The Supreme Court recently comprising of a bench of justices DY Chandrachud and MR Shah reiterated that non-examination of independent witnesses is not fatal to the case of the prosecution when other prosecution witnesses are found to be trustworthy and reliable. (Guru Dutt Pathak vs. State of Uttar Pradesh)
Facts of the Case
The petitioner who is the accused was charged for the offense punishable under Section 302 read with section 34 of the Indian Penal Code. As per the prosecution, the deceased was the Pradhan of the village for two decades and the accused had personal grudges with him. When the deceased was going to attend the call of nature near the bank of Yamuna the accused along with the other accused attacked him with lathis and spear and crushed his head with lathis.
The Son of the deceased filed an FIR against the four accused persons. As per the post-mortem report, the death was due to shock and haemorrhage as a result of the injuries caused. Aggrieved by the judgment of the Hon’ble Allahabad High Court which had reversed the order given by the learned trial court acquitting the accused for his offenses, the petitioner herein had filed this appeal before the Supreme Court.
Issue before the court
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Whether the High Court was justified in interfering with the order of acquittal passed by the trial court.
Contention of the Parties
Learned Advocate appearing on behalf of the appellant has submitted the following:
- that the High Court has exceeded in its jurisdiction in reversing the well-reasoned judgment and order of acquittal passed by the learned trial Court and consequently convicting the accused;
- that the learned trial Court, as such, committed no error in acquitting the accused;
- that the motive has not been established and proved;
- that all the prosecution witnesses – so called eyewitnesses – PW1 to PW4 are all related and interested witnesses;
- that no independent witness has been examined;
- that as rightly observed by the learned trial Court, PW2 & PW4 are the chance witnesses;
- that from the medical evidence there is no injury found from the fired arm and therefore it disproves the case of the prosecution;
- that the prosecution has failed to explain the injury on one of the accused – Murlidhar Pathak;
- that the medical evidence does not support the case of the prosecution’ x) that the FIR was ante-dated’ and
- that the prosecution has failed to prove the exact place of the occurrence of the incident.
Learned counsel appearing on behalf of the appellant has submitted that as per catena of decisions of this Court when two views are possible and an order of acquittal passed by the learned trial Court is based on appreciation of evidence on record, the High Court shall not interfere with such an order of acquittal. It is submitted that in the present case the High Court has reversed the order of acquittal in an appeal under Section 378 Cr.P.C. and has exercised the powers/jurisdiction beyond the scope of Section 378 Cr.P.C.
The counsel prayed for allowing the appeal and set aside the order passed by High Court.
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The present appeal is vehemently opposed by the learned Standing Counsel appearing on behalf of the respondent – State of Uttar Pradesh. Learned counsel appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case, the High Court has not committed any error in reversing the judgment and order of acquittal and consequently convicting the accused.
It was submitted that being the first appellate court against the judgment and order of acquittal passed by the learned trial Court, the High Court is justified in reappreciating the entire evidence on record and coming to its conclusion. Reliance is placed on the decision of this Court in the case of Umedbhai Jadavbhai v. State of Gujarat (1978) 1 SCC 228.
It was submitted that by the impugned judgment and order the High Court has considered in detail the grounds on which the learned trial Court acquitted the accused and having found that the grounds on which the accused have been acquitted are not tenable at law and are just contrary to the evidence on record and are perverse, the High Court has rightly convicted the accused.
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Courts Observation & Judgment
The bench referring to the judgment passed by the High Court observed that when there are clinching evidence of eyewitnesses, mere non-examination of some of the witnesses/independent witnesses and/or in absence of examination of any independent witnesses would not be fatal to the case of the prosecution.
The bench noted, "10.2 In the recent decision in the case of Surinder Kumar v. State of Punjab (2020) 2 SCC 563, it is observed and held by this Court that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated.10.2 In the recent decision in the case of Surinder Kumar v. State of Punjab (2020) 2 SCC 563, it is observed and held by this Court that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. 10.3 In the case of Rizwan Khan v. State of Chhattisgarh (2020) 9 SCC 627, after referring to the decision of this Court in the case of State of H.P. v. Pardeep Kumar (2018) 13 SCC 808, it is observed and held by this Court that the examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case."
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The bench therefore, rejecting the contention raised by the accused observed,
"The prosecution witnesses have fully supported the case of the prosecution, more particularly PW2 & PW4 and they are found to be trustworthy and reliable, non-examination of the independent witnesses is not fatal to the case of the prosecution. Nothing is on record that those two persons, namely, Shiv Shankar and Bhagwati Prasad as mentioned in the FIR reached the spot were mentioned as witnesses in the chargesheet. In any case, PW2 & PW4 have fully supported the case of the prosecution and therefore non-examination of the aforesaid two persons shall not be fatal to the case of the prosecution."
The Court rejecting other contentions raised by the accused, upheld the conviction.
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