Case Note & Summary
The appeal arose from a judgment of the Special Court, Ferozepur, convicting the appellant under Section 302 of the Indian Penal Code, 1860 and sentencing him to life imprisonment for the murder of Ajmer Singh on 11 July 1984. The appeal was filed under Section 14 of the Terrorists Affected Areas (Special Courts) Act, 1984. The prosecution case was that the appellant, who was married to the sister of Pal Singh, had arranged the engagement of Pal Singh's daughter with Lakhmir Singh. After the engagement was snapped and Lakhmir Singh married another girl, the appellant suspected the deceased Ajmer Singh and his brother Gurmej Singh (PW3) of being responsible. On the evening of the incident, Gurmej Singh PW3, Ajmer Singh (deceased) and Raghubir Singh PW4 were going to the fields when the appellant, dressed as a Nihang, appeared and fired a pistol shot at Ajmer Singh. Major Singh PW5 also witnessed the occurrence. The deceased was shifted to hospital but died en route. The doctor informed the police, and ASI Raghubir Singh PW6 recorded the statement of Gurmej Singh, leading to registration of FIR. Postmortem revealed firearm injuries sufficient in the ordinary course of nature to cause death. The appellant was later arrested with a pistol and cartridges. The prosecution examined Dr. Sant Parkash Singh, Draughtsman Ajit Sharma, Gurmej Singh PW3 and ASI Raghubir Singh PW6. The other two eyewitnesses, Raghubir Singh PW4 and Major Singh PW5, were only tendered for cross-examination and not examined in chief. The appellant denied the allegations under Section 313 Cr.P.C. The main legal issues concerned the reliability of the solitary eyewitness Gurmej Singh, who was the brother of the deceased and whose name was absent from the hospital rukka, the validity and effect of tendering material eyewitnesses for cross-examination without examination-in-chief, and the unexplained delay in sending the special report to the magistrate. The appellant contended that the eyewitness was interested, his testimony was contradicted by medical evidence showing empty stomach and bladder, his absence from the rukka showed he was not present, and the non-examination of PW4 and PW5 was a serious infirmity. The court noted that the absence of Gurmej Singh's name from the rukka created doubt about his presence, and the possibility of his later arrival could not be ruled out. It also observed that the practice of tendering witnesses for cross-examination without examination-in-chief was inconsistent with Section 138 of the Evidence Act and amounted to giving up the witness. The court referred to decisions of the Madras High Court and Bombay High Court condemning such practice in murder cases. The extracted portion of the judgment ends before the final operative order, so the ultimate decision of the Supreme Court is not stated in the available text, but the detailed reasoning casts serious doubt on the sustainability of the conviction.
Headnote
A) Criminal Law - Eyewitness Reliability - Interested Solitary Witness - Indian Penal Code, 1860, Section 302 and Indian Evidence Act, 1872 - The sole eyewitness was the elder brother of the deceased and his name was absent from the hospital rukka Ex.P-5, raising doubt about his presence at the time of occurrence - The court noted that the possibility of the witness arriving later after learning about the removal of the deceased could not be ruled out, and the absence of his name was not explained - Held that the evidence of such a witness requires careful scrutiny and cannot be relied upon without corroboration (Paras 5-6). B) Criminal Law - Examination of Witnesses - Tendering Witness for Cross-Examination Only - Indian Evidence Act, 1872, Section 138 - The prosecution tendered two eyewitnesses PW4 and PW5 for cross-examination without examining them in chief - The court held that such practice is inconsistent with Section 138 which mandates examination-in-chief before cross-examination, and it amounts to giving up the witness by the prosecution - Held that there is no meaning in tendering a witness for cross-examination only, especially in murder cases (Paras 7-12). C) Criminal Procedure - Investigation - Delay in Sending Special Report - Code of Criminal Procedure, 1973 - The special report was received by the Ilaqa Magistrate on the next day at 6.30 a.m. with no explanation for delay despite proximity of court and police station - The court considered this as a circumstance affecting the prosecution case, noting the absence of any explanation on record - Held that unexplained delay in sending the special report is a relevant factor in assessing the prosecution case (Para 6).
Issue of Consideration
Whether the conviction under Section 302 IPC can be sustained based on the testimony of a solitary interested eyewitness whose presence at the scene is doubtful due to absence from the hospital rukka; whether the prosecution's failure to examine material eyewitnesses PW4 and PW5, who were only tendered for cross-examination, vitiates the trial; whether the practice of tendering a witness for cross-examination without examination-in-chief is valid under Section 138 of the Indian Evidence Act, 1872.
Law Points
- A witness cannot be cross-examined without examination-in-chief under Section 138 of the Evidence Act
- tendering a witness for cross-examination amounts to giving up the witness by the prosecution
- an interested solitary eyewitness whose presence is doubtful cannot sustain conviction
- unexplained delay in sending special report is relevant.
