CHANDRA SHEKHAR BIND AND ORS.

STATE OF BIHAR

OCTOBER 9, 2001

[K.T. THOMAS AND S.N. VARIAVA, JJ.]

Penal Code; 1860-Sections 302 and 302 read with 149-Conviction under-Prosecution case supported by 2 eyewitnesses-All the accused except 3 ident{fied by both the eyewitnesses-Convicted by Court.1: below-On appeal C conviction of 3 accused set aside giving benefit of doubt-Convicrion of other accused upheld.

Constitution of India, 1950-Article 136-Specicil leave-New Plea-,- Mixed question of law and facts mu/ not pure question of law-Held, cannot be permitted to be raised .for the .first time in Supreme Court.

Eighteen accused including the appellants were charge-sheeted under section 302 and 302 read with sectiOn 149'!.P.C. PW_s 1, 4, 5 and 6 were the eye witnesses to the incident. PW 5 had lodged FIR. In trial, PW5 who had identified all the accused except accused No. 12 and PW 6 who had id_entified all the accused except accused Nos. 9_ and 10 supported the prosecution case. PWs 1 and 4_ on whom injury ws proved turned hostile as they refused to idntify the accused but confirmed that the incident had taken place. Defence examined two witnesses to prove alibi and DWs 3, 4 and 5 stated that after the incident. when they had gone to te house of the deceased, PWs S and 6 had not _named any o~ the accused. However, this F was not pu:t to PWs S and 6 in their cross-examination.

Trial Court relying on the evidence of PWs 5 and 6 and rejecting the evidence of defence, convicted the accused, High Court confirmed the conviction.

G In appeal to this_ Court appellants for the first time sought to make submission on the basis of Juvenile Justice (Care and Proteetion of Children)· Act, Jooo: ;--

' Dismissing the appeals, the Court

H HELD : 1. The evidence of DWs 3, 4 and' S has rightly not been 658

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CHANDRASEKHAR BIND v. STATE 659

accepted by the trial court and the High Court. PWs 5 and 6 are trustworthy A and reliable witnesses. Their presence on the scene could not be denied. There is absolutely no reason why they should falsely implicate the accused.

All the accused were known to these witnesses and, therefore, they could identify the accused. [661-D; E; F]

Masalti v. State of U.P., AIR (1965) SC 202 and Binay Kumar Singh v.

State of Bihar, [1997] 1 SCC 283, referred to.

2. PWs 1 and 4 were injured witnesses and their injuries had been proved. PW4 as also the informant who had lodged the first information report. Though PWs 1 and 4 turned hostile and refused to identify any person, they however confirmed that the incident had taken place. PWS has not identified.accused No. 12 and PW 6 has not identified accused Nos. 9and10. However, PWs 5 and 6 have both identified all the other accused.

Considering the large number of people involved, it would be prudent in . this case to adopt the two witness theory. On the basis of this two witness theory, benefit of doubt would have to be and is given to accused Nos. 9, 10 and 12 inasmuch as more than one witness has not identified them.

[662-D; G; 662-E-G]

3. The Court cannot permit to take up point regarding Juvenile Justice (Care and Protection of Children) Act, 2000. It has not been urged before the trial court that any of the accused was a juvenile. No such point had been taken before the High Court. No such point has been taken in the S.bP filed before this Court. This is not a pure question of law which can be taken up for the first time in this Court. It is mixed question of law and fact. [663-A; 662-H]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 337- 338 of 1999.

From the Judgment and Order dated 9.1.98 of the Patna High Court in Crl. A. No. 407 of 1991 with Cr!. A. No. 433 of 1991.

WITH

Crl. A. No. 339 of 1999 and Cr!. A. No. 1366 of 1999.

P.S. Mishra and H.L. Agrawal, Rakesh Khanna R.P. Singh, Chandra Shekhar, Vishnu Sharma, Upendra Mishra, Anil Kumar Gupta-II (A.C.) H

SUPREME COURT REPORTS

. (2001] SUPP. 3 S.C.R.

A Jayai; it Bhushan (A.C.) Ms. Sunita R. Singh and B.E. Singh for the appearing parties.

The.Judgment of the Court was delivered by

S.N. VARIAVA, J. These Appeals are against lhe Judgment dated 9th B January, 1998 by which the High Court has dismissed the Criminal Appeals filed by the Appellants herein.

Briefly statd the facts are as follows :

; According to the prosecution, on 3rd June, 1989 Tungnath Mistri, ParshuramBind, Shiv.Nath Bind, Ram Vinod Bind and certain others villagers were sitting in front of the house of Parshuram Bind. All of a sudden 22 to 23 persons came run.ning from the western 'gali' armed with.rifles, guns, country made pistols, pasulis and lathis and started firing from the fire-arms. It'is lhe case of the prosecution that these assailants started firing at Parshuram Bind.

Appellant No. 1 (Chandra Shekhar Bind) fired at Tungnath Mistri causing injuries on his left elbow. One Suresh Bind also fired at Tungnath. Mistri causing injury on his right hand. It is the case of the prosecution that when Parshuram Bind tried to enter his house he was chased by the assailants who caught him and brought him out and then he was assaulted with a pasuli. It is the case of the prosecution that Sita Rani Bind, father of Parshuram Bind, came . out of the house nd he was also fired 'at. It is the case of the prosecution that as a result, of this Parshuram B.nd and his father Sita Ram Bind died and the assailants then fled away. It is the case of the prosecution that the motive behind

; t I this was previous enmity as well as a dispute between Parshuram Bind and the

I l J • " • ' • assailants for catching fish in a 'ahar'. It is the case of the prosecution .that Parshuram Bind was a supporter of Bhartiya Janta Party and the Appellants were members of IPF, being a rival political party.

As a result of the first information repOJ."t lodged by P.W. 4 investigation was taken up. Ultimately 18. persons were charge-sheeted. The trial court convicted, on 10th September, 1991,. 11 persons under Section 302 Indian Penal Code and 7 other persons under Section 302 read with 149 Indian enal Code. All were sentenced to undergo imprisonment for life.

All the accused filed Appeals before the High Court. During the peridency of the , Appeal (before the High Court) Suresh Bind died. The High Court by H the impugned Judgment dismissed the Appeals.

....

The original Accused Nos. 6 and 13 have not filed any S.L.P. before this A Court. The other 15 accused have filed these Criminal Appeals.

In order to prove its case the prosecution has examined 10 witnesses.

PWs. 1, 4, 5 and 6 are the eye witnesses. P.Ws. 1 and 4 turned hostile and refused to identify any of the accused in Court~ They, however, confirmed that the incident, as alleged, had taken place. P."':s. 5 and 6 have supported the prosecution. The prosecution also examined two doctors. P.W. 7 carried out the post-mortem on both the deceased persons and proved that their death was homicidal as a result of gun shot injuries. P.W. 9 proved injuries on P.Ws. 1 and 4.

The defence examined 5 witnesses. P.Ws 1and2 were examined in order to try and prove an alibi set up by Appellant No. 5. Both the Courts below have disbelieved this evidence. Both the Courts below have disbelieved the case of alibi. The other three defence witnesses deposed that after the incident they came to the house of the deceased and that at that time neither P.W. 5 nor P.W.

6 had named anybody. However, when P.Ws. 5 and 6 had given evidence it had D not been put to them that they had not named any person to D.Ws. 3, 4 and

5. Thus the evidence of these witnesses has rightly not been accepted by the trial Court and the High Court.

Both the trial Court and the High Court have based the conviction on the evidence of P.Ws. 5 and 6. We have gone through the evidence of P.Ws. 5 and

6. We are in agreement with the trial court and the High Court that both these witnesses are trustworthy and reliable witnesses. Their presence on the scene could not be denied. There is absolutely no reason why they should falsely implicate the accused. All the accused were known to these witnesses and,

therefore, they could identify the accused.

However, this is an incident in which a large number of accused had participated. The Constitution Bench of this Court has, in the case ofMasalti

v. State of U.P. reported in AIR (1965) SC 202, held that under the Evidence Act trustworthy evidence given by a sillgle witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which G is not o; ustworthy woµld not be enough to sustain the conviction. It was held that where a criminal court has to deal wjth evidence pertaining to the commission of an offence involving a large number of offenders it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. It was held H


[2001] SUPP. 3 S.C.R.

A that in a sense, the test may be described as mechanical, but it cannot be treated as irrational or unreasonable. It was held that even though it is the quality of the evidence that matters and not the number of witnesses, still it is useful to adopt such a mechanical test.

• ..,,. -

B This two-witness theory has also been adopted by this Court in the case of Binay Kumar Singh v. Statfi of Bihar reported in [1997] 1 SCC 283. It is held that there is no rule of evidence that no conviction can oe based unless a certain minimum number of witnesses have identified a particular accused as a rnember of the unlawful assembly. It is held that it is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but c the qality that matters. It is held that even the testimony of one single witness, ..... if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly. It is held that all the same, when the siZ; e of the unlawful assembly is quite large and many persons would have witnessed the incident, it would be a prudent exercise to insist on at foast two reliable

D witnesses to vouchsafe the identification of an accused as .a participant in the

riting.

P.Ws. 1 and 4 were injured witnesses and their injuries had been proved.

P.W. 4 was also the informant who had lodged the first'information report. Yet,

as stated above, P.Ws. 1 and 4 turned hostile and refused to identify any person.

E They however confirmed that the incident had taken place. On a careful reading of the evidence of P.Ws. 5 and 6 we find that P.W. 5 has identified Accused Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, ll, 13, 14, 15, 16, 17 and l8 whereas P.W. 6 has identified Accused Nos. 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17 and 18. Thus P.W. 5 has not identified Accused.No. 12 and P.W. 6 has not identified Accused Nos. 9 and 10. However, P.Ws. 5 and 6 have both identified

'l'A

F all the other accused.

In our view, considering the large number of people involved, it would be prudent in this case to adopt the two-witness theory. On the basis of this twowitness theory benefit of doubt would have to be and is given to Accused Nos.

G 9, 10 and 12 inasmuch as more than one witness has not identified them.

JI"!.,

Mr. Mishra, who came in at a later stage, sought to make a submission on the basis of the Juvenile Justice (Care and Protection of Children) Act 2000.

We, however, find that it had not been argued before the trial court that any of the accused was a juvenile. No such point had been taken before the High

H Court. No such point has been taken in the SLP filed before this Court. In our

_:__1

view, this is not a pure question of law which can be taken up for the first time A in this Court. It is mixed question of law and fact. We, therefore, do not permit Mr. Mishra to take up this point and do not deal with theis aspect.

In this view of the matter, we set aside the conviction of Accused Nos. 9, 10 and 12. They shall be set free forthwith unless they are required in some other case. The Appeals of the other Appellants are dismissed. Their conviction, B as passed by the High Court, stands confirmed. They shall serve out their sentences.

K.K.T.

Appeals dismissed.