Narain and Two Others vs State of Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 186 of 1956

Decision Date: 4 December 1958

Coram: A.K. Sarkar, P.B. Gajendragadkar

In the matter titled Narain and Two Others versus the State of Punjab, the Supreme Court of India delivered its judgment on 4 December 1958. The judgment was authored by Justice A. K. Sarkar, who was joined on the bench by Justice P. B. Gajendragadkar. The official citation of the decision appears as 1959 AIR 484 and also as 1959 SCR Supplement (1) 724, with a later citator reference recorded as R 1977 SC 472 (23). The case involved the application of Section 167 of the Indian Evidence Act, 1872, in the context of the failure to examine a material witness and whether such a failure amounted to a rejection of evidence.

The factual backdrop, as summarized in the headnote, described a violent incident in which several persons assaulted a man identified as “M” and caused serious injuries. While the assailants were attempting to carry the injured victim away, M’s brother, referred to as “R,” intervened in self‑defence, shot one of the attackers dead, and rescued M. Consequently, eight individuals, including the appellants, were prosecuted for offences under Sections 148, 307 and 364, read with Sections 140 and 34 of the Indian Penal Code. During the trial before the Sessions Court, the prosecution named R as a witness. However, R refused to give testimony, invoking protection under Article 20 of the Constitution. The Sessions Judge accepted R’s claim and consequently discharged him as a witness. After the trial, the Sessions Judge acquitted four of the accused but convicted the appellants and one other individual.

On appeal, the appellants contended before the Punjab High Court that the Sessions Judge erred in accepting R’s claim of constitutional protection and that the trial was consequently vitiated because the prosecution was deprived of R’s evidence. The High Court, relying on Section 167 of the Evidence Act, held that even if R had been compelled to testify, his evidence would not have supported the prosecution and would not have altered the weight of the other witnesses’ convincing testimonies. Accordingly, the High Court concluded that the omission of R’s testimony did not affect the ultimate decision and upheld the convictions.

The appellants then appealed to this Court, arguing that the High Court’s reliance on Section 167 was misplaced and that the trial was unfair because a material witness, R, had been kept out of court. The Court examined whether Section 167 applied, noting that the provision deals with the rejection of evidence after it has been properly examined. In the present case, the prosecution had not examined R at all; therefore, no evidence had been rejected within the meaning of the section. Furthermore, the Court observed that R was not material to the prosecution’s case because he arrived at the scene only after the assault had concluded, and his testimony was not essential to establishing the prosecution’s narrative. Accordingly, the Court held that the trial was not vitiated by the failure to examine R, and that the convictions affirmed by the High Court stood.

When a witness essential to the prosecution’s case is intentionally or unfairly kept from testifying, the propriety of the trial is seriously questioned and the conviction may be challenged. The test for materiality is whether the witness is necessary to the narrative upon which the prosecution relies, not whether the witness would have supported the defence. The principle was articulated in Habeeb Mohammad v. The State of Hyderabad, [1954] S.C.R. 475 and in Stephen Seneviratne v. The King, A.I.R. 1936 P.C. 289. The judgment concerned Criminal Appeal No. 186 of 1956, which was taken on special leave from the Punjab High Court judgment and order dated 18 February 1955 in Criminal Appeals Nos. 389 and 406 of 1954. The appeal arose from the judgment and order dated 16 June 1954 of the Additional Sessions Judge, Ferozepur, in Sessions Case No. 5 of 1954 and Trial No. 5 of 1954. Counsel for the appellants were Jai Gopal Sethi, Vidya Dhar Mahajan and K. L. Arora, while counsel for the respondent were N. S. Bindra, B. H. Dhebar and T. M. Sen. The judgment was delivered on 4 December 1958 by Justice Sarkar. Eight persons had been tried for offences under sections 148, 307 and 364, each read with sections 149 and 34 of the Indian Penal Code, by the Additional Sessions Judge, Ferozepur. The learned Sessions Judge acquitted four accused—Het Ram, Teja Ram, Manphul and Surja Ram—on the ground that their presence at the occurrence had not been proved beyond reasonable doubt. He convicted the remaining four—Narain, Jot Ram, Gheru and Jalu—under sections 307 and 364, each read with section 34. Narain, Jot Ram and Gheru each received rigorous imprisonment for three years under section 307 and two years under section 364. Jalu received rigorous imprisonment for two years under each of the two sections. On appeal, the Punjab High Court upheld the convictions but reduced the sentences imposed on Jot Ram and Gheru to one year’s rigorous imprisonment and reduced Jalu’s term to the period of imprisonment already served. The High Court left the sentence imposed on Narain unchanged and dismissed his appeal. Narain, Jot Ram and Gheru then appealed to the Supreme Court from that judgment. The prosecution case stated that a man named Sultan owned a field identified in the proceedings as plot number 97, and that Sahi Ram was a tenant of that land. The land had remained uncultivated during the year preceding the incident that formed the subject of the case, and consequently the owner had taken back possession of it. On 14 June 1953, Mani Ram, a son of the proprietor, arrived at the field in a tractor accompanied by a taboorer named Moola Ram, with the purpose of ploughing the field. They found Sahi Ram already ploughing the field, and Mani Ram expelled Sahi Ram from the field. Sahi Ram protested but eventually left, abandoning his plough on the field. Mani Ram then began to plough the field with his tractor.

Mani Ram began to plough the field with his tractor. Shortly afterwards the tractor suffered a mechanical breakdown, and Mani Ram stopped ploughing to attend to the problem. While he was occupied with the tractor, Sahi Ram arrived at the spot accompanied by seven other persons who had been previously named as accused other than Narain and who were armed in various manners. Jalu entered the scene on a horse. The group of seven fell upon Mani Ram and assaulted him. Moola Ram, who rushed to Mani Ram’s assistance, was also assaulted. After being attacked, Moola Ram attempted to flee, but Sahi Ram and his party pursued him. During the chase, while Sahi Ram’s attention was directed at Moola Ram, Mani Ram managed to get into his tractor and started to drive away from the field. At that moment Narain arrived on a horse carrying a gun. Narain addressed the pursuers of Moola Ram, telling them to leave Moola Ram because he was merely a hired man, and he pointed out that the real culprit, Mani Ram, was attempting to escape in the tractor. The group consequently turned round and pursued Mani Ram. Narain, still on his horse, soon overtook Mani Ram and fired at him while Mani Ram was still seated in the driver’s seat of the moving tractor. The gunshot caused Mani Ram to fall from the tractor; the tractor, still in motion, ran into a tree and stopped. Narain’s horse collided with a cultivator attached to the tractor and sustained injury. After falling, Mani Ram rose and staggered into a nearby hut belonging to a man named Mukh Ram, seeking shelter.

The pursuers then reached the hut. Jot Ram discharged a shot at Mani Ram inside the hut, and Gheru also fired a shot. Mani Ram fell inside the hut, and Mukh Ram threw himself upon Mani Ram’s body in an attempt to protect him. After the shooting, Gheru and Narain announced their intention to set fire to the hut with Mani Ram still inside. Sahi Ram suggested that it would be preferable to carry Mani Ram to their house, kill him there, and then burn his body. Subsequently, Mukh Ram was dragged away, and the unconscious body of Mani Ram was placed on a horse, which Jalu then mounted. The party proceeded along a foot‑path toward the village, carrying the unconscious Mani Ram as a captive. After they had traveled a short distance, Raghbir, the younger brother of Mani Ram, arrived, having heard of the incident and intending to rescue his brother. Raghbir encountered Jalu on the horse with Mani Ram and saw Sahi Ram walking close behind, while the rest of the group remained at a distance. Raghbir requested that Jalu put down Mani Ram; Jalu responded with a threat to kill, and Sahi Ram pointed his pistol at Raghbir. In response, Raghbir shot at Sahi Ram with the pistol he was carrying; Sahi Ram fell and died shortly thereafter. Jalu dismounted and fled on foot. Before the remaining assailants could reach the scene, Raghbir carried the injured Mani Ram to the house of a man named Birbal, from where Mani Ram was later taken to a hospital. The defence submitted that the prosecution’s case was entirely false and presented an alternative version of the facts.

The prosecution’s narrative was held to be entirely untrue, and the Court set out the factual matrix that actually transpired. On the day of the incident Sahi Ram was engaged in ploughing his field when Mani Ram and Raghbir arrived and attempted to restrain him, leading to a heated altercation. Jot Ram and Gheru, who were working in an adjoining field, came forward and counselled Sahi Ram not to engage in a dispute with Mani Ram but to submit the matter to the village Panchayat for resolution. After this counsel, Sahi Ram, Jot Ram and Gheru left the field together and proceeded in the direction of the village. While they were walking, Jot Ram observed that Sahi Ram was carrying a pistol; apprehending that Sahi Ram might use the weapon in his agitation, Jot Ram seized the pistol and secured it away from him. Meanwhile Mani Ram and Raghbir also moved toward the village, but they took a different route. The parties subsequently met again at the village common land, known as the Shamlat. At that juncture Raghbir insulted Sahi Ram and discharged a shot which struck Sahi Ram and caused his immediate death. Fearing that he too might become a target, Jot Ram then fired the pistol he had taken from Sahi Ram, and it is possible that this shot injured Mani Ram. In addition, two unidentified persons who were with Raghbir and Mani Ram at the time also discharged firearms, and those discharges may have contributed to injuries sustained by Mani Ram. The accused persons asserted that, apart from Jot Ram and Gheru, no other individuals were present at the scene.

Consequently, the factual picture comprised two mutually exclusive versions of the same episode, giving rise to two separate criminal proceedings that were based on the differing accounts. The Court clarified that its jurisdiction was limited to the proceeding that originated from the complaint lodged by Mani Ram and that concerned the injuries he suffered and his subsequent abduction. A second proceeding, filed against Mani Ram, Raghbir, Sultan and Dalip (who is Sultan’s son), was predicated on the defence’s version of events as narrated in the present case. In that second case, the charges against Raghbir and Mani Ram were under Section 302 read with Section 34 of the Indian Penal Code for causing the death of Sahi Ram, while Sultan and Dalip were charged under Section 302 read with Section 109 of the same Code in the same connection. The learned Sessions Judge who tried both matters acquitted Mani Ram, Raghbir, Sultan and Dalip of all the charges, but convicted the appellants and Jalu in the present case after accepting the prosecution’s version of events. That conviction was subsequently affirmed by the High Court. Given the concordant factual findings of the lower courts, the learned counsel for the appellants confined his submissions before this Court to a question of law, which the Court now addresses. It is essential to note that the present discussion is confined to the case wherein the appellants were prosecuted for offences committed against Mani Ram; the other parallel case is not before this Court. During the trial, the prosecution had intended to call Raghbir as a witness, but Raghbir declined to testify, invoking the protection guaranteed by Article 20 of the Constitution. The learned Sessions Judge held that Raghbir could not be compelled to give evidence.

In the trial, the Sessions Judge ruled that the witness Raghbir could not be forced to give testimony and dismissed the accused’s claim that he was not entitled to the protection of Article 20 of the Constitution. After this ruling the prosecution chose not to present Raghbir as a witness and withdrew him from the case. When the matter was taken in appeal before the High Court, counsel for the appellants argued that the Sessions Judge had erred in concluding that Raghbir was protected by Article 20 and that the trial had been compromised because the accused were denied the benefit of his evidence. The High Court, however, rejected this contention and held that the failure to examine Raghbir did not invalidate the trial. The Court explained that, even if it were assumed that Raghbir would not have supported the prosecution’s version or would have admitted to shooting Sahi Ram, his unwillingness to testify did not constitute a procedural irregularity. The Court further suggested that, had Raghbir been compelled to speak, he would likely have been untruthful, and whatever statement he might have made would not have displaced the persuasive testimony of the other witnesses. Consequently, the High Court concluded that the absence of Raghbir’s evidence did not affect the ultimate decision of the case.

The appellant’s counsel then contended that the High Court’s reasoning was inconsistent with section 167 of the Evidence Act, although the section was not expressly mentioned. The counsel argued that the High Court essentially stated that even if Raghbir’s evidence had contradicted the prosecution’s case, it would not have altered the result because it would not have rebutted the other convincing testimonies. According to the counsel, this position was not justified by section 167. The Court observed that the High Court’s expression on the matter was not well‑crafted. The true question under section 167 is not merely whether the excluded evidence would have been accepted over the existing testimony, but whether its exclusion ought to have changed the decision. The Court noted that if Raghbir’s evidence had supported the defence, a serious doubt would arise as to whether the trial Court’s judgment should have been in favour of the accused rather than against them, as it actually was. However, the Court found that section 167 did not aid the appellants in this instance. The record showed that although the prosecution had initially listed Raghbir as a witness, it was not eager to examine him, and when he objected on constitutional grounds, the prosecution simply dropped him. Therefore, the situation did not fall within the ambit of section 167, which deals with the rejection of material evidence that could have influenced the verdict.

In this case, the trial court, although it had mentioned Raghbir as a witness, did not show much interest in examining him. When Raghbir objected to giving evidence, the prosecution simply dropped him from its list of witnesses. Consequently, the Court thought that the present situation does not fall within the scenario contemplated by section 167 of the Evidence Act, because the prosecution never actually tendered Raghbir as a witness. The record does not reveal what Raghbir might have said had he been allowed to testify, and the defence did not seek to call him as a witness. The Court did not need to decide, nor was it asked to decide, whether Raghbir was entitled to refuse to give evidence under Article 20 of the Constitution. It is clear from the evidence that the prosecution did not present him as a witness after he claimed protection under Article 20.

The counsel for the appellants submitted that, on this view, the prosecution had kept a material witness out of court, which should create an adverse inference against the prosecution and raise serious doubts about the fairness of the trial. The Court was referred to the decision in Habeeb Mohammad v. The State of Hyderabad (1). The Court agreed that when a material witness is deliberately or unfairly withheld, the propriety of the trial is called into question and the validity of the resulting conviction may be open to challenge. The next issue, therefore, was whether Raghbir qualified as a material witness.

The Court noted the well‑settled principle expressed by the Judicial Committee in Stephen Seneviratne v. The King (2) that witnesses essential to the unfolding of the narrative on which the prosecution relies must, of course, be called by the prosecution. The test for materiality, the Court explained, is not whether a witness would have supported the defence, but whether the witness is essential to the narrative on which the prosecution’s case is built. Whether a witness meets this test depends on whether the person could speak to any part of the prosecution’s case or whether the evidence shows that the person was in a position to give testimony about the facts relied upon by the prosecution.

It is not the case that the prosecution is required to call every person who may have witnessed the incident, nor must it call witnesses merely to duplicate evidence, as indicated by the citations (1) [1954] S.C.R. 475 and (2) A.I.R. (1936) P.C. 289. However, apart from that limitation, the prosecution is obliged to call all material witnesses. Upon applying this standard, the Court found that Raghbir was not a witness essential to the unfolding of the prosecution’s case. The prosecution’s case, as previously noted, concerned the injuries inflicted on Mani Ram and his

The Court observed that the prosecution case concerned an alleged abduction in which the victim, Mani Ram, was reportedly assaulted, shot at and subsequently placed on a horse and carried a distance. According to the prosecution, Raghbir arrived only after those alleged offences had been completed; he was present after the assault on Mani Ram and after the shooting. The prosecution admitted that Raghbir had shot Sahi Ram but asserted that the shooting was done in self‑defence. The Court held that this shooting formed a completely separate incident and was not necessary to prove the offences with which the appellants were charged. Consequently, Raghbir was not a witness whom the prosecution was required to call in order to establish its case. The Court noted that even if Raghbir might have testified that the incidents did not occur as alleged, such testimony would have been relevant only to the defence and not essential to the prosecution’s narrative. The prosecution was therefore under no obligation to produce witnesses whose evidence would merely support the defence. Because the prosecution’s version placed Raghbir’s arrival after the alleged crimes, he could not have offered any evidence concerning the prosecution’s case. Accordingly, the Court found the learned Advocate’s argument that the prosecution should have called Raghbir to secure a fair trial to be without merit. The Court further concluded that the trial was not vitiated by the omission of Raghbir’s testimony, especially since the appellants had not sought to produce him as a witness on their behalf.

Turning to the question of sentencing, the Court recorded that the learned Advocate for the appellants contended that the High Court had imposed a higher sentence on Narain on the mistaken belief that he alone had caused the sole grievous injury found on Mani Ram’s body. The Advocate pointed out the absence of evidence linking Narain directly to that grievous injury, and the Court agreed that the contention was well founded. However, the Court also noted evidence that Narain had directed the attack against Mani Ram and had ordered the other members of the attacking party to stop pursuing Moola Ram, identifying Mani Ram as the principal adversary to be dealt with. It was on the basis of that direction that the serious injuries to Mani Ram were inflicted. In view of this finding, the Court held that the higher sentence imposed on Narain was justified. No further issues remained for consideration, and the Court concluded that the appeal failed and was dismissed.