Case: Vijendra Singh &amp; Another Vs. State of Uttar Pradesh

prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable, the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In Dahari and Ors. v. State of U.P, 2013(1) R.C.R.(Criminal) 131 : (2012) 10 SCC 256 while discussing about the non-examination of material witness, the Court expressed the view that when he was not the only competent witness who would have been fully capable of explaining the factual situation correctly and the prosecution case stood fully corroborated by the medical evidence and the testimony of other reliable witnesses, no adverse inference could be drawn against the prosecution. Similar view has been expressed in Manjit Singh and Anr. v. State of Punjab and Anr., (2013) 12 SCC 746 and Joginder Singh v. State of Haryana, 2014(1) R.C.R.(Criminal) 248 : (2014) 11 SCC 335. 32. Tested on the aforesaid parameters, we are unable to accept the submission of Mr. Giri that non-examination of Nepal Singh and other two persons who had been referred to by PW-2 affects the prosecution version or creates any doubt in the mind of the Court. We arrive at such a conclusion since the witnesses examined by the prosecution are trustworthy and the court can safely act on their testimony. There is no justification in the instant case to draw any adverse inference against the prosecution.33. Mr. Giri, learned counsel for the appellants laying stress on the absence of injury caused by lathi on the person of the deceased has urged that the appellant- Mahendra Singh cannot be convicted in aid of Section 34 IPC. In that regard, he has commended us to the authority in Bijendra Bhagat (supra). Learned counsel has drawn inspiration from paragraph four of the said decision. The relevant part of the said paragraph is as follows:- "... According to the witnesses these two accused were also armed with country-made pistols. The injuries suffered by the deceased are incised wounds and one firearm injury. However, none of the injuries on the person of the deceased could be attributed to the lathi which was supposedly in the hands of the appellant. Undoubtedly, three injuries on the person of Sanjay Kumar could be caused by a hard and blunt object. But having gone through the testimony of the witnesses and the other materials on record, the presence of the appellant and his involvement in the incident clearly appears to be doubtful. We, therefore, deem it appropriate to give the appellant benefit of doubt. ..." 34. Relying on the same, it is contended by Mr. Giri that when there is no lathi blow on the person of the deceased as noticeable from the post mortem report, the appellant- Mahendra Singh deserves to be acquitted. The passage that has been commended to us has to be correctly appreciated. In that case, the Court has referred to injury caused on the person of the deceased and noticed how the injury was caused but the reason for acquittal is that the presence of the appellant therein and his involvement in the incident appeared to the Court to be doubtful. If a person is not present at the spot, the question of common intention does not arise. As has been held in Pandurang (supra), if the common intention is established, an accused can be convicted. We have already discussed the role attributed to the appellant- Mahendra Singh by the prosecution. He had gone with other accused persons, who were carrying pistols and ballam. He himself was carrying a lathi. Similarly, accused-appellant Vijendra Singh was carrying a ballam and accompanying others. Their intention was to go to the shed where the deceased was studying because of availability of the electric light, has been established. Common intention can be gathered from the facts and circumstances and in the instant case, the same is clearly discernable and hence, the decision in Bijendra Bhagat (supra) is of no assistance to the appellant.35. In view of the aforesaid analysis, we do not find any merit in Criminal Appeal No. 1452 of 2010 preferred by Mahendra Singh and the same is, accordingly, dismissed.36. As far as appellant-Vijendra Singh is concerned, a report was called for and he has been found to be a juvenile being 16 years 3 months 10 days old on the date of offence. The said report has gone unchallenged and Mr. Dash, learned senior counsel appearing for the State, has fairly stated that he was a juvenile on the date of offence. Mr. Giri has commended us to the authority in Hari Ram (supra). We find that the Court relying on Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the amendments introduced in Section 20 of the 2000 Act whereby the proviso and Explanation were added to Section 20 and the Juvenile Justice (Care and Protection of Children) Rules, 2007, remitted the matter to the Juvenile Justice Board with the observation that if he had been detained for more than the maximum period for which a juvenile may be confined to a special home, the Board shall release him from custody forthwith. In the case at hand, as the appellant-Vijendra Singh remained in custody for more than the maximum period for which he could have been confined to a special home, while sustaining the conviction, we release him from custody forthwith.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]26. It is next contended by Mr. Giri, learned counsel for the appellants that all the eyewitnesses are related to the deceased Badan Pal and they being interested witnesses, their version requires scrutiny with care, caution and circumspection and when their evidence is scanned with the said parameters, it does not withstand the said test for which the case set forth by the prosecution gets corroded and the principle of beyond reasonable doubt gets shattered. The aforesaid submission, as we perceive, has no legs to stand upon, for PWs-1 to 3 have deposed in detail about the previous enmity between the parties, their presence at the spot, the weapons the accused persons carried, their proximity to the shed and establishment of the identity of all the four accused.27. Mr. Giri, learned senior counsel for the appellant has also impressed upon us to discard the testimony of PW-3, Tedda, on the ground that he is a chance witness. According to him, his presence at the spot is doubtful and his evidence is not beyond suspicion. Commenting on the argument of chance witness, a two-Judge Bench in Rana Pratap and Ors. v. State of Haryana, 1983(2) R.C.R.(Criminal) 532 : (1983) 3 SCC 327  was compelled todo not understand the expression "chance witnesses". Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witnesses" is borrowed from countries where every mans home is considered his castle and every one must have an explanation for his presence elsewhere or in another mans castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are "chance witnesses", even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence.Tested on the anvil of the aforesaid observations, there is no material on record to come to the conclusion that PW-3 could not have accompanied PW-2 while he was going to the shed near the tube-well. What has been elicited in the cross-examination is that he was not going daily to the tube-well. We cannot be oblivious of the rural milieu. No adverse inference can be drawn that he was not going daily and his testimony that he had accompanied PW-2 on the fateful day should be brushed aside. We are convinced that his evidence is neither doubtful nor create any suspicion in the mind.29. Thus, the real test is whether the testimony of PWs1 to 3 are intrinsically reliable or not. We have already scrutinized the same and we have no hesitation in holding that they satisfy the test of careful scrutiny and cautious approach. They can be relied upon.Tested on the aforesaid parameters, we are unable to accept the submission of Mr. Giri that non-examination of Nepal Singh and other two persons who had been referred to by PW-2 affects the prosecution version or creates any doubt in the mind of the Court. We arrive at such a conclusion since the witnesses examined by the prosecution are trustworthy and the court can safely act on their testimony. There is no justification in the instant case to draw any adverse inference against the prosecution.33. Mr. Giri, learned counsel for the appellants laying stress on the absence of injury caused by lathi on the person of the deceased has urged that the appellant- Mahendra Singh cannot be convicted in aid of Section 34 IPC. In that regard, he has commended us to the authority in Bijendra Bhagat (supra). Learned counsel has drawn inspiration from paragraph four of the said decision. The relevant part of the said paragraph is asAccording to the witnesses these two accused were also armed with country-made pistols. The injuries suffered by the deceased are incised wounds and one firearm injury. However, none of the injuries on the person of the deceased could be attributed to the lathi which was supposedly in the hands of the appellant. Undoubtedly, three injuries on the person of Sanjay Kumar could be caused by a hard and blunt object. But having gone through the testimony of the witnesses and the other materials on record, the presence of the appellant and his involvement in the incident clearly appears to be doubtful. We, therefore, deem it appropriate to give the appellant benefit of doubt. ...Relying on the same, it is contended by Mr. Giri that when there is no lathi blow on the person of the deceased as noticeable from the post mortem report, the appellant- Mahendra Singh deserves to be acquitted. The passage that has been commended to us has to be correctly appreciated. In that case, the Court has referred to injury caused on the person of the deceased and noticed how the injury was caused but the reason for acquittal is that the presence of the appellant therein and his involvement in the incident appeared to the Court to be doubtful. If a person is not present at the spot, the question of common intention does not arise. As has been held in Pandurang (supra), if the common intention is established, an accused can be convicted. We have already discussed the role attributed to the appellant- Mahendra Singh by the prosecution. He had gone with other accused persons, who were carrying pistols and ballam. He himself was carrying a lathi. Similarly, accused-appellant Vijendra Singh was carrying a ballam and accompanying others. Their intention was to go to the shed where the deceased was studying because of availability of the electric light, has been established. Common intention can be gathered from the facts and circumstances and in the instant case, the same is clearly discernable and hence, the decision in Bijendra Bhagat (supra) is of no assistance to the appellant.35. In view of the aforesaid analysis, we do not find any merit in Criminal Appeal No. 1452 of 2010 preferred by Mahendra Singh and the same is, accordingly, dismissed.36. As far as appellant-Vijendra Singh is concerned, a report was called for and he has been found to be a juvenile being 16 years 3 months 10 days old on the date of offence. The said report has gone unchallenged and Mr. Dash, learned senior counsel appearing for the State, has fairly stated that he was a juvenile on the date of offence. Mr. Giri has commended us to the authority in Hari Ram (supra). We find that the Court relying on Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the amendments introduced in Section 20 of the 2000 Act whereby the proviso and Explanation were added to Section 20 and the Juvenile Justice (Care and Protection of Children) Rules, 2007, remitted the matter to the Juvenile Justice Board with the observation that if he had been detained for more than the maximum period for which a juvenile may be confined to a special home, the Board shall release him from custody forthwith. In the case at hand, as the appellant-Vijendra Singh remained in custody for more than the maximum period for which he could have been confined to a special home, while sustaining the conviction, we release him from custody forthwith.