Hon'ble Arvind Kumar Mishra-I,J.
(Delivered by Hon'ble B. K. Narayana, J.) Heard Sri Rahul Mishra, learned counsel for the appellant and Sri Saghir Ahmad, learned A.G.A. for the State.
This appeal has been preferred by the appellant Raj Kumar alias Tirwa against the judgement and order dated 06.09.1989 passed by Additional Sessions Judge, Fatehpur in S.T. No. 242 of 1986, convicting the appellant and sentencing him to undergo imprisonment for life u/s 302 r/w 34 I.P.C.
Briefly stated the prosecution case as unfolded in the written report of the incident (Ext.Ka.1) lodged by P.W.1 informant Ram Adhar at P.S.- Ghazipur, District- Fatehpur on 01.03.1986 at about 15.45 hours alleging that on 28.02.1986, he along with his uncle Chandra Sewak (deceased) who was Up Block Pramukh of Asothar Block, had gone to village- Lalauli to attend the meeting of Block Development Committee hereinafter referred to as the B.D.C. After the meeting was over, it had become dark so they stayed in Fatehpur. On 01.03.1986, he and his uncle Chandra Sewak boarded a bus going to Augasi from Fatehpur at about 1 p.m. His uncle occupied the front seat and was carrying his licensed gun with him. Due to paucity of place, he was seated in the back seat. When the bus halted at Ghazipur, Deepu, son of his uncle Chandra Sewak who had gone to the market also boarded the same bus and got seated himself near P.W.1 informant Ram Adhar. As soon as the bus started, Tej Bahadur alias Tej, son of Beni Madho Shukla and Raj Kumar alias Tirwa, son of Bhadai of his village along with two other unknown persons boarded the bus and when the bus stopped at Kharsenpur at about 2 p.m., one of the unknown persons aimed his country-made pistol at his back and said that in case he made any move, he would be shot dead. Tej Bahadur and Raj Kumar alias Tirwa then immediately rushed towards the place in the bus where his uncle Chandra Sewak was seated and as soon as he stood up with his gun, both the aforesaid persons fired at his uncle which hit him and he fell down near his seat. After that, Tej went down from the bus along with the licensed gun and cartridges of Chandra Sewak and fired at him from the outside but he escaped unhurt. The bullet broke the window glass of the bus. Tej threatened the driver not to make any move otherwise he would also had been done to death. They as well as other passengers of the bus raised alarm on which all the four miscreants got down from the bus with the guns and cartridges of his uncle. On hearing the hue and cry, Kallu alias Ram Dularey of his village also arrived there and witnessed the accused fleeing away from the crime scene. In the F.I.R., it was also mentioned that Beni Madho, father of Tej Bahadur was murdered about 14-15 years ago and in that case, informant's father and his uncle Chandra Sewak were named as accused. Chandra Sewak was acquitted while his father was convicted. On account of the aforesaid enmity, Vishnu, real brother of Tej Bahadur had fired at his uncle Chandra Sewak about 3-4 years ago and Vishnu was convicted in that case. An appeal preferred by him against the judgment and order of the trial court was pending before the High Court. On account of the aforesaid enmity, accused Tej Bahadur and appellant Raj Kumar Alias Tirwa along with two other unknown persons had committed the murder of his uncle Chandra Sewak. The written report also mentioned that the dead body of Chandra Sewak was lying in the bus which had been driven to the police station.
Head Constable Gandarbh Singh prepared check F.I.R. (Ext.Ka.18) and on the basis of written report (Ext.Ka.1), registered a case on 01.03.1986 at about 15.45 p.m. against the accused vide G.D. No. 24, carbon copy whereof was proved as (Ext.Ka.19). The aforesaid case was registered in the presence of P.W.6 B.B. Singh Station Officer, who took over the investigation. After recording the statements of Head Constable Gandarbh Singh, P.W.1 informant Ram Adhar and P.W.4 Ramashankar Shukla, the driver of the bus, he proceeded to the police station and at the behest of P.W.4 Ramashankar Shukla, the driver of the bus and P.W.1 informant Ram Adhar, he inspected the place inside the bus where the dead body of Chandra Sewak was lying and prepared its sketch map (Ext.Ka.4). Thereafter, he got the dead body of Chandra Sewak out from the bus and after nominating the inquest witness, he held inquest proceedings and after completion of inquest, prepared the inquest report and other related documents namely challan nash, photo nash, letter addressed to C.M.O. and R.I. and specimen seal (Ext.Ka.5 to Ka.9). He also seized the blood-stained clothes of the deceased and prepared recovery memo of the aforesaid articles (Ext.Ka.10). He also took into custody the money and papers found in the pocket of Sadri and Bandi which the deceased was wearing at the time of his death and prepared the recovery memo of the clothes as (Ext.Ka.11). He also took the blood-stained seat cover and broken pieces of window glasses and prepared their recovery memo as (Ext.Ka.12). He also took into custody the shoes of the deceased and prepared recovery memo as (Ext.Ka.13). He also inspected the place of occurrence and prepared its site plan (Ext.Ka.16).
The postmortem on the dead body of Chandra Sewak was conducted by P.W.3 Dr. S.S. Dwivedi, Medical Officer, District Hospital, Fatehpur on 02.03.1986 who found the following antemortem injuries on the body of the deceased :-
On internal examination, P.W.3 Dr. S.S. Dwivedi found that 7th rib of left side and 8th rib of right side were fractured. Pleuera was teared. Right lung was punctured at place and left lung was congested. Pericardium was punctured. Heart was also punctured at its wall. About 200 cc blood was present in thorax with clotted blood. No gas came after opening the abdomen. No bluish discolouration was seen on lower abdominal part. Stomach was empty. Small intestine was empty and large intestine was half full. Gall bladder was half full.
P.W.3 Dr. S.S. Dwivedi opined that the death of Chandra Sewak was caused due to shock and haemorrhage as as result of antemortem injuries.
Accused Tej Bahadur surrendered before the court on 10.03.1986 after proceedings were drawn against him u/s 82/83 Cr.P.C. and was sent to jail. Appellant Raj Kumar alias Tirwa also surrendered before the Judicial Magistrate, Fatehpur on 17.03.1986. After completing the investigation, the Investigating Officer submitted charge-sheet before Chief Judicial Magistrate, Fatehpur against the appellant Raj Kumar alias Tirwa and non-appellant, Tej Bahadur u/s 302, 307/34 and 404 I.P.C. On 04.06.1986.
The licensed gun of the deceased which was snatched away from him by accused Tej Bahadur was recovered on 31.05.1987 at 6:30 a.m. from his possession from a place within the territorial jurisdiction of P.S.- Marka, District- Banda.
Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Fatehpur committed the accused for trial to the Court of Sessions Judge, Fatehpur where their case was registered as S.T. No. 242 of 1986, State Vs. Raj Kumar alias Tirwa, u/s 302 r/w 34 I.P.C. and made over for trial from there to the Court of Additional Sessions Judge, Fatehpur who on the basis of material collected during the investigation and after hearing the prosecution as well as the accused on the point of charge, framed charge u/s 307 r/w 34 I.P.C. against accused Raj Kumar alias Tirwa and u/s 307 & 404 I.P.C. against accused Tej Bahadur. Further, both the accused Tej Bahadur and Raj Kumar alias Tirwa were charged u/s 302 r/w 34 I.P.C. The accused abjured the charges framed against them and claimed trial.
The prosecution in order to prove its case examined as many as six witnesses of whom P.W.1 informant Ram Adhar alias Chunnu, P.W.2 Deep Narain alias Deepu and P.W.4 Ramashankar Shukla, driver of the bus were examined as witnesses of fact while P.W.3 Dr. S.S. Dwivedi, P.W.5 Constable Om Prakash Singh of P.S.- Marka, District- Banda and P.W.6 S.I. B.B. Singh, the Investigating Officer of the case were produced as formal witnesses.
During the pendency of trial, accused Tej Bahadur died and his case was abated on 09.12.1988.
Appellant Raj Kumar alias Tirwa in his statement recorded u/s 313 Cr.P.C. denied the allegations levelled against him and stated that he had been falsely implicated in the present case due to enmity. He further stated that prior to this occurrence, he appeared as a witness in defence of Vishnu Kumar, brother of accused Tej Bahadur against deceased Chandra Sewak and also stated that on the date and time of the occurrence, he had been working in a bangle factory in Firozabad and raised his plea of alibi.
Certified copy of the statement of the deceased in S.T. No. 388 of 1987, copy of the statement of Raj Kumar alias Tirwa as D.W.1 and certified copy of the judgement dated 25.09.1984 passed in the aforesaid session trial were filed on behalf of appellant Raj Kumar alias Tirwa.
Learned Additional Sessions Judge, Fatehpur after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, convicted the appellant Raj Kumar alias Tirwa and awarded aforesaid sentence to him.
Hence, this appeal.
Learned counsel for the appellant submitted that the trial court committed a patent error of law in convicting the appellant u/s 302/34 I.P.C. on the basis of the evidence of P.W.1 informant Ram Adhar and P.W.2 Deep Narain, admittedly being nephews of the deceased and hence highly interested and inimical towards the appellant and P.W.4 Ramashankar Shukla, driver of the bus, who had categorically stated in his examination-in-chief that he had not seen the assailants. He further submitted that the prosecution has failed to prove motive for the commission of the crime. He next submitted that the medical evidence is not in consonance with the prosecution version and on this ground alone, the prosecution case deserves to be thrown out. He further submitted that the learned trial Judge erred in holding that the appellant had failed to establish the plea of alibi and non-examination of any independent witness although admittedly at the time of the occurrence, 40-50 passengers were present in the bus but strangely none was produced by the prosecution as a witness during the trial, creates a doubt about the credibility of the prosecution case. He also submitted that there are glaring discrepancies, contradictions and omissions in the evidence of the witnesses of fact vis-a-vis their statements recorded u/s 161 Cr.P.C. as well as the F.I.R. version which puts a question mark against their claim of having witnessed the occurrence. He also submitted that co-accused Tej Bahadur died during the trial, the recorded conviction of the appellant u/s 302 r/w 34 I.P.C. is per se illegal and cannot be sustained. He lastly submitted that this appeal deserves to be allowed and both the recorded conviction of the appellant and the sentence of life imprisonment awarded to him deserve to be set-aside.
Per contra Sri Saghir Ahmad, learned A.G.A. vehemently submitted that the prosecution has succeeded in proving its case against the accused beyond all reasonable doubts. The motive, time, place, manner of attack as well as the identity of the perpetrators of the crime stood fully proved from the evidence of P.W.1 informant Ram Adhar, P.W.2 Deep Narain and P.W.4 Ramashankar Shukla. There is no material variance vis-a-vis the medical evidence and the oral testimony. The discrepancies, contradictions and omissions in the evidence of the three witnesses of fact produced by the prosecution during the trial are minor and not material as minor variations on the point of examination-in-chief and cross-examination do not affect the credibility of the witnesses. There is no law which prohibits the consideration of evidence of a witness merely on the ground that he is related to the deceased in case his evidence, after cautious scrutiny by the Court is found to be reliable and trustworthy. Moreover, the prosecution case cannot be thrown out on the ground of failure of the prosecution to examine independent witness. This appeal lacks merit and is liable to be dismissed.
We have heard learned counsel for the parties and perused the entire lower court record.
Record shows that P.W.1 informant Ram Adhar and P.W.2 Deep Narain are the eye witnesses of the occurrence. P.W.1 informant Ram Adhar is the nephew of the deceased Chandra Sewak and P.W.2 Deep Narain is the son of the decased Chandra Sewak. P.W.1 informant Ram Adhar stated that he always accompanied his uncle whenever he went out of the house. He had gone to Lalauli along with his uncle Chandra Sewak to attend the meeting of B.D.C. on 28.02.1986 as his uncle was Up-Block Pramukh of village Asothar. Giving a vivid and full description of the occurrence, he further deposed that on 01.03.1986 at about 2 p.m. when the bus in which he and his uncle were travelling reached near village- Kharsenpur, the appellant Raj Kumar alias Tirwa and accused Tej Bahadur boarded the bus along with two unknown persons and fired at Chandra Sewak who immediately fell down from his seat and died. Accused Tej Bahadur snatched away the gun and cartridges from Chandra Sewak and got down from the bus and he again fired to terrorize the passengers. Hearing the outcry of the passengers, several other persons arrived at the place of occurrence on which the accused fled towards the east, carrying the gun and cartridges of the deceased Chandra Sewak. The appellant Raj Kumar alias Tirwa and accused Tej Bahadur were fully known to the deceased Chandra Sewak and they were the persons who were the authors of the fatal gunshot wounds received by the deceased.
P.W.2 Deep Narain who is the son of the deceased, in his examination-in-chief, fully corroborated the evidence of P.W.1 informant Ram Adhar on all material points relating to the occurrence.
P.W.4 Ramashankar Shukla, the driver of the bus, corroborated the statement of P.W.1 informant Ram Adhar on all material points pertaining to the occurrence except one i.e. the identity of the perpetrators of the crime. He in his evidence did not utter anything against the accused-appellant. He categorically deposed that he had not been able to see the passengers. As far as the evidence of P.W.4 Ramashankar Shukla is concerned, there is nothing inculpatory against the appellant therein.
The question which next requires scrutiny is whether the evidence of P.W.1 informant Ram Adhar and P.W.2 Deep Narain is liable to be discarded on the ground that both are interested witnesses and highly inimical towards the appellant.
In this regard, it would be relevant to take note of the following observations made by the Apex Court in Mst. Dalbir Kaur v. State of Punjab reported in 1976 Cr.LJ 418 (SC) :-
(I) Witness gained over by accused not examined by the prosecution - Held withholding or keeping back of witnesses is not unfair and adverse inference cannot be drawn. There is no duty on the prosecution to examine witnesses who might have been gained over by accused and even if those witnesses are not produced by the prosecution, there is nothing to stop accused from applying to the Court for examining such witnesses.
(II) Witness who gives details with absolute accuracy is trustworthy.
The Apex Court held in 1984 Supreme Court Cases at page 500 that :-
"The testimony of related witnesses should be scanned with great caution and care."
Thus, what follows from the aforesaid law reports is that the testimony of related witnesses should be scanned with great caution and care and should not be accepted without proper corroboration.
In Balraje @ Trimbak v. State of Maharashtra, 2010 (70) ACC 12 (SC) = 2010 (90) AIC 32, this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed toward the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.
It has been submitted by the learned counsel for the appellant that P.W.2 Deep Narain, who is the son of the deceased Chandra Sewak was admittedly not travelling with the deceased and P.W.1 informant Ram Adhar in the bus. He is a chance witness whose sudden appearance at the time and place of occurrence is wholly unnatural. Explaining the reason for the sudden appearance of P.W.2 Deep Narain at the place of incident, P.W.1 informant Ram Adhar, in his examination-in-chief on page 25 of the paper book, has deposed that as soon as the bus in which they were travelling, stopped at Ghazipur at about 1.30 p.m., Deepu, son of Chandra Sewak boarded the bus and sat near him. There is no serious cross-examination either of P.W.1 informant Ram Adhar and P.W.2 Deep Narain by the defence on the aforesaid aspect of the matter and their evidence in this regard remains virtually unrebutted.
So we do not find any merit in the submission of the learned counsel for the appellant that the prosecution has not been able to prove either that the presence of P.W.2 Deep Narain at the crime scene is highly unnatural or the prosecution has failed to furnish any explanation for his appearance at the crime scene just before the incident.
Learned counsel for the appellant has pointed out certain discrepancies, contradictions and omissions in the statements of the witnesses given before the Court vis-a-vis their statements recorded u/s 161 Cr.P.C. and the prosecution case as spelt out in the F.I.R. In this regard, learned counsel for the appellant invited our attention to the statement of P.W.1 informant Ram Adhar and submitted that he has stated that after the accused had fled from the spot, the driver went to Augasi Ghat for dropping the passengers and then he brought the bus to the police station along with the dead body. But this fact does not find mention in his statement recorded u/s 161 Cr.P.C. He further submitted that P.W.1 informant Ram Adhar has deposed that some unknown persons had aimed a country-made pistol at Deepu and threatened him and that after the incident, Deepu had gone to village Augasi Ghat along with the dead body of Chandra Sewak and he had sent information about the occurrence to his house through Deepu. The aforesaid statement did not find place in his evidence recorded u/s 161 Cr.P.C.
It was also pointed out that P.W.1 informant Ram Adhar in his statement recorded u/s 161 Cr.P.C. had stated that the tension between the parties had eased since last two or three years and they were confident that their rivals will not attack them because accused Tej Bahadur was also maintaining a quiet front but the aforesaid fact was denied by P.W.2 Deep Narain in his cross-examination before the Court who denied that he had stated in his statement u/s 161 Cr.P.C. that the two unknown persons had pointed their country-made pistol at him. P.W.2 Deep Narain had also told the Investigating Officer that when his father was about to get up from his seat, accused Tej Bahadur had fired upon him with his country-made pistol and appellant Raj Kumar Alias Tirwa also fired at him but in his evidence tendered before the trial court, he has said that accused shot his father as soon as they boarded the bus.
The aforesaid omissions, contradictions and discrepancies pointed out by the learned counsel for the appellant in the evidence of P.W.1 informant Ram Adhar and P.W.2 Deep Narain, in our opinion, are minor contradictions and the same do not adversely affect the core of the prosecution story. Minor variations on some points in the examination-in-chief and cross-examination do not affect the credibility of the witnesses. It was held in 1986 Supreme Court Crl. Rulings at page 30 that :-
"Common human experience is that different persons admittedly seeing an event give varying accounts of same. The perceptiveness varies and a recount of same incident is usually at variance to considerable extent. Where there is touch of intrinsic truth and variations are within reasonable limits, not providing ground for rejection, they add to the quality of being near to truth."
The observation made by the Apex Court on page 696 of the aforesaid judgement which are relevant for our purpose is reproduced as hereunder :-
"The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story."
Thus, upon a careful perusal of the statements of P.W.1 informant Ram Adhar and P.W.2 Deep Narain who are the eye witnesses and whose presence at the time and place of occurrence is fully established, we find their testimony to be reliable and trustworthy. The omissions, discrepancies and contradictions in their evidence to which our attention was invited by the learned counsel for the appellant, in our opinion, are neither material nor relevant and are trivial. After a cautious appraisal of their evidence, we have found that they have given a correct and cogent description of the occurrence and hence, their evidence is not liable to be discarded merely on the ground of their being close relatives of the deceased and inimical towards the appellant.
It has been further argued by the learned counsel for the appellant that the medical evidence is not in consonance with the prosecution version and the prosecution case is liable to be rejected on that count alone.
Learned counsel for the appellant has failed to substantiate the aforesaid arguments by referring to the evidence on record. P.W.3 Dr. S. S. Dwivedi who had conducted the postmortem on the body of the deceased Chandra Sewak and proved his postmortem report as (Ext.Ka.2) had deposed before the trial court that the death of Chandra Sewak was due to shock and haemorrhage and the antemortem injuries were sufficient to cause his death and it was possible that he had died on 01.03.1986 at about 2 p.m. He had further deposed that antemortem injuries found by him on his body (antemortem injury nos. 1, 2, 3, 4 & 5) were gunshot wounds.
Thus, from the evidence of P.W.3 Dr. S. S. Dwivedi and the postmortem report of the deceased, it is fully established that the deceased had died as a result of the antemortem firearm injuries received by him in the occurrence and which supports the prosecution case that the deceased was shot by the appellant Raj Kumar alias Tirwa and accused Tej Bahadur from their firearms. We do not find any contradictions in the medical evidence vis-a-vis the oral testimony. In this connection, the Hon'ble Supreme Court has laid down this principle in 1983 Supreme Court Rulings at page 303, Solanki Chiman vs. State of Gujarat which is reproduced as hereunder :-
"Medical evidence is only corroborative. Defence can use it to prove that injuries could not be possible in the manner alleged and discredit the witnesses. Unless the medical evidence completely rules out all possibility of the injuries taking place in the manner alleged by the eye witnesses, testimony of eye witnesses cannot be thrown away on alleged inconsistency between it and medical evidence."
Thus, we do not find any merit in the submissions made by the learned counsel for the appellant that the medical evidence on record does not corroborate the ocular version.
Now, coming to the point of motive, we find that the F.I.R. contains a categorical recital that about 14-15 years before the incident, Venimadhav, father of accused Tej Bahadur was murdered and Chandra Sewak (deceased) and father of the informant were accused of his murder and in that case, Chandra Sewak was acquitted. On account of the aforesaid enmity, an attempt on the life of Chandra Sewak was made by one Vishnu, real brother of Tej Bahadur, who had fired at Chandra Sewak with the intention of causing his death. With regard to the aforesaid incident, a case u/s 307 I.P.C. was registered against the aforesaid Vishnu in which he was convicted and the appeal preferred by him before this Court against his conviction was pending at that time. It was the outcome of the aforesaid enmity that Tej Bahadur along with his companion appellant Raj Kumar alias Tirwa committed the murder of Chandra Sewak. P.W.1 informant Ram Adhar in his examination-in-chief reiterated the aforesaid fact. He also deposed that in the appeal, conviction of Vishnu was maintained and on account of the aforesaid enmity, Chandra Sewak was murdered. Suggestion given to him by the defence counsel that his uncle Chandra Sewak deposed as a witness against Vishnu, brother of Tej Bahadur which was admitted by him but he denied for want of knowledge whether appellant Raj Kumar alias Tirwa had appeared as a defence witness on behalf of Vishnu.
On the point of motive, P.W.2 Deep Narain fully corroborated the evidence of P.W.1 informant Ram Adhar. Moreover, from the documents filed on behalf of the appellant itself to which we have already referred, it transpires that Chandra Sewak (deceased) had appeared as a witness in S.T. No. 388 of 1982 against accused Vishnu Dutta, the brother of accused Tej Bahadur, and others and the appellant Raj Kumar alias Tirwa appeared as a defence witness in that case in which Vishnu Dutta, Devi Dayal and Suraj Bali were convicted by the Additional Sessions Judge, Fatehpur on 25.09.1984.
Thus, from the oral and the documentary evidence on record, it is established that there was a long drawn enmity between the family of Tej Bahadur and deceased Chandra Sewak and the appellant Raj Kumar alias Tirwa was a friend of accused Tej Bahadur and under these circumstances, we have no hesitation in holding that the prosecution has been able to prove that there was a strong motive for the appellant to commit the crime as a measure of vendetta.
Learned counsel for the appellant has also argued that in view of the admitted fact that the incident had taken place inside the bus in which apart from the witnesses examined, deceased and the accused, about 40-50 other passengers were travelling but no independent witness was examined during the trial by the prosecution to corroborate the testimony of highly interested witnesses, P.W.1 informant Ram Adhar and P.W.2 Deep Narain and this omission on the part of the prosecution was fatal to the prosecution case.
In Hemraj and others Vs. State of Haryana, 2005 (52) ACC 258, the Hon'ble Apex Court has held that merely non examination of independent witness by itself may not give rise to adverse inference against prosecution. It is only when the evidence of alleged eye witness raises serious doubt on the point of the presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance and for reaching to this conclusion the Hon'ble Apex Court has relied upon a case law reported in Takhaji Hiraji v. Thakore Kubersing Chamansing and others, 2001 (6) SCC 145, in which the Hon'ble Apex Court has held as hereunder :-
"....................... 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. In such a case the court ought to scrutinize the worth of the evidence adduced. The Court of facts must ask itself -- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. 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 the present case, we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein."
In the instant case, we have already found the evidence of P.W.1 informant Ram Adhar and P.W.2 Deep Narain, after careful and cautious appraisal, to be reliable and trustworthy. Hence, the recorded conviction of the appellant Raj Kumar alias Tirwa is not liable to be set-aside merely on the ground of non-examination of independent witnesses.
Thus, upon a wholesome consideration of the facts and circumstances of the case and a careful evaluation of the evidence on record, both oral as well as documentary, we do not find that the learned trial Judge committed any error, illegality or legal infirmity in convicting the appellant and awarding life sentence to him.
This appeal lacks merit and is accordingly dismissed.
There shall, however, be no order as to costs.
Order Date :- 25/01/2019 KS