{"id":262532,"date":"1991-07-16T00:00:00","date_gmt":"1991-07-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gurmej-singh-and-ors-vs-state-of-punjab-on-16-july-1991"},"modified":"2015-12-05T10:48:49","modified_gmt":"2015-12-05T05:18:49","slug":"gurmej-singh-and-ors-vs-state-of-punjab-on-16-july-1991","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gurmej-singh-and-ors-vs-state-of-punjab-on-16-july-1991","title":{"rendered":"Gurmej Singh And Ors vs State Of Punjab on 16 July, 1991"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Gurmej Singh And Ors vs State Of Punjab on 16 July, 1991<\/div>\n
Equivalent citations: 1992 AIR 214, 1991 SCR (2) 966<\/div>\n
Author: Ahmadi<\/div>\n
Bench: Ahmadi, A.M. (J)<\/div>\n
           PETITIONER:\nGURMEJ SINGH AND ORS.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF PUNJAB\n\nDATE OF JUDGMENT16\/07\/1991\n\nBENCH:\nAHMADI, A.M. (J)\nBENCH:\nAHMADI, A.M. (J)\nRAMASWAMI, V. (J) II\nFATHIMA BEEVI, M. (J)\n\nCITATION:\n 1992 AIR  214\t\t  1991 SCR  (2) 966\n 1991 SCC  Supl.  (2)  75 JT 1991 (3)\t 90\n 1991 SCALE  (2)69\n\n\nACT:\n     Indian  Penal  Code<\/a>-Section 302<\/a> read with\tSection\t 34-\nConviction  based on the evidence of close  relatives  being\ninterested testimony-Whether valid.\n     Non-examination of one of the eye-witnesses-Effect of.\n\n\n\nHEADNOTE:\n     The  appellants  and the deceased\tHarnam\tSingh,\twere\nneighbours and had strained relations on account of  passage\nof   sullage   water  and  elections.\tAccording   to\t the\nprosecution, they had quarrelled over the passage of sullage\nwater  a few months before the incident; the appellants\t had\ndiverted  their\t sullage  water towards\t the  house  of\t the\ndeceased  and the latter had protested and frustrated  their\neffort,\t with the result the water collected in a pool\tnear\nthe  house  of the appellants which  infuriated\t them.\t The\nappellants  attacked and murdered Harnam Singh on the  night\nbetween\t 6th  and  7th June, while he was  sleeping  at\t his\ntubewell  alongwith P.Ws 2 and 3 and one Narain\t Singh\t(not\nexamined);  P.\tWs 2 and 3 were sleeping at  a\tdistance  of\nabout  15  karams while Narain Singh was sleeping  near\t the\ndeceased.  The prosecution alleged that Gurmej Singh fired a\nshot  from close range at the deceased while he was  asleep;\nGian Singh struck a Gandasi blow on the chest and Bur  Singh\ngave  a\t Dang blow on the arm.\tAfter making sure  that\t the\nvictim had died, the appellants fled away. P. Ws 2 and 3 did\nnot  raise  any\t alarm\tas  they  were\tthreatened  by\t the\nappellants  that they would be killed in case they made\t any\nhue and cry. P. W. 2 lodged the F.I.R. and disclosed therein\nthe  names of the appellants only as assailants.  Two  other\npersons\t Sucha\tSingh and Santokh Singh were also  shown  as\narrested for the commission of this crime though their names\ndid  not figure in the F.I.R. According to  the\t prosecution\nwitnesses,  these persons were falsely implicated by P.W.  8\nSub-Inspector.\t The appellants alongwith these two  persons\nwere  put  up for trial.  The trial  Judge  acquitted  these\npersons\t as  having  been falsely  involved  and  no  appeal\nagainst\t their acquittal was preferred.\t However  the  Trial\nCourt  relying\ton the evidence of  P.Ws,  convicted  Gurmej\nSingh  under  Section 302<\/a>, I.P.C<\/a>. and the  other  two  under\nSection 302<\/a>\/34<\/a> I.P.C. and sentenced all\n\t\t\t\t\t\t       967\nthe  three to imprisonment for life and also  imposed  token\nfines.\t The  appellants appealed against  their  conviction\nbefore\tthe  High Court but the Division Bench of  the\tHigh\nCourt  dismissed  their appeal.\t They have  now\t filed\tthis\nappeal\t against  their\t conviction  and   sentence,   after\nobtaining special leave.\n     Dismissing the appeal, this Court\n     HELD:  It is true that Narain Singh was  sleeping\tnear\nthe  deceased when the latter was shot at Narain  Singh\t was\nindeed\ta witness to the occurrence and ordinarily we  would\nhave  expected the prosecution to examine him.\t Dropping  a\nwitness\t on the specious plea that he was won  over  without\nlaying\tthe foundation therefor is generally to\t be  frowned\nupon. [973E]\n     The  defence  at  no  point  of  time  questioned\t the\nprosecution  statement that Narain Singh was won over.\t The\ncourts\tbelow  accepted the prosecution\t statement  in\tthis\nbehalf.\t  The  judgment of both the courts  reveal  that  no\nsubmission   was  made\tbefore\tthem  regarding\t  the\tnon-\nexamination of this witness.  If an objection was raised  at\nthe earliest point of time, the prosecution may have  called\nhim to the witness stand.  His presence was not required  to\nunfold the prosecution story.  That had been done by P.Ws. 2\nand 3. Therefore, the non-examination of Narain Singh cannot\nreflect on the credibility of P.Ws. 2 and 3. [973G-974A]\n     Both the courts were right in coming to the  conclusion\nthat the contradictions brought on record from the statement\nof PWs 2 and 3 can have no evidentiary value. [977B]\n     There is no substance in the criticism levelled by\t the\nlearned Counsel for the appellants that the prosecution\t had\nshifted\t its case at the trial from the one narrated to\t the\npolice\tin  the course of  investigation.   The\t prosecution\nversion\t is that immediately after the incident PW2 went  to\nthe  residence of his father P.W. 4 and informed  him  about\nthe incident.  This conduct of P.W. 2 is quite natural.\t The\nevidence  of P.W. 2 stands corroborated by the\tevidence  of\nP.W.  4\t P.W.  2 therefore hired a tempo and  left  for\t the\npolice\tstation\t and promptly lodged the  first\t information\nreport.\t  It  must be realised that P.W. 2 had no  time\t for\nmanipulation as he had reached the Police Station, which was\nat a distance of 12 Km. before 8.30 a.m.  He would not\thave\nnamed the assailants if he had not seen them.  There was  no\nreason for him to falsely implicate the appellants since  he\nbore  no  grudge against them; it was just the\treverse.   A\ncopy of this report had reached the concerned\n\t\t\t\t\t\t       968\nMagistrate  by\tabout  11.15. a.m.  This  first\t information\nreport\talso  lends  corroboration to  his  testimony.\t The\nmedical\t evidence tendered by  P.W. 1 also corroborates\t the\nversion of P.Ws. 2 and 3.  There is, therefore, no infirmity\nin  the approach of the two courts below in  convicting\t the\nappellants. [977D-G]\n     Sahaj Ram v. State of U.P<\/a>., [1973] 1 S.C.C. 490;  Hallu\nJUDGMENT:\n<\/pre>\n
Singh  &  Ors.\tv. State of Punjab,  [1976]  1\tS.C.C.\t750;
\nKartarey v. State of U.P<\/a>., [1976] 1 S.C.C. 172; Ishwar Singh
\nv.  State of U.P<\/a>., [1976] 4 S.C.C. 355; A.N. Rao  v.  Public
\nProsecutor, Andhra Pradesh, [1975] 4 S.C.C. 106 and State of
\nU.P.  v. Hari Prasad & Ors<\/a>., {1974} 3 S.C.C.  673,  referred
\nto.\n<\/p>\n
&
\n     CRIMINAL  APPELLATE JURISDICTION: Criminal\t Appeal\t No.
\n778 of 1979.\n<\/p>\n
     From  the\tJudgment and Order dated  21.6.1979  of\t the
\nPunjab and Haryana High Court in Crl. A. Nos. 120 and 163 of
\n1977.\n<\/p>\n
     Frank Anthony and Sushil Kumar for the Appellants.
\n     R.S. Suri for the Respondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     AHMADI, J. Harnam Singh, Sarpanch of Village  Naushera,
\nwas  murdered on the night between 6th June, 1976  while  he
\nwas sleeping at his tubewell to guard the wheat bags stacked
\nin his filed. PW 1 Dr. Malhotra who conducted the autopsy at
\nabout 4.15 p.m. on 7th June, 1976 found four injuries on the
\nperson of the deceased, namely, (i) a lacerated\t penetrating
\ncircular  would,  1\/4”\t in  diameter,\twith  black  margins
\ninverted on right middle back, 3”from mid-line and 9” from
\niliac crest, (ii) a vertical bruise 6” X 1\/2” on the front
\nof  right  forearm  running downwards  and  outwards,  (iii)
\nbeuises\t in  the area of 5” X 1” on the  front  and  inner
\naspect\tof  right upper-arm above the elbow  joint,  running
\nforwards, outwards and downwards and (iv) an abrasion 5”  X
\n1”  on the right side of the chest, 5” from  mid-line\t and
\n3”  from  the\tclavicle running downward  and\tinward.\t  On
\nopening\t the first would it was found that the 8th  and\t 9th
\nribs  were fractured posteriorly; the diaphram and  superior
\nsurface\t on the left lobe of the liver were  lacerated;\t the
\nheart  was  lacerated  into pieces and\tthe  third,  fourth,
\nfifth,\tsixth and seventh ribs of the left side were  broken
\nanteriorly.  The exit wound was 8” X 4” on the left  upper
\nchest just
\n\t\t\t\t\t\t       969<\/span>
\nabove  the  nipple.   Death  was on  account  of  shock\t and
\nhaemorrhage  resulting from the bullet injury.\tThis  injury
\nNo. 1 was stated to be sufficient in the ordinary course  of
\nnature to cause death.\tThe other injuries were possible  by
\na  hard and blunt weapon and were simple in  nature.   Death
\nwas  instantaneous.   Both  the\t Courts\t below,\t  therefore,
\nrightly concluded that death was homicidal.\n<\/p>\n
     The  prosecution  case, briefly stated,  was  that\t the
\nappellant  and\tthe  deceased who  were\t neighbours  in\t the
\nvillage\t had quarrelled over the passage of sullage water  a
\nfew months before the incident.\t The appellants had diverted
\ntheir  sullage water towards the house of the  deceased\t and
\nthe  latter had protested and frustrated their\teffort.\t  On
\naccount of this obstruction the sullage water collected in a
\npool near the house of the appellants which infuriated them.
\nOn  account  of\t this  incident as  well  as  past  election
\nrivalries  the\trelations  between the\tappellants  and\t the
\ndeceased  were so soured that on the night of  the  incident
\nthe three appellants went armed with weapons to the tubewell
\nof  the deceased where the latter was sleeping to guard\t his
\nwheat stacked in bags.\tGurmej Singh was armed with a rifle,
\nGian  Singh was armed with Gandasi and Bur Singh  carried  a
\nDang.\tThe  prosecution  alleged  that\t Gurmej\t Singh\t had
\nconcealed the rifle in the Chadar wrapped around him and  on
\nreaching the place where the deceased was sleeping on a\t cot
\nhe threw off the chadar and shot the deceased at point blank
\nrange.\t The incident was witnessed by three  persons.\t PW2
\nSwaran\tSingh,\tnephew of the deceased, PW3 Fauja  Singh,  a
\nclose  relative\t of the deceased and one Narain\t Singh\t(not
\nexamined)  who\ttoo were sleeping in  the  field.   Actually
\nNarain\tSingh was sleeping near the deceased whereas  PWs  2
\nand  3\twere sleeping at a distance of\tapproximately  10\/15
\nkarams\ttherefrom.  the prosecution did not  examine  Narain
\nSingh on the plea that he was won over.\t The evidence of PWs
\n2  and 3 shows that they got up on hearing some movement  in
\nthe filed and they saw the three appellants near the cot  of
\nthe  deceased.\tThey were able to identify them\t because  of
\nthe  existence\tof  an\telectric  light\t at  the   tubewell.
\nAccording  to them on reaching near the cot of the  deceased
\nGurmej\tSingh fired a shot from close range at the  deceased
\nwho  was still sleeping in his cot.  Thereafter\t Gian  Singh
\nstruck a Gandasi blow on the chest of the deceased  followed
\nby a Dang blow on the right arm by Bur Singh.  Gurmej  Singh
\nis  stated to have warned others not to get up\tunless\tthey
\nwanted to be killed.  On account of this warning PWs 2 and 3
\ndid not run to the rescue of the deceased for fear of  being
\nkilled.\t  After making sure that their victim was dead,\t the
\nappellants  fled away.\tPW 2 Swaran Singh then went  to\t the
\nhouse  of  his\tfather PW4 Waryam  Singh  and  narrated\t the
\nincident.  PW2 accom-\n<\/p>\n
\t\t\t\t\t\t       970<\/span><\/p>\n
panied\tby Gurdas Singh, Lambardar, then went to the  Police
\nStation at about 8.30 a.m. on 7th June, 1976 and lodged\t the
\nfirst  information  report. PW8 Sub-Inspector  Kartar  Chand
\nSingh  then reached the place of occurence, held an  inquest
\non  the dead body of the deceased, lifted the blood  stained
\nearth  from  the place of occurrence and then  recorded\t the
\nstatements of PW3 Fauja Singh, Narain Singh and others. Gian
\nSingh  and Bur Singh were arrested on 2nd July,\t 1976  while
\nGurmej\tSingh  was arrested on 7th July, 1976.\t It  appears
\nthat two more persons, namely, Sucha Singh and Santokh Singh
\n(original  accused  Nos. 1 and 4,  respectively)  were\talso
\nshown  as arrested for the commission of this crime  on\t 2nd
\nJuly.  1976 although their names were not disclosed  in\t the
\nfirst information report.  The allegation of the prosecution
\nwitnesses  PWs\t2, 3 and 4 is that these  two  persons\twere
\nfalsely\t involved  as PW8 Sub Inspector Kartar\tChand  Singh
\nwanted\tto save his skin as he was found to  have  illegally
\nand  wrongly detained them at the police station.   We\twill
\ndeal with this aspect later but suffice it to say that\tboth
\nthe courts below have come to the conclusion that they\twere
\nfalsely\t involved  in  the  commission\tof  this  crime\t  by
\nfabricating  statements of PWs 2 and 3 under Section 161<\/a>  of
\nCriminal Procedure Code (`the Code’ for short).\t In view  of
\nthis  conclusion  reached by both the courts, the  said\t two
\npersons were acquitted.\t No appeal was preferred challenging
\ntheir  acquittal.   The Trial Court convicted  Gurmej  Singh
\nunder section 302<\/a> IPC and the other two under Section 302<\/a>\/34<\/a>
\nIPC and sentenced all the three to imprisonment for life and
\nalso  imposed  token fines.  Against  their  conviction\t the
\npresent three appellants filed an appeal which was dismissed
\nby  a Division Bench of the High Court on 21st\tJune,  1979.
\nIt  is\tagainst this finding of guilt recorded by  both\t the
\ncourts\t below\tthat  the  present  three  appellants\thave
\npreferred this appeal by special leave.\n<\/p>\n
     Mr.   Frank  Anthony,  counsel  for   the\t appellants,
\nsubmitted  that\t there\twere  three  eye-witnesses  to\t the
\nincident  even according to the prosecution case and out  of
\nthem  Narain  Singh  was nearest to the\t deceased  when\t the
\nincident  occurred  on that dark night in the  field.\tThis
\nNarain\tSingh alone was an independent witness and  yet\t the
\nprosecution did not examine him on the specious plea that he
\nwas  won over.\tThe other two eye-witnesses.  PWs 2  and  3,
\nare  admittedly close relatives of the deceased and  out  of
\nthem  the  presence  of PW3 is extremely  doubtful  being  a
\nresident of a nearby village.  At any rate he can be  termed
\nas  a chance witness and in all probability he came  to\t the
\nfiled  from his village after learning about  the  incident.
\nBesides, since the incident occurred on a dark night and the
\nevidence  that the electric light at the tubewell was on  at
\nthat hour is extremely doubtful, it is
\n\t\t\t\t\t\t       971<\/span>
\ndifficult  to  believe\tthat  PWs 2 and\t 3  saw\t the  actual
\nincident  from a distance of 10\/15 karams and were  able  to
\nidentify the assailants.  Said counsel, the conduct of\tboth
\nthese  eye-witnesses is not normal since they did not  raise
\nan alarm even though they depose to have woken up on hearing
\nsome  movement in the field.  They could have cautioned\t the
\ndeceased  and Narain Singh about the entry of third  parties
\nin  the\t field\tsince they were\t there\tprecisely  for\tthat
\npurpose.  They have tried to explain their unnatural conduct
\non  the\t plea that the appellant Gurmej Singh had  raised  a
\n`lalkara’ that anyone trying to come near the deceased would
\nbe  killed.  But this `lalkara’ was after the event and\t not
\nbefore, while the conduct of the eye-witnesses before the in
\nincident is unnatural if they had actually got up on hearing
\nsome  movement of third parties in the field.  Else it\tmust
\nbe  accepted  that they got up on hearing the gun  fire\t and
\nbefore\tthey could go near the deceased, the assailants\t had
\nfled  away.  In this situation the evidence of Narain  Singh
\nassumes\t importance as he was most competent to\t unfold\t the
\ntrue version regarding the incident, being just by the\tside
\nof the deceased at the time of the incident.  The failure to
\ncall him to the witness stand was, counsel submitted, unfair
\nto the defence as it deprived the defence of the opportunity
\nto elicit the true version regarding the offence.  Lastly he
\nsubmitted that the prosecution has not place any material on
\nrecord nor has it stated any reason in its written report in
\nsupport of its conclusion that he had been won over.  In any
\nevent,\tit is hazardous to base a conviction on\t the  highly
\ninterested  testimony of PWs 2 and 3, particularly when\t the
\nmotive\talleged\t by  the  prosecution  for  implicating\t the
\nappellants is very weak.  Besides the evidence of PWs2 and 3
\nsuffers from several infirmities.\n<\/p>\n
     Counsel for the State submitted that this Court  should
\nnot disturb the concurrent findings of fact recorded by\t the
\ntwo  courts and the reliance placed by them on the two\teye-
\nwitnesses whose evidence is corroborated by PW4.  He pointed
\nout  that  both\t the courts below had  recorded\t a  positive
\nfinding that the electric light was on at the tubewell which
\nprovided sufficient light to enable PWs 2 and 3 to  identify
\nthe  assailants even from a distance of 10\/15  karams.\t The
\nassailants were not strangers to PWs 2 and 3 and, therefore,
\ntheir  evidence\t on  the  question  of\tidentity  cannot  be
\ndoubted.   The\tprosecution had stated the  reason  for\t not
\nexamining  Narain Singh and if the defence had any doubt  in
\nthat behalf it could have requested the court to examine the
\nsaid  witness as a court witness rather than keeping  silent
\nand then raising a belated grievance.  In short he supported
\nthe line of reasoning adopted by the two courts below.\n<\/p>\n
\t\t\t\t\t\t       972<\/span><\/p>\n
     It must be conceded at the outset that the\t prosecution
\nse  hinges  on the credibility of PWs2 and 3.\tPW2  is\t the
\nnephew\tof the deceased.  PW3 is the maternal cousin of\t PW2
\nand  ws\t closely  related to the deceased  as  the  latter’s
\ndaughter  Piari\t was his younger brother’s wife.  PW3  is  a
\nresident  of a neighbouring village lying at a\tdistance  of
\nthree  miles from the village of the deceased.\t Ordinarily,
\ntherefore,  PW3 would not be expected to be present  at\t the
\nscene of occurrence but according to him he had gone to\t see
\nP.W. 2 and after having his meals both he and PW 2 had\tgone
\nto the tubewell of the deceased.  PW 3 claims  that he\twoke
\nup  at\tabout 3.00 a.m. as he was to return to\this  village
\nwhen  he  saw the three persons and identified them  as\t the
\nappellants.   He does not speak of any `lalkara’ or to\thave
\ngot  up on hearing footsteps as desposed by PW2 but  he\t too
\ndid  not raise any alarm or try to caution the deceased\t and
\nNarain Singh who were sleeping 10\/15 karams away.  After the
\nincident  he  went  to the village  to\tinform\this  younger
\nbrother’s  wife about the death of her father  and  returned
\nwith  her  to  the village by which  time   the\t police\t has
\narrived.   In  these circumstances the question\t is  whether
\nabsolute reliance can be placed on PWs 2 and 3 regarding the
\ninvolvement of the appellants?\n<\/p>\n
     Mr.   Frank  Anthony,  the\t learned  counsel  for\t the
\nappellants, firstly submitted that the incident occurred  on
\na  dark\t night in an open field at about 3.00 a.m.  when  as
\nshown by the defence through the evidence of two independent
\nwitnesses  DW  1 and DW 2 the electricity had  tripped\tand,
\ntherefore, the prosecution witnesses could not have seen the
\nassailants  from  a  distance of about\t10\/15  karams.\t He,
\ntherefore,  submitted  that  the claim\tof  the\t prosecution
\nwitnesses that they had identified the assailants on account
\nof the presence of electric light at the tubewell is clearly
\nbelied\tby the evidence of DWs 1 and 2. DW 1 Kewal  Krishan.
\nSub-Station  Attendant,\t Punjab\t State\tElectricity   Board,
\nGurdaspur,  stated  that  on 7th  June,\t 1976  the  electric
\ncurrent\t had  broken down at about  2.35 a.m.  and  was\t not
\nrestored  till\t5.50 a.m.  In support of this  statement  he
\nproduced  certain  entries from the register but  on  cross-
\nexamination  he\t admitted  that\t the  log  sheets  were\t not
\navailable  and\tit  was noticed that the  register  was\t not
\nproperly bound and the threads of the previous binding\twere
\nbroken and fresh binding was done raising a suspicion  about
\nthe  register  having  been tampered with.   DW2  Inder\t Pal
\nSingh,\tSDO, Subarban-Gurdaspur, merely reiterated what\t DW1
\nhad  stated.  The courts below suspected the correctness  of
\nthe entry in the register.  But that apart, the High   Court
\nwas  right in saying that the time of 3.00 a.m. was  a\tmere
\nestimate  of eye-witnesses PWs 2 and 3 and neither  of\tthem
\nhad  verified the time with any wrist watch so as  to  vouch
\nfor its accuracy.  PW 2 had
\n\t\t\t\t\t\t       973<\/span>
\ncategorically stated that a 200 watt bulb was on at the time
\nwhen the incident in question occurred.\t He does not  depose
\nto  have checked the time with his wrist watch or  with\t the
\nwrist  watch of PW3. Infact PW3 has deposed that he was\t not
\nwearing\t a  wrist  watch  at  the  time\t of  the   incident.
\nTherefore, the estimate of time given by PWs 2 and 3  cannot
\nbe  taken  as  accurate and it is quite\t possible  that\t the
\nincident occurred before the tripping of supply of  electric
\nenergy took place.  We are, therefore, not impressed by\t the
\ncontention  of Mr. Anthony that the evidence of DWs 1 and  2
\nbelies\tthe  version of PWs 2 and 3 that they were  able  to
\nidentify the appellants because of existence electric  light
\nat  the tubewell.  Besides, it must be remembered  that\t the
\nappellants were no strangers to these prosecution  witnesses
\nto make their identification by them difficult.\n<\/p>\n
     It was next submitted by Mr. Anthony that Narain Singh,
\nan  independent witness, was deliberately dropped  for\tfear
\nthat  he would reveal the truth and expose the falsehood  of
\nPWs 2 and 3.  He submitted, relying on the decision of\tthis
\nCourt in Sahaj Ram v. State of UP<\/a>, [1973] 1 SCC 490 that the
\nprosecution should, in fairness, have produced this  witness
\nsince  he was one who would have unfolded the  true  version
\nregarding  the\tincident as he was in the  vicinity  of\t the
\ndeceased.  The presence of blood at the scene of  occurrence
\nestablishes,  beyond any manner of doubt that  the  incident
\noccurred at the place pointed out by PWs 2 and 3. It is true
\nthat  Narain Singh was sleeping near the deceased  when\t the
\nlatter was shot at. Narain Singh was indeed a witness to the
\noccurrence  and\t ordinarily  we\t would\thave  expected\t the
\nprosecution  to\t examine  him.\tDropping a  witness  on\t the
\nspecious plea that he won over without laying the foundation
\ntherefore is generally to be frowned upon.  Counsel for\t the
\nappellants,  therefore, submitted that an adverse  inference
\nshould\tbe drawn against the prosecution for its  deliberate
\nfailure to examine Narain Singh.  But it must be  remembered
\nthat  the  investigating  office had  recorded\tthe  further
\nstatement of Narain Singh under section 161<\/a> of the Code\t for
\ninvolving the two acquitted persons who were nowhere in\t the
\npicture.  Narain Singh was, therefore, not likely to support
\nthe  prosecution version.  The defence at no point  of\ttime
\nquestioned  the prosecution statement that Narain Singh\t was
\nwon  over.   The  courts  below\t accepted  the\t prosecution
\nstatement  in this behalf.  The judgment of both the  courts
\nreveal that no submission was made before them regarding the
\nnon-examination of this witness.  If an objection was raised
\nat  the\t earliest point of time, the  prosecution  may\thave
\ncalled\thim  to\t the witness stand.  His  presence  was\t not
\nrequired  to  unfold the prosecution story.  That  had\tbeen
\ndone by PWs 2 and 3.  Therefore, the non-\n<\/p>\n
\t\t\t\t\t\t       974<\/span><\/p>\n
examination   of   Narain  Singh  cannot  reflect   on\t the
\ncredibility of PWs 2 and 3.\n<\/p>\n
     Counsel   for  the\t appellants  next   submitted\tthat
\naccording to the prosecution applellant Gian Singh was armed
\nwith  a\t Gandasi  and he is alleged to\thave  given  a\tblow
\ntherewith  on  the  chest of  the  deceased.   Ordinarily  a
\nGandasi\t blow  would  cause an\tincised\t wound\twhereas\t the
\ndeceased had an abrasion 5” X 1” on the chest caused by  a
\nhard  and  blunt substance.  According to  counsel  normally
\nwhen  a\t witness deposes to the use of a  particular  weapon
\nthere is no warrant for supposing that the blunt side of the
\nweapon\twas  used  by the assailant.   In  support  of\tthis
\ncontention  counsel invited our attention to two  decisions,
\nnamely,\t Hallu & Ors. v. State of MP<\/a>, [1974] 4 SCC  300\t and
\nNachhattar Singh & Ors v. The State of Punjab<\/a>, [1976] 1\t SCC\n<\/p>\n
750.  In his submission, therefore, the injury found on\t the
\nchest could not be attributed to Gian Singh who is stated to
\nhave  used the Gandasi.\t We see no merit in this  contention
\nfor  the simple reason that the prosecution  witnesses\thave
\ncategorically stated that Gian Singh used the blunt side  of
\nthe  Gandasi.  If the prosecution witnesses were  silent  in
\nthis  behalf  the submission of counsel would  have  carried
\nweight.\t  But where the prosecution witnesses  categorically
\nstate that the blunt side of the weapon was used there is no
\nroom  for believing that the sharp side of the weapon  which
\nwould  be  normally  used  had\tin  fact  been\tused.\t The
\nobservations in the aforesaid two judgments do not lay\tdown
\nto the contrary.  In fact in the first mentioned case it  is
\nclearly\t stated\t that  if  the\tprosecution  witnesses\thave
\nclarified the position, their evidence would prevail and not
\nthe  normal inference.\tCounsel, however, made\ta  grievance
\nthat the prosecution had not tried to elicit the opinion  of
\nPW  1 Dr. Malhotra on the question whether such an  abrasion
\nwas possible by a Gandasi blow. According to him, as held by
\nthis  Court in Kartarey v. State of U.P<\/a>., [1976] 1  SCC\t 172
\nand  Ishwar Singh v. State of UP<\/a>, [1976] 4 SCC 355,  it\t was
\nthe  duty  of the prosecution to elicit the opinion  of\t the
\nmedical-man  in\t this  behalf.\tPW1 clearly  stated  in\t the
\ncourse\tof his examination-in-chief that injuries Nos. 2,  3
\nand 4 were caused by a blunt weapon.  It is true that he was
\nnot  specifically asked if the chest injury could have\tbeen
\ncaused\tby  the\t blunt side of the Gandasi.   It  cannot  be
\ngainsaid  that the prosecution must endeavour to elicit\t the
\nopinion\t of the medical-man whether a particular  injury  is
\npossible by the weapon with which it is alleged to have been
\ncaused\tby showing the weapon to the witness.  In  fact\t the
\nPresiding Officer should himself have elicited the  opinion.
\nHowever,  in  this case it should not make  much  difference
\nbecause\t the  evidence of PWs 2 and 3 is acceptable  and  is
\ncorroborated by the first information report as well
\n\t\t\t\t\t\t       975<\/span>
\nas PW 3. If the medical witness had also so opined it  would
\nhave lent further corroboration.  But the omission to elicit
\nhis opinion cannot render the direct testimony of PWs 2\t and
\n3 doubtful or weak.  We, therefore, do not see any merit  in
\nthis  submission.   In\tfact  if  we  turn  to\tthe   cross-
\nexamination  of PW1 we find that the defence case  was\tthat
\nthese three injuries were caused by the rubbing of the\tbody
\nagainst a hard surface, a version which has to be stated  to
\nbe rejected.\n<\/p>\n
     It\t was  next contended that PWs 2 and  3\tbeing  close
\nrelatives   of\tthe  deceased  could  not  be  relied\tupon
\nparticularly because their version regarding the incident is
\nnot corroborated by independent evidence and it is extremely
\ndoubtful if they could have identified the assailants from a
\ndistance of about 10\/15 karams.\t We have already dealt\twith
\nthe  latter part of this submission.  We have no  hesitation
\nin  agreeing with the two courts below that they could\thave
\nidentified the assailants who were no strangers to them from
\nthat  distance of 10\/15 karams since the electric  light  at
\nthe  tubewell  was switched on.\t Once the  evidence  of\t the
\nprosecution  witnesses\tregarding  existence  of  light\t  is
\naccepted, there is no difficulty in accepting their evidence
\nregarding  identification.   The  presence of PW  2  at\t the
\ntubewell cannot be doubted as it was he who went to PW 4  in
\nthe  early hours and then travelled a distance of  about  12
\nkm.  to\t the police station where he lodged  his  complaint.
\nSince  PW3  was\t visiting  PW2 it was  natural\tfor  him  to
\naccompany the latter to the field.  Both the courts accepted
\ntheir  evidence and we see no reason to discard the same  on
\nthe  specious  ground that they\t are  interested  witnesses.
\nTheir  evidence\t has been subjected to\tclose  scrutiny\t but
\nnothing adverse is found to doubt their credibility.\n<\/p>\n
     The  next submission of counsel for the  appellants  is
\nthat  the evidence regarding motive is weak and,  therefore,
\nit is not possible to believe that the appellants would kill
\nthe  deceased  on account of a minor quarrel  regarding\t the
\npassage of sullage water which had taken place a few  months
\nback.\tIn this connection he invited our attention  to\t the
\ndecisions  of this Court in A.N. Rao v.\t Public\t Prosecutor,
\nAndhra\tPradesh,  [1975] 4 SCC 106 and State of UP  v.\tHari
\nPrasad & Ors<\/a>., [1974] 3 SCC 673.  This submission cuts\tboth
\nways.  It the evidence regarding motive is not\tsufficiently
\nstrong\tas argued by the counsel for the appellants,  it  is
\ndifficult to believe that PWs 2 and 3 would go out of  their
\nway  to\t falsely  involve the appellants.  But\tit  must  be
\nrealised that there were election disputes and the  deceased
\nhad  successfully  contested the  election  against  Dalbeer
\nSingh  who  was the candidate of Gian Singh, Bur  Singh\t and
\nothers.\t This old enmity coupled with the incident regarding
\nthe passage of sullage water in regard to which
\n\t\t\t\t\t\t       976<\/span>
\nproceedings  under section 107<\/a>\/151<\/a> of the Code were  pending
\nis the motive alleged by the prosecution and we do not think
\nit  is\tso weak that it would not prompt the  appellants  to
\nkill  their  rival.  The decisions on which  counsel  places
\nreliance can, therefore, have no application in the  special
\nfacts and circumstances of the present case.\n<\/p>\n
     Counsel  for  the appellants then\tsubmitted  that\t the
\nevidence  of  PWs  2  and 3 which  is  corroborated  by\t the
\nevidence  of PW4 to whom the incident was narrated   by\t PW2
\ncannot be believed in view of the contradictions brought  on
\nrecord from their statements recorded under section  161<\/a>  of
\nthe Code. As stated earlier both the Courts have come to the
\nconclusion  that these statements are a\t fabrication.\tBoth
\nthe courts below have given cogent reasons for reaching this
\nconclusion.    In  particular  the  High  Court\t has   after
\nexamining  the\trecord of the habeas corpus  petition  shown
\nbeyond\tany  manner  of doubt  that  PW8  had  intentionally
\nprepared  false\t statements of all these  eye-witnesses\t for
\nfalsely\t involving Sucha Singh and Santokh Singh since\tthey
\nwere  wrongly  and illegally detained by him in\t the  police
\nstation,  a  fact which was noticed by the  Court’s  Warrant
\nOfficer who had visited the police station on 2nd July, 1976
\nat about 5.15 p.m. He was initially told that no such person
\nor  persons  had been detained inthe  police  station.\t The
\nWarrant\t Officer, however, searched the police\tstation\t and
\nnoticed\t the presence of these two and other  persons.\t It,
\ntherefore,  became  necessary  for PW  8  to  explain  their
\npresence  in the police station since it was alleged in\t the
\nhabeas\tcorpus petition filed on 30th  June, 1976 that\tthey
\nwere  illegally\t detained.   The  Court\t had  appointed\t the
\nWarrant\t Officer  to  verify  this  allegation.\t  PW8\thad,
\ntherefore,  to cover up the illegal detention of  these\t two
\npersons.   So  he substituted statements purported  to\thave
\nbeen  made  by\tPWs 2 and 3 under section 161<\/a>  of  the\tCode
\ninvolving  the\tsaid two persons in the\t commission  of\t the
\ncrime  although\t their\tnames did not figure  in  the  first
\ninformation  report.  The courts below,\t therefore,  rightly
\ncame  to the conclusion that the contradictions\t brought  on
\nrecord\ton  the basis of these statements cannot  shake\t the
\ncredibility of the two eye-witnesses to the occurrance.\t  It
\nmust   be  realised  that  immediately\tafter  two  of\t the
\nappellants  were  arrested on 2nd July,\t 1976,\tPW2,  Swaran
\nSingh  had gone to the police station and had  informed\t PW8
\nthat  the said two persons, namely, Sucha Singh and  Santokh
\nSingh  were wrongly detained. PW2 lost no time and  followed
\nit up by filing an affidavit in the trial court on 3rd July,
\n1976  alleging that the investigating agency was  trying  to
\nfavour Gurmej Singh and had for that purpose fabricated\t his
\nstatement  as also the statements of other  witnesses  under
\nsection\t 161<\/a> of the Code.  In his evidence before the  court
\nalso PW2 stated that
\n\t\t\t\t\t\t       977<\/span>
\nhe  had informed the police officials that Sucha  Singh\t and
\nSantokh\t Singh were in no way concerned with the  crime\t and
\nhad  been  wrongly named by the police to  bail\t out  Gurmej
\nSingh.\tIt is also difficult to believe that PW 2 would give
\na  total  go-by\t to  his  immediate  version  in  the  first
\ninformation report while making his statement under  section
\n161<\/a>  of\t the Code.  We are, therefore, of the  opinion\tthat
\nboth the courts were right in coming to the conclusion\tthat
\nthe contradictions brought on record from such statements of
\nPWs  2\tand  3\tcan have  no  evidentiary  value.   Counsel,
\nhowever,  submitted  that  the inference drawn\tby  the\t two
\ncourts\tbelow  is falsified by the fact that DSP  Oujla\t had
\nverified the investigation papers on 10th June, 1976 and had
\ngiven  a  direction  that Gurmej Singh should  be  shown  in
\ncolumn\tNo. 2  There is, however, nothing on record to\tshow
\nthat Oujla had counter-signed these two statements which are
\nused  for contradicting the two\t eye-witnesses.\t  Therefore,
\nthe  mere  fact that Oujla had\tverified  the  investigation
\nrecord\ton 10th June, 1976 cannot come to the rescue of\t the
\nappellants.   There  is,  therefore,  no  substance  in\t the
\ncriticism levelled by the learned counsel for the appellants
\nthat the prosecution had shifted its case at the trial\tfrom
\nthe   one   narrated  to  the  police  in  the\t course\t  of
\ninvestigation.\n<\/p>\n
     The  prosecution version is that immediately after\t the
\nincident  PW2  went to the residence of his father  PW4\t and
\ninformed  him  about the incident.  This conduct of  PW2  is
\nquite  natural.\t The evidence of PW2 stands corroborated  by
\nthe evidence of PW4.  PW2 thereafter hired a tempo and\tleft
\nfor  the  police  station  and\tpromptly  lodged  the  first
\ninformation  report.   It must be realised that PW2  had  no
\ntime for manipulation as he had reached the Police  Station,
\nwhich was at a distance of 12 Km. before 8.30 a.m. He  would
\nnot  have  named  the assailants if he had  not\t seen  them.
\nThere  was  no\treason\tfor him\t to  falsely  implicate\t the
\nappellants since he bore no grudge against them; it was just
\nthe  reverse.\tA  copy\t of  this  report  had\treached\t the
\nconcerned   Magistrate\tby  about  11.15.a.m.\tThis   first
\ninformation   report   also  lends  corroboration   to\t his
\ntestimony.   The  medical  evidence  tendered  by  PW1\talso
\ncorroborates  the version of PWs 2 and 3. We, therefore,  do
\nno see any infirmity in the approach of the two courts below
\nin convicting the appellants.\n<\/p>\n
     For  the above reasons we see no merit in\tthis  appeal
\nand  dismiss the same.\tThe appellants who are on bail\twill
\nsurrender to their bail forthwith.\n<\/p>\n
Y.Lal.\t\t\t\t\t    Appeal dismissed.\n\t?\n\t1<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Gurmej Singh And Ors vs State Of Punjab on 16 July, 1991 Equivalent citations: 1992 AIR 214, 1991 SCR (2) 966 Author: Ahmadi Bench: Ahmadi, A.M. (J) 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) […]<\/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-262532","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGurmej Singh And Ors vs State Of Punjab on 16 July, 1991 - 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\/gurmej-singh-and-ors-vs-state-of-punjab-on-16-july-1991\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gurmej Singh And Ors vs State Of Punjab on 16 July, 1991 - 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