2013 Supreme(SC) 866

Supreme Court of India
DIPAK MISRA & VIKRAMAJIT SEN, JJ.
Manjit Singh & Others
Versus
State of Punjab & Others
Criminal Appeal No. 2042 of 2010 With Criminal Appeal Nos. 2276-2278 of 2010
Decided On : 13-09-2013

IMPORTANT POINTS
1. 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.
2. Criminal sharing, overt or covert by active presence or by distant direction, making out a certain measure of jointness in the commission of the act is the essence of Section 34.

Headnote:Evidence Act, 1872- Section 134- it is not the number and quantity, but the quality that is material. It is the duty of the Court to consider the trustworthiness of evidence on record which inspires confidence and the same has to be accepted and acted upon and in such a situation no adverse inference should be drawn from the fact of non-examination of other witnesses. That apart, it is also to be seen whether such non-examination of a witness would carry the matter further so as to affect the evidence of other witnesses and if the evidence of a witness is really not essential to the unfolding of the prosecution case, it cannot be considered a material witness. (Para 24)

        Evidence Act, 1872- Section 134- Appreciation of evidence- Judicial evaluation of the evidence has to be appropriate regard being had to the totality of the facts and circumstances of the case and not on scrutiny in isolation and further the concept of proof beyond reasonable doubt cannot be made to appear totally unrealistic. (Para 32)

        Indian Penal Code, 1860- Sections 302 and 307 read with Section 34- Effect of acquittal of some accused- It is well settled in law that unless the entire case of the prosecution suffers from infirmities, discrepancies and material contradictions and the prosecution utterly fails to establish its case, acquittal of some accused persons cannot be a relevant facet to determine the guilt of other accused persons. (Para 27)

        Indian Penal Code, 1860- Section 34- For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. Thereafter, the learned Judges proceeded to state that to apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case. (Para 38)

        Maxims- falsus in uno, falsus in omnibus - (false in one thing, false in everything) The maxim has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is, that in such cases testimony may be is regarded, and not that it must be disregarded. (Para 27)

       Facts of the Case :

        The complainant along with his younger brother, the deceased, was going on a tractor for some domestic work. His brother was driving the tractor, whereas the complainant was sitting on the left mudguard of the tractor. It was alleged that a Maruti car driven by Accused No. 1, was parked on the road in front of the tractor. On seeing the car, the deceased stopped the tractor in the middle of the road. Manjit Singh, armed with a .315 bore rifle, Paramjit Singh, father-in-law of Manjit Singh, armed with .12 bore gun, Jaswinder kaur, sister of Manjit Singh, and two unknown persons alighted from the car. One of the unknown persons was also armed with a .12 bore gun. After alighting from the car, Jaswinder Kaur raised "lalkara" to eliminate both the sons of Rajinderpal Singh, PW-2, father of the deceased, so that they would understand the consequences of contesting the election of Sarpanch against them. Jagmohan Singh tried to turn the tractor towards the left side and at that juncture Manjit Singh fired a gunshot which hit him on the right cheek as a result of which he fell down from the tractor in the fields. Paramjit Singh armed with a .12 bore gun had also fired at the two brothers. Amarjot Singh jumped from the tractor and received an injury on his right elbow. He saved himself by taking shelter behind the back wheel of the tractor. In the meantime, Rajinderpal Singh, PW-2, who was present at his tube-well motor situate nearby and Didar Singh s/o Joginder Singh, who was present in his field near the place of occurrence reached the spot and witnessed the incident. All the accused fled away from the scene of crime along with their respective weapons. Jagmohan Singh and Amarjot Singh were shifted to Civil Hospital, Bholath, in a car and in the hospital Jagmohan Singh was declared dead.

        (i) Didar Singh had come to the spot along with PW-2, and had arranged a car to take the deceased and the injured to the hospital and at his instance the site plan was prepared. The question that was required to be put whether the evidence of the witness is essential to record a conviction or his non-examination would affect the trustworthiness of PWs-1 and 2 and other witnesses.

        (i) There was no seizure of the blood-stained clothes and blood stains from the seat of the car are concerned and it creates a dent in the prosecution version.

       Findings of the Court :

        (i) As we perceive, it can reasonably be stated that Malkiat Singh is not a material witness in that sense.

        (i) Absence of evidence regarding recovery of used pellets, bloodstained clothes, etc. cannot be taken or construed as no such occurrence had taken place.

       Result : Appeals dismissed.