Case: Harivadan Babubhai Patel Vs. State Of Gujarat

each case so as to find whether the witnesses are available for being examined in the court and were yet withheld by the prosecution. The three-Judge Bench further proceeded to observe that the court is required first to assess the trustworthiness of the evidence available on record and if the court finds the evidence adduced worthy of being relied on, then the testimony has to be accepted and acted upon though there may be other witnesses available who could also have been examined but were not examined. 19. In TakhajiHiraji v. ThakoreKubersing Chamansing and others (2001) 6 SCC 145 ), the Court has opined thus: - “It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the 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. In such a case the court ought to scrutinize the worth of the evidence adduced. The court of facts must ask itself — whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. 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.” 20. In Dahariand others v. State of Uttar Pradesh (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 thetestimony of other reliable witnesses, no adverse inference could be drawn against the prosecution. Be it noted, the Court also took note of the fact that during the cross-examination of the Investigating Officer, none of the accused persons had voiced their concerns or raised any apprehension regarding the non-examination of the material witness therein. 21. In the case at hand, it was A-1 who had announced that he was taking the deceased to the house of Gulia. On a search being conducted, nothing has been found from the house of Gulia. There has been no cross-examination of the Investigating Officer about the non-examination of Gulia. On the contrary, it was A-1 who had led to the discovery of the dead body and other articles. Thus, when the other evidence on record are cogent, credible and meet the test of circumstantial evidence laid down in SharadBirdhichand Sarda v. State of Mararashtra (1984) 4 SCC 116 ) State v. Saravanan(2008) 17 SCC 587 ), Sunil Kumar Sambhudayal Gupta v. State of Maharashtra (2010) 13 SCC 657 ) and further reiterated in JagroopSingh v. State of Punjab (2012) 11 SCC 768 ), there is no justification to come to hold that the prosecution has deliberately withheld a witness that creates a concavity in the concept of fair trial. 22. Another facet is required to be addressed to. Though all the incriminating circumstances which point to the guilt of the accused had been put to him, yet he chose not to give any explanation under Section 313 CrPC except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances. (See State of Maharashtra v. Suresh (2000) 1 SCC 471 ). In the case at hand, though number of circumstances were put to the accused, yet he has made a bald denial and did not offer any explanation whatsoever. Thus, it is also a circumstance that goes against him. 23. We will be failing in our duty if we do not note another submission of the learned counsel for the appellant. It is urged by him that A-2 stood on the same footing as the appellant and hence, the High Court should have acquitted him. It is also canvassed by him that A-2 has been acquitted of the charge of criminal conspiracy and, therefore, the appellant deserves to be acquitted. The High Court has taken note of the fact that A-2 was not identified by any one in the test identification parade. It has also noticed number of material contradictions and omissions and, accordingly, acquitted A-2. As far as the appellant is concerned, all the circumstances lead towards his guilt. As far as conspiracy under Section 120B is concerned, we are inclined to think that the High Court erred in not recording an order of acquittal under Section 120B as no other accused had been found guilty. The conviction under Section 120B cannot be sustained when the other accused persons have been acquitted, for an offence of conspiracy cannot survive if there is acquittal of the other alleged co-conspirators. It has been so laid down in Fakhruddinv. The State of Madhya Pradesh (AIR 1967 SC 1326 ). Thus, the conviction of the appellant under Section 120B is set aside. 24.

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

Explanation:
0[ds]We will be failing in our duty if we do not note another submission of the learned counsel for the appellant. It is urged by him that A-2 stood on the same footing as the appellant and hence, the High Court should have acquitted him. It is also canvassed by him that A-2 has been acquitted of the charge of criminal conspiracy and, therefore, the appellant deserves to be acquitted. The High Court has taken note of the fact that A-2 was not identified by any one in the test identification parade. It has also noticed number of material contradictions and omissions and, accordingly, acquitted A-2. As far as the appellant is concerned, all the circumstances lead towards his guilt. As far as conspiracy under Section 120B is concerned, we are inclined to think that the High Court erred in not recording an order of acquittal under Section 120B as no other accused had been found guilty. The conviction under Section 120B cannot be sustained when the other accused persons have been acquitted, for an offence of conspiracy cannot survive if there is acquittal of the other alleged co-conspirators. It has been so laid down in Fakhruddinv. The State of Madhya Pradesh (AIR 1967 SC 1326 ). Thus, the conviction of the appellant under Section 120B is set aside.