Holding

The public prosecutor may lawfully omit witnesses who are expected to give adverse testimony, and all the appellants are liable for murder under Sections 149 and 34 of the IPC.

Summary

Munshi Singh, an advocate's clerk, was murdered near his home by Hukam Singh and three relatives who shot him, assaulted his wife and son, and later cremated his body. The prosecution, led by a public prosecutor, chose not to examine two independent witnesses (Inder Singh and Budh Ram Nayak) after learning they would not support the prosecution's case. The appellants challenged this omission, arguing that the prosecutor must examine all witnesses, especially independent ones, and that the other accused could not be convicted of murder under Sections 149 or 34 of the IPC. The Supreme Court held that the prosecutor's discretion under Sections 226 and 231 of the CrPC to omit witnesses likely to give adverse testimony is lawful, provided it is exercised fairly. The Court also affirmed that the collective actions of the appellants satisfied the requirements of a common object to murder, justifying conviction under Sections 149 and 34 of the IPC. Consequently, the High Court's conviction and sentence were upheld and the appeal dismissed.

Issues considered

The propriety of the public prosecutor's decision to omit two independent witnesses who were likely to give adverse evidence.
Whether the discretion granted to the public prosecutor under CrPC Sections 226 and 231 permits such omission.
Whether all the accused can be held liable for murder under IPC Sections 149 and 34 based on a common object.
Whether the conviction of the appellants for murder is sustainable on the evidence presented.

Legislation cited

Code of Criminal Procedure, 1973s. 226, s. 231, s. 313, s. 379
Indian Penal Code, 1860s. 149, s. 201, s. 302, s. 34

Subjects

public prosecutor discretionwitness examinationCrPC Sections 226 and 231IPC Sections 149 and 34murder convictionjoint liabilityappeal under Section 379

Judgment

A HUKAM SINGH AND ORS.
v.
STA TE OF RAJASTHAN

SEPTEMBER 14, 2000

B [K.T. THOMAS AND R.P. SETHI, JJ.]

Code of Criminal Procedure, 1973-Sections 226, 231, 313, 379-
During the course ·of trial, Public Prosecutor not examining the only two
independent witnesses having learnt that those two witnesses would speak
C against the prosecution version-Propriety of-Held, if the Public Prosecutor
knew that certain persons cited by the investigating agency as witnesses
might not support the prosecution case, he is at liberty to state before the
caurt that fact and skip those witnesses being examined as a prosecution
witness-If the version which any particular witness might speak in court is
D 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-
Public Prosecutor is expected to produce evidence in support of the
prosecition and not in derogation of the prosecution case.

Penal Code, 1860-Sections 302134-Appe/lants being variously armed
E converging at the bus stop waiting/or the return ofthe deceased after his day's
work and after one of them having shot him, all joining together in inflicting
blows on the fallen victim and also on his wife and son who rushed to the

F
deceased 's rescue-The appellants then jointly dragging the deceased up to the
pyre and setting him ablaze-Held, on a scrutiny of the evidence there is no
doubt that all the appellants are liable to be convicted of the offences of
-
'

murder-Conviction and sentence awarded by the High Court, affirmed

An Advocate's Clerk was murdered in the vicinity of his own house by
Al, A2, A4 and AS when he was returning home after day's work. As he
alighted from a bus near his house and was proceeding to his house with his
G son walking a little ahead, the appellants waited at the bus stop variously.
armed. On sighting him Al made an exhortation to finish him off and then
D who died before the trial started, fired his pistol which hit him on his back
and he slumped down on the spot. His son and wife rushed to rescue him.
All the accu~ed assaulted both of them. Then 'the assailants dragged the
deceased along the ground and brought him to their courtyard. They made
l-l 284
HUKAM SINGH v. STATE OF RAJASTHAN 285
a funeral pyre and cremated him in the sight of his bereaved widow and son. A
Police charge-sheeted six persons including the appellants.

Sessions Court acquitted them all. High Court reversed the order of

- acquittal as against the appellants and convicted them for murder. Hence the
present appeal under Section 379 of the Code of Criminal Procedure.

On behalf of the appellants, it was contended that the Public Prosecutor
B

could not withhold the evidence of the two independent witnesses as the
remaining witnesses were the close relatives of the deceased person; that the
discretion of the Public Prosecutor in choosing the witnesses for examination
cannot include the freedom to keep away such independent witnesses from C
being examined. It was alternatively argued that even if Al and D were found
responsible for the murder that would not warrant any need to tag the
remaining appellants with the murder of the deceased by means of either
Section 149 or Section 34 of the Indian Penal Code; that ifthe acts attributed
to rest of the appellants were true, the offence of which they were liable to D
be convicted could not escalate beyond Section 201 IPC.

On behalf of the State, it was contended that the Public Prosecutor did
not commit any impropriety in not examining those two witnesses ; that when
..- the Public Prosecutor learnt that those two witnesses would speak against
the prosecution version, he side stepped them and it was the prerogative of E
the Public Prosecutor not to examine such persons as prosecution witnesses;
that it was open to the Public Prosecutor to report to the cQurt about his
decision not to examine any person as prosecution witness particularly when
he got report through his own sources that those witnesses were won over
by the accused.
F
Dismissing the appeal, this Court

HELD : 1. The role played by each of the appellants can be discerned
with reasonable degree of ce~ainty. Starting with their convergence at the
bus stop, presumably waiting for the return of the deceased after his day's G
work, the fact that all were variously armed, the fact that they all joined
together in inflicting blows on the fallen victim and also on his wife and son
who rushed to the rescue of their bread-winner, and the fact that they all
jointly dragged the deceased up to the pyre and set him ablaze are very
material in deciding whether they all had the common object of liquidating
the deceased on that very evening. On a scrutiny of the evidence there is no H
286 SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.

A doubt that all the appellants are liable to be convicted of the offences found
against them. (292-E-G]

2.1. Jn trials before a Court of Sessions the prosecution "shall be

B
conducted by a Public Prosecutor". Section 226 of the Code of Criminal
Procedure 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
C 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. (290-F-G]

2.2. When the case reaches the stage envisaged in Section 231 of the
D Code of Criminal Procedure, the 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
E a decision as to which among the persons cited are to be examined. If there
are too may 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 may witnesses cited if they all had
sustained injuries at the occurrence. The Public Prosecutor in such cases
F 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
G considerably in lessening the workload. [290-H; 292-A-C]

2.3. 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
H witnesses from the latter category also subject to his discretion to limit to
HUKAM SINGH v. STATE OF RAJASTHAN [THOMAS, J.] 287
one or two among them. But if the Public Prosecutor got reliable information A
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
B

particular person would be adopting when examined as a witness in Court.
(291-D-FJ

Masalti v. State of Uttar Pradesh, AIR (1965) SC 202, relied on.

Dalip Singh v. State of Punjab, (1954) SCR 145; Guli Chand v. State
c
of Rajasthan, [1974) 3 SCC 698; Da/bir Kaur v. State of Punjab, (1976) 4
SCC 158; Bava Hajee v. State of Kera/a, AIR, (1974) SC 902 and Shivaji
Sahabrao Bobade v. State of Maharashtra, [1973) 2 SCC 793, referred to.

CRIMINAL APPELLATE JUR!SDICTION : Criminal Appeal No. D
261of1998.

From the Judgment and Order dated 5.9. 97 of the Rajasthan High Court
in D.B. Crl. A. No. 443 of 1982.

U.U. Lalit, Ajay Siwach and S.K. Sabbarwal for the Appellants. E
Ms. Anjali Doshi, Sushil Kumar Jain and A. Mishra for the Respondent.

The Judgment of the Court was delivered by

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 F '
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 G
Umesh Lalit, Advocate for the appellants and Ms. Anjali Doshi, Advocate for
the State of Rajasthan.

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 .. 198 l. The prosecution case is the following: H
288 SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R.

A Appellant Hukam Singh (who was ranked as A. l in the Trial Court) and
his brother Hamam 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
B was walking a little ahead of his father. All the appellants were at the bus stop
variously aimed. 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.
c
Seeing the above mishap befallen his father PW. 4 Bhupender Pal
rushed to rescue h.im. 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
D a pyre with fir~wood splinters and put the body of Munshi Singh on it and
set it ablaze while his wife and son were looking on aghast.

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
E 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.
. F
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
G Munshi 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.

Neither the Sessions Court nor the High Court found the said version
H of Hukam Singh to be true. He did not care to examine Bharama Bai nor make
HUKAM SINGH v. STATE OF RAJASTHAN [THOMAS, J.] 289
any attempt to substantiate the version put forward by him. The Courts A
therefore did not attach any credence to the aforesaid belated version put-
forth by Hukam Singh at the fag end of the trial.

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 B
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
version spoken to by PW-4 in court is substantially a reiteration of the
version which he supplied to the police as early as 8.40 P.M. on the same
night. That became the basis for the FIR. The Sessions Court refused to C
believe the testimony of those witnesses on the erroneous perception that
they are "interested witnesses''. The only premise fo:- dubbing them as
"interested witnesses" is that they were the kith and kin of the deceased.
Why should such witnesses be termed as interested witnesses? If they had
seen the occurrence they would certainly have the interest to bring the
offenders of the murder of their breadwinn~r to book. Normally the kith and D
kin of the deceased, if they had seen the occurance would not absolve the
real offenders and involve innocent persons for that murder. [vide Dalip
Singh v. State of Punjab, [1954] SCR 145; Guli Chandv. State ofRajasthan,
[1974] 3 SCC 698 and Dalbir Kaur v. State of Punjab, [1976] 4 SCC 158.

Be that as it may, the promptitude with which the First Information E
Statement was lodged as done by PW.4 in this case, give such an assuranc.e
that he would have told the police the true version of the incident.

In the First Information Statement PW.4 mentioned that one Inder Singh
and one Budh Ram Nayak have also seen the incident. The Investigating
Officer included those two persons as witnesses to the occurrence when the F
final report was laid. But in the Sessions Court they were not examined by
the Public Prosecutor. The Sessions Judge frowned at the prosecution for not
examining those witnesses. The High Court noted that non-examination of
those witnesses was due to an application submitted by the Public Prosecutor
that those two witnesses did not support the prosecution version. Regarding G
that aspect learned Judges of the High Court made the following observations:

"In our opinion, it is the discretion of the Public Prosecutor to examine
the witnesses, whom he likes. It is not necessary for the prosecution
to examine each and every witness to prove a particular fact. When
the Public Prosecutor came to know that Inder Singh and Budh Ram H
290 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A would not depose in- favour of the prosecution, he was justified in
giving them up by moving an application in the court that the witness
had joined hands with the accused. There was nothing wrong in the
conduct of the Public Prosecutor. The fact that the two witnesses
have not been examined, does not detract the testimony of Ram Pyari
and Bhupender Pal."
B
Shri Uday Umesh Lalit, learned counsel for the appellants made a
criticism against the Public Prosecutor for not examining those two witnesses,
as they were the only independent witnesses. Learned counsel contended
that the Public Prosecutor can not withhold the evidence of such independent
C witnesses in a case of this nature as the remaining witnesses were the close
relatives of the deceased person. The discretion of the Public Prosecutor in
choosing the witnesses for examination cannot include the freedom to keep
away such independent witnesses from being examined, argued the counsel.

On the other hand, Ms. Anjali Doshi, learned counsel who argued for
D the State, submitted that the Public Prosecutor did not commit any impropriety
in not examining those two witnesses. When he learnt that those two witnesses
would speak against the prosecution version he sidestepped them and it is
the prerogative of the Public Prosecutor not to examine such persons as
prosecution witnesses; it is open to the Public Prosecutor to report to th_e
court about his decision not to examine any person as prosecution witnesses
E particularly when he got report through his own sources that those witnesses
were won over by the accused, acc?rding to the learned counsel for the State.

In trials before a Court of Sessions the prosecution "shall be conduced
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
F 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
G 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.

When the case reaches the stage envisaged in Section 231 of the Code
the Sessions Judge is obliged "to take all such evidence as may be produced
H in support of the prosecution." It is clear from the said Section that the Public
... HUKAM SINGH v. STATE OF RAJASTHAN [THOMAS, J.] 291
Prosecutor is expected to produce evidence "in support of the prosecution" A
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 B
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 exami11e the remaining persons
in that category. This will help not only the prosecution for relieving itself of C
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.

The situation in a case where the prosecution cited two categories of D
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 ifthe Public Prosecutor got reliable information that any one E
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 F
would be adopting when examined as a witness in court.

A four Judge Bench of this Court has stated the above legal position
thirty five years ago in Masalti v. State of Uttar Pradesh, AIR (1965) SC 202.
It is contextually apposite to extract the following observation of the Bench: G
It is not unknown that where serious offences like the present are
committed and a large number of accused persons are tried, attempts
are made either to terrorise or win over prosecution witnesses, and if
the prosecutor honestly and bona fide believes that some of his
witnesses have been won over, it would be unreasonable to insist that H
292 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A he must tender such witnesses before the court."

The said decision was followed in Bava Hajee v. State of Kera/a, AIR
(1974) SC 902. In Shivaji Sahabrao Babade v. State of Maharashtra, (1973]
2 SCC 793, Krishna Iyer J., speaking for a three Judge Bench had struck a
note of caution that while a Public Prosecutor has the freedom "to pick and
B choose" witnesses he should be fair to the Court and to the truth. This court
reiterated the same position in Dalbir Kaur v. State of Punjab, [ 1976] 4 SCC
158.

Sri Uday Umesh Lalit alternatively contended that even ifHukam Singh
and Darshan Singh are found responsible for the murder of Munshi Singh
C that would not warrant any need to tag the remaining appellants with the
murder of the deceased by means of either Section 149 or Section 34 of the
IPC. According to the learned counsel, if the acts attributed to them (that they
dragged the deceased up to their chowk and put his body on the pyre and
set him ablaze) are true, the offence of which they are liable to be convicted
D cannot escalate beyond Section 20 l IPC.

We bestowed serious consideration to the above contention. If the
evi8ence of PW4 Bhupender Pal and PW.5 Ram Pyare is believable the role
played by each of the appellants can be di_scerned with reasonable degree of
certainty. It is not as minor as sought to be dubbed by the learned counsel.
E Starting with their convergence at the bus stop, presumably waiting for the
~eturn of the deceased after his day's work, the fact that all were variously
armed, the fact that they all joined together in inflicting blows on the fallen
victim and also on his wife and son who rushed to the rescue of their bread-
winner, and the fact that they all jointly dragged the deceased up to the pyre
and set him ablaze are very material in deciding whether they all had the
-F common object of liquidating the deceased on that very evening.

On a scrutiny of the evidence and consideration of the arguments
seriously pressed into the service by the learned counsel we have no reason
to dissent from the finding arrived by the Division Bench of the High Court
G that all the appellants are liable to be convicted of the offences found against
them. We, therefore, affirm the conviction and sentence passed on them and
dismiss this appeal.

M.P. Appeal dismissed.