2000(2) Crimes 63 (SC)
Supreme Court of India
(From Delhi High Court)
G.B. Pattanaik & M.B. Shah, JJ.
Ambika Prasad & Anr. etc. —Appellants
versus
State (Delhi Administration, Delhi) - Respondent
Criminal Appeal No. 1152 of 1997
With
Criminal Appeal No. 1153 of 1997
And
Criminal Appeal No. 1154 of 1997
Decided on 21-1-2000
Counsel for the Parties :
For the Appearing Parties : D.D. Thakur, R.K. Jain, N.N. Goswamy, Arun Jaitley, Sr. Advocates, K.B. Rohtagi, N.N. Bhatt, Ms. Aparna Rohtagi Jain, Mahesh Kasana, Rajesh Batra, Ajai Bhalla, Maninder Singh, L.K. Upadhyay, R.K. Mahesh­wari, Rajeev Sharma, Ms. Sushma Suri, K.S. Rana, Ms. Pratibha M. Singh, Hemant Sharma, Anil Katiyar, N.K. Kheterpal, Advocates.

Important Points
1. If independent persons are not willing to cooperate with the investigation, prose­cution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses.
2. Trial Court must complete trial by examining the witnesses from day to day not giving a chance to the accused to threaten or win over the witnesses.
3. Conduct of police officers resiling from their own state­ment and failure of investigating officer to step into witness box without any justifiable reason cannot be ground to reject prosecution case.

Headnote:(i) Indian Penal Code, 1860—Sections 302 r/w 149, 307 r/w 149 and Sec­tions 148 and 341 r/w 149—Murder and attempt to murder—Conviction by trial Court—High Court upholding conviction—Appeal there ­ against—Dispute over property —Appellant accused person assault­ing prosecution party while they were returning after ploughing land—Deceased was shot dead by one of assailants—Others were assault­ed with jaili and lathi—Concurrent find­ings by the lower Courts about guilt of accused persons—Plea of non-examination of investigation officer no ground to discard evidence of injured eye-witnesses—Examination of inde­pendent witnesses not a ground to reject evidence of injured eyewit­nesses—Defence plea of alibi of accused who fired shot stood dis­proved—Defence version that prose­cution party was demolishing wall of Gurudwara and public collected at scene of occurrence and someone from crowed might have fired shot unbelievable—No interference called for—Conviction justified. (Paras 7 to 16)

       (ii) Criminal trial—Appreciation of evidence—Police officers resiled from their own statements—Investi­gation officer had not stepped into witness box—Whether above conduct of police officer would vitiate prosecution case?—Held: conduct of investigating officer or other ­hostile witnesses cannot be ground for discarding evidence of eyewit­nesses.

       Held : It is to be borne in mind that criminal trial is meant for doing justice to the accused, victim and the society so that law and order is maintained. Hence, as observed by this court in State of U.P. v. Anil Singh, (AIR 1988 SC 1998) it is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. Hence, we would only state that it is unfortunate state of affair that police officers resited from their own statements and desposed something contrary before the court. Equally, it is unfortunate that investigating officer has not stepped into the witness box without any justificable ground. But this conduct of the investigating officer or other hostile witnesses cannot be a ground for discarding the evidence of PW 5 and PW 7 whose presence on the sports established beyond reasonable doubt. They have suffered injuries and their evidence is corroborated by medical evidence. It is also in-confirmity with what has been stated in the FIR. In any case, investigating officer is not at all material witness for the purpose of establishing whether accused or the complainant party was the aggressor. Not only that, accused have examined the defence witnesses for establishing their say. Hence, non-examination of the investigating officer cannot be a ground for holding that injured witnesses should not be believed. (Para 10)

       (iii) Code of Criminal Procedure, 1973—Section 309—Criminal trial—Exami­nation of witnesses—Trial Court must complete trial by examination of witnesses from day to day without giving chance to accused to threaten or win over witnesses—Cross examination of witness should not be deferred beyond two or three day, if at all adjournment is inevit­able.

       Where examination in Chief was over on 6.2.1984 but witnesses was cross-examined in the month of July 1985, it was held the Sessions Judge ought to have followed the mandate of Section 309 Cr.P.C. of completing the trial by examining the witnesses from day to day and not giving a chance to accused to threaten or win over the witnesses so that they may not support the prosecution. It appears from the record that examination-in-chief of PW 4 Vikram Singh was over on 6.2.1984. The counsel representing Ambika Prasad requested the court that because of his uncle’s demise, he would not be in a position to cross-examine the witness and, therefore, recording of further cross-examination might be adjourned. Thereafter, the witness was cross-examined in the month of July, 1985. In our view, this is highly improper. Even if the request for adjournment of the learned counsel for the accused was accepted, the cross-examination ought not to have been deferred beyond two or three days. (Para 11)

       (iv) Criminal trial—Appreciation of evidence—Non-examination of independent witnesses—Whether would be ground to discard evidence of injured eyewitnesses?—If indepen­dent persons are not willing to co-operate with investigation prosecution cannot be blamed and it cannot be ground for rejecting evidence of injured witnesses. (Para 12)

       Result : Appeal dismissed.