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 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.
&
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
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.
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
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
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
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
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
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
