The next plank of argument of Mr. Giri is that since Nepal Singh who had been stated to have accompanied PW-2 and PW-3 has not been examined and similarly, Ram Kala and Bansa who had been stated to have arrived at the tube-well as per the testimony of PW-2, have not been examined, the prosecution's version has to be discarded, for it has deliberately not cited the independent material witnesses. It is noticeable from the decision of the trial court and the High Court, reliance has been placed on the testimony of PWs 1 to 3 and their version has been accepted. They have treated PW-2 and PW-3 as natural witnesses who have testified that the accused persons were leaving the place after commission of the offence and they had seen them quite closely. The contention that they were interested witnesses and their implication is due to inimical disposition towards accused persons has not been accepted and we have concurred with the said finding. It has come out in evidence that witnesses and the accused persons belong to the same village. The submission of Mr. Giri is that non-examination Nepal Singh, Ramlal and Kalsa is quite critical for the case of the prosecution and as put forth by him, their non-examination crucially affects the prosecution version and creates a sense of doubt. According to Mr. Giri, Nepal Singh is a material witness. In this regard we may refer to the authority in State of H.P. v. Gian Chand MANU/SC/0312/2001 : (2001) 6 SCC 71 wherein it has been held that non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution should be examined in the background of the facts and circumstances of 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 Court after so holding further ruled that it is the duty of the court to first assess the trustworthiness of the evidence available on record and if the court finds the evidence adduced worthy of being relied on and deserves acceptance, then non-examination of any other witnesses available who could also have been examined but were not examined, does not affect the case of the prosecution.
31. In Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors. MANU/SC/0345/2001 : (2001) 6 SCC 145, it has been held 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. 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. MANU/SC/0848/2012 : (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.
IN THE SUPREME COURT OF INDIA
Criminal Appeal Nos. 1448 and 1452 of 2010
Decided On: 04.01.2017
Vijendra Singh and Ors. Vs. State of Uttar Pradesh
Hon'ble Judges/Coram:
Dipak Misra and Rohinton Fali Nariman, JJ.
Citation:(2017) 11 SCC129.
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