trial R was cited as a witness by the  prosecution,  but R refused to give  evidence  claiming protection under Art. 20 Of the Constitution.  The  Sessions judge upheld R’s objection and the prosecution gave him  -up as  a  witness.  After trial, the Sessions  judge  acquitted four  of  the accused but convicted the appellants  and  one other   person.   In  appeal  before  the  High  Court   the appellants  urged  that  the Sessions  judge  was  wrong  in holding that R was entitled to the protection of Art. 2o and that  the  trial was vitiated by this decision  whereby  the accused  had been deprived of the benefit of  R’s  evidence. The High Court was of the view that if R had been  compelled to give evidence he would not have supported the prosecution but  whatever he would have stated would not  have  rebutted the  convincing  testimony of the other witnesses  and  that therefore the failure to examine R did not in any way affect the   ultimate  decision  of  the  case.   The  High   Court apparently  had s. 167 Of the Evidence Act in view.  In  the result   the  High  Court  upheld  the   convictions.    The appellants appealed and contended that the view of the  High Court was not justified by s. 167 and that the trial was not fair as R, a material witness, had been kept out of Court. Held, that the trial was not vitiated by the failure of  the prosecution to examine R as a witness.  Section 167 did  not help  the appellants as it was not a case in which  evidence

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could  be said to have been rejected within the  meaning  of that section.  Further, R was not a witness material to  the prosecution  inasmuch as he arrived on the scene  after  the assault   was  over  and  it  was  not  necessary  for   the prosecution to examine him to ensure a fair trial.  Where  a material  witness  has been deliberately  or  unfairly  kept back,  a serious reflection is cast on the propriety of  the trial  and the validity of the conviction resulting from  it may  be  open to challenge.  The test whether a  witness  is material is whether he is essential to the unfolding of  the narrative on which the prosecution is based and not  whether he would have given evidence in support of the defence. Habeeb  Mohammad  v. The State of Hyderabad,  [1954]  S.C.R. 475; Stephen Seneviratne v. The King, A.I.R. 1936 P.C. 289.

JUDGMENT: CRIMINAL APPELLATE, JURISDICTION: Criminal Appeal No. 186 of 1956. Appeal  by special leave from the judgment and  order  dated February  18,  1955, of the Punjab High  Court  in  Criminal Appeals  Nos.  389  and  406 of 1954,  arising  out  of  the judgment and order dated June 16, 1954, of the Court of  the Additional Sessions Judge, Ferozepur, in Sessions Case No. 5 of 1954 and Trial No. 5 of 1954. 726 Jai   gopal Sethi, Vidya Dhar Mahajan and K. L.  Arora,  for the appellants. N.S.  Bindra,  B.  H.  Dhebar and  T.  M.  Sen,  for  the respondent. 1958.   December 4. The Judgment of the Court was  delivered by SARKAR, J.-Eight persons were tried ::or offences under  ss. 148, 307 and 364 both read with ss. 149 and 34 of the Indian Penal  Code, by the Additional Ses. sions Judge,  Ferozepur. The  learned Sessions Judge acquitted four of  the  accused, namely,  Het Ram, Teja Ram, Manphul and Surja Ram as he  did not  think  that their presence at the occurrence  had  been proved beyond reasonable doubt.  He convicted the  remaining four, namely, Narain, Jot Ram, Gheru and Jalu under ss.  307 and  364 read with s. 34.  He sentenced Narain, Jot Ram  and Gheru to rigorous imprisonment for three years under s.  307 and two years under s. 364.  He sentenced Jalu to two years’ rigorous imprisonment under each section.  On appeal by  the convicted  persons the High Court of Punjab  maintained  the convictions but reduced the sentences passed on Jot Ram  and Gheru  to one year’s rigorous imprisonment and Jalu  to  the term  of imprisonment already undergone.  It maintained  the sentence passed on Narain and dismissed his appeal.  Narain, Jot  Ram  and Gheru have appealed To this  Court  from  that judgment. The  prosecution case is that one Sultan was the  proprietor of  a  field described in the proceedings as  plot  No.  97. Sahi  Ram had been a tenant of the land.  The land  had  not been  cultivated in the year preceding the  occurrence  with which  this  case is concerned and the owner  had  thereupon resumed possession of it.  On June 14, 1953, Mani Ram a  son of  the  proprietor,  arrived  at the  field  on  a  tractor accompanied  by  a Tabourer, Moola Ram, with the  object  of Ploughing  it and found Sahi Ram actually  ploughing.   Mani Ram  turned  Sahi Ram out of the field.  Sahi Ram  raised  a protest  but  eventually left abandoning his plough  on  the field.  Mani Ram then began to plough the field                             727

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with  his  tractor.  A little later  the  tractor  developed mechanical  trouble  and  Mani  Ram  stopped  ploughing  and started  attending  to it.  While Mani Ram was  so  engaged, Sahi  Ram arrived at the spot accompanied by seven  persons, being the accused earlier named other than Narain, variously armed.   Jalu had come on a horse.  They fell upon Mani  Ram and assaulted him.  Moola Ram who ran to his rescue was also assaulted.   Moola Ram then attempted to run away  whereupon Sahi  Ram and his party chased him.  While Sahi Ram and  his party  had their attention on Moola Ram, Mani Ram  got  into his tractor and began to drive away from the field.  At this point  of time Narain arrived on a horse with a gun  in  his hand.  He told the pursuers of Moola Ram to leave him as  he was merely a hired man and pointed out that the real culprit Mani Ram was about to escape in the tractor.  The party then turned round and pursued Mani Ram.  Narain on his horse soon overtook Mani Ram and fired at him while he was still on the tractor  in the driver’s seat.  Mani Ram fell down from  the tractor which, being in motion, proceeded on its own and ran into  a tree and stopped.  Narain’s horse fell  against  the cultivator of the tractor and was injured.  Mani Ram  picked himself  up  and staggered for shelter into the hut  of  one Mukh  Ram, which was nearby.  The pursuers then came up  and Jot  Ram fired a shot at Mani Ram inside the hut and so  did Gheru.   Mani  Ram  fell down in the hut.   Mukh  Ram  threw himself  on the body of Mani Ram to protect him.  Gheru  and Narain then said that they would burn the hut with Mani  Ram inside  it.  Sahi Ram suggested that it would be  better  to carry  Mani Ram to their house and there kill him  and  burn his  body.  Mukh Ram ’was then dragged away and  Mani  Ram’s body was put on a horse and Jalu mounted it.  The party then proceeded towards the village by a foot path with Mani  Ram, who was then unconscious, as their captive.  After they  had gone some distance Raghbir, the younger brother of Mani Ram, having  heard of the incident came to rescue Mani  Ram.   He met  Jalu  on the horse with Mani Ram and Sahi  Ram  walking close behind, 728 the rest of the party being at some distance.  Raghbir asked Jalu to put down Mani Ram on which Jalu threatened to  kill, and  Sahi.  Ram pointed his sela at Raghbir.   Raghbir  then shot  at  Sahi Ram with the pistol he was carrying  and  the latter  fell  down and died soon after.  Jalu  got  off  the horse and ran away.  Before the others could arrive  Raghbir carried  Mani Ram to the house of one Birbal from where  he, was later taken to the hospital. The  defence was that the prosecution case was wholly  false and  the  real  facts were as follows: On the  date  of  the occurrence  Sahi Ram was ploughing the field when  Mani  Ram and Raghbir came there and tried to stop him.  There was  an altercation.   Jot Ram and Gheru who were in a field  nearby came up and advised Sahi Ram not to dispute over the  matter with  Mani Ram but have it decided by Panchayat.  Sahi  Ram, Jot Ram and Gheru then left the field and proceeded  towards the village.  While going Jot Ram noticed that Sahi Ram  was carrying  a pistol and took it away from him to prevent  him from using it in his excitement.  Mani Ram and Raghbir  also went towards the village but by a different route.  The par. ties again met at the village Shamlat.  Raghbir abused  Sahi Ram  and fired a shot at him killing him outright.  Jot  Ram apprehending that he might also be shot at, fired the pistol which he had taken from Sahi Ram and might have injured Mani Ram.   There were two unknown persons with Raghbir and  Mani Ram  at this time and they also used their fire arms.   Mani Ram  might have received injuries from these  firings  also.

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The accused denied that any of them except Jot Ram and Gheru were present at the incident. There  were  thus  two  conflicting  versions  of  the  same incident  and  there  were two cross cases  based  on  these separate  versions.  We are concerned with the case  started on  the  complaint of Mani Ram and concerning  the  injuries suffered  by  him  and his abduction.  The  other  case  was against  Mani Ram, Raghbir, Sultan and Dalip also a  son  of Sultan  and  was based on what the defence  version  of  the incident in the present case was.  In that case Raghbir  and Mani                             729 Ram were charged under s. 302 read with s. 34 of the  Indian Penal  Code  for  having caused the death of  Sahi  Ram  and Sultan and Dalip were charged under s. 302 read with s.  109 of the same Code in the same connection. The  learned  Sessions  Judge  who  heard  both  the  cases, acquitted Mani Ram, Raghbir, Sultan and Dalip of the charges brought  against them and convicted the appellants and  Jalu in the present case accepting the prosecution version of the incident.   As  we have earlier stated, the  conviction  was upheld by the High Court. In  view  of the concurrent findings of fact in  the  Courts below,  the  learned Advocate for  the  appellants  confined himself  in  this Court to a question of law  which  we  now proceed  to  discuss.  It has to be remembered that  we  are concerned  only  with the case in which the  appellants  had been  tried for offences against Mani Ram.  With  the  other case we are not concerned. In  the trial Court, the prosecution had cited Raghbir as  a witness.  Raghbir however refused to give evidence  claiming protection  under Art. 20 of the Constitution.  The  learned Sessions  Judge held that Raghbir could not be compelled  to give  evidence  and rejected the contention of  the  accused that he was not entitled to the protection.  The prosecution in  the end did not offer Raghbir as a witness  and  dropped him. When the matter came up before the High Court in appeal,  it was  said  on  behalf of the appellants,  that  the  learned Sessions  Judge  was  wrong  in  holding  that  Raghbir  was entitled to the protection of Art. 20 and that the trial had been  vitiated  by this decision as a result  of  which  the accused  had  been  deprived of  the  benefit  of  Raghbir’s evidence. The  High Court however held that the fact that Raghbir  was not  examined did not vitiate the trial in any way.   It  is this  part  of  the  High  Court  judgment  that  has   been challenged  before  us  by  the  learned  Advocate  for  the appellants.   The High Court observed as follows: "  We  may assume that Raghbir would 92 730 not  have supported the prosecution story or that  he  would have admitted to having shot Sahi Ram.  The fact that he was unwilling  to  make  a  statement  does  not  constitute  an irregularity  in  the trial.  Had he been compelled  to  say something,  he would, in all probability, not have told  the truth,  and  the question is how the case  would  have  been affected  by  his statement?  In my view,  whatever  he  had stated  would not have rebutted the convincing testimony  of the other witnesses in the case and therefore the failure of the  Court  to examine him does not in any  way  affect  the ultimate decision of the case." The  learned Advocate contended that the High Court  had  in view the provisions of s. 167 of the Evidence Act though the

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section was not in terms referred.  We think this is a  fair view to take.  The learned Advocate said that what the  High Court  has done is to say that even assuming that  Raghbir’s evidence  did not support the prosecution story, that  would not  have made any difference to the result, because,  what- ever  he  stated  would not  have  rebutted  the  convincing testimony of the other witnesses.  According to the  learned Advocate,  this view was not justified by s. 167.  It  seems to  us that the expression of the opinion of the High  Court on  this matter has not been happily worded.   The  question under  s. 167 is not so much whether the  evidence  rejected would not have been accepted against the other testimony  on the  record  as whether that evidence " ought  not  to  have varied  the decision." It is clear that if what Raghbir  had said  in  his  evidence  had gone  to  support  the  defence version, then a, serious question would arise as to  whether the decision of the trial Court would have been in favour of the accused instead of against them, as it happened to be. It  seems  to  us  however that s. 167  does  not  help  the appellants.   It  is clear from the record that  the  prose- cution,  though it had cited Raghbir as a witness,  was  not very  keen  to  examine him When Raghbir  objected  to  give evidence,  the prosecution dropped him.  Therefore it  seems to us that this is not a case in which evidence can be  said to have been rejected 731 within s. 167 of the Evidence Act.  The prosecution did  not in  fact tender Raghbir as a witness.  Nor have we any  idea as to what he would have said had he given evidence.  Nor is it a case where the defence wanted to call him as a witness. It  is  not  necessary for us, nor have we  been  asked,  to decide the question whether Raghbir was entitled under  Art. 2o  of the Constitution to refuse to give evidence.   It  is amply  clear  from the record that the prosecution  did  not offer  him as a witness upon his claiming  protection  under Art.  20.   The  learned Advocate for  the  appellants  then argued that in this view of the matter, it must be held that a  material  witness  had  been kept out  of  court  by  the prosecution and that would give rise to an adverse inference against the prosecution case and cast serious reflection  on the  fairness  of the trial.  We were  referred  by  learned Advocate to Habeeb Mohammad v. The State of Hyderabad (1) in this  connection.  We agree that if a material  witness  has been  deliberately  or unfairly kept back,  then  a  serious reflection is cast on the propriety of the trial itself  and the validity of the conviction resulting from it may be open to challenge, The question then is, was Raghbir a material witness ? It is an  accepted  rule as stated by the  Judicial  Committee  in Stephen  Seneviratne  v.  The  King  (2)  that  "  witnesses essential  to  the unfolding of the narrative on  which  the prosecution  is  based, must, of course, be  called  by  the prosecution."  It  will  be seen that  the  test  whether  a witness  is material for the present purpose is not  whether he would have given evidence in support of the defence.  The test is whether he is a witness " essential to the unfolding of  the narrative on which the prosecution is based ".  Whe- ther  a  witness  is so essential or  not  would  depend  on whether  be could speak to any part of the prosecution  case or  whether  the  evidence  led disclosed  that  he  was  so situated  that he would have been able to give  evidence  of the  facts  on  which the prosecution  relied.   It  is  not however that the prosecution is bound to call all  witnesses who may have seen the occurrence and (1) [1954] S.C.R. 475.

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(2) A.I.R. (1936) P.C. 289. 732 so  duplicate  the  evidence.  But  apart  from  this,.  the prosecution should call all material witnesses. Was Raghbir then a witness essential to the unfolding of the prosecution  case  ?  That clearly  Raghbir  was  not.   The prosecution  case, as we have seen, was concerned  with  the injuries caused to Mani Ram and his abduction.  According to the  prosecution case, Raghbir arrived after these  offences had  been committed ; after Mani Ram had been assaulted  and shot  at and after he had been put on a horse and  had  been carried some distance.  The prosecution no doubt admits that Raghbir  shot  Sahi  Ram but says that he  did  so  in  self defence.   This incident is an entirely  separate  incident. It  is  not  necessary to prove it in  order  to  prove  the offences  with which the appellants were  charged.   Raghbir therefore  was not a witness whom the prosecution was  bound to  call  to establish its case.  The fact, assuming  it  to have  been so, that Raghbir would have said in his  evidence that the incidents did not happen as the prosecution stated, may no doubt have established a good defence.  But if it was so, then he would have been only a witness material for  the defence and not a witness essential to the unfolding of  the narrative  on  which  the prosecution case  is  based.   The prosecution is not bound to call witnesses to establish  the defence but only witnesses who are material for proving  its own  case.  Indeed, since according to the prosecution  case Raghbir  arrived after the alleged offences were  committed, he  could not have given any evidence about the  prosecution case.   We,  therefore,  think that the  contention  of  the learned  Advocate  for the Appellants that  the  prosecution should have called Raghbir to ensure a fair trial or that he was   a  witness  material  to  the  prosecution  case,   is unfounded.   We do not think that the trial has at all  been vitiated by the failure to call Raghbir.  It may be  pointed out that the appellants had not sought to produce Raghbir as a witness on their behalf The  learned Advocate then addressed us on the  question  of the sentence passed on Narain.  He said that the High  Court passed a higher sentence on him 733 because  it was under the impression that he had caused  the only grievous injury that was found on the body of Mani Ram. The learned Advocate pointed out that there was no  evidence to show that the grievous injury had been caused by  Narain. It seems to us that this contention is justified.  There  is however  evidence  to show that Narain  merited  the  higher sentence.   It was he who directed the attack  against  Mani Ram.  He called the other members of the attacking party  to desist  from  pursuing Moola Ram as Mani Ram  was  the  real enemy and should be dealt with.  It is upon that the serious injuries  on Mani Ram came to be inflicted.  We,  therefore, think  that  the higher sentence imposed  on  the  appellant Narain was justified. No other question arises in this appeal. The result is that the appeal fails and is dismissed.                                Appeal dismissed.