Bir Singh vs The State of Himachal Pradesh

Chet Ram Thakur, J.—In this appeal against the conviction u/s 302 I.P.C. and sentence of life imprisonment passed by the Additional Sessions Judge, Dharamsala, on Bir Singh, the only question that requires determination is whether he caused the death of his brother Karam Singh by inflicting the Drat blow in self defence or he intentionally caused the murder.

Bir Singh, accused, Karam Singh deceased, Nasib Singh, Jit Singh and Pritam Singh were own brothers and a family partition had taken place between them some years back. The accused, it appears, was not satisfied with the quality of land allotted to his share and he complained that Karam Singh, who was the eldest of all the brothers had got the best quality of land. In order to satisfy the accused, on 25th November, 1970 all the brothers decided to re-partition the land. All the brothers went on the land with ropes in order to measure the land. It is stated that Bir Singh and Karam Singh had quarrelled and exchanged abused. It was decided to re-allot the land which had earlier fallen to the share of Karam Singh to Bir Singh and that of Bir Singh to Karam Singh. But it appears that Bir Singh was not prepared to part with the share of his land earlier allotted to him on the ground that there were fodder trees on his land. Thereafter all the brothers left for their houses. It is stated that Karam Singh went to the cowshed to give fodder to his cattle and shortly after Bir Singh followed him armed with a Drat and gave a blow of it on the left side of the neck of Karam Singh in the presence of Smt. Giano Devi, who raised an alarm. On hearing the noise Chuhar Singh, Gokrah Singh and others reached the spot. The accused had thrown the Drat at the spot and had run away. Karam Singh died after half an hour.

Jit Singh one of the brothers, who also died before his statement could be recorded in the committing court, lodged the F.I.R. at the Police Station, Nurpur. The police arrested the accused and challaned him for an offence u/s 302 I.P.C.

In the committing court as also in the Court of Sessions, the defence taken up by the accused was that he was going to bring fodder leaves for the cattle. He had a Drat with him. Karam Singh attacked him with a Drat and thereupon he raised an alarm that he (Karam Singh) would finish him and that he may be rescued, whereupon Karam Singh actually attacked him but he avoided that attack and in his self defence he gave a Drat blow to Karam Singh and that he had no intention to kill him. The accused has also stated that Giano Devi now widow of Karam Singh was not at the spot at that time.

In this case the only eye witness is Giano Devi, whose presence, however, has been denied by the accused. Now we have to see whether Giano Devi was actually present at the spot and had witnessed the occurrence. Nasib Singh is one of the brothers of the accused and he has been examined as P.W. 2. He corroborates the story of the prosecution about the complaint of Bir Singh that he had been allotted inferior quality of land and that Karam Singh had good quality of land. He also corroborates the story about the re-partition on the ill-fated day. He further says that the second partition on that date was not acceptable to the accused because he had said that there were fodder trees on his land. He also corroborates the fact that after that they returned to their houses at about 4.30 P.M. After about 15 minutes on his reaching home he heard Raula from Bagar side. Then he, along with Jit Singh went towards that side and reached the Bagar, where the cattle were tied. There they saw Karam Singh who had placed his left hand on his neck and right hand on his head on his right side. Karam Singh was standing at that time and Giano Devi, widow of Karam Singh was also there. He has further stated that there was a wound on the left side on the neck of Karam Singh and the wife of Karam Singh told that Bir Singh had given a blow to Karam Singh. Therefore, from this statement of Nasib Singh in examination-in-chief there can be no room for doubt that Giano Devi (P.W. 1) was present at the spot before he reached there and he also reached there immediately when he heard the alarm. Thus from his statement it is clear that Giano Devi, who had stated her presence at the spot and had witnessed the occurrence, stands fully corroborated. He further on stated that he had not witnessed the occurrence, which actuated the Public Prosecutor to make a request to the Court for declaring him a hostile witness and to permit him to cross-examine the witness. The request was allowed as the witness had stated before the police in his statement, Exhibit P.W. 2/A (portion A to A) that he had seen the accused giving a blow on the neck of Karam Singh. The cross-examination of this witness could not be completed on 26-10-1972 and it was deferred for the next following day. On that day he took a different stand and stated that while he was taking his meals he heard the cries of Bir Singh as "BACHAO BACHAO MAINO MAR DITTA MAR DITTA". Then he went at the spot. Jit Singh also followed him. Then he stated that there were two Drats lying near the part in between the Gohran of Chuhar Singh and Bir Singh. One of the Drats was blood stained and the other was not. He also stated that the women who were at the spot before his arrival were Urmila Devi wife of Jit Singh and Vidya Devi wife of Bir Singh. Those women were saying that if Bir Singh had not struck the blow, Karam. Singh would have done Bir Singh to death. At the fag end he stated, "MERA KHIYAL HAI KI GIANO DEVI JAB KI MAIN NE USE JAI MOQUA PAR DEKHA TO WHO SIR SE GHARA UTAR RAHI THI". (That is in so far as he remembered when he saw Giano Devi for the first time at the spot she was putting down the pitcher from her head). Therefore, it would follow that he was not definite when he says, "in so far as I remember". Moreover there does not appear to be anything why Giano Devi should be disbelieved when this witness has stated in examination-in-chief that she was there before his arrival and had apprised him that the accused had struck a Drat blow on the neck of Karam Singh. In his statement, Exhibit P.W. 2/A (portion A to A) which is the earlier statement he has stated that in their very presence the accused had struck the blow. The witness therefore is definitely telling a lie. Apart from that in examination-in-chief he frankly admitted that Giano Devi was there before his arrival and this appears to be correct as has been argued by the learned Advocate-General that the witness has deleberately concealed the presence of Giano Devi with the object of saving his brother, thinking that one of the brothers has been killed, the other, i.e. Jit Singh, has died, Pritam Singh has become insane and that if he would depose against Bir Singh then he would also lose his life. Therefore, in order to save him he has deliberately told a lie and that this is a general tendency that people in our country are of the view that if one brother is gone why let the other brothers also go. This tendency is highly deprecable.

The statement of this witness, although he has been declared hostile, cannot be discarded in its entirety. It has been stated at page 1338 of the Sarkar''s Evidence Act in the commentary of Section 154 that the position is this that the evidence of a hostile witness is evidence in the same manner and to the same extent as that of any other witness. A party is not bound by the evidence of a witness produced by him. Nor is there any rule of law that a party is not able to say that a witness produced by him is not speaking the truth upon some particular point unless he makes a written application to say that the witness is hostile. Permission to cross-examine one''s witness does not change the examination-in-chief to cross-examination. Even if a witness is declared hostile and cross-examined, the value of his evidence would depend upon all the circumstances and would not, merely because of the cross-examination, become suspect. In Rema Naik and Others Vs. The State, also it has been stated that the evidence of a hostile witness is not necessarily to be rejected either in whole or in part. It is also not to be rejected so far as it is in favour of the party which called in the witness, nor is it to be rejected so far as it is in favour of the opposite party. A similar view has been expressed in Deodhari Koeri and Ors. v. Emperor AIR 1937 Pat 34 and In Re: Kalu Singh Moti Singh and Others, . Therefore, from the statement of this witness in examination-in-chief I feel fully convinced that Smt. Giano Devi was there at the spot before the witness reached there and whatever he has stated in cross-examination with regard to Smt. Giano Devi that he saw her putting down the pitcher from her head, when he reached there is incorrect. His statement that he went there only after he had heard the cries "Bachao Bachao" and that he saw two Darts lying on the ground is also not believable in view of his earlier statement in examination-in-chief.

Further, Giano Devi has stated that Bir Singh and her husband had grappled, Bir Singh had a Drat in his hand and he gave a Drat blow. She has also stated that Jit Singh and Nasib Singh had also come at the spot when he was quarrelling with her husband and had given the Drat blow. She has stated quite categorically that she was standing there at the spot. She did not intervene because it was a quarrel between the two brothers. She raised an alarm. She, however stated in the committing Court that her husband had put fodder to the cattle and soon after he was free from this job, the accused caught hold of him and thereupon she raised an alarm. In the Sessions Court she stated that when Bir Singh came her husband was putting fodder to the cattle. But this is a very minor discrepancy which cannot render her statement increditable. Then she has stated in the committing Court that Chuhar Singh and Gorakh Ram had also witnessed the occurrence whereas in the Sessions Court she stated that Chuhar Singh did not see the Drat blow being inflicted on the deceased nor was Gorakh Ram there at the spot at that time. This will also not render her testimony unworthy of credit. One of the points that has been raised is that if she was actually present at the spot and her clothes had been soiled then they should have necessarily been taken into possession by the police. That is true. She has stated in her statement Exhibit P.W. 1/A (portion C to C) that she did not show her clothes to the police. In the Sessions Court, she stated that she was there before the police and she could not say whether the police had noticed her soiled clothes. She again stated that the police had taken her clothes also in possession. But, in my view, those are matters whereby she cannot be condemned. It is only the question whether she was there or not. If there are several discrepancies with regard to one statement or the other that will not make her a liar. We have to take a broad view of the facts. She is after all an illiterate woman. She cannot be expected to remember every detail and more so after a long time. Her statement in the Sessions Court was recorded on 26-10-1972, whereas the occurrence took place in November, 1970. Her statement in the committing Court was made on 15-10-1971, i.e. after one year from the date of occurrence. There was a time lag of one year between her statement in the Court of committing Magistrate and the Court of Sessions.

I may quote in this behalf Jahangiri Lal and Ors. v. Emperor AIR 1935 Lahore 230 wherein it has been observed by a Division Bench of that Court that-

While human beings remain what they are human testimony is bound, in a complicated case, to be inconsistent. When a witness is making a statement covering a long period of time it is not in the least likely that his statement will give every event due sequence or that it will necessarily correspond with the statement of some other witness. A witness is bound to omit facts which he may subsequently recollect. It does not follow that the testimony of the witness is untrue because of the existence of any of these facts.

Therefore, I am of the view that these discrepancies which were pointed out in the statement of Giano Devi will not render her testimony unworthy of credence. The trial Court has believed her testimony because it was the trial Court which had the advantage of seeing the demeanour of the witness and the High Court which sees the evidence only in cold print should not set aside the findings of fact especially when there is nothing to show that the trial Court has overlooked and not adverted to clinching pieces of evidence as is held In Re: M.S. Mohiddin, . It has been observed by their Lordships of the Privy Council in AIR 1948 108 (Privy Council) Privy Council 108 that:

A finding that a witness is telling the truth is of the greatest value when it is made by a Judge who saw all the witnesses or at least the important witnesses on each side. But such a finding by a Judge who saw none of the witnesses on the other side is of small value.

The learned Counsel for the Appellant has also contended that the case is not free from doubt with regard to the presence of Smt. Giano Devi, who is the sole witness according to the prosecution to have witnessed the occurrence. According to him the statement of Smt. Giano Devi had not been recorded earlier by the police.

Krishan Kumar, Head Constable (P.W. 9) who went to the spot immediately after the F.I.R. was recorded reached at the spot at about 2.30 A.M. and, therefore, he cannot be expected to have examined Smt. Giano Devi, who is a woman, at that time as her presence could not be secured by him for the purpose of interrogation. She was however examined on the next morning by P.W. 8, who had also arrived there for purposes of investigation. Therefore, if her statement was also not recorded by the police at night time that will not go to show that she was in any way tutored or the recording of her statement was purposely delayed in order to cook up a story favourable to the prosecution.

Another circumstance which has been pointed out by the learned Counsel for the Appellant is that the F.I.R. was not on the judicial file nor the signatures of the Magistrate were there. It is apparent that a copy of the F.I.R. had been sent immediately to the Illaqa Magistrate. Shri Dilbagh Singh (P.W. 7) has stated in his cross-examination that Jit Singh reached the police station at about 11.00 P.M. and then he wrote the F.I.R., which took half an hour for the same, and he sent a special report to the Illaqa Magistrate through Bhagat Ram, Constable and he directed him to take that report to Dharamsala immediately after taking any conveyance. It is admitted by him that the same was not there at the judicial file. But the absence of the special report from the judicial file also will not make the prosecution case suspicious because the police had no animus against the accused. There is no law enjoying that the special report sent to the Magistrate must be there on the judicial file. It is, however, just to obviate any suspicion about the truthfulness of the story that emphasis is laid down on a report being sent to the Magistrate. But I do not find anything to doubt the correctness of the F.I.R. which however remains unproved because of the death of Jit Singh. Even if the F.I.R. which had been sent to the Magistrate had been placed on record, that could not prove anything more because even the F.I.R. which had been filed by the police also could not be proved because of the death of the maker. The learned Advocate-General on the strength of Luxmi Narayan Arjundas and Ors. v. State Bank of India AIR 1969 Patna 385 argued that the report can be read as a substantive piece of evidence u/s 32(2) of the Evidence Act. He has also referred to the various sections of the Evidence Act to bring home the point as to what is the relevancy of the F.I.R. and he contends that this report is a substantive piece of evidence. But I am not prepared to accept this contention because the first information report does not come within Section 161 or 162 Code of Criminal Procedure. First information report is not a substantive evidence and can only be used to corroborate the maker u/s 157 or to contradict him u/s 145. It cannot be used against the maker if he becomes an accused, nor to corroborate or contradict other witnesses. It no doubt amounts to an entry made in a public record by a public servant in the discharge of his official duty and falls within Section 35 of the Indian Evidence Act. But it is not a substantive evidence and is not evidence of the facts which it mentions.

One of the circumstances pointed out is that Jit Singh who had made the F.I.R. had gone to the police station on the next following day also and that would clearly go to show that the report was not recorded by the police on the previous night but the police had first gone at the spot to assess the factual position and then Jit Singh was sent to Nurpur to report the matter after verifying the facts. There is also nothing to infer like that. No doubt Karam Singh (P.W. 4) says that Jit Singh was not present when the Drat (Ex. P. 6) was presented by Nasib Singh to the police nor he was present when the inquest report was prepared. Further on he deposed that the police had sent Jit Singh to some place to get his statement recorded. The police had also sent Ghuhar Singh and Gorakh Ram to some place to get their statements recorded and then he stated that probably they were sent to Nurpur. They returned probably prior to or after the arrival of the Superintendent of Police. Further on he deposed that he did not remember whether Chuhar Singh, Jit Singh and Gorakh Ram were present or not when the articles were taken into possession by the police. He further said that it was a matter of two years. He is not sure as to where he was sent. Towards the fag end of the cross-examination he had stated that he did not remember if the police had sent Jit Singh to Nurpur. Since it is a time lag of two years, therefore, the witness cannot be expected to remember all the details. Moreover, he is not sure whether he was actually sent by he police. Therefore, this part of the statement of the witness does not appear to be correct that he had been sent by the police to Nurpur. Dilbagh Singh (P.W. 7) who recorded the report (Ex. P.W. 7/A) has denied the suggestion that the F.I.R. was recorded on he 26th November, 1970 after Krishan Kumar had visited the place of occurrence. Dhian Singh who is a Sarpanch of Branda Ghandwal Gram Panchayat reached the spot at 7.00 A.M. on the 26th November, and he has also stated that he did not remember if the police had sent Jit Singh to Nurpur as it was a matter of two years. Therefore, his statement also will not assist the accused in any way. Krishan Lal (P.W. 8) was sent from Dharamsala for purposes of investigation and he reached Nurpur at about 9.20 A.M. on the next day. After seeing the Ziminies he stated that when he visited the spot Jit Singh was present there. He reached the spot at about 11.45 A.M. and he went in a jeep upto a certain distance and thereafter he went on foot. He reached Nurpur at 9.20 A.M. as already stated and if Jit Singh had been sent by the police to Nurpur, then necessarily P.W. 8 should have seen him and deposed so in the Court. If he had been there at Nurpur on the morning of 26th November, then he could not be present at the spot on the arrival of the P.W. 8 unless it was suggested that he also went with P.W. 8 from Nurpur. The distance from Nurpur to Branda, the place of occurrence is quite long. A part of the distance can be covered by vehicle and a part on foot. Therefore, this argument that Jit Singh had been sent by the police some where to record his statement probably to Nurpur as stated by P.W. 4 is not at all correct. P.W. 9 is the person who had been sent immediately after the report was recorded by P.W. 7 to the spot and he has denied the suggestion that after knowing the facts he had sent Jit Singh to Nurpur to make the report. Therefore, in these circumstances I have got no hesitation to repel the contention of the learned Counsel for the Appellant that the F.I.R. had been recorded ofter assessment of the factual position at the spot by the P.W. 9.

One of the arguments was that P.W. 9 who went on the spot had no experience of investigation. There is absolutely no doubt because he himself had admitted this fact, but in view of the fact that there was no other person at the police station when the F.I.R. was recorded, therefore, P.W. 7 sent him to the spot and he reached there at 2.30 A.M. and placed guard on the dead body and he did not conduct any investigation till the next morning as it was dark and he could record statements of only three witnesses that in the mean-while the A.S.P. accompanied by P.W. 8 reached the spot and then they took over the investigation. Therefore, his being inexperienced is not going to detract from the truthfulness of the story nor it can be said that he fabricated the story.

The defence has produced Smt. Urmila Devi widow of Jit Singh as D.W.I to support the fact that the accused had given a Drat blow in the exercise of the right of private defence of his person. The learned Sessions Judge has not believed her statement. The learned Counsel for the Appellant has laid great stress on her statement and he has stated that her statement was quite worthy of credence. I have scanned the evidence and I find that the learned Sessions Jud-ge was right in not placing reliance of the statement of Smt. Urmila Devi. According to her when all the brothers had returned home from the fields, she heard Ka-ram Singh saying that Bir Singh was ''Nalaiq'' and that he should be put to an end. She was serving tea to her husband, when she heard the cry of Karam Singh saying that he would finish Bir Singh as he was a ''Nalaiq.'' Shortly after she heard the alarm raised by Bir Singh "Bachao Bachao". She hastened to the place and saw Karam Singh lying on the ground and that he was bleeding. She saw one Drat in the hand of Karam Singh which had fallen down. There was one another Drat at that place where Karam Singh was lying on the ground. Further on she stated that one Drat was in the hand of Karam Singh and the other Drat was near the place, where Karam Singh was lying. Bir Singh was not there. Bir Singh''s wife Vidya Devi came there after her. Therefore, from this very statement in examination-in-chief it would be quite clear that she is telling a lie. How could there be a Drat in the hand of Karam Singh when he had fallen down in an injured condition. Bir Singh was also not there when she reached the spot. Nasib Singh and her husband reached there at the spot only after that. It is beyond my comprehension that on hearing the alarm raised by Bir Singh the other brothers should not have rushed to the spot and Smt. Urmila Devi alone should have gone without informing her husband when she after serving tea to her husband was washing clothes at a distance of ten paces from him. She has also stated in her cross-examination that the Drat which was in the hand of Karam Singh deceased was blood-stained. If the Drat blow as admitted by the accused was given in self defence then the blood-stained Drat should not have been in the hand of the deceased rather the Drat should have been there on the ground as according to the defence as also the prosecution Bir Singh had thrown down the Drat after inflicting the blow and he himself had run away. The Drat in the hand of Karam Singh could not be blood-stained as Bir Singh himself says that Karam Singh attacked him with a Drat but the attack was warded of by him which means that Karam Singh did not actually inflict the blow. Therefore, this statement of the witness is totally false. She further on says that when Karam Singh got up he left the Drat which was in his hand on the ground. She has further on stated that the alarm "Bachao Bachao" was raised at its highest pitch and the voice "Kha-tam Ker Dena Hai" was also at a high pitch. If it were so, her husband and Nasib Singh should have heard the alarm and reached there earlier. She also should have informed her husband that she had heard such cries or alarm and more so when she knew that there was some quarrel on the day between the brothers in the fields. But without informing her husband she goes, to the spot which is highly improbable. At the fag end she stated that she did not made any statement to the police as her husband had prevented her not to say any thing to the police. This is highly incredible.

The only point in the case is whether the accused gave the blow in the exercise of the right of private defence of person or it was a murder pure and a simple. If it was in exercise of right of private defence then u/s 96, Indian Penal Code, it is not an offence. But that right u/s 97 is subject to the restrictions contained in Section 99. u/s 100 of the Indian Penal Code that right of private defence of the body mentioned u/s 99 extends to the voluntary causing of death or any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions mentioned therein. Therefore, if it is proved that there was any apprehension of death or of grievous hurt to the Appellant at the hands of the deceased then the accused cannot be held guilty of an offence of murder as it was done in the exercise of the right of private defence of his person.

Now we have to see as to who was the aggressor in the case. It is not disputed that all the brothers in the day time went in the fields to repartition the land as the accused was not satisfied with the earlier partition, in which according to him the land allotted to him was of an inferior quality and the land allotted to Karam Singh was of a superior quality. It is also stated by Nasib Singh that in the repartition on the ill-fated day the share of the land which was in possession of Karam Singh was allotted to Bir Singh and the land which was in possession of Bir Singh was allotted to Karam Singh but this arrangement was not acceptable to Bir Singh accused. When Karam Singh had asked his son to bring Kodali in order to demarcate the land an altercation started between Bir Singh and Karam Singh. The other brothers asked Bir Singh to agree to the settlement but he did not. Then all of them went home at about 4.30 P. M. In cross-examination by the prosecution he had first stated that he had not seen any Drat with Karam Singh but in the second breath he that he had not seen Drat either with Karam Singh or with Bir Singh in the fields when they were having an altercation. Nasib Singh had further stated that Bir Singh had left the fields as a protest "WHO ROOTH GAYA THA" and, therefore, for the reason the arrangement could not be completed. He has also stated that he was taking his meals when he had heard the cries of Bir Singh to the effect "BACHAO, BAGHAO, MANU MAR DITTA, MAR DITTA". Therefore, from the statement of this witness it is apparent that it was Bir Singh who felt aggrieved and it was because of disappointment that he left for his house.

It is admitted by the accused in answer to question No. 5 that when the son of Karam Singh brought the Kodali to demarcate the boundary of the land which was in his possession he did not allow him to have that done and he went home as he was not satisfied with that arrangement. He has also admitted in answer to question No. 6 that the land which was earlier allotted to Karam Singh was allotted to him in repartition and he has also admitted that there was an argument to the effect that Karam Singh insisted to have his land but he refused to part with it. It is also admitted that he was not prepared to accept the arrangement proposed by his brothers as his land had better fodder trees on it and he had made improvements on the land. This will also further strengthen and support the statement made by Nasib Singh that it was the accused who felt aggrieved because of the arrangement proposed on that day as this arrangement was not acceptable to him. Therefore, it is wrong to suggest that Karam Singh was aggrieved so as to be an aggressor and not the accused. Nasib Singh had stated that there was no Drat either in the hand of the accused or in the hand of the deceased when the altercation was going on between them in the fields. It is also a common story that the accused and Karam Singh and the other brothers returned home when they could not arrive at any settlement with regard to the repartition of the land. Smt. Giano Devi has stated that her husband had gone to the Baggar to put fodder to the cattle. In the meanwhile the accused came armed with a Drat and he started quarrelling with the deceased. They grappled and then he gave a Drat blow on the left side of the neck of her susband. She had also raised an alarm before he actually gave a Drat blow. According to the statement of Smt. Giano Devi Karam Singh was not armed with a Drat so as to raise an apprehension in the mind of the accused about any grievous hurt being caused to him by the deceased. It is found in the statements of Nasib Singh and Smt. Urmila Devi (D.W.I.) that there were two Drats, but the learned Sessions Judge disbelieved the statements of both the witnesses and he did rightly so. In so far as the statement of Smt. Urmila Devi is concerned it is highly improbable inasmuch as the Drat which she states in the hand of the deceased was blood-stained. As admitted by the accused himself no blow was actually inflicted with the Drat by the deceased. He had attempted to assail him with the Drat which blow was warded off by the accused. So far as the statement of Nasib Singh is concerned he has stated that there were two Drats lying at the spot. I am of the opinion that it is equally false. According to Nasib Singh he took both the Drats and kept them near his Baggar and according to him one Drat was produced by Jit Singh before the police which was blood-stained. Both the Brats were produced but the police took into possession only the blood-stained Brat. But he stands discredited by the statements of P.W. 4, P.W. 5, and P.W.9. P.W. 4 is a Lambardar of village Branda and he has stated that Nasib Singh presented a Drat (Ex. P. 6) to the police and he has also stated that Jit Singh was not present when Nasib Singh presented the Brat to the police. He further stated that the Brat was blood-stained. P.W. 5 who is a Sarpan-ch has also stated that Nasib Singh had presented the Brat (Ex. P. 6) to the police which was blood-stained and which was taken into possession by the police on the basis of a memo (Ex. P.W. 4/B) which was signed by him besides Karam Singh and Nasib Singh. This document which is admitted signed by Nasib Singh belies his statement as it mentions that the Brat was produced by Nasib Singh. P.W. 5 further made it quite clear that only one Brat was produced to the police in his presence. Then there is a statement of Shri Krishan Kumar, Head Constable (P.W. 9) who stated that after he had prepared the inquest report Nasib Singh presented the Brat to him and he also prepared the sketch (Ex. P.W. 4/C) of the same. The Brat was blood-stained and he took the Brat in his possession by the recovery memo (Ex. P.W. 4/B) and which was signed by Dhian Singh Sarpanch, Karam Singh and Nasib Singh. In cross-examination he has also stated that he had not asked Nasib Singh to produce the Brat but he himself produced it. Therefore, there is no reason to disbelieve this ''prosecution evidence and, in my opinion, Nasib Singh is not telling the truth that there were two Brats and which he had taken from the spot and that Jit Singh produced the same before the police and the police took into possession the only one Brat which was blood-stained. The fact of the matter is that there was only one Brat which was blood-stained and which was produced by Nasib Singh before the police vide recovery of memo (Ex. P.W. 4/B) and no other Drat was produced. If there had been any grain of truth in the statement of Nasib Singh that there was another Drat then it could legitimately be inferred that Karam Singh was also armed with a Drat and that it was quite possible that Karam Singh had first attacked the accused so as to raise an apprehension in his mind that he would be caused a grievous hurt or any other bodily injury so as to give him a right of private defence of person by inflicting a Drat blow. But there is no-thing to conclude that way. Therefore, it cannot be said that Karam Singh was the aggressor so as to give the ac-cused the benefit of the exceptions of Sections 96, 99 and 100 of the Indian Penal Code.

It has been argued by the learned Counsel for the Appellant that Gorakh Singh and Chuhar Singh who happened to be the eye witnesses should have been produced and for withholding them an adverse inference u/s 114(g) of the Indian Evidence Act should be drawn against the prosecution. Reliance For this contention is placed on The State v. Hardial Singh AIR 1953 Pep 66 and Raghava Kurup Vs. The State of Kerala, The latter authority says that:

The prosecution has got a right to choose their own witnesses but in a capital case it is the duty of the prosecution to place before the Court the evidence of all material witnesses irrespective of the question whether that evidence, if led, would help the accused, and go against the prosecution.

The test whether a witness is material is not whether he would have given evidence in support of the defence. The test is whether he is a witness essential to the unfolding of the narrative on which the prosecution is based. Whether the witness is essential or not will depend on whether the witness can speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relies in proof of their case. If such a material witness is kept back from the Court it would certainly give rise to adverse inference against the prosecution case and cast serious reflection on the fairness of the trial.

In the instant case it is manifest from the statement of Smt. Giano Devi that Gorakh Ram and Chuhar Singh were not there at the spot at the time when the blow was given. Therefore, these two persons could not be said to be the material witnesses to the unfolding of the narrative on which the prosecution story is based. Moreso it has been stated by the P.P. in his statement that these witnesses had been won over and, therefore, the prosecution, in my opinion, was not bound to produce all such witnesses who may depose against them and, therefore, this authority has got no application to the facts of the present case. Again in the former case the principle was that "where the prosecution fails to produce a certain witness who was examined in the previous trial for the same offence, a presumption that he would not have supported the prosecution had he been produced can be raised." But there there is no question of any previous or subesquent trial. There is only one trial. In these circumstances the contention of the learned Counsel for the Appellant also has got no substance that the non-production of Chuhar Singh and Gorakh Singh is a material fact to raise an adverse inference u/s 114(g) of the Indian Evidence Act against the prosecution.

It has further been contended that there has been delay in the filing of the first information report, but this argument should not detain us for long. I have already stated that Jit Singh did not go to Nurpur because P.W. 9 has denied the suggestion that he was sent anywhere else, rather on the contrary he has stated that Jit Singh was present at the time of the preparation of the Memos. Ex. P.W. 4/B, P.W. 4/C, P.W. 4/D, P.W. 4/E, and P.W. 4/F. But it is not necessary that the signatures of the persons who were present at the spot should be taken. ,His signatures do appear on the inquest report (Ex. P.W. 4/A). The F.I.R. indicates the time 11.00 P.M. when it was recorded. The occurrence took place in the afternoon at 5.00 P.M. or there-about and Nurpur as is evidence from the statement of P.W. 8 is far off from the place of occurrence and the police immediately left the place reaching Branda at about 2.30 A.M. Therefore, there cannot be said to be any delay in the filing of the F.I.R. The only snag is that the F.I.R. was not on the judicial file nor it was sent to the Illaqa Magistrate. But it is wrong to say that the F.I.R. was not sent to the Illaqa Magistrate. It is apparent from a perusal of the F.I.R. itself that it was sent through a special messenger, namely, Bhagat Ram, immediately after it was recorded to the Illaqa Magistrate. If the same has not been placed on the judicial file it will not in any way make the prosecution story doubtful especially when the only question in the case is whether it was an intentional murder or the accused killed him in the exercise of right of private defence. The only argument that had been advanced was that by the non-filing of the F.I.R. on the judicial file it can be said that Smt. Giano Devi was introduced as one of the persons who was there at the spot at the time of the occurrence. However, we cannot refer to the F.I.R. because the maker of the F.I.R. is dead and it remains unproved. The fact remains that Smt. Giano Devi has stated clearly that she was there at the spot and there is nothing to disbelieve her statement.

The learned Counsel for the Appellant has argued that Smt. Giano Devi has over played the act of the accused and she has under played the act of the deceased. There is nothing in the statement which may lead to this inference in view of the other circumstances in the case. The absence of the other Drat and the non-production of the same by Nasib Singh who has denied the production of the Drat at all is a most important factor in the case which would go to show that the defence theory is false and Smt. Giano Devi was really present at the spot. Nasib Singh is now deliberately trying to suppress the truth in order to save his other brother as already stated. Therefore, this non-filing of the special report on the judicial file is not very significant nor is there any law that the special report must be there on the judicial file.

One of the arguments is that the inquest report has not been honestly prepared. The signatures of the doctor are not there on the report. This leads to the inference that it was prepared after the postmortem examination was conducted. But after having closely examined the inquest report, I do not find myself persuaded to hold that the inquest report has not been honestly prepared. The absence of the initial of the doctor on the inquest report will not also make it a false document. There is no rule or law shown by Mr. M.G. Chitkara, counsel for the Appellant, which make it obligatory on the doctor to sign or initial the inquest report.

The learned Counsel has also contended that the investigation done is not above board. Learned Counsel could not point to any serious defect so as to say that the investigation really suffers from any infirmity to render it suspicious. The simple case is whether the accused inflicted the blow in exercise of right of private defence. The only witness in the case who was present at the time of occurrence was Smt. Giano Devi and her statement cannot be disbelieved simply because she happens to be the widow of Karam Singh deceased. Nasib Singh as already stated is suppressing the truth deliberately and he has supported the prosecution case in examination-in-chief, but he took a different turn while in cross-examination. There is an obvious reason for the same as already stated and only one Drat has been produced by Nasib Singh himself although he had denied the production of the same. He has stated that both the Drats were produced before the police but the police only took one Drat in it possession which was blood-stained. The blood-stained Drat was produced by Jit Singh to the police. He stands falsified in this respect by P.W. 4, P.W. 5 and P.W. 9 against whom there is no animus to make a statement so as to falsely implicate the accused. P.W. 4 and P.W. 5 are respectable persons. One is the Lambardar and the other is a Sarpanch. Simply because the Lambardar and the Sarpanch have to be present whenever any such offence is being investigated by the police will not lead to any inference that they are necessarily supporting the police. In so far as the Sarpanch is concerned he is an elected person who has no fear of the police and is an independent person. Why should the police falsely implicate one of the brothers for the murder of another brother. From the above it is manifest that the investigation conducted by the police can in no way be said to be dishonest.

The learned Advocate-General has contended that the conduct of the accused was also very important in the case. After the murder he had run away. But this argument of his has got no force in view of the principle as laid down in Thimma and Thimma Raju Vs. State of Mysore, wherein it has been held:

Though the conduct of the accused in absconding immediately after the occurrence of the offence is relevant evidence, as indicating to some extent his guilty mind, it is not conclusive of that fact because even an innocent person when suspected may be attempted to such conduct to avoid the arrest.

The accused did commit the murder of Karam Singh intentionally because he had a grouse against Karam Singh inasmuch as he was earlier not given a fair deal in a partition and later when the repartition was suggested at the spot he found that he was being deprived of his land in exchange to the land of Karam Singh as his own land was better inasmuch as it had fodder trees. Therefore, he went home quite disappointed and later on, this drama was enacted that he was going to collect fodder and he had a Drat in his hand and while going Karam Singh assailed him with a Drat and he warded off the blow and raised an alarm and in exercise of his right of private defence of person he inflicted the blow. Consequently, the conviction and the sentence are upheld and the appeal fails and is hereby dismissed.

D.B. Lal, J.

I agree.