Important point
Non examination of independent witness by itself may not give rise to adverse inference but when evidence of alleged eye-witnesses who were related to deceased raised serious doubt on their presence, unexplained omission in examining independent witness will assume significance.

Judgment

P. Venkatarama Reddi, J.—The four appellants herein who are brothers faced trial before the Additional Sessions Judge - I, Jind for murdering one Hemant Kumar at a central place in Safidon town, on the night of 3.4.1996 at about 8.45 p.m. They were convicted under Section 302 IPC and sentenced to life imprisonment. The High Court dismissed the appeals filed by the accused. Hence, these appeals by special leave.

2. The following is a brief account of the prosecution case and other relevant facts:

3. On the night of 3rd April, 1996, all the accused attacked Hemant Kumar at Channi Chowk and stabbed him with knives. As a ­result of stabbing, he received six injuries out of which two were in the chest region. The fatal assault by the four accused was seen by the younger brother of deceased-PW4, who was returning home from his watch repair shop. On being informed by a passer-by on a bicycle, PW4 rushed to the spot and having noticed from a distance of 30 ft. or so that the attack on the deceased was going on, he raised an alarm. Hearing the cries, PW5-another relation of the deceased and one Kapoor Singh who were at a nearby sweet shop joined PW4. On seeing all of them, the accused fled. According to PWs 4 and 5, three accused carried knives and the accused, namely, Kala carried ‘Neja’ (which resembles knife). The injured person fell down on the spot and he was taken on a cot to the Civil Hospital, Safidon by the aforementioned three persons. At the hospital, the doctor (not examined) declared him dead. The same doctor sent a rucca (memo) to the Police Station, Safidon at about 9.50 p.m. The Sub-Inspector of Police-PW9 was going on a jeep by the side of the hospital. The Ward Boy of the hospital handed over the rucca to him PW9 then came to the hospital and after sometime, recorded the statement of PW4 at the hospital. He sent the same to the Police Station, on the basis of which an FIR was recorded at 11.30 p.m., for an offence under Section 302 read with Section 34 IPC. Copy was sent to the Judicial Magistrate through a Constable and it reached him at about 1.00 a.m. In the said statement given to the police, PW4 named the four accused as the assailants. PW9 held the inquest over the dead body in the hospital and sent the dead body for post-mortem. The Medical Officer attached to the General Hospital, Jind did the post-mortem examination at 9.15 a.m. on 4.4.1996 and prepared the post-mortem report which is Ex.PA. PW9 could go to the scene of occurrence at about 2.30 a.m. The delay was for the reason that he tried to stop a reprisal attack by a mob to set fire to the houses of the accused. He prepared a site plan. One Gobind Das produced all the four accused persons involved in the offence in the night of 4.4.1996 before PW9 while he was at Court Road Chowk. They were arrested and immediately thereafter, the accused Kala produced a knife (Ex.P1). The total length of that knife was 8 inches inclusive of 4" of handle and the width of the blade was about 0.2 to 0.3 cms. PW10-Inspector of Police, CIA, was entrusted with investigation from 6.4.1996 onwards. He recorded the statements of some witnesses. He applied for judicial remand of the arrested accused. On the same day, PW10 took the knife seized from Kala to the Medical Officer-PW1, who endorsed on the post-mortem report that the injuries could be inflicted by that knife. On the basis of his investigation, PW10 found that the accused other than Kala were innocent. Therefore, in the report under Section 173 Cr.P.C., only Kala was shown as the accused for the offence punishable under Section 302 IPC. However, all the four accused persons were committed to Sessions. After examining the record, the learned Judge found that there was a prima facie case to proceed against all the accused. Accordingly, the charge was framed against all the accused under Section 302 IPC. Curiously, Section 34 was omitted in the charge. On the basis of the evidence of the eye-witnesses, namely, PWs 4