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
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
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
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
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
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.