Case: Tej Parkash Vs. The State Of Haryana

as it was deposed by Dr. Bhutani that he possibility of hyoid bone fracturing in the process of the dead-body being taken out with the help of neck, either by pulling it with rope or with hand could not be ruled out. In this context, Mr. Ganesh referred to the evidence of Giarsi Lal P.W. 6 who had stated that when he tried to lift the dead body while taking it out of the well, the head slipped thrice. Both the courts below have not found the witness Giarsi Lal P.W. 6 as reliable and his testimony has been rejected. As far as the evidence of Dr. Bhutani P.W. 9 is concerned, we do not find that the same is in any way in conflict or at variance with the post-mortem report. In the post-mortem report, it has been stated that the injuries on the body of the deceased were ante-mortem in nature. There was a fracture of the hyoid bone and both Dr. K.C. Jain and Dr. J.L. Bhutani stated that the said injury by itself was sufficient to cause death in the ordinary course of nature. In two specific questions, Dr. Bhutani P.W. 9 stated that ``in this case, it is possible to rule out the possibility of death by drowning because of the presence of injuries on the person of the deceased as described. If the injuries as described on the deceased were absent, there was a rare possibility that it might not have been impossible to determine whether death was on account of drowning. In view of this categorical statement, an observation made by the witness that possibility of hyoid bone fracturing in the process of dead body being taken out does not in any way weaken the prosecution case. This was only his subjective opinion and does not run counter to the objective part of the post-mortem report namely, that the death was caused due to fracture of hyoid bone and the said injury was ante-mortem in nature. None of the symptoms which attached to death by drowning e.g. water in the lungs or in the stomach were present and Dr. J.L. Bhutani P.W. 9 in his examination-in-chief had categorically stated that the fracture of the hyoid bone was ante-mortem in nature and this corroborates the evidence of Dr. K.C. Jain P.W. 1 as well as the post-mortem report.17. As far as Dr. O.P. Poddar is concerned, he was only tendered for cross- examination without his being examination-in-chief. Though, Dr. O.P. Poddar was not examined-in-chief, this procedure of tendering a witness for cross- examination is not warranted by law. This Court in Sukhwant Singh v. State of Punjab, JT 1995(3) SC 495 : 1995(2) Scale 482 held that permitting the prosecution to tender a witness for cross-examination only would be wrong and ``the effect of their being tendered only for cross- examination amounts to the failure of the prosecution to examine them at the trial. In the present case, however, non-examination of Dr. O.P Poddar is not very material because the post-mortem report coupled with the testimonies of Dr. K.C. Jain P.W. 1 and Dr. J.L. Bhutani P.W. 9 was sufficient to enable the courts to come to the conclusion about the cause of death.18. In support of his contention that serious prejudice was caused to the appellant by non-examination of Phool Singh who had been cited by the prosecution as one of the witness, Mr. Ganesh relied upon Stephen Senivaratne v. The King, A.I.R. 1936 P.C. 289, Habeeb Mohammad v. The State of Haryana, 1954 (5) S.C.R. 475 and State of U.P. and another v. Jaggo alias Jagdish and others, 1971(2) S.C.C. 42. The aforesaid decisions can be of little assistance to the appellant in the present case. What was held by the Privy Council and this Court was that witnesses who were essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case for the prosecution and that failure to examine such a witness might affect a fair trial. It was also observed that all the witnesses of the prosecution, need not be called. In the present case, the witnesses who were essential to the unfolding of the narrative had been examined. One of the facts which had to be established was that the body of the deceased was found in the well and the same was taken out by two labourers, namely, Giarsi Lal P.W. 6 and Phool Singh. The fact that this body was recovered from the well was proved by Giarsi Lal P.W. 6, amongst other witnesses, and Phool Singh who had apparently been cited as a witness for the same purpose was not examined. His non-examination cannot be regarded as causing any prejudice to the appellant. Our attention was also drawn to the decision of the Allahabad High Court in the case of Sahabjan and another v. State of U.P., 1990 Crl L.J. 980 where it was observed that the mere allegation that some witnesses were not prepared to support the prosecution case and had been won over by the accused would not be sufficient and that opportunity should be given to the court to assess their evidence and to come to such a conclusion. In that case the witnesses given up had been named as being the eye witnesses to the incident and it is in that context the Court made the aforesaid observation. Non-examination of a witness who had been cited by the prosecution would of course result in an adverse inference being drawn in view of Illustration (g) of Section 114 of the Evidence Act and may in some cases even cause prejudice to the defence, but in the present case, Phool Singh who merely recovered the body from the well along with Giarsi Lal P.W. 6 was not such an important witness whose non-examination could be said to have caused any prejudice to the appellant.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]16. The effort of Mr. Ganesh obviously was to try to persuade this Court to reappraise the evidence and come to a different conclusion. We find that the trial Court as well as the High Court were conscious of the fact that this was a case of circumstantial evidence. Keeping in view the well established principles in mind the concurrent finding arrived at by both the courts below was that he appellant was guilty of murdering his wife. We have also carefully examined the record and we do not find that the concurrent finding calls forof the evidence. This is more so when we find that thereport coupled with the medical evidence reached only to one conclusion namely, that homicide and not suicide had resulted in the death of the appellants wife. It was contended that the evidence of Dr. Bhutani P.W. 9 did not support the prosecution inasmuch as it was deposed by Dr. Bhutani that he possibility of hyoid bone fracturing in the process of thebeing taken out with the help of neck, either by pulling it with rope or with hand could not be ruled out. In this context, Mr. Ganesh referred to the evidence of Giarsi Lal P.W. 6 who had stated that when he tried to lift the dead body while taking it out of the well, the head slipped thrice. Both the courts below have not found the witness Giarsi Lal P.W. 6 as reliable and his testimony has been rejected. As far as the evidence of Dr. Bhutani P.W. 9 is concerned, we do not find that the same is in any way in conflict or at variance with thereport. In thereport, it has been stated that the injuries on the body of the deceased werein nature. There was a fracture of the hyoid bone and both Dr. K.C. Jain and Dr. J.L. Bhutani stated that the said injury by itself was sufficient to cause death in the ordinary course of nature. In two specific questions, Dr. Bhutani P.W. 9 stated that ``in this case, it is possible to rule out the possibility of death by drowning because of the presence of injuries on the person of the deceased as described. If the injuries as described on the deceased were absent, there was a rare possibility that it might not have been impossible to determine whether death was on account of drowning. In view of this categorical statement, an observation made by the witness that possibility of hyoid bone fracturing in the process of dead body being taken out does not in any way weaken the prosecution case. This was only his subjective opinion and does not run counter to the objective part of thereport namely, that the death was caused due to fracture of hyoid bone and the said injury wasin nature. None of the symptoms which attached to death by drowning e.g. water in the lungs or in the stomach were present and Dr. J.L. Bhutani P.W. 9 in hishad categorically stated that the fracture of the hyoid bone wasin nature and this corroborates the evidence of Dr. K.C. Jain P.W. 1 as well as thereport.17. As far as Dr. O.P. Poddar is concerned, he was only tendered for crossexamination without his beingThough, Dr. O.P. Poddar was notthis procedure of tendering a witness for crossexamination is not warranted by law. This Court in Sukhwant Singh v. State of Punjab, JT 1995(3) SC 495 : 1995(2) Scale 482 held that permitting the prosecution to tender a witness foronly would be wrong and ``the effect of their being tendered only for crossexamination amounts to the failure of the prosecution to examine them at the trial. In the present case, however,of Dr. O.P Poddar is not very material because thereport coupled with the testimonies of Dr. K.C. Jain P.W. 1 and Dr. J.L. Bhutani P.W. 9 was sufficient to enable the courts to come to the conclusion about the cause of death.18.In support of his contention that serious prejudice was caused to the appellant byf Phool Singh who had been cited by the prosecution as one of the witness, Mr. Ganesh relied upon Stephen Senivaratne v. The King, A.I.R. 1936 P.C. 289, Habeeb Mohammad v. The State of Haryana, 1954 (5) S.C.R. 475 and State of U.P. and another v. Jaggo alias Jagdish and others, 1971(2) S.C.C. 42.The aforesaid decisions can be of little assistance to the appellant in the present case. What was held by the Privy Council and this Court was that witnesses who were essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case for the prosecution and that failure to examine such a witness might affect a fair trial. It was also observed that all the witnesses of the prosecution, need not be called. In the present case, the witnesses who were essential to the unfolding of the narrative had been examined. One of the facts which had to be established was that the body of the deceased was found in the well and the same was taken out by two labourers, namely, Giarsi Lal P.W. 6 and Phool Singh. The fact that this body was recovered from the well was proved by Giarsi Lal P.W. 6, amongst other witnesses, and Phool Singh who had apparently been cited as a witness for the same purpose was not examined. Hiscannot be regarded as causing any prejudice to the appellant. Our attention was also drawn to the decision of the Allahabad High Court in the case of Sahabjan and another v. State of U.P., 1990 Crl L.J. 980 where it was observed that the mere allegation that some witnesses were not prepared to support the prosecution case and had been won over by the accused would not be sufficient and that opportunity should be given to the court to assess their evidence and to come to such a conclusion. In that case the witnesses given up had been named as being the eye witnesses to the incident and it is in that context the Court made the aforesaid observation.of a witness who had been cited by the prosecution would of course result in an adverse inference being drawn in view of Illustration (g) of Section 114 of the Evidence Act and may in some cases even cause prejudice to the defence, but in the present case, Phool Singh who merely recovered the body from the well along with Giarsi Lal P.W. 6 was not such an important witness whosecould be said to have caused any prejudice to the appellant.