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PETITIONER: RAM PRASAD AND OTHERS

       Vs.

RESPONDENT: THE STATE OF U.P.

DATE OF JUDGMENT17/09/1973

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ ALAGIRISWAMI, A.

CITATION:  1973 AIR 2673            1974 SCR  (1) 650  1974 SCC  (3) 388

ACT: lndian  Evidence Act-Whether every person who has  seen  the incident should be cited as a witness by prosecution in  the criminal  case-Duty  of the prosecution to bring  on  record full and material facts.

HEADNOTE:  The  appellants  were convicted u/s 148 and 302  read  with Sec. 149 of the I.P.C. The conviction was challenged in  the Supreme  Court, inter alia, on the ground that  besides  the eye witnesses, the F.I.R. mentioned the names of three  more persons who had seen the incident but they were not examined by  the  prosecution.   In  rejecting  the  contention   and dismissing the appeal. HELD   :  Non-examination  of  some  of  the   eye-witnesses mentioned  in  the  F.I.R.  does  not  introduce  any  fatal infirmity to the prosecution case.  It is no doubt true that the  prosecution  is  bound to  produce  witnesses  who  are essential  to  the unfolding of the narrative on  which  the prosecution  is based.  Apart from that, it cannot  be  laid down as a rule that if a large number of persons are present at the time of the occurrence,. the prosecution is bound  to call  and examine-each and every one of those persons.   The answer to the question as to what is the effect of the  non- examination  of a particular witness would depend  upon  the facts and circumstances of each case.  In case enough number of  witnesses have been examined with regard to  the  actual occurrence and their evidence is reliable and sufficient  to base the conviction of the accused thereon, the  prosecution may  well  decide  to  refrain  from  examining  the   other witnesses.  Likewise, if any of the witnesses is won over by the  accused  party and as such is not likely to  state  the truth,  the  prosecution would have a valid ground  for  not examining him in court.  The prosecution would not, however, be  justified in not examining a witness on the ground  that his  evidence even though not untrue would go in  favour  of the accused.  It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on  the  record  so  that there may  be  no  miscarriage  of justice.  The discharge of such a duty cannot be affected by the  consideration that some of the facts if brought on  the record  would  be favourable to the accused.   In  case  the

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court finds that the prosecution has not examined  witnesses for  reasons not tenable or not proper, the court  would  be justified in drawing an inference adverse to he prosecution. [654F]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 52  of 1970. Appeal  from the Judgment and Order dated the 10th  October, 1969,  of the Allahabad High Court (Lucknow Bench)  Lucknow, in Criminal Appeal No. 48 of 1968). K.   B. Rohatgi, for the appellants. O.   P. Rana, for the respondent. The Judgment of the Court was delivered by KHANNA, J. This is an appeal by special leave by Ram  Prasad (65),  his  son Udit Narain (22) and their servant  Sri  Pal (22)  against  the  judgment of the  Lucknow  Bench  of  the Allahabad High Court affirming on appeal the judgment of the Additional   Sessions  Judge  Lucknow  whereby   the   three appellants and three others, namely 651 Sarju  Putti and Jaganath had been convicted   under section 148 and- section 302 read with section 149 Indian Penal Code and had been sentenced to undergo rigorous imprisonment  for a  period of 18 months on the first count  and  imprisonment for life on the second count. The occurrence giving rise to the present case took place on March  31,  1967  at 2.30 p.m. in front of  and  inside  the tarwaha  of  the  house of  Jaskaran,  father  of  Jagannath accused,  in village.  Gadarian Purwa at a distance  of  two miles  from police station.  Mandiaon.  The person  murdered during the course of the occurrence was Parmeshwar Din (35). The  prosecution case is that Parmeshwar Din  de--eased  and Sita Ram (PW 4) purchased two plots of land situated in  the area of village Gadarian Purwa from Paggu and others for Rs. 3,000  as  per  sale  deed dated  December  23,  1966.   The possession  of  these plots had been taken  by  the  vendees about  one or two months earlier when they paid Rs.  500  as earnest  money.   The vendees sowed wheat  in  those  plots. Sarju  and Putti accused, who are both brothers, laid  claim to,  those plots.  As Ram Prasad accused was an  influential person,  Sarju and Putti sought his assistance in  obtaining the  possession of the plots.  Ram Prasad is also stated  to have been assured by Sarju and Putti that in case they  were successful in getting those two plots’, they would give  him half of the land. On March 31, 1967, it is stated, Parmeshwar Din was  getting the  wheat  crop standing in the two plots  mentioned  above harvested.   The plots are at a distance of about 150  paces from  the  house of Jaskaran, father of  Jagannath  accused. Umrao (PW 1) as well as Sita Ram (PW 4) were also present in the  fields along with Parmeshwar Din.  The actual  work  of harvesting  was being done by seven labourers, four of  whom were  women.   The male labourers were Shankar,  Baddal  and Bubba.   At  about  2.30 p.m., it is  alleged,  Udit  Narain accused  came  to  Parmeshwar Din and  told  him  that  some persons were waiting for him in the abadi of Gadarian  Purwa to have some talks with the deceased regarding the two Plots in  dispute.   Parmeshwar Din deceased then went  with  Udit Narain.   Shortly thereafter, Umrao and Sita Ram  PWs  heard the  cries of Parmeshwar Din.  On looking towards the  house of Jaskaran, they found that the six accused had  surrounded Parmeshwar Din and were giving bank a blows to him in  front

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of that house.  The six accused then dragged Parmeshwar  Din deceased inside the tarwaha which had a thatched roof.   The tarwaha  had  one shutterless opening.  Umrao and  Sita  Ram then ran towards the tarwaha and stood close to the  opening of  the tarwaha.  The labourers engaged in  harvesting  also followed Umrao and Sita Ram to that place.  Chandrika (PW 2) and  Mohan (PW 3) were passing that way at that time.   Both of them on hearing alarm also came there and saw the accused giving  banka  blows to Parmeshwar Din.   Umrao  and  others shouted to the accused not to kill Parmeshwar Din, but  they too were threatened by the accused.  The accused  thereafter ran away.  Umrao and 652 Others  then went inside the tarwaha and.  found  Parmeshwar Din lying dead in a pool of blood.  A number of persons then collected ’there. Umrao got report Ka-1 written by his son Hari Prasad.  Umrao thereafter went to police, station Mandiaon and lodged there report Ka-1 at 5.30 p.m. Station Officer Tiwari (PW 11)  was not present at the police station at the time he report  was lodged.  On being informed about the lodging of the report, the  Station  Officer went to the place  of  occurrence  and arrived  there at 6.30 p.m. The Station Officer  on  arrival recorded the statements of Umrao, Sita Ram and Mohan PWs and prepared  inquest report relating to the dead body  of the deceased.   The  body was thereafter sent  to  the  mortuary where post mortem examination was performed by Dr. Jaitle on April  1, 1967.  Out of the appellants, Udit Narain and  Sri Pal  were  arrested  ,on April 7,  1967,  while  Ram  Prasad surrendered in court on April 14, 1967. The  six accused in their statements denied the  prosecution allegations  about their having participated in the  assault on Parmeshwar Din deceased.  Sarju and Putti also denied the prosecution allegation that Parmeshwar Din and Sita Ram  had purchased  the  land in question and had brought  the  same under  cultivation.  The case of Ram Prasad and Udit  Narain was  that  they  had  been falsely  involved  in  this  case ’because  of the enmity of Sita Ram PW with whom,  according to  these  accused,  Ram Prasad had  an  altercation  on  an earlier occasion. The trial court accepted the prosecution case and  convicted and  ,sentenced  the six accused as  mentioned  above.   The judgement  of  the trial Court  was,  as  already  stated, affirmed on appeal by the High Court. In appeal before us, Mr. Anthony on behalf of the appellants has assailed the conviction of the accused-appellants on the ground that the evidence adduced by the prosecution in  this case  is  not  reliable and suffers  from  infirmities.   As against that, Mr. Rana on behalf of the State has  canvassed for the correctness of the view taken by the High Court. It  cannot be disputed that Parmeshwar Din deceased was  the victim  of a murderous assault.  Dr. Jaitle,  who  performed post mortem examination on the dead body of Parmeshwar  Din, found  as many as 23 injuries on the body, out of  which  18 were incised wounds, One of the incised wounds had  resulted in  cutting the occipital bone and another had  resulted  in cutting  the  frontal bone.  The incised  injuries,  in  the opinion of the doctor, had been caused by some heavy  sharp- edged  weapon.  The death of the deceased was due  to  shock and  haemorrhage resulting from the head and neck  injuries. The  injuries  were  sufficient in the  ordinary  course  of nature to cause death.                             653 According to the prosecution case, the injuries found on the body,  of the deceased had been caused by the  six  accused,

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including the  three appellants.  The prosecution, in  order to  substantiate  that allegation, examined  Umrao  (PW  1), Chandrika  (PW 2), Mohan. (PW 3) and Sita Ram (PW 4) as  eye witnesses  of the occurrence These witnesses  supported  the prosecution  case  as  given above.   The  trial  court,  on consideration  of  the  material  on  record,  accepted  the evidence  of the four eye witnesses.  On appeal the  learned Judges  of the High Court again examined that  evidence  and found  the same to, be convincing.  Nothing cogent has  been brought  to our notice as may justify interference with  the concurrent  findings of the trial court. and the High  Court arrived  at as a result of the appraisement of the  evidence of the four eye witnesses. It has been pointed out that the statement of Chandrika was, recorded during the investigation of the case 25 days  after the occurrence, and as such, not much reliance can be placed upon the testimony of this witness.  In this respect we find that the evidence of Chandrika shows that on the morning  of the day following the,occurrence, he went to Muzaffarpur  in district  Barabanki where his father-in-law was  lying  ill. The  witness  stayed in Muzaffarpur for about six  days  and thereafter returned to his village.  In the meanwhile,  Sub- Inspector  Tiwari had gone back to the police station.   The SubInspector  subsequently called the witness  and  recorded his statement on April 25, 1967.  Chandrika’s name as an eye witness  of the occurrence had been mentioned in  the  first information report which was lodged within about three hours of  the  occurrence.  In the  circumstances,  the  delay  in recording   the  police  statement  of  Chandrika   by   the investigating   officer  would  not  justify  rejection   of Chandrika’s testimony.  In any case, we find that apart from the  statement  of Chandrika, the prosecution case  is  also supported by the evidence of’ other three eye witnesses.  So far as these witnesses are concerned, their statements  were recorded by the investigating officer soon after he  arrived at the place of occurrence. Argument has also been advanced on behalf of the  appellants that  there, is no mention in the first  information  report that injuries were caused to Parmeshwar Din deceased by  the accused before the deceased was dragged inside the  tarwaha, while,  according  to the evidence of the eye  witnesses  in court,  the  injuries to the deceased’ were  caused  by  the accused  both before he was dragged as well- as  inside  the tarwaha.   Reference to the first information report  shows- that it is recited therein that the deceased was dragged and given  banka blows by the accused.  The omission to make  an express  mention in the first information report that  banka blows  were  given  to the deceased before  he  was  dragged inside  the tarwaha would not in the circumstances,  in  our opinion, make much material difference.  Assuming that banka blows  were caused to the deceased inside the tarwaha,  this fact would not exculpate any of the accused.  The accused at the  time  of the occurrence were armed with  bankas.   They dragged  the  deceased inside the, tarwaha  and  gave  banka blows to 654 him.   It  is  plain that the injuries were  caused  to  the deceased prosecution of the common object of all the accused to  cause  death of the deceased.  The  appellants,  in  the circumstances, car derive any benefit from the inability  of the  prosecution  witnesses .state as  to  which  particular injury was caused which of the accused.  It  has  also  been argued that the  evidence  of  the  eye witnesses is of partisan character and, therefore, It is not safe  to  base  the conviction ,of  the  accused  upon  that

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evidence.  We find it difficult to accede to this contention beause  the trial court and the High Court while  appraising the evidence of these witnesses, considered all the features ,of the case and came to the conclusion that the evidence of the  witnesses  was trustworthy and reliable.   We  find  no cogent ground to take a different view. Considerable  stress has been laid by Mr. Anthony  upon  the fact  ,that,  besides the four eye witnesses who  have  been examined  in  this case, the occurrence,  according  to  the first  information,  report,  had  also  been  witnessed  by Baddal, Shankar and Hubba.  These persons were, however, not examined as witnesses at the trial.  It is also pointed  out that  in addition to these persons, the occurrence was  also ,witnessed  by Sham Lal and Hubba (this Hubba  is  different from Hubba whose name was mentioned in the first information report), who also arrived at the scene of occurrence.   Sham Lal and Hubba too. were not examined as witnesses.  The non- examination  of these witnesses, in our opinion, would  not introduce an infirmity fatal to the prosecution case: It  is no  doubt  true  that the prosecution is  bound  to  produce witnesses  who  are essential to the unfolding of  the  nar- rative. on which the prosecution is based.  Apart from that, it  cannot be laid down as a rule that if a large number  of persons  are  present at the time of  the  occurrence,  the prosecution is bound to call and ;examine each and every one of those persons.  The answer to the ,question as to what is the  effect of the non-examination of a  particular  witness would depend upon the facts and circumstances of each case. In  case enough number of witnesses have been examined  with tregard  to  the  actual occurrence and  their  evidence  is reliable  and  .sufficient  to base the  conviction  of  the accused thereon, the prosecution may well decide to  refrain from  examining the other witnesses.  Like-wise, if  any  of the  witnesses is won over by the accused party and as  such is not likely to state the truth, the prosecution would have a  valid  ground  for not examining  him  in  court.   The prosecution would not, however be justified in not examining a  witness on the ground that his evidence even  though  not untrue would go in favour of the accused.  It is as much the duty  of prosecutor as of the court to ensure that full  and material  facts are brought on the record so that there  may be no miscarriage of justice.  The discharge of such a  duty cannot  be  affected by the consideration that some  of  the facts  if brought on the record would be favourable  to  the accused.   In case the court finds that the prosecution  has not examined witnesses 655 for  reasons not tenable or not proper, the court  would  be justified   in   drawing  an  inference   adverse   to   the prosecution. So  far as the present case is concerned, we find  that  the prosecution has examined four eye witnesses of the ence  and their  evidence  has been found by the trial court  and  the High  Court  to be reliable, convincing  and  sufficient  to warrant  the  conviction of the accused.  It  has  not  been shown  to us that the evidence of the persons who  were  not examined as witnesses was essential for the unfolding of the narrative  on which the prosecution was based.  The  present is not a case wherein the witnesses not examined could  have given  evidence  on a point regarding  which  the  witnesses actually examined were not in a position to depose.  We are, therefore,  of the view that the failure of the  prosecution to  examine the persons mentioned above as  witnesses  would not  justify  interference with the judgments  of  the  High Court and the trial court.

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The appeal fails and is dismissed, S.B.W.             Appeal dismissed. 2- L392SupCI/74 656