Important points
1. Merely on ground eyewitnesses were kith and kin of victim, their evidence cannot be rejected dubbing them as interested witnesses.
2. If the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in court about that fact and skip that witness being examined as a prosecution witness. It is open to the defence to cite him and examine him as defence witness.

Headnote:(i) Criminal Procedure Code, 1973—Sections 226 and 231—Evidence for prosecution—Discretion of Public Prosecutor not to examine certain witnesses—If Public Prosecutor got reliable information that a category of witness would not support prosecution version he is free to skip that witness—Defence, however, could cite such witness and examine that witness.
       In trials before a Court of Sessions the prosecution “shall be conducted by a Public Prosecutor”. Section 226 of the Code enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused. If he knew at that stage itself that certain persons cited by the investigating agency as witnesses might not support the prosecution case he is at liberty to state before the court that fact. Alternatively, he can wait further and obtain direct information about the version which any particular witness might speak in court. If that version is not in support of the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution. (Para 13)
       When the case reaches the stage envisaged in Section 231 of the Code of Sessions Judge is obliged “to take all such evidence as may be produced in support of the prosecution.” It is clear from the said Section that the Public Prosecutor is expected to produce evidence “in support of the prosecution” and not in derogation of the prosecution case. At the said stage the Public Prosecutor would be in a position to take a decision as to which among the persons cited are to be examined. If there are too many witnesses on the same point the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the court can be saved from repetitious depositions on the same factual aspects. That principle applies when there are too many witnesses cited if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to inform the court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution for relieving itself of the strain of adducing repetitive evidence on the same point but also helps the court considerably in lessening the workload. Time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice. (Para 13)
       The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor’s duty to the court may require him to produce witnesses from the latter category also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in court about that fact and skip that witness being examined as a prosecution witness. It is open to the defence to cite him and examine him as defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness before hand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in Court. (Para 15)
       (ii) Code of Criminal Procedure, 1973—Section 379—Appeal against conviction by Court—Appreciation of evidence—Murder by gun shot—Son and wife eyewitnesses—Accused persons killing deceased and setting ablaze body—Son and wife were also assaulted and prevented from removing body—Non-examination of independent witnesses cited in FIR not fatal since Public Prosecutor felt that witnesses would not support prosecution case—Killing of deceased and cremation of body by accused persons not denied in Section 313 proceedings but defence version of firing at deceased on seeing him molesting of lady not proved—Conviction of High Court upheld. (Paras 6, 7, 8 and 20)
       (iii) Criminal Trial—Eyewitnesses—Interested witness—Evidence of wife and son of victim—Cannot be rejected merely on ground they are kith and kin of victim dubbing them as interested witnesses. (Para 8)
       (iv) Indian Penal Code, 1860—Section 302 r/w Section 34/149—Murder—One accused firing a gun shot at deceased and all others assaulting deceased after he fell down —Wife and son of deceased also assaulted—All accused dragged deceased to pyre and set him ablaze —Accused persons earlier were waiting with weapons for arrival of deceased—All accused persons were liable for offence and not the accused who fired at deceased alone. (Paras 19 and 20)
       Result : Appeal dismissed.

Judgment

Thomas, J.—The killers of an advocate’s clerk arranged a funeral pyre by themselves and cremated the victim in the sight of his bereaved widow and son. Police charge-sheeted six persons including the appellants for those acts. But the Sessions Court acquitted them all. As the High Court reversed the order of acquittal as against the appellants and convicted them for murder they filed this appeal as of right under Section 379 of the Code of Criminal Procedure (for short ‘the Code’). We heard detailed arguments of Shri Uday Umesh Lalit, Advocate for the appellants and Ms. Anjali Doshi, Advocate for the State of Rajasthan.

2. Munshi Singh was an advocate’s clerk who was murdered in the vicinity of his own house by using a pistol and other lethal weapons at about 7 P.M. on 29.6.1981. The prosecution case is the following :

3. Appellant Hukam Singh (who was ranked as A. 1 in the trial Court) and his brother Harnam Singh (A. 5) and the latter’s sons Jaswant Singh (A. 2) and Balwant Singh (A. 4) had some axe to grind against deceased Munshi Singh. On the evening of the fateful day Munshi Singh alighted from a bus near his house and was proceeding to his house. His son Bhupender Pal (PW 4) took over a bag of cattle-feed which his father brought from the bazar and he too was walking a little ahead of his father. All the appellants were at the bus stop variously armed. On sighting the deceased one among the appellants (Hukam Singh) made an exhortation to finish him off and then Darshan Singh (who died before the trial started) fired his pistol which hit the deceased on his back. He slumped down on the spot.

4. Seeing the above mishap befallen his father PW 4 Bhupender Pal rushed to rescue him. Munshi Singh’s wife on hearing the commotion flew down from her house and reached her husband. All the accused assaulted both of them as well as the deceased. Then the assailants dragged the deceased along the ground and brought him to their courtyard. They made a pyre with firewood splinters and put the body of Munshi Singh on it and set it ablaze while his wife and son were looking on aghast.

5. The police was alerted and they reached the spot but to find only the burnt remaining of Munshi Singh and the smouldering embers of the dying pyre. They extinguished the flames and salvaged whatever remained on the corpse. A team of doctors conducted post-mortem examination among whom PW 8 Dr. Rajendra Kumar gave evidence that the dead body reached such a stage of burnt condition that it was impossible to form an opinion regarding the cause of death. However, they recovered a metallic substance from the skeleton which could be the embedded remnant of firing the pistol.

6. Hukam Singh, when examined by the Sessions Judge under Section 313 of the Code admitted that he killed the deceased. But he advanced a contrary version like this : He and Darshan Singh saw the deceased grappling Bharama Bai and the lady was crying. Then Darshan Singh fired at the molesting Minshi Singh. When his son Bhupender Pal (PW 4) and his wife Ram Pyari (PW 5) reached the spot Hukam Singh and his associates forcibly prevented them from removing Munshi Singh from the spot. He also admitted that the dead body of Munshi Singh was subsequently cremated by them.

7. Neither the Sessions Court nor the High Court found the said version of Hukam Singh to be true. He did not care to examine Bharama Bai nor make any attempt to substantiate the version put forward by him. The courts therefore did not attach any credence to the aforesaid belated version put-forth by Hukam Singh at the fag end of the trial.

8. Bhupender Pal (PW 4) and Ram Pyari (PW 5) were the two eyewitnesses examined by the prosecution. The fact that they were present at the scene of occurrence could not be disputed nor the same has been disputed by the accused. They sustained injuries at the hands of the assailants and the doctor who noted such injuries had testified about them in the court as PW 9. The vers

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Cases Referred (6)