IMPORTANT POINT
Withholding evidence of a material witness from Court may be a ground for drawing adverse inference against prosecution.

1. The appellants are accused who have been convicted by the Trial Court for offences punishable under Sections 302 and 323, read with Sections 149, 147, and 148 of the Indian Penal Code, 1860. The appellants have been sentenced to life imprisonment for the offence of culpable homicide amounting to murder punishable under Section 302, and separate sentences have been imposed for the other crimes. All sentences were directed to run concurrently.

2. The incident took place on 5th October 1995. PW-1/Nanhi Bahu (mother of the deceased - Pappu @ Har Narayan) alleged that the appellants killed her son. The allegation is that the appellants were carrying different weapons, and they assaulted her son.

3. None of the material prosecution witnesses except PW-3 (Santosh), the deceased's brother, supported the prosecution. The rest of the alleged eyewitnesses were declared hostile. PW-1 was also declared hostile as she did not support the prosecution. However, after her recall, she supported the prosecution.

SUBMISSIONS

4. The learned senior counsel appearing for the appellants (accused no. 2 to 6) in Criminal Appeal No. 468/2024 pointed out that PW-1 did not support the prosecution. However, after a gap of 1½ years, she was recalled, and from her deposition after recall, it is apparent that the Police had compelled her to depose in a particular manner. Inviting our attention to the documents on record, the learned senior counsel submitted that the evidence of PW-1 must be disbelieved. Inviting our attention to the evidence of PW-3, he submitted that there are material omissions and contradictions brought on record in his evidence. For example, he pointed out that according to PW-3, he was sitting in his shop when the assault on the deceased was made. In the cross-examination, he stated that he had not shown the shop to the Investigation Officer. In the cross-examination, he accepted that he did not see the incident from his shop. The learned senior counsel also pointed out that the mahazar of the site drawn by the Investigation Officer shows that the shop was not in existence. He also pointed out that paragraph 9 of his cross-examination shows that the prosecution could not establish the alleged motive.

5. The learned counsel appearing for the State submitted that while appreciating the evidence of PW-1, it must be remembered that she is a rustic woman who had lost her son. He submitted that when her evidence was earlier recorded, she was under a threat by the accused. He submitted that after she was recalled, she told the truth. His submission is that the Court should not discard the testimony of PW-1 as, ultimately, it is the testimony of a woman who has lost her son as a result of a brutal murder. He also pointed out that PW-1 is an injured eyewitness and, therefore, her testimony should not be discarded. He submitted that the Investigation Officer is not highly educated. Consequently, it is always possible that he would make mistakes while drawing the mahazar, showing the situation at the site where the offence occurred. Thus, too much importance should not be attached to the fact that he has not shown the shop's existence on the map drawn by him. Lastly, he submitted that it is a case of brutal murder and looking at the findings recorded by the Courts; leniency should not be shown to the appellants.

OUR VIEW

6. We have carefully examined the material on the Trial Court’s record, including the testimonies of the witnesses. The Trial Court has supplied a translated version of the record. PW-1 stepped into the witness box on 2nd May 1997. She did not support the prosecution. Therefore, she was declared hostile on the prayer made by the learned Public Prosecutor. In the cross-examination made by the Public Prosecutor, she stated that she did not report the incident as she was unconscious. When confronted with the report, she stated that it was written by one Ramprakash Tiwari at Kotwali which bears her thumb impression. Surprisingly, the prose