2001 Supreme(SC) 1391

2001(7) Supreme 802
SUPREME COURT OF INDIA
(From Patna High Court)
K.T. Thomas & S.N. Variava, JJ.
Chandra Shekhar Bind & Ors. -Appellants
versus
State of Bihar -Respondents
Criminal Appeal Nos. 337-338 of 1999
Decided on 9-10-2001
Counsel for the Parties :
For the Appearing Parties : Mrs. P.S. Mishra and Mr. H.L. Agrawal, Sr. Advocates, Mr. Rakesh Khanna, Mr. R.P. Sethi, Mr. Chandra Shekhar, Mr. Vishnu Sharma, Mr. Upendra Mishra, Mr. Anil Kumar Gupta-II (A.C.), Mr. Jayant Bhushan (A.C.) Ms. Sunita R. Singh and Mr. B.B. Singh, Advocates.

IMPORTANT POINT
Two - witness theory advised in AIR 1965 SC 202 and adopted in 1997(1) SCC 283 in an incident in which a large number of accused had participated is no doubt a mechanical test but it cannot be treated as irrelevant or unreasonable. Based on this test, accused 9, 10 and 12 ho are identified only by one witness have to be acquitted and the rest are identified by two reliable and trustorthy witnesses their concurrent convictions and sentences need no interference.

Headnote:Indian Penal Code, 1860-Sections 302 and 302 r/w 149-18 persons were chargesheeted for offences under-11 convicted under Section 302 IPC for murdering two persons and 7 other under Sections 302 r/w 149 IPC-All were sentenced to life imprisonment-In their appeals to HC, one Suresh Bind died, appeals of rest dismissed by High Court-Excepting accused Nos. 6 and 13, others appealed to Supreme Court-Four eye witnesses-Two becoming hostile to identify the accused-Two identified all except-Accused No. 9, 10 and 12-They are found reliable-Law of evidence-Case law advising to adopt to-witness theory in an incident in which a large number of accused had participated-Whether be followed? (Yes)-Result-Acquittal of accused 9, 10 and 12-Whether plea based on Juvenile Justice (Cure and Prevention of Children) Act, 2000 be permitted for first time? (No)-Result-Appeals of other appellants dismissed-Order accordingly (Evidence Act, 1872-Juvenile Justice (Care and Protection of Children) Act, 2000-Constitution of India-Article 136. (Paras 8 and 9)

       Held : Both the trial Court and the High Court have based the conviction on the evidence of PWs 5 and 6. We have gone through the evidence of PWs 5 and 6. We are in agreement with the trial Court and the High Court that both these witnesses are trustworthy and reliable witnesses. Their presence on the scene could not be denied. There is absolutely no reason why they should falsely implicate the accused. All the accused were known to these witnesses and, therefore, they could identify the accused. However, this is an incident in which a large number of accused had participated. The Constitution Bench of this Court has, in the case of Masalti v. State of U.P. reported in AIR 1965 SC 202, held that under the Evidence Act trustworty evidence given by a single witness would be enough to convict an accused persons, whereas evidence given by halt a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. It was held that where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders it is ususal to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. It was h eld that in a sense, the test may be described a mechanical, but it cannot be treated as irrational or unreasonable. It was held that even though it is the quality of the evidence that matters and not the number of witnesses, still it is useful to adopt such a mechanical test. (Paras 8 and 9)

       Held further : On a careful reading of the evidence of PWs 5 and 6 we find that PW 5 has identified Accused Nos. 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 13, 14, 15, 16, 17 and 18, whereas PW 6 has identified Accused Nos. 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17 and 18. Thus PW 5 has not identified Accused No. 12 and PW 6 has not identified Accused Nos. 9 and 10. However, PWs 5 and 6 have both identified all the other accused. In our view, considering the large number of people involved. It would be prudent in the case to adopt the two-witness theory. On the basis of this two-witness theory benefit of doubt would have to be and is given to Accused Nos. 9, 10 and 12 inasmuch as more than one witness has not identified them. (Paras 11 and 12)

       Held, however : Mr. Mishra, who came in at a later stage, sought to make a submission on the basis of the Juvenile Justice (Care and Protection of Children) Act, 2000. We, however, find that it had not been argued before the trial court that any of the accused was a juvenile. No such point has been taken before the High Court. No such point has been taken in the SLP filed before this Court. In our view, this is not a pure question of law which can be taken up for the first time in this Court. It is mixed question of law and fact. We therefore, do not permit Mr. Mishra to make up this point and do not deal with this aspect. (Para 13)

       Held finally : In this view of the matter, we set aside the conviction of Accused Nos. 9, 10 and 12. They shall be set free forthwith unless they are required in some other case. The Appeals of the other Appellants are dismissed. Their conviction, as passed by the High Court, stands confirmed. They shall serve out their sentences. (Para 14)