RAJESH YADAV & ANR versus STATE OF U.P.

[2022] 16 S.C.R. 967

RAJESH YADAV & ANR

STATE OF U.P.

(Criminal Appeal Nos. 339-340 of 2014)

FEBRUARY 04, 2022

[SANJAY KISHAN KAUL AND M.M. SUNDRESH, JJ.]

Penal Code 1860: ss. 302, 307 – Two persons were done todeath by bullet firing by the accused – Previous dispute betweenthe groups – Two eye-witness present on the spot – Recoveries madefrom all the accused – Trial court convicted and sentenced all theaccused – High Court convicted the appellants for life, whileacquitting them for the offence charged u/s.307, with theconfirmation of conviction and sentence u/s. 25 of the Arms Act –On appeal, held: PWs-1 & 2 have not contradicted betweenthemselves being the eye-witnesses – Merely because they are relatedwitnesses, in the absence of any material to hold that they areinterested, their testimonies cannot be rejected – No delay in theregistration of the FIR – Nothing is said on the credibility of thewitness who turned hostile in the cross-examination in view of theevidence of PWs -1 & 2 – High Court rightly set aside the convictionrendered by the trial court for the charge u/s. 307 – Merely becausethe injured witness was not produced, the entire case of theprosecution would not become false – Entire circumstances underwhich the material was collected including the cartridges, alongwith the recoveries made which were sent to the expert, have beenexplained by the official witnesses, there is noting unnatural in thetestimony – No delay is found in either sending the recovered armsto the expert or receiving the FSL report – Investigating officercould not be produced despite the best efforts made – That per sewould not make the entire case of the prosecution bad is lawparticularly when the final report itself cannot be termed as asubstantive piece of evidence being nothing but collective opinionof the investigating officer – Trial court as well as the High courtconsidered the evidence threadbare in coming to the right conclusion– Material sufficient enough to implicate and prove the offenceagainst the appellants - Non-explanation for the existence of some

DEF

Aother empty cartridge recovered from the place of occurrence wouldnot facilitate an acquittal for the appellants – Thus, the judgmentpassed by the High Court upheld – Arms Act – S. 25.

Evidence Act, 1972:

s. 3 – “Evidence” – Explained.

Appreciation of “evidence” – Explanation of – Held: Whileappreciating evidence, evidence can be divided into threecategories, wholly reliable, wholly unreliable and neither whollyreliable nor wholly unreliable – If evidence, along with matterssurrounding it, makes the court believe it is wholly reliable qua anCissue, it can decide its existence on degree of probability – Whenevidence produced is neither wholly reliable nor wholly unreliable,it might require corroboration, and in such case, court can alsotake note of the contradictions available in other matters.

s. 33 – Relevancy of certain evidence – Held: Section 33 isDan exception to the general rule which mandates adequate facilityfor cross examining witness– In case where witness after thecompletion of the chief examination and while subjecting him to asubstantial and rigorous cross examination, did not choose to getinto the witness box on purpose, it is for the court to utilize the saidEevidence appropriately – Issues over which the evidence is completedcould be treated as such by the court and then proceed – Issues forwhich the cross examination is not over would make the entireexamination as inadmissible.Non-examination of witness – Effect of, on prosecution caseF– Held: Mere non-examination of the witness per se will not vitiatethe case of the prosecution – It depends upon the quality and notthe quantity of the witnesses and its importance – If the court issatisfied with the explanation given by the prosecution along withthe adequacy of the materials sufficient enough to proceed with thetrial and convict the accused, there cannot be any prejudice – OnusGis on the part of the party who alleges that witness has not beenproduced deliberately to prove it.

Expressions hostile witness, Chance Witness, Related andInterested Witness – Explained.

Code of Criminal Procedure, 1973 –s. 173 – Final Report –Evidentiary value of – Held: Final Report under Section 173 isnothing but piece of evidence – It forms mere opinion of theinvestigating officer on the materials collected by him – It is notindispensable – the evidence of investigating officer is required forcorroboration and contradiction of the other material witnesses -Even assuming that the investigating officer has not deposed beforethe court or has not cooperated sufficiently, an accused is not entitledfor acquittal solely on that basis.

Dismissing the appeals, the Court

HELD: While appreciating the evidence, the evidence canbe divided into three categories broadly namely, (i) wholly reliable,(ii) wholly unreliable and (iii) neither wholly reliable nor whollyunreliable. If evidence, along with matters surrounding it, makesthe court believe it is wholly reliable qua an issue, it can decideits existence on degree of probability. Similar is the case whereevidence is not believable. When evidence produced is neitherwholly reliable nor wholly unreliable, it might requirecorroboration, and in such case, court can also take note of thecontradictions available in other matters. [Para 20][979-B-D]

1.1 The expression “hostile witness” does not find placein the Evidence Act. It is coined to mean testimony of witnessturning to depose in favour of the opposite party. witness maydepose in favour of party in whose favour it is meant to begiving through his chief examination, while later on change hisview in favour of the opposite side. Not only the specific part inwhich witness has turned hostile but the circumstances underwhich it happened can also be considered, particularly in asituation where the chief examination was completed and thereare circumstances indicating the reasons behind the subsequentstatement, which could be deciphered by the court has to beassessed. [Para 21][982-A-B; D-E]

1.2 Section 33, Evidence Act, 1872 is an exception to thegeneral rule which mandates adequate facility for cross examininga witness. However, in case where witness after the completionof the chief examination and while subjecting him to substantial

Aand rigorous cross examination, did not choose to get into thewitness box on purpose, it is for the court to utilize the saidevidence appropriately. The issues over which the evidence iscompleted could be treated as such by the court and then proceed.Resultantly, the issues for which the cross examination is notover would make the entire examination as inadmissible. [ParaB24][988-G-H; 989-A]

1.3 Section 173(2) of the CrPC calls upon the investigatingofficer to file his final report before the court. It being report, isnothing but piece of evidence. It forms mere opinion of theinvestigating officer on the materials collected by him. He takesCnote of the offence and thereafter, conducts an investigation toidentify the offender, the truth of which can only be decided bythe court. The aforesaid conclusion would lead to the positionthat the evidence of the investigating officer is not indispensable.The evidence is required for corroboration and contradiction ofDthe other material witnesses as he is the one who links andpresents them before the court. Even assuming that theinvestigating officer has not deposed before the court or has notcooperated sufficiently, an accused is not entitled for acquittalsolely on that basis, when there are other incriminating evidenceavailable on record. [Para 25][989-B-D]

1.4 chance witness is the one who happens to be at theplace of occurrence of an offence by chance, and therefore, notas matter of course. In other words, he is not expected to be inthe said place. person walking on street witnessing thecommission of an offence can be chance witness. Merely becauseFa witness happens to see an occurrence by chance, his testimonycannot be eschewed. related witness cannot be termed as aninterested witness per se. One has to see the place of occurrencealong with other circumstances. related witness can also be anatural witness. related witness would become an interestedGwitness, only when he is desirous of implicating the accused inrendering conviction, on purpose. [Paras 26, 28][990-E-F;993-C, D]

1.5 mere non-examination of the witness per se will notvitiate the case of the prosecution. It depends upon the quality

and not the quantity of the witnesses and its importance. If thecourt is satisfied with the explanation given by the prosecutionalong with the adequacy of the materials sufficient enough toproceed with the trial and convict the accused, there cannot beany prejudice. Similarly, if the court is of the view that the evidenceis not screened and could well be produced by the other side insupport of its case, no adverse inference can be drawn. Onus ison the part of the party who alleges that witness has not beenproduced deliberately to prove it. [Para 31][997-B-D]

1.6 There are three eye-witnesses examined by theprosecution. PWs-1 & 2 have not contradicted betweenthemselves being the eye-witnesses. Merely because they arerelated witnesses, in the absence of any material to hold thatthey are interested, their testimonies cannot be rejected. Thereis also no delay in the registration of the FIR. PW-3 though turnedhostile, spoke about the incident in his chief examination.Strangely, in the cross examination he turned turtle, whiledisputing the very factum of his chief examination made beforethe court. Nothing is said on the credibility of the said witness inview of the evidence of PWs -1 & 2. The view of the courts onthis witness also deserves to be accepted. [Para 33][1000-A-C]

1.7 The High Court has rightly set aside the convictionrendered by the trial court for the charge under Section 307 IPC.PWs-1 & 2 have not spoken about the presence of the injuredwitness. The circumstances under which he could not be producedwas explained by the prosecution. Merely because he was notproduced, the entire case of the prosecution would not becomefalse. [Para 34][1000-C-D]

1.8 The FSL report was placed on record. Both the courtshave considered and relied upon the said report. The entirecircumstances under which the material was collected includingthe cartridges, along with the recoveries made which were sentto the expert, have been explained by the official witnesses. Thereis nothing unnatural in the testimony. On perusal of the evidenceavailable no delay is found in either sending the recovered armsto the expert or receiving the FSL report. The circumstances

Aunder which they were sent and received were spoken about andexplained. The appellants have neither shown any prejudice beingcaused by the alleged delay, nor have disputed the findings of thesaid report. [Paras 36, 35][1000-E-G]

1.9 The appellants submitted that the investigating officerBcould not be cross examined further with respect to the injuriesand the recoveries. That per se would not make the entire caseof the prosecution bad is law particularly when the final reportitself cannot be termed as substantive piece of evidence beingnothing but collective opinion of the investigating officer. Thetrial court as well as the High court considered the evidenceCthreadbare in coming to the right conclusion. Similarly, thecontention that there is non-explanation for the existence of someother empty cartridge recovered from the place of occurrencewould not facilitate an acquittal for the appellants as there arematerials sufficient enough to implicate and prove the offenceDagainst them. [Para 37][1000-G; 1001-B-C]

1.10 This Court takes judicial note of the factual scenariothat the trial courts are adjourning the cross examination of theprivate witnesses after the conclusion of the cross examinationwithout any rhyme or reason, at the drop of hat. LongEadjournments are being given after the completion of the chiefexamination, which only helps the defense to win them over attimes, with the passage of time. Thus, this Court deems itappropriate to reiterate that the trial courts shall endeavor tocomplete the examination of the private witnesses both chief andcross on the same day as far as possible. To further curtail thisFmenace, it is expected the trial courts to take up the examinationof the private witnesses first, before proceeding with that of theofficial witnesses. [Para 39][1001-E-G]

Vadivelu Thevar v State of Madras, [1957] SCR 981;C. Muniappan v. State of T.N., (2010) 9 SCC 567:G[2010] 10 SCR 262; Vinod Kumar v. State of Punjab(2015) 3 SCC 220: ; Lahu Kamlakar Patil v. State ofMaharashtra, (2013) 6 SCC 417: [2015] 1 SCR 504;State of A.P. v. K. Srinivasulu Reddy, (2003) 12 SCC

660: [2003] 6 Suppl. SCR 1050; Jarnail Singh v. Stateof Punjab (2009) 9 SCC 719: [2009] 13 SCR 774;Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591:[2018] 4 SCR 751 ; Sarwan Singh v. State of Punjab(1976) 4 SCC 369; Gulam Sarbar v. State of Bihar(2014) 3 SCC 401: [2013] 12 SCR 1 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 339-340 of 2014.

From the Judgment and Order dated 14.08.2013 of the High Courtof Judicature at Allahabad in Capital Case Nos.3152 and 3153 of 2011.

Manoj Prasad, Sr. Adv., Prakash Kumar Singh, Advs. for theAppellants.

S. R. Singh, Sr. Adv., Garvesh Kabra, Vikas Bansal, Advs. for theRespondent.

The Judgment of the Court was delivered by

M.M. SUNDRESH, J.

1. These two appeals arise out of the judgment rendered by theHigh Court convicting the appellants for life, while acquitting all of themfor the offence charged under Section 307 of the Indian Penal Code(IPC), with the confirmation of conviction and sentence under Section25 of the Arms Act except one. Of the five accused, the High Court

Athought it fit to remit the matter on the adequacy of charge for one. Thisaccused was once again convicted and resultantly his appeal is pendingunder consideration before the High Court.

BRIEF FACTS:

2. Two persons were done to death on 17.09.2004 at about 08.15Ba.m. The death was caused by multiple bullet injuries. An FIR was lodgedwithin an hour’s time by PW-1, who is none other than the nephew ofone of the deceased.

3. The motive for the occurrence appears to be prolonged electiondispute between two groups. On the fateful day, two of the eye-witnessesCwere having tea. The deceased, passing the road on two-wheelerwere waylaid by the accused also travelling in two two-wheelers. Boththe deceased died on the spot. The postmortem was done by PW-4 onthe very same date. The First Information Report (FIR) was registeredby PW-7. PW-13, 8 and 14 were the Investigating Officers. PW-13 didDthe substantial part of the investigation and on his transfer, the final reportwas filed by PW-8. Pertaining to the charge under Section 25 of theArms Act, it was PW-14 who filed the subsequent final report.

4. Recoveries have been made from all the accused before us. Inso far as Accused No.3 is concerned, on his statement the recoveryEwas made from the custody of his wife from his house.5. The seized articles were sent to the Forensic ScienceLaboratory (FSL) and report was received. PW-10, the police constablewas the one who took the arms to the laboratory.

6. On behalf of the prosecution, 14 witness have been examinedFwhile marking 47 documents including the FSL report. The accusedpersons let in only one witness and that too to support Accused No. 5who is not before us.

7. PW-1 is the de facto complainant. He along with PWs-2 & 3form the eye-witnesses to the case. PW-2 is the brother of one of theGdeceased. PW-3, who is an independent witness, turned hostile after hisdeposition in chief in favour of the prosecution. PW-4 is the doctor whoconducted the postmortem and gave his opinion. The other witnessesare the official witnesses including the three investigating officers. Ofthese witnesses, PW-13 who was the one to undertake the investigation.After elaborate chief examination followed by another detailed cross-H

examination, despite efforts made by the courts including the issuanceof non-bailable warrant, he did not turn up to depose further. One witness,by name Om Prakash, stated to be an injured witness, has not beenexamined by the prosecution on the premise that he could not be secured.Taking note of the above, the High Court rightly acquitted the appellantsfor the offence punishable under Section 307 IPC.

8. During the questioning by the Court under Section 313 of theCriminal Procedure Code (CrPC), all the accused made simple denial,though incrementing materials- both oral and documentary, were broughtto their notice. The conviction and sentence rendered by the trial courtwas modified by the High Court as aforesaid resulting in imposition oflife sentence. The High Court went into all the aspects and rendered awell-considered decision which is sought to be impugned before us.

SUBMISSIONS:

Submissions of the Appellants:

9. The learned counsel appearing for the appellants submittedthat for inexplicable reasons the independent injured eye-witness, OmPrakash was screened by the prosecution. The other two eye-witnessesbeing related and chance witnesses are obviously interested in gettingconvection. The evidence of PW-13 ought not to have been accepted ashe was not put to cross examination fully. If the deceased were runningand the injuries were caused by chasing them, the cartridges could nothave been found at particular place near their bodies instead of spreadingthem over. There is considerable delay in receiving the FSL report.There is an unrelated cartridge recovered which creates serious suspicionon the version of the prosecution. Reliance has been made on thefollowing decisions in support of the aforesaid contentions:

Gopal Saran v. Satyanarayana, (1989) 3 SCC 56

State of Orissa v. Prasanna Kumar Mohanty, (2009) 7SCC 412

Santa Singh v. State if Punjab, AIR 1956 SC 526

Anter Singh v. State of Rajasthan, (2004) 10 SCC 657

Jagir Singh v. State (Delhi Administration), 1975 Crl LJ1009

ASubmissions of the State:

10. Learned counsel appearing for the State submitted that thetrial court and the High Court made adequate assessment of the materialsfor coming to the conclusion. Merely because PWs-1 & 2 are the relativesof the deceased, their testimonies cannot be disbelieved. The courtsBrightly took into consideration the evidence PW-3 though turned hostilealong with that of PW-13. The other witnesses also speak about theinvestigation.

11. The report submitted by the experts would clearly indicatethat weapons recovered from the appellants were indeed used forCcommitting the offence. There is no need to examine all the witnesses.PW-13 has clearly stated the reason for his inability to produce the injuredwitness, Om Prakash. In any case, the High Court has set aside theconviction under Section 307 IPC. Hence, there is absolutely no groundmade out for interference by this Court.

PRINCIPLES OF LAW:D

Section 3 of the Evidence Act, 1872:

“3. Interpretation-clause.––In this Act the followingwords and expressions are used in the following senses,unless contrary intention appears from the context: ––

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“Evidence”. ––”Evidence” means and includes ––

(1) all statements which the Court permits orrequires to be made before it by witnesses, inrelation to matters of fact under inquiry,

such statements are called oral evidence;(2) [all documents including electronic recordsproduced for the inspection of the Court],

such documents are called documentaryevidence.

“Proved”. –– fact is said to be proved when, afterconsidering the matters before it, the Court either believesit to exist, or considers its existence so probable that

prudent man ought, under the circumstances of theparticular case, to act upon the supposition that it exists.

“Disproved”. –– fact is said to be disproved when,after considering the matters before it, the Court eitherbelieves that it does not exist, or considers its non-existence so probable that prudent man ought, underthe circumstances of the particular case, to act upon thesupposition that it does not exist.”

12. Section 3 of the Evidence Act defines “evidence”, broadlydivided into oral and documentary. “Evidence” under the Act is themeans, factor or material, lending degree of probability through logicalinference to the existence of fact. It is an “Adjective Law” highlightingand aiding substantive law. Thus, it is neither wholly procedural norsubstantive, though trappings of both could be felt.

13. The definition of the word “proved” though gives an impressionof mere interpretation, in effect, is the heart and soul of the entire Act.This clause, consciously speaks of proving fact by considering the“matters before it”. The importance is to the degree of probability inproving fact through the consideration of the matters before the court.What is required for court to decipher is the existence of fact and itsproof by degree of probability, through logical influence.

14. Matters are necessary, concomitant material factors to provea fact. All evidence would be “matters” but not vice versa. In otherwords, matters could be termed as genus of which evidence would bea species. Matters also add strength to the evidence giving adequateammunition in the Court’s sojourn in deciphering the truth. Thus, thedefinition of “matters” is exhaustive, and therefore, much wider thanthat of “evidence”. However, there is caveat, as the court is notsupposed to consider matter which acquires the form of an evidencewhen it is barred in law. Matters are required for court to believe in theexistence of fact.

15. Matters do give more discretion and flexibility to the court indeciding the existence of fact. They also include all the classificationof evidence such as circumstantial evidence, corroborative evidence,derivative evidence, direct evidence, documentary evidence, hearsayevidence, indirect evidence, oral evidence, original evidence, presumptive

Aevidence, primary evidence, real evidence, secondary evidence,substantive evidence, testimonial evidence, etc.

16. In addition, they supplement the evidence in proving theexistence of fact by enhancing the degree of probability. As anexhaustive interpretation has to be given to the word “matter”, and forBthat purpose, the definition of the expression of the words “means andincludes”, meant to be applied for evidence, has to be imported to that ofa “matter” as well. Thus, matter might include such of those which donot fall within the definition of Section 3, in the absence of any expressbar.C17. What is important for the court is the conclusion on the basisof existence of fact by analysing the matters before it on the degree ofprobability. The entire enactment is meant to facilitate the court to cometo an appropriate conclusion in proving fact. There are two methodsby which the court is expected to come to such decision. The courtcan come to conclusion on the existence of fact by merely consideringDthe matters before it, in forming an opinion that it does exist. This beliefof the court is based upon the assessment of the matters before it.Alternatively, the court can consider the said existence as probable fromthe perspective of prudent man who might act on the supposition thatit exists. The question as to the choice of the options is best left to theEcourt to decide. The said decision might impinge upon the quality of thematters before it.

18. The word “prudent” has not been defined under the Act. Whenthe court wants to consider the second part of the definition clause insteadof believing the existence of fact by itself, it is expected to take theFrole of prudent man. Such prudent man has to be understood fromthe point of view of common man. Therefore, judge has to transforminto prudent man and assess the existence of fact after consideringthe matters through that lens instead of judge. It is only after undertakingthe said exercise can he resume his role as judge to proceed further inthe case.G19. The aforesaid provision also indicates that the court isconcerned with the existence of fact both in issue and relevant, asagainst whole testimony. Thus, the concentration is on the proof of afact for which witness is required. Therefore, court can appreciateand accept the testimony of witness on particular issue while rejectingH

it on others since it focuses on an issue of fact to be proved. However,we may hasten to add, the evidence of witness as whole is matterfor the court to decide on the probability of proving fact which isinclusive of the credibility of the witness. Whether an issue is concludedor not is also court’s domain.

Appreciation of Evidence:

20. We have already indicated different classification of evidence.While appreciating the evidence as aforesaid along with the mattersattached to it, evidence can be divided into three categories broadlynamely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither whollyreliable nor wholly unreliable. If evidence, along with matters surroundingit, makes the court believe it is wholly reliable qua an issue, it can decideits existence on degree of probability. Similar is the case where evidenceis not believable. When evidence produced is neither wholly reliable norwholly unreliable, it might require corroboration, and in such case,court can also take note of the contradictions available in other matters.The aforesaid principle of law has been enunciated in the celebrateddecision of this Court in Vadivelu Thevar v. State of Madras, 1957SCR 981:

“In view of these considerations, we have nohesitation in holding that the contention that in amurder case, the court should insist upon plurality ofwitnesses, is much too broadly stated. Section 134of the Indian Evidence Act has categorically laid itdown that “no particular number of witnesses shallin any case, be required for the proof of any fact”.The legislature determined, as long ago as 1872,presumably after due consideration of the pros andcons, that it shall not be necessary for proof ordisproof of fact to call any particular number ofwitnesses. In England, both before and after thepassing of the Indian Evidence Act, 1872, there havebeen number of statutes as set out in Sarkar’s Lawof Evidence — 9th Edn., at pp. 1100 and 1101,forbidding convictions on the testimony of singlewitness. The Indian Legislature has not insisted onlaying down any such exceptions to the general rulerecognized in s.134 quoted above. The section

enshrines the well-recognized maxim that “Evidencehas to be weighed and not counted”. Our Legislaturehas given statutory recognition to the fact thatadministration of justice may be hampered if aparticular number of witnesses were to be insistedupon. It is not seldom that crime has beencommitted in the presence of only one witness,leaving aside those cases which are not ofuncommon occurrence, where determination of guiltdepends entirely on circumstantial evidence. If theLegislature were to insist upon plurality of witnesses,cases where the testimony of single witness onlycould be available in proof of the crime, would gounpunished. It is here that the discretion of thepresiding judge comes into play. The matter thus mustdepend upon the circumstances of each case andthe quality of the evidence of the single witnesswhose testimony has to be either accepted orrejected. If such testimony is found by the court tobe entirely reliable, there is no legal impediment tothe conviction of the accused person on such proof.Even as the guilt of an accused person may beproved by the testimony of single witness, theinnocence of an accused person may be establishedon the testimony of single witness, even though aconsiderable number of witnesses may beforthcoming to testify to the truth of the case for theprosecution. Hence, in our opinion, it is sound andwell-established rule of law that the court isconcerned with the quality and not with the quantityof the evidence necessary for proving or disprovinga fact. Generally speaking, oral testimony in thiscontext may be classified into three categories,namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

In the first category of proof, the court should haveno difficulty in coming to its conclusion either way— it may convict or may acquit on the testimony ofa single witness, if it is found to be above reproachor suspicion of interestedness, incompetence orsubornation. In the second category, the court,equally has no difficulty in coming to its conclusion.It is in the third category of cases, that the court hasto be circumspect and has to look for corroborationin material particulars by reliable testimony, director circumstantial. There is another danger in insistingon plurality of witnesses. Irrespective of the qualityof the oral evidence of single witness, if courtswere to insist on plurality of witnesses in proof ofany fact, they will be indirectly encouragingsubornation of witnesses. Situations may arise anddo arise where only single person is available togive evidence in support of disputed fact. The courtnaturally has to weigh carefully such testimonyand if it is satisfied that the evidence is reliable andfree from all taints which tend to render oraltestimony open to suspicion, it becomes its duty toact upon such testimony. The law reports containmany precedents where the court had to dependand act upon the testimony of single witness insupport of the prosecution. There are exceptions tothis rule, for example, in cases of sexual offences orof the testimony of an approver; both these are casesin which the oral testimony is, by its very nature,suspect, being that of participator in crime. But,where there are no such exceptional reasonsoperating, it becomes the duty of the court to convict,if it is satisfied that the testimony of single witnessis entirely reliable. We have, therefore, no reasonsto refuse to act upon the testimony of the firstwitness, which is the only reliable evidence in supportof the prosecution.”

982SUPREME COURT REPORTS

AHostile Witness:

21. The expression “hostile witness” does not find place in theIndian Evidence Act. It is coined to mean testimony of witness turningto depose in favour of the opposite party. We must bear it in mind that awitness may depose in favour of party in whose favour it is meant toBbe giving through his chief examination, while later on change his viewin favour of the opposite side. Similarly, there would be cases where awitness does not support the case of the party starting from chiefexamination itself. This classification has to be borne in mind by theCourt. With respect to the first category, the Court is not denuded of itspower to make an appropriate assessment of the evidence rendered byCsuch witness. Even chief examination could be termed as evidence.Such evidence would become complete after the cross examination.Once evidence is completed, the said testimony as whole is meant forthe court to assess and appreciate qua fact. Therefore, not only thespecific part in which witness has turned hostile but the circumstancesDunder which it happened can also be considered, particularly in situationwhere the chief examination was completed and there are circumstancesindicating the reasons behind the subsequent statement, which could bedeciphered by the court. It is well within the powers of the court tomake an assessment, being matter before it and come to the correctconclusion.E

22. On the law laid down in dealing with the testimony of witnessover an issue, we would like to place reliance on the decision of thisCourt in C. Muniappan v. State of T.N., (2010) 9 SCC 567:

“81. It is settled legal proposition that:

“6. … the evidence of prosecution witnesscannot be rejected in toto merely because theprosecution chose to treat him as hostile andcross-examined him. The evidence of suchwitnesses cannot be treated as effaced orwashed off the record altogether but the samecan be accepted to the extent their version isfound to be dependable on careful scrutinythereof.”

(Vide Bhagwan Singh v. State of Haryana, (1976)1 SCC 389, Rabindra Kumar Dey v. State of Orissa,

(1976) 4 SCC 233, Syad Akbar v. State ofKarnataka, (1980) 1 SCC 30 and Khujji v. State ofM.P., (1991) 3 SCC 627, SCC p. 635, para 6.)

82. In State of U.P. v. Ramesh Prasad Misra[(1996) 10 SCC 360: 1996 SCC (Cri) 1278] this Courtheld that (at SCC p. 363, para 7) evidence of hostilewitness would not be totally rejected if spoken infavour of the prosecution or the accused but requiredto be subjected to close scrutiny and that portion ofthe evidence which is consistent with the case ofthe prosecution or defence can be relied upon. Asimilar view has been reiterated by this Court in BaluSonba Shinde v. State of Maharashtra [(2002) 7SCC 543: 2003 SCC (Cri) 112], Gagan Kanojia v.State of Punjab [(2006) 13 SCC 516: (2008) 1 SCC(Cri) 109], Radha Mohan Singh v. State of U.P.[(2006) 2 SCC 450: (2006) 1 SCC (Cri) 661],Sarvesh Narain Shukla v. Daroga Singh [(2007)13 SCC 360: (2009) 1 SCC (Cri) 188] and SubbuSingh v. State [(2009) 6 SCC 462: (2009) 2 SCC(Cri) 1106].

83. Thus, the law can be summarised to the effectthat the evidence of hostile witness cannot bediscarded as whole, and relevant parts thereofwhich are admissible in law, can be used by theprosecution or the defence.

84. In the instant case, some of the material witnessesi.e. B. Kamal (PW 86) and R. Maruthu (PW 51)turned hostile. Their evidence has been taken intoconsideration by the courts below strictly inaccordance with law. Some omissions, improvementsin the evidence of the PWs have been pointed outby the learned counsel for the appellants, but wefind them to be very trivial in nature.

85. It is settled proposition of law that even if thereare some omissions, contradictions and discrepancies,the entire evidence cannot be disregarded. After

exercising care and caution and sifting through theevidence to separate truth from untruth, exaggerationand improvements, the court comes to conclusionas to whether the residuary evidence is sufficient toconvict the accused. Thus, an undue importanceshould not be attached to omissions, contradictionsand discrepancies which do not go to the heart ofthe matter and shake the basic version of theprosecution’s witness. As the mental abilities of ahuman being cannot be expected to be attuned toabsorb all the details of the incident, minordiscrepancies are bound to occur in the statementsof witnesses.”

Vide Sohrab v. State of M.P., [(1972] 3 SCC 751 :(1972) SCC (Cri) 819 : AIR 1972 SC 2020], Stateof U.P. v. M.K. Anthony, [(1985) 1 SCC 505 : 1985SCC (Cri) 105], Bharwada Bhoginbhai Hirjibhaiv. Sate of Gujrat, [(1983) 3 SCC 217 : 1983 SCC(Cri) 728 : AIR 1983 SC 753], State of Rajasthanv. Om Prakash, [(2007) 12 SCC 381 : (2008) 1 SCC(Cri) 411], Prithu v. State of H.P., [(2009) 11 SCC585 : (2009) 3 SCC (Cri) 1502], State of U.P. v.Santosh Kumar, [(2009) 9 SCC 626 : (2010) 1 SCC(Cri) 88] and State v. Saravanan, [(2008) 17 SCC587 : (2010) 4 SCC (Cri) 580].

23. This Court in Vinod Kumar v. State of Punjab, (2015) 3SCC 220 had already dealt with situation where witness afterFrendering testimony in line with the prosecution’s version, completelyabandoned it, in view of the long adjournments given permitting an act ofmanoeuvring. While taking note of such situations occurring withregularity, it expressed its anguish and observed that:

“51. It is necessary, though painful, to note that PW7 was examined-in-chief on 30-9-1999 and wascross-examined on 25-5-2001, almost after 1 yearand 8 months. The delay in said cross-examination,as we have stated earlier had given enough time forprevarication due to many reason. fair trial is tobe fair both to the defence and the prosecution as

well as to the victim. An offence registered underthe Prevention of Corruption Act is to be tried withall seriousness. We fail to appreciate how the learnedtrial Judge could exhibit such laxity in granting somuch time for cross-examination in case of thisnature. It would have been absolutely appropriateon the part of the learned trial Judge to finish thecross-examination on the day the said witness wasexamined. As is evident, for no reason whatsoeverit was deferred and the cross-examination took placeafter 20 months. The witness had all the time in theworld to be gained over. We have already opinedthat he was declared hostile and re-examined.

52. It is settled in law that the testimony of hostilewitness can be relied upon by the prosecution aswell as the defence. In re-examination by the PublicProsecutor, PW 7 has accepted about thecorrectness of his statement in the court on 13-9-1999. He has also accepted that he had not madeany complaint to the Presiding Officer of the courtin writing or verbally that the Inspector wasthreatening him to make false statement in thecourt. It has also been accepted by him that he hadgiven the statement in the court on account of fearof false implication by the Inspector. He has agreedto have signed his statement dated 13-9-1999 aftergoing through and admitting it to be correct. It hascome in the re-examination that PW 7 had not statedin his statement dated 13-9-1999 in the court thatrecovery of tainted money was not effected in hispresence from the accused or that he had been toldby the Inspector that amount has been recoveredfrom the accused. He had also not stated in his saidstatement that the accused and witnesses were takento the Tehsil and it was there that he had signed allthe memos.

53. Reading the evidence in entirety, PW 7’sevidence cannot be brushed aside. The delay in cross-

examination has resulted in his prevarication fromthe examination-in-chief. But, significant one, hisexamination-in-chief and the re-examination impelsus to accept the testimony that he had gone into theoctroi post and had witnessed about the demand andacceptance of money by the accused. In his cross-examination he has stated that he had not gone withBaj Singh to the Vigilance Department at any timeand no recovery was made in his presence. Thesaid part of the testimony, in our considered view,does not commend acceptance in the backdrop ofentire evidence in examination-in-chief and the re-examination.

57. Before parting with the case we are constrainedto reiterate what we have said in the beginning. Wehave expressed our agony and anguish for themanner in which trials in respect of serious offencesrelating to corruption are being conducted by thetrial courts:

57.1. Adjournments are sought on the drop of hatby the counsel, even though the witness is presentin court, contrary to all principles of holding trial.That apart, after the examination-in-chief of awitness is over, adjournment is sought for cross-examination and the disquieting feature is that thetrial courts grant time. The law requires specialreasons to be recorded for grant of time but the sameis not taken note of.

57.2. As has been noticed earlier, in the instant casethe cross-examination has taken place after yearand 8 months allowing ample time to pressurise thewitness and to gain over him by adopting all kinds oftactics.

57.3. There is no cavil over the proposition that therehas to be fair and proper trial but the duty of thecourt while conducting the trial is to be guided by

the mandate of the law, the conceptual fairness andabove all bearing in mind its sacrosanct duty to arriveat the truth on the basis of the material brought onrecord. If an accused for his benefit takes the trialon the path of total mockery, it cannot becountenanced. The court has sacred duty to seethat the trial is conducted as per law. If adjournmentsare granted in this manner it would tantamount toviolation of the rule of law and eventually turn suchtrials to farce. It is legally impermissible andjurisprudentially abominable. The trial courts areexpected in law to follow the command of theprocedure relating to trial and not yield to the requestof the counsel to grant adjournment for non-acceptable reasons.

57.4. In fact, it is not at all appreciable to call awitness for cross-examination after such long spanof time. It is imperative if the examination-in-chiefis over, the cross-examination should be completedon the same day. If the examination of witnesscontinues till late hours the trial can be adjourned tothe next day for cross-examination. It is inconceivablein law that the cross-examination should be deferredfor such long time. It is anathema to the conceptof proper and fair trial.

57.5. The duty of the court is to see that not only theinterest of the accused as per law is protected butalso the societal and collective interest issafeguarded. It is distressing to note that despiteseries of judgments of this Court, the habit of grantingadjournment, really an ailment, continues. How longshall we say, “Awake! Arise!”. There is constantdiscomfort. Therefore, we think it appropriate thatthe copies of the judgment be sent to the learnedChief Justices of all the High Courts for circulatingthe same among the learned trial Judges with acommand to follow the principles relating to trial ina requisite manner and not to defer the cross-

examination of witness at their pleasure or at theleisure of the defence counsel, for it eventuallymakes the trial an apology for trial and compels thewhole society to suffer chicanery. Let it beremembered that law cannot allowed to be lonely; adestitute.”

Section 33 of the Indian Evidence Act:

“33. Relevancy of certain evidence for proving,in subsequent proceeding, the truth of factstherein stated.—Evidence given by witness in ajudicial proceeding, or before any person authorizedby law to take it, is relevant for the purpose ofproving, in subsequent judicial proceeding, or in alater stage of the same judicial proceeding, the truthof the facts which it states, when the witness is deador cannot be found, or is incapable of giving evidence,or is kept out of the way by the adverse party, or ifhis presence cannot be obtained without an amountof delay or expense which, under the circumstancesof the case, the Court considers unreasonable:

Provided— that the proceeding was between thesame parties or their representatives in interest; thatthe adverse party in the first proceeding had the rightand opportunity to cross-examine; that the questionsin issue were substantially the same in the first as inthe second proceeding.

Explanation—A criminal trial or inquiry shall bedeemed to be proceeding between the prosecutorand the accused within the meaning of this section.”

24. Section 33 is an exception to the general rule which mandatesadequate facility for cross examining witness. However, in caseGwhere witness after the completion of the chief examination and whilesubjecting him to substantial and rigorous cross examination, did notchoose to get into the witness box on purpose, it is for the court to utilizethe said evidence appropriately. The issues over which the evidence iscompleted could be treated as such by the court and then proceed.Resultantly, the issues for which the cross examination is not over wouldH

make the entire examination as inadmissible. Ultimately, it is for thecourt to decide the aforesaid aspect.

Evidentiary Value of Final Report:

25. Section 173(2) of the CrPC calls upon the investigating officerto file his final report before the court. It being report, is nothing but apiece of evidence. It forms mere opinion of the investigating officer onthe materials collected by him. He takes note of the offence and thereafter,conducts an investigation to identify the offender, the truth of which canonly be decided by the court. The aforesaid conclusion would lead to theposition that the evidence of the investigating officer is not indispensable.The evidence is required for corroboration and contradiction of the othermaterial witnesses as he is the one who links and presents them beforethe court. Even assuming that the investigating officer has not deposedbefore the court or has not cooperated sufficiently, an accused is notentitled for acquittal solely on that basis, when there are otherincriminating evidence available on record. In Lahu Kamlakar Patil v.State of Maharashtra, (2013) 6 SCC 417, this Court held:“18. Keeping in view the aforesaid position of law,the testimony of PW 1 has to be appreciated. Hehas admitted his signature in the FIR but has giventhe excuse that it was taken on blank paper. Thesame could have been clarified by the investigatingofficer, but for some reason, the investigating officerhas not been examined by the prosecution. It is anaccepted principle that non-examination of theinvestigating officer is not fatal to the prosecutioncase. In Behari Prasad v. State of Bihar [(1996)2 SCC 317: 1996 SCC (Cri) 271], this Court hasstated that non-examination of the investigatingofficer is not fatal to the prosecution case, especially,when no prejudice is likely to be suffered by theaccused. In Bahadur Naik v. State ofBihar [(2000) 9 SCC 153: 2000 SCC (Cri) 1186] , ithas been opined that when no material contradictionshave been brought out, then non-examination of theinvestigating officer as witness for the prosecutionis of no consequence and under such circumstances,no prejudice is caused to the accused. It is worthy

to note that neither the trial Judge nor the High Courthas delved into the issue of non-examination of theinvestigating officer. On perusal of the entirematerial brought on record, we find that noexplanation has been offered. The present case isone where we are inclined to think so especially whenthe informant has stated that the signature was takenwhile he was in drunken state, the panch witnesshad turned hostile and some of the evidence adducedin the court did not find place in the statementrecorded under Section 161 of the Code. Thus, thisCourt in Arvind Singh v. State of Bihar, [(2001) 6SCC 407: 2001 SCC (Cri) 1148], Rattanlal v. Stateof J&K [(2007) 13 SCC 18: (2009) 2 SCC (Cri)349] and Ravishwar Manjhi v. State ofJharkhand [(2008) 16 SCC 561: (2010) 4 SCC (Cri)50], has explained certain circumstances where theexamination of investigating officer becomes vital.We are disposed to think that the present case isone where the investigating officer should have beenexamined and his non-examination creates lacunain the case of the prosecution.”

EChance Witness:

26. chance witness is the one who happens to be at the place ofoccurrence of an offence by chance, and therefore, not as matter ofcourse. In other words, he is not expected to be in the said place. Aperson walking on street witnessing the commission of an offence canFbe chance witness. Merely because witness happens to see anoccurrence by chance, his testimony cannot be eschewed though littlemore scrutiny may be required at times. This again is an aspect which isto be looked into in given case by the court. We do not wish to reiteratethe aforesaid position of law which has been clearly laid down by thisGCourt in State of A.P. v. K. Srinivasulu Reddy, (2003) 12 SCC 660:

“12. Criticism was levelled against the evidence ofPWs 4 and 9 who are independent witnesses bylabelling them as chance witnesses. The criticismabout PWs 4 and 9 being chance witnesses is alsowithout any foundation. They have clearly explained

[M.M. SUNDRESH, J.]

as to how they happened to be at the spot ofoccurrence and the trial court and the High Courthave accepted the same.

13. Coming to the plea of the accused that PWs 4and 9 were “chance witnesses” who have notexplained how they happened to be at the allegedplace of occurrence, it has to be noted that the saidwitnesses were independent witnesses. There wasnot even suggestion to the witnesses that they hadany animosity towards any of the accused. In amurder trial by describing the independent witnessesas “chance witnesses” it cannot be implied therebythat their evidence is suspicious and their presenceat the scene doubtful. Murders are not committedwith previous notice to witnesses; soliciting theirpresence. If murder is committed in dwellinghouse, the inmates of the house are natural witnesses.If murder is committed in street, only passers-bywill be witnesses. Their evidence cannot be brushedaside or viewed with suspicion on the ground thatthey are mere “chance witnesses”. The expression“chance witness” is borrowed from countries whereevery man’s home is considered his castle andeveryone must have an explanation for his presenceelsewhere or in another man’s castle. It is quiteunsuitable an expression in country where peopleare less formal and more casual, at any rate in the

matter explaining their presence.”

27. The principle was reiterated by this court in Jarnail Singh v.State of Punjab, (2009) 9 SCC 719:

“21. In Sachchey Lal Tiwari v. State ofU.P. [(2004) 11 SCC 410: 2004 SCC (Cri) Supp 105]this Court while considering the evidentiary value ofthe chance witness in case of murder which hadtaken place in street and passerby had deposedthat he had witnessed the incident, observed asunder:

If the offence is committed in street only apasserby will be the witness. His evidencecannot be brushed aside lightly or viewed withsuspicion on the ground that he was merechance witness. However, there must be anexplanation for his presence there.

The Court further explained that the expression“chance witness” is borrowed from countries whereevery man’s home is considered his castle andeveryone must have an explanation for his presenceelsewhere or in another man’s castle. It is quiteunsuitable an expression in country like India wherepeople are less formal and more casual, at any ratein the matter of explaining their presence.

22. The evidence of chance witness requires avery cautious and close scrutiny and chancewitness must adequately explain his presence at theplace of occurrence (Satbir v. Surat Singh [(1997)4 SCC 192: 1997 SCC (Cri) 538], HarjinderSingh v. State of Punjab [(2004) 11 SCC 253: 2004SCC (Cri) Supp 28], AcharaparambathPradeepan v. State of Kerala [(2006) 13 SCC 643:(2008) 1 SCC (Cri) 241] and Sarvesh NarainShukla v. Daroga Singh [(2007) 13 SCC 360:(2009) 1 SCC (Cri) 188]). Deposition of chancewitness whose presence at the place of incidentremains doubtful should be discarded(vide Shankarlal v. State of Rajasthan [(2004) 10SCC 632: 2005 SCC (Cri) 579]).

23. Conduct of the chance witness, subsequent tothe incident may also be taken into considerationparticularly as to whether he has informed anyoneelse in the village about the incident(vide Thangaiya v. State of T.N. [(2005) 9 SCC 650:2005 SCC (Cri) 1284]). Gurcharan Singh (PW 18)met the informant Darshan Singh (PW 4) beforelodging the FIR and the fact of conspiracy was notdisclosed by Gurcharan Singh (PW 18) and Darshan

RAJESH YADAV & ANR v. STATE OF UP

[M.M. SUNDRESH, J.]

Singh (PW 4). The fact of conspiracy has not beenmentioned in the FIR. Hakam Singh, the otherwitness on this issue has not been examined by theprosecution. Thus, the High Court was justified indiscarding the part of the prosecution case relatingto conspiracy. However, in the fact situation of thepresent case, acquittal of the said two co-accusedhas no bearing, so far as the present appeal isconcerned.”

Related and Interested Witness:

28. related witness cannot be termed as an interested witnessper se. One has to see the place of occurrence along with othercircumstances. related witness can also be natural witness. If anoffence is committed within the precincts of the deceased, the presenceof his family members cannot be ruled out, as they assume the positionof natural witnesses. When their evidence is clear, cogent and withstoodthe rigor of cross examination, it becomes sterling, not requiring furthercorroboration. related witness would become an interested witness,only when he is desirous of implicating the accused in rendering aconviction, on purpose.

29. When the court is convinced with the quality of the evidenceproduced, notwithstanding the classification as quoted above, it becomesthe best evidence. Such testimony being natural, adding to the degree ofprobability, the court has to make reliance upon it in proving fact. Theaforesaid position of law has been well laid down in Bhaskarrao v.State of Maharashtra, (2018) 6 SCC 591:

“32. Coming back to the appreciation of the evidenceat hand, at the outset, our attention is drawn to thefact that the witnesses were interrelated, and thisCourt should be cautious in accepting theirstatements. It would be beneficial to recapitulate thelaw concerning the appreciation of evidence ofrelated witness. In Dalip Singh v. State of Punjab,1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465],Vivian Bose, J. for the Bench observed the law asunder: (AIR p. 366, para 26)

“26. witness is normally to be consideredindependent unless he or she springs fromsources which are likely to be tainted and thatusually means unless the witness has cause,such as enmity against the accused, to wish toimplicate him falsely. Ordinarily, close relativewould be the last to screen the real culprit andfalsely implicate an innocent person. It is true,when feelings run high and there is personalcause for enmity, that there is tendency todrag in an innocent person against whom awitness has grudge along with the guilty, butfoundation must be laid for such criticism andthe mere fact of relationship far from being afoundation is often sure guarantee of truth.However, we are not attempting any sweepinggeneralisation. Each case must be judged on itsown facts. Our observations are only made tocombat what is so often put forward in casesbefore us as general rule of prudence. Thereis no such general rule. Each case must belimited to and be governed by its own facts.”

33. In Masalti v. State of U.P., (1964) 8 SCR 133 :AIR 1965 SC 202 : (1965) 1 Cri LJ 226] , five-Judge Bench of this Court has categorically observedas under: (AIR pp. 209-210, para 14)

“14. … There is no doubt that when acriminal court has to appreciate evidencegiven by witnesses who are partisan orinterested, it has to be very careful inweighing such evidence. Whether or not thereare discrepancies in the evidence; whetheror not the evidence strikes the court asgenuine; whether or not the story disclosedby the evidence is probable, are all matterswhich must be taken into account. But itwould, we think, be unreasonable to contend

that evidence given by witnesses should bediscarded only on the ground that it isevidence of partisan or interested witnesses.Often enough, where factions prevail invillages and murders are committed as aresult of enmity between such factions,criminal courts have to deal with evidenceof partisan type. The mechanical rejectionof such evidence on the sole ground that itis partisan would invariably lead to failureof justice. No hard-and-fast rule can be laiddown as to how much evidence should beappreciated. Judicial approach has to becautious in dealing with such evidence; but theplea that such evidence should be rejectedbecause it is partisan cannot be accepted ascorrect.”

34. In Darya Singh v. State of Punjab [(1964) 3SCR 397 : AIR 1965 SC 328 : (1965) 1 Cri LJ 350], this Court held that evidence of an eyewitness whois near relative of the victim, should be closelyscrutinised but no corroboration is necessary foracceptance of his evidence. In Harbans Kaur v.State of Haryana [(2005) 9 SCC 195 : 2005 SCC(Cri) 1213 : 2005 Cri LJ 2199] , this Court observedthat: (SCC p. 227, para 6)

“6. There is no proposition in law that relativesare to be treated as untruthful witnesses. Onthe contrary, reason has to be shown when aplea of partiality is raised to show that thewitnesses had reason to shield actual culprit andfalsely implicate the accused.”

35. The last case we need to concern ourselves isNamdeo v. State of Maharashtra [(2007) 14 SCC150 : (2009) 1 SCC (Cri) 773] , wherein this Courtafter observing previous precedents has summarisedthe law in the following manner: : (SCC p. 164, para38)

“38. … it is clear that close relative cannot becharacterised as an “interested” witness. He isa “natural” witness. His evidence, however,must be scrutinised carefully. If on such scrutiny,his evidence is found to be intrinsically reliable,inherently probable and wholly trustworthy,conviction can be based on the “sole” testimonyof such witness. Close relationship of witnesswith the deceased or victim is no ground to rejecthis evidence. On the contrary, close relative ofthe deceased would normally be most reluctantto spare the real culprit and falsely implicate aninnocent one.”36. From the study of the aforesaid precedents ofthis Court, we may note that whoever has been awitness before the court of law, having stronginterest in result, if allowed to be weighed in thesame scales with those who do not have any interestin the result, would be to open the doors of the courtfor perverted truth. This sound rule which remainsthe bulwark of this system, and which determinesthe value of evidence derived from such sources,needs to be cautiously and carefully observed andenforced. There is no dispute about the fact that theinterest of the witness must affect his testimony is auniversal truth. Moreover, under the influence of bias,a man may not be in position to judge correctly,even if they earnestly desire to do so. Similarly, hemay not be in position to provide evidence in animpartial manner, when it involves his interest. Undersuch influences, man will, even though notconsciously, suppress some facts, soften or modifyothers, and provide favourable colour. These are mostcontrolling considerations in respect to the credibilityof human testimony, and should never be overlookedin applying the rules of evidence and determining itsweight in the scale of truth under the facts andcircumstances of each case.”

30. Once again, we reiterate with word of caution, the trialcourt is the best court to decide on the aforesaid aspect as no mathematicalcalculation or straightjacket formula can be made on the assessment ofa witness, as the journey towards the truth can be seen better throughthe eyes of the trial judge. In fact, this is the real objective behind theenactment itself which extends the maximum discretion to the court.

Non-examination of witness:

31. mere non-examination of the witness per se will not vitiatethe case of the prosecution. It depends upon the quality and not thequantity of the witnesses and its importance. If the court is satisfied withthe explanation given by the prosecution along with the adequacy of thematerials sufficient enough to proceed with the trial and convict theaccused, there cannot be any prejudice. Similarly, if the court is of theview that the evidence is not screened and could well be produced bythe other side in support of its case, no adverse inference can be drawn.Onus is on the part of the party who alleges that witness has not beenproduced deliberately to prove it. The aforesaid settled principle of lawhas been laid down in Sarwan Singh v. State of Punjab, (1976) 4SCC 369:

“13. Another circumstance which appears to haveweighed heavily with the Additional Sessions Judgewas that no independent witness of Salabatpura hadbeen examined by the prosecution to prove theprosecution case of assault on the deceased, althoughthe evidence shows that there were some personsliving in that locality like the ‘pakodewalla’,hotelwalla, shopkeeper and some of the passengerswho had alighted at Salabatpura with the deceased.The Additional Sessions Judge has drawn an adverseinference against the prosecution for its failure toexamine any of those witnesses. Mr Hardy hasadopted this argument. In our opinion the commentsof the Additional Sessions Judge are based onserious misconception of the correct legal position.The onus of proving the prosecution case restsentirely on the prosecution and it follows as logicalcorollary that the prosecution has complete libertyto choose its witnesses if it is to prove its case. The

court cannot compel the prosecution to examine onewitness or the other as its witness. At the most, if amaterial witness is withheld, the court may draw anadverse inference against the prosecution. But it isnot the law that the omission to examine any andevery witness even on minor points wouldundoubtedly lead to rejection of the prosecution caseor drawing of an adverse inference against theprosecution. The law is well-settled that theprosecution is bound to produce only such witnessesas are essential for unfolding of the prosecutionnarrative. In other words, before an adverseinference against the prosecution can be drawn itmust be proved to the satisfaction of the court thatthe witnesses who had been withheld wereeyewitnesses who had actually seen the occurrenceand were therefore material to prove the case. It isnot necessary for the prosecution to multiplywitnesses after witnesses on the same point; it isthe quality rather than the quantity of the evidencethat matters. In the instant case, the evidence of theeyewitnesses does not suffer from any infirmity orany manifest defect on its intrinsic merit. Secondly,there is nothing to show that at the time when thedeceased was assaulted large crowd had gatheredand some of the members of the crowd had actuallyseen the occurrence and were cited as witnessesfor the prosecution and then withheld. We must notforget that in our country there is general tendencyamongst the witnesses in mofussil to shun givingevidence in courts because of the cumbersome anddilatory procedure of our courts, the harassment towhich they are subjected by the police and thesearching cross-examination which they have to facebefore the courts. Therefore nobody wants to be awitness in murder or in any serious offence if hecan avoid it. Although the evidence does show thatfour or five persons had alighted from the bus at thetime when the deceased and his companions got

down from the bus, yet there is no suggestion thatany of those persons stayed on to witness theoccurrence. They may have proceeded to theirvillage homes…”

(Emphasis supplied)

32. This Court has reiterated the aforesaid principle in GulamSarbar v. State of Bihar, (2014) 3 SCC 401:

“19. In the matter of appreciation of evidence ofwitnesses, it is not the number of witnesses but qualityof their evidence which is important, as there is norequirement under the Law of Evidence that anyparticular number of witnesses is to be examined toprove/disprove fact. It is time-honoured principlethat evidence must be weighed and not counted. Thetest is whether the evidence has ring of truth, iscogent, credible and trustworthy or otherwise. Thelegal system has laid emphasis on value provided byeach witness, rather than the multiplicity or pluralityof witnesses. It is quality and not quantity, whichdetermines the adequacy of evidence as has beenprovided by Section 134 of the Evidence Act. Evenin probate cases, where the law requires theexamination of at least one attesting witness, it hasbeen held that production of more witnesses doesnot carry any weight. Thus, conviction can even bebased on the testimony of sole eyewitness, if thesame inspires confidence. (Vide VadiveluThevar v. State of Madras [AIR 1957 SC 614: 1957Cri LJ 1000] , Kunju v. State of T.N. [(2008) 2 SCC151: (2008) 1 SCC (Cri) 331] , Bipin KumarMondal v. State of W.B. [(2010) 12 SCC 91: (2011)2 SCC (Cri) 150 : AIR 2010 SC 3638], Mahesh v. State of M.P. [(2011) 9 SCC 626 : (2011)3 SCC (Cri) 783], Prithipal Singh v. State ofPunjab [(2012) 1 SCC 10 : (2012) 1 SCC (Cri) 1]and Kishan Chand v. State of Haryana [(2013) 2SCC 502 : (2013) 2 SCC (Cri) 807: JT (2013) 1 SC222].)”

AON FACTS:

33. There are three eye-witnesses examined by the prosecution.We find PWs-1 & 2 have not contradicted between themselves beingthe eye-witnesses. Merely because they are related witnesses, in theabsence of any material to hold that they are interested, their testimoniesBcannot be rejected. There is also no delay in the registration of the FIR.PW-3 though turned hostile, spoke about the incident in his chiefexamination. Strangely, in the cross examination he turned turtle, whiledisputing the very factum of his chief examination made before the court.We do not wish to say anything on the credibility of the said witness inview of the evidence of PWs -1 & 2. The view of the courts on thisCwitness also deserves to be accepted.

34. The High Court has rightly set aside the conviction renderedby the trial court for the charge under Section 307 IPC. PWs-1 & 2have not spoken about the presence of the injured witness, Om Prakash.The circumstances under which he could not be produced was explainedDby the prosecution. Merely because he was not produced, the entirecase of the prosecution would not become false.

35. The FSL report was placed on record. Both the courts haveconsidered and relied upon the said report. The entire circumstancesunder which the material was collected including the cartridges, alongEwith the recoveries made which were sent to the expert, have beenexplained by the official witnesses. We do not find anything unnatural inthe testimony.

36. On perusal of the evidence available we do not find anydelay in either sending the recovered arms to the expert or receiving theFFSL report. The circumstances under which they were sent and receivedwere spoken about and explained. The appellants have neither shownany prejudice being caused by the alleged delay, nor have disputed thefindings of the said report.

37. The learned counsel appearing for the appellants submittedGthat the investigating officer could not be cross examined further withrespect to the injuries and the recoveries. We find that evidence wasalso let in to that extent along with the cross-examination. The HighCourt has considered this aspect in the correct perspective. It is veryunfortunate that the investigating officer could not be produced despitethe best efforts made. The reason is obvious. There are three investigatingH

officers. The other two investigating officers have been examinedincluding for the charge under the Arms Act. PW-13, the first investigatingofficer, has been examined in extenso during cross examination. It isonly for the further examination he turned turtle. That per se would notmake the entire case of the prosecution bad is law particularly when thefinal report itself cannot be termed as substantive piece of evidencebeing nothing but collective opinion of the investigating officer. Thetrial court as well as the High court considered the evidence threadbarein coming to the right conclusion. Similarly, the contention that there isnon-explanation for the existence of some other empty cartridge recoveredfrom the place of occurrence would not facilitate an acquittal for theappellants as there are materials sufficient enough to implicate and provethe offence against them.

38. Thus, on the aforesaid conclusion arrived at, we are inconformity with the well merited judgment of the High court. The appealsstand dismissed.

39. Before we part with this case, we are constrained to recordour anguish on the deliberate attempt to derail the quest for justice. Dayin and day out, we are witnessing the sorry state of affairs in which theprivate witnesses turn hostile for obvious reasons. This Court has alreadyexpressed its views on the need for legislative remedy to curtail suchmenace. Notwithstanding the above stated directions issued by this courtin Vinod Kumar (supra), we take judicial note of the factual scenariothat the trial courts are adjourning the cross examination of the privatewitnesses after the conclusion of the cross examination without anyrhyme or reason, at the drop of hat. Long adjournments are beinggiven after the completion of the chief examination, which only helps thedefense to win them over at times, with the passage of time. Thus, wedeem it appropriate to reiterate that the trial courts shall endeavor tocomplete the examination of the private witnesses both chief and crosson the same day as far as possible. To further curtail this menace, wewould expect the trial courts to take up the examination of the privatewitnesses first, before proceeding with that of the official witnesses. Acopy of this judgment shall be circulated to all the trial courts, to befacilitated through the respective High Courts.