{"id":168463,"date":"1995-03-28T00:00:00","date_gmt":"1995-03-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sukhwant-singh-vs-state-of-punjab-on-28-march-1995"},"modified":"2017-05-30T02:01:26","modified_gmt":"2017-05-29T20:31:26","slug":"sukhwant-singh-vs-state-of-punjab-on-28-march-1995","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sukhwant-singh-vs-state-of-punjab-on-28-march-1995","title":{"rendered":"Sukhwant Singh vs State Of Punjab on 28 March, 1995"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sukhwant Singh vs State Of Punjab on 28 March, 1995<\/div>\n
Equivalent citations: 1995 AIR 1380, \t\t 1995 SCC Supl. (2) 262<\/div>\n
Author: M S V.<\/div>\n
Bench: Manohar Sujata (J)<\/div>\n
           PETITIONER:\nSUKHWANT SINGH\n\n\tVs.\n\nRESPONDENT:\nSTATE OF PUNJAB\n\nDATE OF JUDGMENT28\/03\/1995\n\nBENCH:\nMANOHAR SUJATA V. (J)\nBENCH:\nMANOHAR SUJATA V. (J)\nAGRAWAL, S.C. (J)\nHANSARIA B.L. (J)\n\nCITATION:\n 1995 AIR 1380\t\t  1995 SCC  Supl.  (2) 262\n JT 1995 (3)   506\t  1995 SCALE  (2)496\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
DR. ANAND, J.:\n<\/p>\n
1.   The  appellant was tried for an offence  under  Section
\n302 IPC in connection with the murder of one Ajmer Singh  on
\n11.7.1984  at  about  7.30 p.m. The  learned  Judge  Special
\nCourt,\tFerozepur  convicted him for the  said\toffence\t and
\nsentenced  him\tto suffer life imprisonment.   Through\tthis
\nappeal,\t under Section 14 of the Terrorists  Affected  Areas
\n(Special Courts) Act, 1984, the appellant has challenged his
\nconviction and sentence.\n<\/p>\n
2.   According\tto  the prosecution case, the  appellant  is
\nmarried to the sister of Pal Singh.  An engagement had\tbeen
\nbrought\t about through the instrumentality of the  appellant
\nbetween\t the daughter of Pal Singh and Lakhmir Singh son  of
\nKashmir\t Singh.\t The deceased, Ajmer Singh and his  brother,
\nGurmej Singh PW 3 were on friendly terms with Kashmir  Singh
\nbut  for  some\treason or the  other,  that  engagement\t was
\nsnapped\t and  Lakhmir Singh was married to some\t other\tgirl
\nabout  3  days\tprior  to  the\toccurrence.   The  appellant
\nsuspected  that Ajmer Singh deceased and his brother  Gurmej
\nSingh\tPW  were  responsible  for  the\t snapping   of\t the
\nengagement.  On 11.7.1984 at about 7.30 p.m., Gurmej  Singh,
\nPW 3 accompanied by Ajmer Singh, deceased and Raghbir Singh,
\nPW4  were going to the fields to answer the call  of  nature
\nand  when they reached near the bridge on the village  pond,
\nthe appellant came from the opposite side wearing the  robes
\nof  a Nihang and exhorted that he would teach them a  lesson
\nfor getting the engagement snapped.  Immediately  thereafter
\nthe  appellant took out a pistol from underneath  the  chola
\n(robes) that he was wearing and fired a shot at Ajmer Singh.
\nOn  alarm  being  raised by Ajmer Singh, PW3  and  PW4,\t the
\nappellant fled away alongwith the pistol.  One Major  Singh,
\nPW5 who was also present in the nearby field also  witnessed
\nthe  occurrence.  Ajmer Singh was removed to the haveli\t and
\nwhile he was being shifted to the Hospital at Malout, in the
\ntractor\t trolley of Kashmir Singh, he expired.\tOn  reaching
\nthe  hospital, the doctor pronounced Ajmer Singh  dead.\t  On
\ninformation being sent by Dr. Sant Singh, Ex.  P-5 about the
\narrival\t of  Ajmer  Singh deceased at the  hospital  to\t the
\npolice\tstation, Shri Raghubir Singh, ASI PW6  proceeded  to
\nthe hospital and recorded the statement of Gurmej Singh, Ex.
\nP-4 at about 11.45 p.m. The statement was sent to the police
\nstation\t for registration of a case and on its basis  formal
\nFIR Ex.P-4\/B was drawn up.  A case under Section 302 IPC and
\nSection\t 25  Arms  Act\twas  registered\t at  12.10  a.m.  on
\n12.7.1984.:    A copy of the special report was sent to the
\nIlaqa magistrate and was received by\thim on 12.7.1984  at
\nabout 6.30
\n499<\/span>
\na.m.  After  preparing the inquest report Ex.P-2,  the\tdead
\nbody  was dispatched for postmortem which was  performed  by
\nDr. Sant Parkash Singh, Sr.  Medical Officer PW1 on July 12,
\n1984 at about 11.00 a.m. The doctor found fire arm  injuries
\non  the deceased and opined that the death had\tbeen  caused
\ndue  to shock and haemorrhage as a result of injury  No.  1,
\nwhich  was found to be sufficient in the ordinary course  of
\nnature\tto  cause death.  During the  investigation  by\t ASI
\nRaghubir  Singh,  PW6the  rough site plan of  the  place  of
\noccurrence was prepared.  From the spot, blood stained earth
\nas well as an empty were collected vide memo Ex.  P-8.\t The
\nsame were secured in separate sealed parcels.  The appellant
\nwas  arrested on 8.8.1984 and at the time of his arrest,  he
\nwas  found to be carrying with him a pistol and 7 live\tcar-
\ntridges which were seized by the police.\n<\/p>\n
3.   At the trial, the prosecution examined Dr. Sant Parkash
\nSingh,\tPW1 Draughtsman Ajit Sharma, PW2, Gurmej Singh,\t PW3
\nand  Raghubir Singh, ASI PW6.  Raghubir Singh PW4 and  Major
\nSingh  PW5,  the two other eye witnesses were  tendered\t for
\ncross\texamination   only.   The   appellant\tdenied\t the
\nprosecution  allegations against him in his statement  under
\nSection 313 Cr.P.C. The appellant was thereafter,  convicted
\nand  sentenced for the offence under Section 302  IPC.\t The
\ncase under Section 25 Arms Act was separately tried.\n<\/p>\n
4.   Learned counsel for the appellant submitted  that\t the
\nsolitary eyewitness examined at\t   the\t  trial\t   by\t the
\nprosecution  Gurmej Singh, PW3 could not be relied upon,  as
\nnot only he being the brother of the deceased was interested
\nin the prosecution case but also because his evidence  stood
\nbelied by the medical evidence which showed that the stomach
\nand  the  bladder of the deceased were\tempty  thereby\tsug-
\ngesting that the injuries had been received by the  deceased
\nafter  he had answered the call of nature and not before  as
\nsuggested  by  Gurmej  Singh,  PW3.   Learned  counsel\talso
\nsubmitted  that\t in  Rukka Ex.\tP-5 which was  sent  by\t the
\ndoctor to the police station, it was recorded that the\tdead
\nbody  had been brought to the hospital by Raghbir Singh\t and
\nMajor Singh and the name of Gurmej Singh was conspicuous  by
\nits absence which went to show that Gurmej Singh PW3 was not
\npresent\t at the time of occurrence or when the deceased\t was
\nremoved to the hospital.  According to the learned  counsel,
\nthe non-examination of Raghbir Singh, PW 4 and Major  Singh,
\nPW5  by the prosecution, who were only tendered\t for  cross-
\nexamination, is a serious infirmity in the prosecution\tcase
\nand  renders  it  unsafe to uphold  the\t conviction  of\t the
\nappellant  on the basis of the uncorroborated  testimony  of
\nGurmej Singh, PW3.\n<\/p>\n
5.Gurmej  Singh, PW3, is the elder brother of the  deceased.
\nlie is the solitary eye witness examined by the prosecution.
\nThe  absence  of his name from rukka Ex.  P-5, sent  by\t the
\ndoctor\tto the police station immediately after the  arrival
\nof  the dead body in the hospital creates some\tdoubt  about
\nthe  presence of Gurmej Singh at the place of occurrence  at
\nthe  time when the deceased would have accompanied  the\t in-
\njured  to the hospital.\t The identification of the  deceased
\nby  Gurmej  Singh  and\tMajor  Singh  PWs  at  the  time  of
\npostmortem examination of the deceased which has been relied
\nupon  by  learned counsel for the State, can  not  cure\t the
\ndefect of the absence of the name of PW3 from Ruqqa
\n500<\/span>
\nEx.P-5 because the postmortem examination was conducted\t the
\nnext  day on 12-71984 at 11.00 a.m. There is no\t explanation
\navailable on the record, nor has any been offered before  us
\nto explain the absence of the name of PW3 from Ruqqa  Ex.P-5
\nin which it was recorded that Raghbir Singh and Major  Singh
\nhad brought the deceased to the hospital.\n<\/p>\n
6.   That the deceased died as a result of fire arm injuries
\nis not disputed but what has been challenged is whether\t the
\noccurrence  took  place in the manner  described  by  Gurmej
\nSingh  PW3 and whether Gurmej Singh PW3 is an  eye  witness.
\nThe first information report was recorded by Raghubir  Singh
\nPW6  on the basis of the statement of Gurmej  Singh,  Ex.P-4
\nwhich  was recorded at the hospital at about 11.45  p.m.  on
\n11.7.1984. The possibility that Gurmej Singh PW3 might\thave
\narrived\t at the hospital later on after learning  about\t the
\nremoval\t of his deceased brother to the hospital by  Raghbir
\nSingh  and  Major Singh cannot be ruled out.   Moreover,  we
\nfind that the special report reached the Ilaqa magistrate on
\nthe next day at 6.30 a.m. There is no explanation, available
\non  the\t record about the delay in receipt  of\tthe  special
\nreport\tby the Ilaqa Magistrate.  When admittedly the  court
\nof  the\t Ilaqa Magistrate and the police station  are  quite
\nclose to each other.  The fact that at thetimeof  postmortem
\nexamination  the stomach and the bladder were  found  empty,
\nthough\tsuggestive  of the position that  contrary  to\twhat
\nGurmej\tSingh,\tPW3 deposed, the deceased had  answered\t the
\ncall  of  nature  before  he was  shot\tat,  but  cannot  be
\nconclusive of it, as the possibility that the deceased might
\nhave  defalcated and urinated after the receipt of  injuries
\nand before his death cannot ruled out.\n<\/p>\n
7.The prosecution in this case came up with a positive\tcase
\nthat besides Gurmej Singh, PW3, Raghbir Singh PW4 and  Major
\nSingh  PW5 had also witnessed the occurrence.  The names  of
\nthese two witnesses are also mentioned in the rukka Ex.\t P-5
\nas  the\t persons  who  had brought  the\t dead  body  to\t the
\nhospital.   Their evidence in the circumstance of  the\tcase
\nwas  essential for unfolding of the prosecution\t case.\t The
\nprosecution  however did not examine them and tendered\tthem
\nfor  cross-examination by the accused at the trial but\tthey
\nwere not cross-examined by the accused.\t From the record  of
\nthe trial court we find that both PW4 and PW5 had been\tten-
\ndered\tfor   cross  examination  “in  the  light   of\t the
\nobservations  of the Supreme Court in the case of Jaggo\t AIR
\n197 1, SC 1586.\t ” We are at a loss to appreciate how a wit-
\nness could be cross-examined, when he has not been  examined
\nin  chief that is to say, when there is nothing in  relation
\nto which he could be cross-examined.\n<\/p>\n
8.It will be pertment at this stage to refer to Section\t 138
\nof the Evidence Act which provides :\n<\/p>\n
\t      “138.  Order of examinations.  Witnesses shall
\n\t      be  first examined-chief then (if the  adverse
\n\t      party, so desires) crossexamined, then (if the
\n\t      party calling him so desires) re-examined.
\n\t      The  exmination  and  cross-examination\tmust
\n\t      relateto\t relevant  facts  but\tthe   cross-
\n\t      examination need not be confined to the  facts
\n\t      to   which  the  witness\ttestified   on\t his
\n\t      examination-in chief.\n<\/p><\/blockquote>\n
\t      Direction\t  for\tre-examination.\t   The\t re-
\n\t      examination  shall  be  directed\tto  the\t ex-
\n\t      planation\t of  matters referred to  in  cross-
\n\t      examination;  and\t if new matter is,  by\tper-
\n\t      mission of Court, introduced in re-exami-\n<\/p><\/blockquote>\n
\t      501<\/span><\/p>\n
\t      nation, the adverse part), may further  cross-
\n\t      examine upon that matter.\n<\/p><\/blockquote>\n
9. It would, thus be seen that Section 138 (supra) envisages
\nthat  a\t witness would first be examined in chief  and\tthen
\nsubjected   to\t cross-examination  and\t for   seeking\t any
\nclarification,\tthe  witness  may  be  re-examined  by\t the
\nprosecution.   There  is,  in our  opinion,  no\t meaning  in
\ntendering a witness for cross examination only.\t  ‘rendering
\nof  a  witness for cross-examination, as a matter  of  fact,
\namounts to giving up of the witness by the prosecution as it
\ndoes  not  choose  to  examine him  in\tchief  however,\t the
\npractice  of  tendering\t witness  for  cross-examination  in
\nSession Trials had been frequently resorted to since the en-
\nactment of the Code of Criminal Procedure, 1898.  The reason
\nbehind taking recourse to such a practice, which undoubtedly
\nis  inconsistent  with Section 138 (supra), is\tnot  for  to
\nseek.  Under that Code as it stood prior to its amendment by
\nAct 26 of 1955 a full-fledged magisterial enquiry was to  be
\nheld,  in a case which was triable exclusively by the  Court
\nof  Sessions  or  the High Court,  in  accordance  with\t the
\nprocedure  laid\t down in Chapter XVIII thereof and  in\tthat
\nenquiry\t prosecution  was required to examine all  its\twit-
\nnesses.\t Under Section 288 of that Code the evidence of\t the
\nwitnesses so recorded by the Committing Magistrate could  be
\ntreated,  at  the  discretion  of  the\tSession\t Judge,\t  as
\nsubstantive evidence at the trial.  More often than not, the
\nprosecution tak ing advantage of the above provision, use to
\nasks for and obtain leave of the Sessions Court to treat the
\ndepositions  of thesr witnesses whom they did not intend  to
\nexamine\t afresh,  recorded in the committal enquiry  as\t its
\nevidence  in  the  trial and then  tender  them\t for  cross-
\nexamination.   In  other words, the prosecution\t brought  on
\nrecord of the trial court and relied upon the testimonies of
\nsome  of the witnesses recorded at its instance\t before\t the
\nCommitting  Magistrate as its evidence during the trial\t and
\nthen  tendered them for cross-examination by  the  defences.
\nIt  will  be pertinent to mention here that Act 26  of\t1955
\nwhich amended the Code of 1898 restricted the examination of
\nprosecution witnesses in the committal enquiry in respect of
\ncases instituted on police report only to those who were  to
\ngive an ocular version of the incident only.\n<\/p>\n
10.The question as to whether such a practice was legal\t and
\nvalid  in  view of Section 138 (supra) and, if\tso  to\twhat
\nextent\tand in what manner it could be adopted came  up\t for
\nconsideration by different High Courts.\n<\/p>\n
11. In Veera Koravan and others v. Emperor [AIR 1929 Madras,
\n906]  a Division Bench of the Madras High Court opined\tthat
\nmerely\ttendering  of  a  prosecution  witness\tfor   cross-
\nexamination  is\t not a practice which should  be  encouraged
\nspecially in a murder case as the procedure would be  unfair
\nto an accused.\n<\/p>\n
12.  In Sadeppa Cireppa Mutgi and others v.  Emperor\t(AIR
\n1942  Bombay, 37) Beaumont, C.J. speaking for  the  Division
\nBench of the Bombay High Court opined :\n<\/p>\n
\t      “‘The  other  Kakeri witness is  Shambu,\t(Ex.\n<\/p><\/blockquote>\n
\t      34),  and a very irregular course was  adopted
\n\t      with  regard  to\thim.  He  way  tendered\t for
\n\t      cross-examination.  The practice of  tendering
\n\t      witnesses\t for cross-examination which  is  no
\n\t      doubt  often  adopted,  is  inconsistent\twith
\n\t      S.138,  Evidence Act, which says that  witness
\n\t      shall  be first examined-in-chief and then, if
\n\t      ad-\n<\/p><\/blockquote>\n
\t      502<\/span><\/p>\n
\t      verse  party so desires,\tcross-examined,\t and
\n\t      if,  the\tparty  calling him  so\tdesire,\t re-
\n\t      examined.\t It is obvious that if a witness  is
\n\t      examined\tby the defence without having  given
\n\t      any evidence-in-chief, he is not being  cross-
\n\t      examined, by whatever name the process may  be
\n\t      described.   The\tpractice  of  tendering\t for
\n\t      cross-examination\t should only be\t adopted  in
\n\t      cases  of witnesses of  secondary\t importance.
\n\t      Where the prosecution have already got  suffi-
\n\t      cient  evidence on a particular point, and  do
\n\t      not want to waste time by examining a  witness
\n\t      who  was examined in the lower Court,  but  at
\n\t      the  same\t time  do not want  to\tdeprive\t the
\n\t      accused  of the right of cross-examining\tsuch
\n\t      witness,\t they\ttender\t him   for    cross-
\n\t      examination.  But, I think, strictly speaking,
\n\t      the   witness  ought  to\tbe  asked   by\t the
\n\t      prosecution,  with the consent, of course,  of
\n\t      the pleader for the accused, and the leave  of
\n\t      the  Judge, whether his evidence in the  lower
\n\t      Court, is true.  If he gives a general  answer
\n\t      as  to the truth of his evidence in the  lower
\n\t      Court, he can be cross-examined on that.\t But
\n\t      he  must\tin  some  way  be  examined-in-chief
\n\t      before he can be cross-examined.\tHowever, the
\n\t      practice\tof  tendering a witness\t for  cross-
\n\t      examination  certainly should not be  employed
\n\t      in  the  case of\tan  important  eye-witness.”
\n\t      Emphasis supplied)\n<\/p><\/blockquote>\n
13.A  Full  Bench  of the Bombay High Court  in\t Emperor  v.
\nKasamally  Mirzalli  (AIR  1942\t Bombay,  71)  approved\t the
\nopinion\t of  Beaumont,\tC.J. (supra) and  ”  condemned”\t the
\npractice of tendering a witness for cross-examination in  no
\nuncertain terms.\n<\/p>\n
14.A Division Bench of the Punjab High Court in Kesar  Singh
\nand  another  v.  the State (AIR  1954\tPunjab,\t 286)  after
\nanalysing  the\tprovisions of Sections 137 and\t138  of\t the
\nEvidence  Act, followed the law laid down by the Full  Bench
\nof  the\t Bombay High Court in Kasamalli’s case\t(supra)\t and
\nobserved :\n<\/p>\n
\t      “The  other  witness of this fact is  Jai\t Ram
\n\t      P.W.21 who was tendered for cross-examination,
\n\t      but he was not cross-examined.  That again  in
\n\t      my opinion is no evidence.  The law in  regard
\n\t      to  examination of witnesses is  contained  in
\n\t      Section  137 and 138, Evidence Act.  There  is
\n\t      no  provision  in that Act  for  permitting  a
\n\t      witness  to be tendered for  cross-examination
\n\t      without  his being examined-in-chief and\tthis
\n\t      practice\tis opposed to S. 138 of the Act.   ”
\n\t      (Emphasis ours)\n<\/p><\/blockquote>\n
15.  In Dhirendra Nath v. State (AIR 1952 Calcutta, 621),  a
\nDivision Bench of the Calcutta High Court held:\n<\/p>\n
\t      “There is a type of case where witnesses of  a
\n\t      secondary\t importance who have  been  examined
\n\t      before  the  Committing  Magistrate  arc\t not
\n\t      called before the Sessions Court, because\t the
\n\t      prosecution considers that it has already\t had
\n\t\t\t    a  sufficient  body of  evidence  on  the poin
\nt
\n\t      concerned and then in fairness to the defence,
\n\t      it those witnesses for cross-examination.\t But
\n\t      the  fact\t that the witness  is  tendered\t for
\n\t      cross-examination means and implies that there
\n\t      has been some examination-in-chief.  As far as
\n\t      I\t can see, the only Practical way in which  a
\n\t      witness can   be\t tendered   for\t   cross-
\n\t      examination is  by asking\t him  generally,
\n\t      may be bya single question, in the  sessions
\n\t      court as to whether the statements  made\t  by
\n\t      him before the committing\t     Magistrate were
\n\t      true and on his answering in the\taffirmative,
\n\t      tendering the evidence given in the committing
\n\t      Magistrate’s   court which would\t then  serve
\n\t      as  the\texamination-in-chief.\tUnless\t the
\n\t      examination-in-chief     is  brought  on\t the
\n\t      record in that fashion, I cannot understand on
\n\t      what   the  defence  will\t cross-examine\t the
\n\t      witness tendered for cross-ex-\n<\/p><\/blockquote>\n
\t      503<\/span><\/p>\n
\t      amination.  It does not appear from the record
\n\t      in this case that the evidence of the  witness
\n\t      before  the Committing Magistrate was  brought
\n\t      on the record at all.  In these circumstances,
\n\t      tendering for cross-examination seems to me to
\n\t      have been almost meaningless.”\n<\/p><\/blockquote>\n
16.  In\t Chotta\t Singh v. State (AIR 196 Punjab,  120),\t the
\nPunjab High Court held:\n<\/p>\n
\t      “Tendering a witness for cross-examination. is
\n\t      almost  tantamount  to giving  up\t a  witness.
\n\t      There is nothing in law that justifies such  a
\n\t      course.  The trial courts adopt this manner of
\n\t      examining\t witnesses simply to  lighten  their
\n\t      burden,  but  it\tis not realised\t that  in  a
\n\t      serious case like the present murder case when
\n\t      the  learned  trial Judge\t failed\t to  examine
\n\t      Wazira P.W.5, he was very seriously remiss  in
\n\t      his duty.”\n<\/p><\/blockquote>\n
17.   A\t Division  Bench  of  the  Kerala  High\t  Court\t  in
\nThazhathethil  Hamsa v. State Kerala (AIR 1967\tKerala,\t 16)
\nobserved:\n<\/p>\n
\t      “In  this\t connection we wish to\tclarify\t the
\n\t      mistaken\timpression  which the  teamed  Judge
\n\t      seems to have entertained about the  propriety
\n\t      of the procedure adopted by the prosecution in
\n\t      tendering eye-witnesses for cross-examination.
\n\t      PW10 who had given evidence in the  Committing
\n\t      Court  as\t an  eye-witness  was  tendered\t for
\n\t      cross-examination in the Sessions Court  after
\n\t      he made a bald statement that he has correctly
\n\t      stated  all he knew about the incident in\t the
\n\t      enquiry,\t Court.\t  The  learned\t Judge\t has
\n\t      evidently relied on an observation made by the
\n\t      Patna High Court in Manzurul Haque v. State of
\n\t      Bihar,  AIR 1958 Pat 422 to find that  such  a
\n\t      procedure\t is proper.  But it is\treally\tnot.
\n\t      The  very\t decision relied on by\tthe  learned
\n\t      Judge  started  by enunciating  the  principle
\n\t      thus :\n<\/p><\/blockquote>\n
\t      ” The practice of tendering witnesses leads to
\n\t      considerable   confusion\t and   is   to\t  be
\n\t      deprecated.  A material witness should not  be
\n\t      merely tendered but should be sworn and  asked
\n\t      to   give\t  evidence   by\t  the\tprosecution.
\n\t      Tendering\t if  at all should  be\tconfined  to
\n\t      witnesses of secondary importance.  ”\n<\/p><\/blockquote>\n
18.  Thus,  it\tis seen that the  Bombay  Kerala,  Calcutta,
\nMadras\tand  Punjab  High Courts  have\tnotwithstanding\t the
\nprovisions of Sections 288 of the Code of 1898\tconsistently
\ntaken  the  view  that there is\t no  procedure\twhereby\t the
\nprosecution  is permitted to tender a witness for  cross-ex-
\namination only, without there being any examination-in-chief
\nin relation to which, such a witness can be cross  examined.
\nThe  practice of tendering a witness  for  cross-examination
\nhas  been  consistently discouraged and\t even  condemned  by
\nthose High Courts and in our opinion rightly.  Our attention
\nhas  not been drawn to any judgment of any other High  Court
\nwhich may have taken the contrary view.\n<\/p>\n
19.In  the State of U.P. and another v. Jaggo alias  Jagdish
\nand  others (AIR 1971 SC, 1586) which has been\treferred  to
\nand  relied upon by the prosecution and the trial court\t for
\nadopting  the procedure of tendering PW4 and PW5  for  cross
\nexamination  only  in  our opinion, has\t not  been  properly
\nappreciated  and has been misapplied.  That judgment  cannot
\nbe read to lay down, as a matter of legal preposition,\tthat
\na  witness  can\t be “tendered”\tfor  cross-examination\teven
\nwithout\t there\tbeing any examination in chief If  there  is
\nsome  earlier  statement  of  the  witness  recorded  by   a
\ncompetent court or an affidavit filed in the trial court and
\nthe  witness  testifies to the correctness of  that  earlier
\nstatement at the trial, it (in certain cases of witnesses of
\na formal nature) as noticed earlier be per-\n<\/p>\n
504<\/span><\/p>\n
missible  to  tender him for cross-examination after  he  is
\nsworn  to the correctness of the earlier statement,  because
\nin   thateventhat  earlier  statement  is  treated  as\t the
\nexamination-in-chief of the witness but that is not the same
\nthing  as  tendering a witness for  cross-examination  only,
\nwithout there being any cxamination-in-chief on the  record.
\nIn   Jaggo’s  case  (supra)  a\tBench  of  this\t court\t was
\nconsidering the question whether the mere presentation of an
\napplication by the prosecution to the effect that a  certain
\nwitness had been “won over” was conclusive of the allegation
\nthat  he  had  been so “won over” and  the  prosecution\t was
\ntherefore  relieved of its obligation to examine him at\t the
\ntrial.\t The  preposition was negatived and it was  in\tthat
\ncontext, that this court observed :\n<\/p>\n
\t      “On  behalf of the appellant it was said\tthat
\n\t      Ramesh  Chand  wa won over and  therefore\t the
\n\t      prosecution  could not call Ramesh.  The\tHigh
\n\t      Court rightly said that the mere\tpresentation
\n\t      of an application to the effect that a witness
\n\t      had  been won over was not conclusive  of\t the
\n\t      question\tthat the witness has been won  over.<\/p><\/blockquote>\n
\t      In.such a case Ramesh could have been produced
\n\t      for  cross-examination by the  accused.\tThat
\n\t      would  have  elicited the correct\t facts.\t  If
\n\t      Ramesh  were an eye-witness the  accused\twere
\n\t      entillwd\tto  test his  evidence\tparticularly
\n\t\t\t    when Lalu was alleged to be talking with Rames
\nh
\n\t      at the time of the occurrence.”\n<\/p>\n
\t\t\t\t\t (Emphasis ours)\n<\/p>\n
20.  The   Division  Bench,  therefore\twas  considering   a
\npeculiar  fact\tsituation  in that case\t and  even  in\tthat
\ncontext\t it was observed that the witness “could  have\tbeen
\nproduced for cross-examination by the accused” and that “the
\naccused\t  were\t entitled  to  test   his   evidence.”\t The
\nobservations   of  the\tDivision  Bench\t in  Jaggo’s   case,
\ntherefore,  do not support the view that a material  witness
\ncan   be   “tendered”  for  cross-examination\tonly.\t The
\nobservations from a judgment of this Court cannot be read in
\nisolation  and divorced from the context in which  the\tsame
\nwere  made  and it is improper for any Court to take  out  a
\nsentence from the judgment of this Court, divorced from\t the
\ncontext\t in which it was given, and treat such\tan  isolated
\nsentence  as the complete enunciation of law by this  Court.
\nThe  judgment  in Jaggo.v (supra) has in  our  opinion\tbeen
\nmisappreciated\tand that judgment cannot beinterprcted as  a
\nsanction from the Supreme Court to the prosecution to  adopt
\nthe  practice of tcndering a witness  for  cross-examination
\nonly,\twithout\t  there\t  being\t  any\texaminationin-chief,
\ninrelation  to which the witness has to\t be  cross-examined.
\nAll that the judgment In Jaggo’s case (supra) emphasises  is
\nthat the mere ipsi dixat of the prosecutor that a particular
\nwitness\t has  been  won\t over  is  not\tconclusive  of\tthat
\nallegation  and\t the  Court  should  not  accept  the\tsame
\nmechanically and relieve the prosecutor o his obligation  to
\nexamine such a witness.\t It was for this reason suggested by
\nthe   Bench  that  where  the  prosecution  makes  such\t  an
\nallegation,  it\t must  keep the witness\t in  attendance\t and
\nproduce\t him to enable the defence to cross examine  such  a
\nwitness\t to test his evidence as well as the allegations  of
\nthe  prosecution  and  bring out the truth  on\tthe  record.
\nAfter the coming into force of the Criminal Procedure  Code,
\n1973, which replaced the Code of 1998, recording of evidence
\nin  commitment proceedings have been totally dispensed\twith
\nand   section\t299   of  that\tCode   has   been   emitted.
\nConsequently,  the  course  suggested by some  of  the\tHigh
\nCourts in the earlier quoted judgments
\n505<\/span>
\nregarding  tendering of a witness for cross-examination\t who
\nhad  been examined in the committal court, is also  no\tmore
\nrelevant or available.\tThe Jaggo’s case, which was  decided
\nwhen the Code of 1898 was operating in the field could\tnot,
\ntherefore, be pressed into service by the trial court  while
\ndealing with the instant case tried according to the Code of
\n1973.  Thus, considered it is obvious that the trial  court,
\nwrongly permitted the prosecution to tender PW4 and PW5\t for
\ncross-examination only.\t Both PW4 and PW5 were, according to
\nthe prosecution case itself, eye witnesses of the occurrence
\nand  had removed the deceased to the hospital.\t Their\tevi-
\ndence was, of a material nature which was necessary for\t the
\nunfolding  of  the prosecution story.  The effect  of  their
\nbeing  tendered\t only for cross examination amounts  to\t the
\nfailure\t of  the prosecution to examine them at\t the  trial.
\nTheir non-examination, in our opinion, seriously affects the
\ncredibility of the prosecution case and detracts  materially
\nfrom its reliability.\n<\/p>\n
21.  There  is yet another infirmity in this case.  We\tfind
\nthat  whereas  an  empty  had been  recovered  by  PW6,\t ASI
\nRaghubir  Singh\t from the spot and a pistol  alongwith\tsome
\ncartridges were seized from the possession of the  appellant
\nat the time of his arrest, yet the prosecution, for  reasons
\nbest  known to it, did not send the recovered empty and\t the
\nseized\tpistol to the ballistic expert for  the\t examination
\nand  expert  opinion.  Comparison could have  provided\tlink
\nevidence  between the crime and the accused.  This again  is
\nan omission on the part of the prosecution for which no\t ex-
\nplanation  has been furnished either in the trial  court  or
\nbefore\tus.  It hardly needs to be emphasised that in  cases
\nwhere  injuries are caused by fire arms, the opinion of\t the
\nBallistic Expert. is of a considerable importance where both
\nthe  fire arm and the crime cartridge are  recovered  during
\nthe  investigation  to connect an accused  with\t the  crime.
\nFailure to produce the expert opinion before the trial court
\nin  such  cases affects the creditworthiness  of  the  pros-
\necution case to a great extent.\n<\/p>\n
22.From\t a critical analysis of the material on the  record,
\nwe  find  that it would not be safe to rely  upon  the\tsole
\ntestimony of PW3 Gurmej Singh, the brother of the  deceased,
\nwithout independent corroboration in view of the infirmities
\npointed\t out by us above which render his testimony  as\t not
\nwholly\treliable  and  since in the  present  case  no\tsuch
\nindependent  corroboration  is available on the\t record,  it
\nwould  be unsafe to rely upon the testimony of PW3  only  to
\nuphold the conviction of the appellant.\t The prosecution has
\nnot  been able to establish the case against  the  appellant
\nbeyond a reasonable doubt.  The trial court, therefore, fell
\nin  error in convicting and sentencing the  appellant.\t His
\nconviction  and sentence cannot be sustained.\tThis  appeal
\nconsequently  succeeds and is allowed.\tThe  conviction\t and
\nsentence of the appellant is set aside.\t The appellant is on
\nbail.  His bail bonds shall stand discharged.\n<\/p>\n
507<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sukhwant Singh vs State Of Punjab on 28 March, 1995 Equivalent citations: 1995 AIR 1380, 1995 SCC Supl. (2) 262 Author: M S V. Bench: Manohar Sujata (J) PETITIONER: SUKHWANT SINGH Vs. RESPONDENT: STATE OF PUNJAB DATE OF JUDGMENT28\/03\/1995 BENCH: MANOHAR SUJATA V. (J) BENCH: MANOHAR SUJATA V. (J) AGRAWAL, S.C. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-168463","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSukhwant Singh vs State Of Punjab on 28 March, 1995 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sukhwant-singh-vs-state-of-punjab-on-28-march-1995\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sukhwant Singh vs State Of Punjab on 28 March, 1995 - 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