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2011 Supreme(HP) 2392
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Before (Division Bench)
The Hon’ble Mr. Justice R.B. Misra, Judge.
The Hon’ble Mr. Justice Dev Darshan Sud, Judge.
Cr. Appeal No. 288 of 2002..Date of Decision: 14th September, 2011.
State of H.P. Versus Rajinder alias Raju & Another
For the Appellant :Mr. R.K. Sharma, Sr. Addl. Advocate General with Rajinder Dogra, Addl. A.G. .
For the Respondents: Mr. Anil Chauhan, Amicus Curiae .
The prosecution must produce essential witnesses and provide conclusive evidence to justify conviction based on circumstantial evidence.
Headnote:
Prosecution Evidence - Criminal Law - IPC - [Section 302, Section 34, IPC] - The court discussed the principles of law related to the prosecution's duty to produce essential witnesses, the admissibility of circumstantial evidence, and the requirement for a complete chain of events to establish guilt. The court emphasized the importance of producing key witnesses and the need for conclusive evidence to justify conviction based on circumstantial evidence.
Fact of the Case:
The prosecution alleged that the accused were last seen with the deceased, who was later found dead. The main witness, crucial to establishing the deceased's last activities, was not produced by the prosecution.
Finding of the Court:
The court found that the prosecution failed to prove the guilt/involvement of the accused beyond a reasonable doubt. It emphasized the lack of conclusive evidence and the failure to produce the key witness, leading to the dismissal of the appeal.
Issues: Failure to produce essential witness, admissibility of circumstantial evidence, sufficiency of evidence to establish guilt.
Ratio Decidendi: The prosecution's duty to produce essential witnesses, the admissibility of circumstantial evidence, and the requirement for a complete chain of events to establish guilt.
Final Decision: The appeal was dismissed due to the prosecution's failure to prove the guilt/involvement of the accused beyond a reasonable doubt.
Per Justice Dev Darshan Sud, J. (oral) : Nobody appears for the respondents. Mr. Anil Chauhan, Advocate consented to assist this Court as Amicus Curiae.
2.The State is aggrieved by the judgment passed by the learned Sessions Judge, Sirmour at Nahan in Sessions Trial No. 30- ST/7 of 2001 acquitting the respondents who were charged for offences under Section 302 read with Section 34, IPC.
3.The case of the prosecution is that Sukh Ram was addicted to liquor and used to often drink with the accused. On 29.9.2000, he did not return home and therefore his son Suresh Kumar searched him in the Veterinary Hospital, his place of work. Being unsuccessful he then made a search in the house of his relatives. On inquiry from Narinder, he came to know that the deceased had taken a sum of Rs.100/- from him and on further inquiry from Dwarka Devi and Ashok Kumar, he learnt that the deceased had consumed liquor on 22.9.2000 in the Dochi (hut) with Fanti Ram and Maan Singh. On 26.9.2000, Moti Singh, PW5 met Suresh Kumar, PW1 and told him that at about 7.00 P.M. on 22.9.2000 he had seen the deceased with the accused persons, who were under the influence of liquor and were talking loudly about elections in the Panchayat. Suresh Kumar, PW1 lodged a report regarding the fact that the deceased was missing. Long and short of the entire prosecution story is that the circumstance urged against the accused persons is that they were last seen with the deceased.
4.Post mortem was conducted by Dr. Piyush Kapil, PW3, he did not find any injury on the body of the deceased except on his skull. The circumstance relied upon by the prosecution for bringing home guilt to the accused persons is that they were last seen with the deceased in the house of one Shukru, where they had consumed liquor together. In these circumstances, he was a very important witness rather the main witness to have testified about the fact regarding the deceased having consumed liquor with him along with the accused. He has not been produced in evidence for reasons best known to the prosecution. The settled principle of law is that though the prosecution cannot be told or dictated to as to which witness is to be produced none the less the best witness/evidence ought to have been produced on record. Mere withholding the evidence is not by itself fatal to the prosecution case if the incident is otherwise established on record by other evidence. However, where the best evidence is withheld it would obviously lead to the conclusion that an adverse inference ought to be drawn against the prosecution. The law on the point is now well settled. In Swaran Singh and others versus State of Punjab, (1976) 4 SCC 369 the Supreme Court holds that :“13. The onus of proving the prosecution case rests entirely on the prosecution and it follows as a logical corollary that the prosecution has complete liberty to choose its witness if it is to prove its case. The court cannot compel the prosecution to examine one witness or the other as its witness. At the most, if a material witness is withheld, the court may draw an adverse inference against the prosecution. But it is not the law that the omission to examine any and every witness even on minor points would undoubtedly lead to rejection of the prosecution case or drawing of an adverse inference against the prosecution. The law is well settled that the prosecution is bound to produce only such witness as are essential for unfolding of the prosecution narrative. In other words, before an adverse inference against the prosecution can be drawn it must be proved to the satisfaction of the court that the witnesses who had been withheld were eyewitnesses who had actually seen the occurrence and were therefore material to prove the case. It is not necessary for the prosecution to multiply witnesses after witnesses on the same point’ it is the quality rather than the quantity of the evidence that matter. In the instant case, the evidence of eyewitnesses does
