Bombay HC: Under which circumstances, prosecution must examine independent witnesses?

 Learned counsel on behalf of the accused has also submitted that this a fit case to draw adverse inference against dropping of Rajesh PW6 and non-examination of his brother Sanjay Mesta who were independent witnesses and in that regard learned counsel has placed reliance on the case of Bir Singh & Ors. v. The State of U.P. MANU/SC/0082/1977 : AIR 1978 SC 59 wherein the Apex Court has stated that although it is true that it is not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record, this rule will not apply where the evidence of the eyewitnesses suffers from various infirmities and could be relied only when properly corroborated. In this case, there have been two versions given, one supported by the relatives of Ashok PW2 and the other by the persons who were present there, namely, Mahesh PW14, his two brothers and others and in such a situation it was certainly incumbent upon the prosecution to examine the said two witnesses and in the absence of examination this would be a fit case to draw adverse inference against the prosecution for their non-examination. {Para 15}

16. That the injury on Suraj PW1 was accidental is a version given by the accused as well as Madhusudan PW8, though for different reasons. As per the accused that injury was caused when Madhusudan PWS wanted to assault the accused. As per Madhusudan PW8 himself that injury was caused when Suraj PW1 was obstructing the accused from assaulting Ashok PW2, and, therefore it could not have been said to have been intentionally caused to Suraj PWI and on that count the accused could not have been convicted. If the version of Ashok PW2 or for that matter the case of the prosecution could not be accepted thus far, benefit of doubt ought to have been given to the accused as far as die injury to Ashok PW2 was caused.

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 27 of 2007

Decided On: 20.08.2008

Shivaji Gaonkar Vs. State

Hon'ble Judges/Coram:

N.A. Britto, J.

Citation: 2008(4) MHLJ (Crl) 419, 2009 ALLMR (Cri) 359,MANU/MH/1632/2008.

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