Holding

A murder conviction cannot be upheld on the uncorroborated testimony of an interested eyewitness when prosecution witnesses were tendered only for cross‑examination, rendering the conviction unsafe.

Summary

The appellant was convicted of murder under S.302 IPC for the killing of Ajmer Singh. The prosecution’s case rested on the testimony of the deceased’s elder brother (PW3), who was the sole eye‑witness examined in chief, while two other eye‑witnesses (PW4 and PW5) were tendered only for cross‑examination. The Supreme Court found serious infirmities: PW3’s presence at the hospital was not recorded, his testimony was uncorroborated and potentially biased, the medical report suggested the victim may have urinated and defecated after being shot, and the prosecution failed to produce ballistic expert analysis of the recovered pistol and empty cartridge. The Court held that tendering witnesses for cross‑examination only violates S.138 of the Evidence Act and undermines the reliability of the prosecution case. Consequently, the conviction could not be sustained beyond reasonable doubt and was set aside.

Issues considered

The adequacy of a sole, interested eyewitness testimony without independent corroboration for a murder conviction.
Whether tendering prosecution witnesses for cross‑examination only, without examination‑in‑chief, is permissible under S.138 Evidence Act.
The impact of the prosecution’s failure to obtain ballistic expert opinion on the evidentiary value of the seized weapon.
The significance of the deceased’s brother’s absence from the hospital report (Ex.P‑5) on the credibility of his testimony.

Legislation cited

Arms Act, 1959s. 25
Indian Evidence Act, 1872s. 138
Indian Penal Code, 1860s. 302
Terrorists Affected Areas (Special Courts) Act, 1984s. 14

Subjects

murdereyewitness testimonycorroborationSection 138 Evidence Acttendering witnessesballistic evidenceconviction set asidecriminal appealprocedural fairness

Judgment

SUKHWANT SINGH
v.
STATE OF PUNJAB

MARCH 28, 1995

B (DR. A.S. ANAND AND FAIZAN UDDIN, JJ.)
I
Indian Penal Code, 1860:

S.302--Murder Trial-Brother of deceased present to iffentify the dead \
C body at the time of post mortem-Not present when the body was brought to
hospital--Effect of-Recovery of pistol and cartridges including an
empty-Failure to get opinion of ballistic expert-Tendering witnesses for·
cross-examination only-Affect not only the credibility of the Prosecution case
bµt also detract materially from reliability.

D Evidence Act, 1872 :

S. 138 ·Examination or witnesses-Tendering witnesses for cross-ex·
amination only-Amounts to failure of Prosecution to examine them at the
1
trial-Affects credibility of Prosecution case-Also detracts materially from its
E reliability.

The appellant was tried for an offence under S.302 IPC for the
murder of A. He was convicted and sentenced to life imprisonment. The
motive for the murder was alleged to be suspicion entertained by the
appellant that the deceased and his brother were responsibl~ for the
F snapping of an engagement brought through the instrumentality of the
appellant. • - --r--·

In this appeal, the conviction and sentence had been challenged, on
the ground that the solitary eyewitness examined at the trial viz. P .W. 3 -
could not be relied upon not only because he was an interested witness,
r--
G being the brother of the deceased, but also because his evidence stood
belied by the medical evidence, which showed that the injuries had been
,received after the deceased had answered by the call of nature and not
before as suggested by PW 3; that the dead body was brought to the
hospital by PWs 4 and S who were not examined and PW3 did not
H ~ccompany th~ deceased to the hospital, and that these infirmities
1190
,/
SUKHWANTSINGH1•. STATE 1191

rendered it unsafe to uphold the conviction of the appellant on the basis ~
of the uncorroborated testimony of PW3.

Allowing the appeal, this Court

HELD: 1. PW3 is the elder brother of the deceased. He is the solitary
eye witness examined by the prosecution. The absence of his name from B
Ex.P-5, sent by the doctor to the police station immediately after the arrival
of the dead body in the hospital created some doubt about the presence of
PW 3 at the place of occurrence at the time when the deceased was shot
at. In the normal course of human conduct the real brother of the deceased
)
would have accompanied the injured to the hospital. The identification or C
the deceased at the time or post-mortem examination of the deceased, can
not cure the defect of the absence of the name of PW3 from Ex.P-5 because
the post-mortem examination was conducted the next day at 11.00 a.m.
Tlu~re is no explanation available on the record, nor has any been offered
before this Court to explain the absence of the name of PW3 from Ex.P-5
in which it was recorded that PWs 4 and 5 had brought the deceased to D '
the hospital. [1196-B·D]

2.1. The possibility that PW3 might have arrived at the hospital later
on after learning about the removal of his deceased brother to the hospital
by PWs 4 and 5 .cannot be ruled out. Moreover, it Is round that the special E
report reached the Ilaqa magistrate on the next day at 6.30 a.m. There ls
no explanation available on the record about the delay in the receipt of the
Special report by the Ilaqa Magistrate, especially when the Court of Ilaqa
magistrate an,d the police stati~m are quite close to each other. The fact
that at the time or post-mortem examination the stomach and the bladder
were found empty though suggestive of the position contrary to what PW3 F
.....,...- deposed, that the deceased had answered the call of nature before he was
" , shot at, but cannot be conclusive of it, as the possibility that the deceased
might have defecated and urinated after the receipt of injuries and before
- ~·
his death, cannot be ruled out. [1196·F·H]

2.2. From a critical analysis of the materials on the record, it is found G
that it would not be safe to rely upon the sole testimony of PW3, the brother
of the deceased, without seeking independent corroboration of his evidence
on account of the infirmities which render his testimony as not wholly
reliable and since in the present case, no such independent corroboration
is available on the record, it would be unsafe to rely upon the testimony of H
1192 SUPREME COURT REPORTS (1995) 2 S.C.R.

A PW3 only, to uphold the conviction of the appellant. The prosecution has
not been able to establish the case against the appellant beyond a
reasonable doubt. The trial court, therefore, fell in error in convicting the
sentencing the appellant. His conviction and sentence cannot be sustained.
(1204-C-D]
B 3.1 Section 138 of Evidence Act envisages that a witness would first
be examined in chief and then subjected to cross examination and for
seeking any clarification, the witness may be re-examined by the prosecu-
tion. There is no meaning in tendering a witness for cross examination only.
Tendering of a witness for cross-examination, as a matter of fact, amounts ,
to giving up of the witness by the prosecution as it does not choose to
c examine him in chief. However, the practice of tendering witnesses for
cross-exarninatiou in Session Trials had been frequently resorted to since
the enactment of the Code of Criminal Procedure, 1898, where under a
full-fledged magisterial enquiry was to be held, in a case which was triable
exclusively by the Court of Session or the High Court, in accordance with
D the procedure laid down in Chapter XVIII thereof and in that enquiry
prosecution was required to examine all its witnesses. Under Section 288
of that Code the evidence of the witnesses so recorded by the Committing
Magistrate could be treated, at the discretion of the Session Judge, as
substantive evidence at the trial, and the witnesses tendered for cross-ex-
amination. However, the 1955 Amendment restricted the examination of
E prosecution witnesses in the committal enquiry in respect of cases in-
stituted on police report only to those who were to give an ocular version
of the incident. (1197-G-H, 1198-A-E]

3.2 Bombay, Kerala, Calcutta, Madras and Punjab High Courts have
F notwithstanding the provisions of Section 288 of the Code of 1898 consis-
tently taken the view that there is no procedure whereby the prosecution-1.
is permitted to tender a witness for cross-examination only, without thee
being any examination-in-chief in relation to which such a witness can be
cross-examined. The practice of tendering a witness for cross-examination --~ --
has been consistently discouraged and even condemned by these High
G Courts. (1201-FJ
3.3 In the instant case,the trial court wrongly permitted the prosecu- ,.,
tion to tender PW4 and PW5 for cross-examination only. Both PW4 and
PWS were, according to the prosecution case itself, eye witnesses of the
H occurrence and had removed the deceased to the hospital. Their evidence
I
SUKHWANTSINGHv. STATE 1193
(

was of a material nature which was necessary for the unfolding of the A
prosecution story. The effect of their being tendered only for cross examina-
tion amounts to failure of the prosecution to examine them at the trial.
Their non-examination seriously affects the credibility of the prosecution
case and detracts materially from its reliability. (1201-H, 1203-F]

Veera Koravan and Others v. Emperor, AIR (1929) Madras, 906;
B
Sadeppa Cireppa Mutgi and Others v. Emperor, AIR (1942) Bombay,
31;Emperor v. Kasamal/i MiTZalli, AIR (1942) Bombay,71; Kesar Singh and
Another v. The State, AIR (1954) Punjab, 286; Dhirendra Nath v. State, AIR
)' (1952) C~cutta, 621;Chotta Singh v. State, AIR (1964) Punjab, 120 and
\
Thazhathethil Hamsa v. State of Kera/a, AIR (1967) Kerala, 16, approved. C

The State of U.P. and Another v. Jaggo alias Jagdish and Others, AIR
(1971) SC 1586, held inapplicable.

4. An empty had been recovered by PW6 Assistant Sub-Inspector D
from the spot and a pistol alongwith some cartridges was seized from the
possession of the appellant at the time of his arrest. But the prosecution,
did not s~nd the recovered empty and the seized pistol to the balllistic
expert for examination and expert opinion. Comparison could have
provided link evidence between the crime and the accused. This again is
an omission OD the part or the prosecution for which no explanation has E
been furnished either in the trial court or before this Court. In cases where
injuries are caused by fire arms, the opinion of the Ballistic Expert is or
considerable importance to connect an accused with the crime. Failure to
produce the expert opinion before the trial court in such cases affects the
credibility or the prosecution case to a great extent. (1203-H, 1204-A·B] F

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
433of1985.

From the Judgment and Order dated 10.4.85 of the Special Court G
Ferozepore in Case No. 301/84 (Trial No.61/85).

Uma Datta, T.C. Sharma, Rajeev Sharma, Ms. Neelam Sharma and
Ajay Sharma for the Appellant.

·sudhir Walia and R.S. Suri for the Respondent. H
~\

1194 SUPREME COURT REPORTS (1995] 2 S.C.R.

A The following Judgment of the Court was delivered by

DR. ANAND. J. The appellant was tried for an offence under Section
302 IPC in connection with the murder of one Ajmer Singh on 11.7.84 at
about 7.30 p.m. The learned Judge Special Court, Ferozepur convicted him
for the said offence and sentenced him to suffer life imprisonment.
B Through this appeal, under Section 14 of the Terrorists Affected Areas
(Special Courts) Act, 1984, the appellant has challenged his conviction and
sentence.

According to the prosecution case,. the appellant is married to the
C . sister of Pal Singh. An engagement had been brought .about through the
instrumentality of · the appellant between the daughter of Pal Singh and
Lakhmir Singh son of Kashmir Singh. The deceased, Ajmer Singh and his
brother, Gurmej Singh PW3 were on friendly terms with Kashmir Singh
but for some reason or the other, that engagement was snapped and
D Lakhmir Singh was married to some other girl about 3 days prior to the
occurrence. The appellant suspected that Ajmer Singh deceased and his
brother Gurmej Singh PW were responsible for the snapping of the engage-
ment. On 11.7.1984 at about 7.30 p.m., Gurmej Singh, PW3 accompanied
by Ajmer Singh, deceased and Raghbir Singh, PW4 were going to the fields
to answer the call of nature and when they reached near the bridge on the
E village pond, the appellant came from the opposite side wearing the robes
of a Nihang and exhorted that he would teach them a lesson for getting
the engagement snapped. Immediately thereafter the appellant took out a
pistol from underneath the chola (robes) that he was wearing and fired a
shot at Ajmer Singh. On alarm being raised by Ajmer Singh, PW3 and
F PW4, the appellant fled away alongwith the pistol. One· Major Singh,
PW5 who was also present in the nearby field also witnessed the occur- ~----
rence. Ajmer Singh was removed to the haveli and while he was being
shifted to the Hospital at.Malout, in the tractor trolley of Kashmir Singh,
he expired. On reaching the hospital, the doctor pronounced Ajmer Singh
dead. On information being sent by Dr. Sant Singh, Ex.p-5 about the arrival
G of Ajmer Singh deceased at the hospital to the police station, Shri Raghbir
Singh, ASI PW6 proceeded to the hospital and recorded the statement of
Gurmej Singh, Ex.p-4 at about 11.45 p.m. The statement was sent to the
police station for registration of a case and on its basis formal FIR Ex.p-4/B
was drawn up. A case under Section 302 IPC and Section 25 Arms Act
H was registered at 12.10 a.m. on 12.7.1984. A copy of the special report was
SUK.HWANTSINGH v. STATE[DR.ANAND,J.) 1195
sent to the Ilaqa magistrate and was received by him on 12.7.1984 at about A
6.30 a.m. After preparing the inquest report Ex.p-2, the dead body was
despatched for post-mortem which was performed by Dr. Sant Parkash
Singh, Sr. Medical Officer PWl on July 12, 1984 at about 11.00 a.m. The
doctor found fire arm injuries on the deceased and opined that the death
had been caused due to shock and hemorrhage as a result of injury No. 1,
which was found to be. sufficient in the ordinary course of nature to cause
B
death. During the investigation by ASI Raghubir Singh, PW6 the rough site
plan of the place of occurrence was prepared. From the spot, blood stained
earth as well as an empty were collected vide.memo Ex.p-8. The same were
/\ secured in separate sealed parcels. The appellant was arrested on 8.8.1984
and at the time of his arrest, he was found to be carrying with him a pistol C
and 7 live cartridges which were seized by the police.

At the trial, the prosecution examined Dr. Sant Parkash Singh, PWl,
Draughtsman Ajit Sharma, PW2, Gurmej Singh, PW3 and Raghubir Singh,
ASI PW6. Raghubir Singh PW4 and Major Singh PW5, the two other eye D
witnesses were tendered for cross examination only. The appellant denied
the prosecution allegations against him in his statement under Section 313
Cr.P.C. The appellant was, thereafter, convicted and sentenced for the
offence under Section 302 IPC. The case under Section 25 Arms Act was
separately tried.
E
Learned counsel for the appellant submitted that the solitary eyewit-
ness examined at the trial by the prosecution Gurmej Singh, PW3 could
not be relied upon, as not only he being the brother of the deceased was
interested in the prosecution case but also because his evidence stood
belied by the medical evidence which showed that the stomach and the F
bladder of the deceased were empty thereby suggesting that the injuries
had been received by the deceased after he had answered the call of nature
and not before as suggested by Gurmej Singh,PW3. Learned counsel also
submitted that in Rukka Ex.p-5 which was sent by the doctor to the police
station, it was recorded that the dead body had been brought to the
hospital by Raghubir Singh and Major singh and the name of Gurmej Singh G
was conspicuous by its absence which went to show that Gurmej Singh PW3
was not present at the time of occurrence or when the deceased was
removed to the hospital. According to the learned counsel, the non-ex-
amination of Raghubir Singh, PW4 and Major Singh, PW5 by the prosecu-
tion, who were only tendered for cross-examination; is a serious infirmity H
1196 SUPREME COURT REPORTS (1995) 2 S.C.R.

A in the prosecution case and renders it unsafe to uphold the conviction of
the appellant on the basis of the uncorroborated testimony of Gurmej
Singh, PW3.

Gurmej Singh, PW3, is the elder brother of the deceased. He is the
solitary eye witness examined by the prosecution. The absence of his name
B from rukka Ex.P-5, sent by the doctor to the police station immediately
after the arrival of the dead body in the hospital creates some doubt about
the presence of Gurmej Singh at the place of occurrence at the time when
the deceased was shot at. In the normal course of human conduct the real
brother of the deceased would have accompanied the injured to the
C hospita1. The identification of the deceased by Gurmej Singh and Major
Singh PWs at the time of post-mortem examination of the deceased, which
has been relied qpon the learned counsel for the State, can not cure the
defect of the absence of the name of PW3 from Ruqqa Ex. P-5 because
the post-mortem examination was conducted the next day on 12.7.1984 at
D 11.00 a.m. There is no explanation available on the record, nor has any
been. offered before us to explain the absence of the name of PW3 from
Ruqqa Ex. P-5 in which it was recorded that Raghbir Singh and Major
Singh had brought the deceased to the hospita1.

That the deceased died as a result of fire arm injuries is not disputed
E but what has been challenged is whether the occurrence took place in the
manner described by Gurmej Singh PW3 and whether Gurmej Singh PW3
is an eye witness. The first information report was recorded by Raghubir
Singh PW6 on the basis of the statement of Gurmej Singh, Ex.p-4 which
was recorded at the hospital at about 11.45 p.m. on 11.7.1984. The pos-
F sibility that Gurmej Singh PW3 might have arrived at the hospital later on
after learning about the removal of his deceased brother to the hospital by -,-
Raghbir Singh and Major Singh cannot be ruled out. Moreover, we find
that the special report reached the Ilaqa magistrate on the next day at 6.30
a.m. There is no explanation available on the record about the delay in the
receipt of the special report by the Ilaqa Magistrate, when admittedly the
G court of the Ilaqa magistrate and the police station are quite close to each
other. The fact that at the time of post-mortem examination the stomach
and the bladder were found empty, though suggestive of the position that
contrary to what Gurmej Singh, PW3 deposed, the deceased had answered
the call of nature before he was shot at, but cannot be conclusive of it, as
H the possibility that the deceased might have defalcated and urinated after
SUKHWANTSINGHv. STATE(DR.ANAND,J.] 1197

the receipt of injuries and before his death cannot be ruled out. A
The prosecution in this case came up with a positive case that besides
Gurmej Singh, PW3, Raghbir Singh PW4 and Major Singh PWS had also
witnessed the occurrence. The names of these two witnesses are also
mentioned in the rukka Ex.p-5 as the persons who had brought the dead
body to the hospital. Their evidence in the circumstance of the case was B
essential for unfolding of the prosecution case. The prosecution however
did not examine them and tendered them for cross-examination by the
accused at the trial but they were not cross-examined by the accused. From
the record of the trial court we find that both PW4 and PW5 had been
( tendered for cross examination "in the light of the observations of the -C
Supreme Court in the case of Jaggo AIR (1971) SC 1586". We are at a loss
to appreciate how a witness could be cross-examined, when he has not been
examined in chief that is to say, when there is nothing in rela(ion to which
he could be cross-examined.

It will be pertinent at this stage to refer to Section 138 of the D
Evidence Act which provides :

138. Order of examinations.- Witnesses shall be first examined-in-
chief then (if the adverse party so desires) cross-examined, then
(if the party calling him so desires) re-examined. E
The examination and cross-examination must relate to relevant
facts but the cross-examination need not be confined to the facts
to which the witness testified on his examination-in- chief.

Direction for re-examination. - The re-examination shall be directed F
to the explanation of matters referred to him cross-examination;
and if new matter is, by permission of the Court, introduced in
re-examination, the adverse party may further cross-examine upon
that matter.

It would, thus be seen that Section 138 (supra) envisages that a G
witness would first be examined in chief and then subjected to cross
examination and for seeking any clarification, the witness may be re-ex-
amined by the prosecution. There is, in our opinion, no meaning in
tendering a witness for cross-examination only. Tendering of a witness for
cross-examination, as a matter of fact, amounts to giving up of the witness H
1198 SUPREME COURT REPORTS (1995) 2 S.C.R.
/

A by the prosecution as it does not choose to examine him in chief. However,
the practice of tendering witnesses for cross-examination in Session Trials
had been frequently resorted to since the enactment of the Code of
Criminal Procedure, 1898. The reason behind taking recourse to such a
practice, which undoubtedly is inconsistent with Section 138 (supra) is not
far to sack. Under that Code as it stood prior to its amendment by Act 26
B of 1955 a full-fledged magisterial enquiry was to be held, in a case which
was triable exclusively by the Court of Sessions or the High Court, in
accordance with the procedure laid down in Chapter XVIII thereof and in
that enquiry prosecution was required to examine all its witnesses. Under
Section 288 of that Code the evidence of the witnesses so recorded by the
· C Committing Magistrate could be treated, at the discretion of the Sessions
Judge, as substantive evidence at the trial. More often than not, the
prosecution taking advantage of the above provision, used to ask for and
obtain leave of the Sessions Court to treat the depositions of these wit-
nesses whom they did not intend to examine afresh, recorded in the
D committal enquiry as its evidence in the trial and then tender them for
cross-examination. In other words, the prosecution brought on record of
the trial court and relied upon the testimonies of some of the witnesses
recorded at its instance before the Committing Magistrate as its evidence
during trial and then tendered them for cross-examination by the defence.
It will be pertinent to mention here that Act 26 of 1955 which amended
E the Code of 1898 restricted the examination of prosecution witnesses in the
committal enquiry in respect of cases instituted on police report only to
those who were to give an ocular version of the incident only.

The question as to whether such a practice was legal and valid in
F view of Section 138 (supra) and, if so, to what extent and in what manner
it could be adopted came up for consideration by different High Court.

In Veera Koravan and others v. Emperor, AIR (1929) Madras, 906 a
Division Bench of the Madra5' High Court opined that merely tendering of
a prosecution witness for cross-examination is not a practice which should
G be encouraged specially in a murder case as the procedure would be unfair
to an accused.

In Sadeppa Cireppa Mutgi and others v. Emperor, AIR (1942) Bombay
37 Beamount, CJ. speaking for the division bench of the Bombay Hip
,H Court opined : ·
SUKHWANTSINGHv. STATE[DR.ANAND,J.] 1199
"The other Kakeri witness is Shambu, (Ex.34), and a very i1Tegular A
course was adopted with regard to him. He was tendered for cross-
examination. The practice of tendering witnesses for cross-examina-
tion, which is no doubt often adopted, is inconsistent with S.138,
Evidence Act, which says that witnesses shall be first examined-in-
chief, and then, if adverse party so desires, cross-examined, and if, B
the party calling him so desires. re-examined. It is obvious that if
. a witness is examined by the defence .without having given any
evidence-in-chief, he is not being cross-examined, by whatever
name the p~ocess may be described. The practice of tendering for
cross-examination should only be adopted in cases of witnesses of
I secondary importance. Where the prosecution have already got suf- C
ficient evidence on a particular point, and do not want to waste time
by examining a witness who was examined in the lower Court, but
at the same time do not want to deprive the accused of the right of
cross-examining such witness, they tender him for cross- examination.
But, I think, strictly speaking, the witness ought to be asked by the D
prosecution, with the consent, of course, of the pleader for accused,
and the leave of the Judge, whether his evidence in the lower Court,
is trne. If he gives a general answer as to the trnth of his evidence in
the lower Court, he can be cross-examined on that. But he must in
some way be examined-in-chief before he can be crossed-ex-
amined. However, the practice of tendering a witness for cross-ex- E
amination certainly should not be employed in the case of an
important eye- witness." (Emphasis supplied).

A full bench of the Bombay High Court in Emperor v. Kasamalli
Mirzall~ AIR (1942) Bombay, 71 approved the opinion of Beaumount, CJ. p
(supra) and "condemned" the practice of tendering a witness for cross-ex-
amination in no uncertain terms.

A Division Bench of the Punjab High Court in Kesar Singh and
another v. The State, AIR (1954) Punjab, 286 after analysing the provisions
of Sections 137 and 138 of the Evidence Act, followed the law laid down G
by the Full Bench of the Bombay High Court in Kasamalli's case (supra)
and observed :

"The other witness of this fact is Jai Ram P.W.21 who was tendered
for cross-examination, but he was not cross-examined. That again H
1200 SUPREME COURT REPORTS [1995) 2 S.C.R.

A in my opinion is no evidence. The law in regard to examination of
witnesses is contained in Ss.137 and 138, Evidence Act. There is no
provision in that Act for pennitting a witness to be tendered for
cross-examination without his being examined-in-chief and this prac-
tice is opposed to S.138 of the Act." (Emphasis ours)

B In Dhirendra Nath v. State, AIR (1952) Calcutta, 621, a Division
Bench of the Calcutta High Court held:.

"There is a type of case where witnesses of a secondary importance
who have been examined before the Committing Magistrate are
not called before the Sessions Court, because the prosecution .
c considers that it has already had a sufficient body of evidence on
the point concerned and then in fairness to the defence, it tenders
.these witnesses for cross-examination. But the fact that the witness
is tendered for cross-examination means and implies that there has
been some examfuation-in-chief. As far as I can see, the only
D practical way in which a witness can be tendered for cross-ex-
amination is by asking him generally, may be by a single question,
in the Sessions Court as to whether the statements made by him
before the Committing Magistrate were true and on his answering
in the affirmative, tendering the evidence given in the Committing
Magistrate's court which would then serve as the examination-in-
E
chief. Unless t!ie examination-in-chief is brought on the record in
that fashion, I cannot understand on what the defence will cross-
examine the witness tendered for cross~examination. It does not
appear from the record in this case that the evidence of the witness
before the Committing Magistrate was brought on the record at
F all. In these circumstances, tendering for cross-examination seems
to me to have been almost meaningless.

In Chotta Singh v. State, AIR (1964) Punjab, 120 the Punjab High
Court held:
G "Tendering a witness for cross-examination is almost tantamount
to giving up a witness. There is nothing in law that justifies such a
course. The trial courts adopt this manner of examining witnesses
simply to lighten their burden, but it is not realised that in a serious
case like the present murder case when the learned trial Judge
H failed to examine Wazira P.W.5,.to have very seriously remiss in
SUKHWANTSINGHv. STATE[DR.ANAND,J.] 1201

his duty." A
..., A Division Bench of the Kerala High Court in 17zazhathethil Hamsa
v. State of Kera/a, AIR (1967) Kerala, 16 observed:

"ln this connection we wish to clarify the mistaken impression
which the learned Judge seems to have entertained about the B
propriety of the procedure adopted by the prosecution in tendering
eye-witnesses for cross-examination. PWlO who had given evidence
in the Committing Court as an eye-witness was tendered for
cross-examination in the Sessions Court after he made a bald
I statement that he has correctly stated all he know about the C
incident in the enquiry Court. The learned Judge has evidently
relied on an observation made by the Patna High Court in Man-
zurul Haql!e v. State of Bihar, AIR (1958) Pat 422 to find that such
a procedure is proper. But it is really not. The very decision relied
9n by the learned Judge started by enunciating the principle thus:
D
"The practice of tendering witnesses leads to considerable
confusion and is to be deprecated. A material witness should not
be merely tendered but should be sworn and asked to give evidence
~ by the prosecution. Tendering if at all should be confined to
witnesses of secondary importance."
E
Thus, it is seen that the Bombay, Kerala, Calcutta, Madras and
Punjab High Courts have notwithstanding the provisions of Section 283 of
the Code of 1898 consistently taken the view that there is no procedure
whereby the proecution is permitted to tender a witness for cross-examina-
tion only, without there being any examination-in-chief in relation to which, F
such a witness can be cross examined. The practice of tendering a witness
' -"'t - for cross-examination has been consistently discouraged and even con-
demned by those High Courts and in our opinion rightly. Our attention
.._.......,._ has not been drawn to any judgment of any other High Court which may
have taken the contrary view.
G
In The State of U.P. and another v. laggo alias lagdish and Others,
AIR (1971) SC 1586 which has been referred to and relied upon by the
prosecution and the trial court for adopting the procedure of tendering
PW4 and .PW5 for cross examination only in our opinion, has not been
properly appreciated and has been misapplied. That judgment cannot be H
- - 12rri- SUPREME COURT REPORTS [1995) 2 S.C.R.

A read to lay down, as a matter of legal proposition, that a witness can be
"tendered" for cross-examination even without there being any examination
in chief. If there is some earlier statement of the witness recorded by a
competent court or an affidavit filed in the trial court and the witness
testifies to the correctness of that earlier statement at the tria~ it may (in
certain cases of witnesses of a formal nature) as noticed earlier be permis-
B sible to tender him for cross-examination after he is sworn to the correct-
ness of the earlier statement, because in that event that earlier statement
is treated as the examination-in-chief of the witness but that is not the same
thing as tendering a witness for cross-examination only, wit~out there being
any examination-in- chief on the record. In Jaggo's case (supra) a Bench of
·C this court was considering the question whether the mere presentation of
an application by the prosecution to the effect that a certain witness had
been "won over" was conclusive of the allegation that he had been so "won
over" and the prosecution was therefore relieved of its obligation to ex-
amine him at the trial. The proposition was negatived and it was in that
D context, that this court observed : ·

."On behalf of the appellant it was said that Ramesh Chand was
won over and therefore the prosecution could not call Ramesh. The
High Court rightly said that the mere presentation of an application
to the affect that a witness had been won over was not conclusive of
E. the question that the witness has been won over. In such. a case
Ramesh could have been produced for cross-examination by the
accused. That would have elicited the co"ect facts. If Ramesh were
an ey~-witness the accused were entitled to test high evidence par-
ticularly when Lalu was alleged to be talking with Ramesh at the
time of the occurrence. (Emphasis ours)
F
.~
The Division Bench, therefore, was considering a peculiar fact situa- . ._
tion in that case and even in that context it was observed that the witness
"could have been praduced for cross- examination by the accused" and the
"the accused were entitled to test his evidence". The observations of the
G Division Bench in Jaggo's case, therefore, do not support the view that a
material witness can be "tendered" for cross-examination only. The obser-
vations from a .judgment of this Court cannot be read in isolation and
divorced from the context in which the same were made and it is improper
for any Court to take out a sentence from the judgment of this Court,
,H divon::ed from the context in which it was given, and treat such an isolated
SUKHWANTSINGHv. STATE(DR.ANAND,J.) 1203

sentence as the complete enunciation of law by this Court. The judgment A
in JaK[!.o's case (supra) has in our opinion been misappreciated and that
.., judgment cannot be interpreted as a sanction from the Supreme Court to
the prosecution to adopt the practice of tendering a witness for cross-ex-
amination only, without there being any examination-in-chief, in relation to
which the witness has to be cross-examined. All that the judgment in
Jaggo's case (supra) emphasises is that the mere ipsi dixat of the prosecutor
B
that a particular witness has been won ever is not conclusive of that
allegation and the Court should not accept the same mechanically and
relived prosecutor of his obligation to examine such a witness. It was for
this reason suggested by the Bench that where the prosecution makes such
I an allegation, it must keep the witness in attendance and produce him to C
enable the defence to cross examine such a witness to test his evidence as
well as the allegations of the prosecution and bring out the truth on the
record. After the coming into force of the Criminal Procedure Code, 1973,
which replaced the Code of 1898, recording of evidence in commitment
proceedings have been totally dispensed with and Section 288 of that Code D
has been omitted. Consequently the course suggested by some of the High
Courts in the earlier quoted judgments regarding tendering of a witness
for cross- examination who had been examined in the committal court, is
also no more relevant or available. The Jaggo's case, which was decided
when the Code of 1898 was operating in this field could not, therefore, be
pressed into service by the trial court while dealing with the instant case E
tried according to the Code of 1973. Thus, considered it is obvious that
the trial court, wrongly permitted the prosecution to tender PW4 and PWS
for cross-examination only. Both PW4 and PWS were, according to the
prosecution case itself, eye witnesses of the occurrence and had removed
the deceased to the hospital. Their evidence was, of a material nature
F
which was necessary for the unfolding of the prosecution story. The effect
of their being tenered only for cross examination amounts to the failure of
' the prosecution to examine them at the trial. Their non-examination, in our
opinion, seriously affects the credibility of the prosecution case and
detracts materially from its reliability.
G
There is yet another infirmity in this case. We find that whereas an
empty had been recovered by PW6, ASI Raghubir Singh from the spot and
a pistol alongwith some cartridges were seized _from the possession of the
appellant at the time of his arrest, yet the prosecution, for reasons best
known to it, did not send the recovered empty arid the seized pistol to the H
'·--:.7;'_,,--:- -... !\
' -....; . ~-

'1 •• . \...'
'\
\.'' -'' \
·;
.12D4 <. (1995) 2 S.C.R•
'

SUPREME COURT REPORTS
. .

-- -
\I . ' •
' • .
'\ . ' ' - •
A,. ballistic expert for examination and expert opinion. Comparison could have
. . . provided link e'~dence between the crime and the accused. This 'again is
an omfuion on the part of the prosecutioo. for which no e~lanation has
.be'en furnished either in the trial court or before us~ It hardly needs to be
emphas~ed that in cases where injuries ar~ caused by fire,,,:;;,., the opinion
.
1
of.the Ballistic EXpert iS of considerable importance where boih the fire a
B arm ~d the ~rime cartridge ,,,:;, recovered durm'g the investigatio;,: to
connecfw a~ed with ilie Failure to produce the expert opinion .cnme: l
before the trial. court in such cases affects the. credit worthiness of the
. prosecution ~~ to. a great extent. '. ' . • . ". ' ''

C. / From ~_Critical analysis 'of the materia!'on the record, we fmd that
it would not be safe to rely upon the sole testimony of PW3 Gurmej Singh,
the brother of the deceased, with~ut mdepeode:nt corrob~ratioii' in view of ..
the infirrities' pointed out. by uS above whicli 'render his i.;stiniony aS not
! ' ; wholly reliable and Since in the present cas'e cio ~uCh fudependent cor-
roboration is available on the record, it wo~ld be unsare to rely upon the
D' testimony of PW3 only to uphold· the' conviction of the appellant. The
prosecution baS not been. able. to' establish the case against the appelliint
beyond a reasonable· doubt. The trial court, therefore, fell in error ·in
. ' convicting and sentencing the appellant. His ronVictioo and secitence canr
not bC sustained. This appeal consequently succeeds and is alloW..d. The
E conviction and sentence of the appellant is set aside: The. ap}>ellant is on
bail HiS Bail bonds shall stand dis~
' :.- ,_,~;,_,, . : '( . g .. . -- "._ ,' . ., -·-. ·.~·
ed. ... ' . .. . .
. G.N.; Appeal allowed.
•.· ,;
,\

;.... ~ l , '_.;'.", ·-·---·'

,' •.:· - '--"

·-------~-; ... ~-

··<"'

I . ~, .-.

,- , !

•