ICTION Criminal Appeal No 778 of 1979
From the Judgment and Order dated 2161979 of the Punjab and Haryana High Court in Crl
A Nos 120 and 163 of 1977
Frank Anthony and Sushil Kumar for the Appellants
RS 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 415 pm on 7th June 1976 found four injuries on the person of the deceased namely i a lacerated penetrating circular would 14   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 12   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 1015 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 830 am 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 30234 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 1015 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 1015 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 PW 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 300 am 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 1015 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 300 am 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 1015 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 235 am and was not restored till 550 am
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 300 am 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 vs State of UP 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
vs State of MP  and Nachhattar Singh  Ors vs The State of Punjab 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 vs State of UP and Ishwar Singh vs State of UP  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 1015 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 1015 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 AN Rao vs Public Prosecutor Andhra Pradesh and State of UP vs Hari Prasad  Ors  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 107151 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 515 pm
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 830 am 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 1115am
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
YLal
Appeal dismissed


Summary:
In the petition filed under Article 32 of the Constitution of India the petitioners teachers employed in the schools run by the respondents controlled by the Defence Department of the Government of India contended that the action of the respondents in retiring them at the age of 58 years whereas retaining similarly situated teachers working in other departments upto the age of 60 years was discriminatory and violative of Articles 14 and 16 of the Constitution
The respondents filed the Office Memorandum dated 1031989 issued by the Ministry of Personnel wherein it was stated that the age of retirement of the teachers working in all the Departments and Organisations was uniformly fixed at 58 years
Dismissing the petition this Court HELD With effect from April 1 1989 the age of superannuation of all teachers working in Central Government Departments and Organisations including Union Territories has been uniformly fixed at 58 years
838F