Brief Facts
- Appellant was convicted under Section 302 r/w Section 34 of IPC and the conviction was confirmed by the High Court. It was alleged that the accused person assaulted the two witnesses and the deceased.
- Appellant approached the Supreme Court on the ground that firstly the statement of the two injured eye-witnesses are not reliable specifically for the reason that these witnesses had a previous enmity with the accused and secondly, three eyewitnesses who were present at the time of the incident were not examined in Court, though the Investigation Officer has recorded the statements of three such eye witnesses during investigation.
Issues
- Whether adverse inference can be drawn against the prosecution due to non-examination of eye-witnesses whose statements were otherwise recorded during the course of investigation?
Held
- Appeal was allowed by setting aside the conviction of Appellant.
- It was held that at least three independent eyewitnesses were available whose statements under Section 161 of the Code of Criminal Procedure, 1973 were admittedly recorded. One of them admittedly attended the Court but was not examined.
- It is true that when there are a number of eyewitnesses, the prosecution’s case cannot be disbelieved on the ground that few of the eyewitnesses were not examined, especially when the version of the eyewitnesses examined before the Court, inspires confidence. In the present case, version of PW1 and PW2 does not inspire confidence. That is how the failure of the prosecution to examine three independent eyewitnesses whose statements were recorded, becomes very relevant. Moreover, one of the three witnesses attended the Court but was not examined. Considering the fact that the testimony of PW1 and PW2 who were allegedly injured witnesses, cannot be believed, adverse inference will have to be drawn on account of the prosecution’s failure to examine the three eyewitnesses.
Relevant Para No.
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