Balram Singh v. State of H.P

was presented before learned Judicial Magistrate First Class, Court No. 2, Amb, District Una, H.P., who committed the case to 5 learned Sessions Judge for trial. Learned Sessions Judge assigned the case to learned Additional Sessions Judge (I), Una, District Una, H.P. (learned Trial Court) for trial.

#3. Learned Trial Court charged the accused with the commission of offences punishable under Sections 332 and 333 of IPC, to which he pleaded not guilty and claimed trial.

#4. The prosecution examined 12 witnesses to prove its case. Dr Anjali Sharma (PW-1) is the dental surgeon, who had examined Ravi Kumar. Joginder Pal (PW-2) is the Radiographer, who took the X-ray of Ravi Kumar. Ravi Kumar (PW-3) and Naresh Kumar (PW-5) are the victims. Jatinder Singh (PW4) produced the appointment and posting orders of Ravi Kumar and Naresh Kumar. Sukhdev Singh (PW-6) is an eyewitness. Dr O.P. Ramdev (PW-7) is the Radiologist, who went through the X-ray and issued the report regarding the fracture of the rib. Dr Sukhinder Singh (PW-8) examined the victim. Dr Jitender Kumar (PW-9) prepared the Challan. SI Mohinder Singh (PW-10) signed the FIR. ASI Jasbir Singh Saini (PW-11) and ASI Vinod Kumar (PW-12) investigated the matter.

#5. The accused, in his statement recorded under Section 313 of the Code of Criminal Procedure (CrPC), admitted that Ravi 6 Kumar was posted as Beldar at I&PH Gagret and used to distribute water to various villages from Tatehra Oel Water Tank during 2011. He claimed that witnesses belonged to the informant’s department and the other witnesses had strained relations with the accused; that is why they had deposed against the accused. The informant’s buffalo calf was electrocuted in the field of the accused, and Ravi Kumar became inimical after this incident. The accused did not produce any evidence in his defence.

#6. Learned trial Court held that the testimonies of the prosecution witnesses corroborated each other. The medical evidence also corroborated the statements of the witnesses. A related person is not a false witness, and the testimonies of the witnesses cannot be rejected because of the relationship between them. No adverse inference could be drawn against the prosecution for non-examination of the independent witnesses. The accused had caused simple and grievous hurt to the informant during the discharge of his official duties. Therefore, the learned trial Court convicted and sentenced the accused as aforesaid. 7

#7. Being aggrieved by the judgment and order passed by the learned trial Court, the accused has filed the present appeal asserting that the learned trial Court erred in appreciating the material on record. Dr Sukhwinder Singh (PW-8) opined that the informant had sustained simple injury, which could have been caused by way of a fall. Dr Anjali Sharma (PW-1) stated that the damage to the tooth was caused because of old age, which shows that the accused was falsely implicated. The informant was not proved to be on duty at the time of the incident, and the learned trial Court erred in convicting the accused of the commission of offences punishable under Sections 332 and 333 of the IPC. The prosecution had also not proved the recovery beyond reasonable doubt. The statements of witnesses contradicted each other on material aspects. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the Trial Court be set aside.

#8. I have heard Mr N.K. Thakur, learned Senior Advocate, assisted by Mr Divya Raj Singh, learned counsel for the petitioner/accused, and Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/state. 8

#9. Mr N.K. Thakur, learned Senior Advocate for the petitioner/accused, submitted that the learned trial Court erred in appreciating the material on record. The informant had made a complaint to the department, which contained the earliest version of the incident, but it was not brought on record, and an adverse inference should be drawn against the prosecution for withholding the complaint. The statements of the witnesses contradicted each other on material aspects. The informant was not proved to be discharging the official duty at the time of the incident. The informant’s appointment and posting orders show that he was appointed as Beldar and not a Pump Operator. Learned Trial Court erred in holding that the informant was discharging his duties at the time of the incident. Learned Trial Court erred in not extending the benefit of the Probation of Offenders Act to the accused. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned trial Court be set aside.

#10. Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the petitioner admitted in his statement recorded under Section 313 of the Cr.P.C. that the informant was deputed on Oel Tatehra Water 9 Supply Scheme; therefore, the fact that the informant was discharging his official duties was not in dispute. The Radiologist had found a fracture of the ribs, which is a grievous injury. Therefore, the prosecution had established the ingredients of the commission of offences punishable under Sections 332 and 333 of the IPC. Enmity is a double-edged weapon, and it can furnish a motive for the commission of the crime as well; therefore, much cannot be made out of the enmity between the parties. The learned trial Court had taken a reasonable view of the matter, and this Court should not interfere with the reasonable view of the learned trial Court. Therefore, he prayed that the present appeal be dismissed.

#11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

#12. Informant Ravi Kumar (PW-3) stated that he was going to Tatehra on 28.05.2011. The accused met him near Hanuman Temple Oel and enquired why he (informant) had not released water to the village of the accused. The informant replied that he was going to the water tank Tatehra and thereafter he would release the water to the village of the accused. The accused pounced upon him, pushed him on the 10 ground, hit his left eye with some object and gave fist blows, and his one tooth was broken. The accused also tore the informant's clothes. Blood oozed out from the eye, and he became unconscious. Naresh Kumar and Sukadev Singh came to the spot and rescued him from the accused. Pramod also came to the spot. The accused also gave beatings to Naresh Kumar. He could not perform his duties because of the injuries caused to him. He stated in his cross-examination that he used to release the water from 05.00 a.m. to 10.00 a.m. and in the evening from 03.00 p.m. to 07.00 p.m. He had informed the department regarding this incident by filing a written complaint. He admitted that Naresh Kumar was the Pump Operator and his duty was on Pump No.47. The total duty hours for a Beldar were 8 hours. No written order was passed regarding the shifts. He and Naresh Kumar had handed over their shirts to the police at the Police Station. No blood oozed from his mouth; however, blood oozed from his left eye.

#13. The accused admitted in his statement recorded under Section 313 of CrPC that the informant was deputed to distribute water to village Tatehra Oel in the year 2011. It was laid down by the Hon'ble Supreme Court in State of Maharashtra v. 11 Sukhdev Singh, (1992) 3 SCC 700: 1992 SCC (Cri) 705: 1992 SCC OnLine SC 421 that the Courts can rely upon the statement of the accused recorded under Section 313 of the CrPC. It was observed at page 742: “51. That brings us to the question of whether such a statement recorded under Section 313 of the Code can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why sub-section (3) says that the accused shall not render himself liable to punishment if he gives false answers. Then comes sub-section (4), which reads: “313. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.” Thus, the answers given by the accused in response to his examination under Section 313 can be taken consideration in such an inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. See State of Maharashtra v. R.B. Chowdhari (1967) 3 SCR 708: AIR 1968 SC 110: 1968 Cri LJ 95. This Court, in the case of Hate Singh Bhagat Singh v. State of M.B. 1951 SCC 1060: 1953 Cri LJ 1933: AIR 1953 SC 468, held that an answer given by an accused under Section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab (1963) 3 SCR 678: (1964) 1 Cri LJ 730, this Court held that if the accused confesses to the commission of the offence with which he is charged, the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three-Judge bench answered 12 the question, it would be advantageous to reproduce the relevant observations at pages 684-685: “Under Section 342 of the Code of Criminal Procedure by the first sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain the accused his version or explanation, if any, of the incident which forms the subject-matter of the charge and his defence. By sub-section (3), the answers given by the accused may ‘be taken into consideration’ at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him the court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety.” (emphasis supplied) the accused Sub-section (1) of Section 313 corresponds to sub-section (1) of Section 342 of the old Code, except that it now stands bifurcated in two parts with the proviso added thereto clarifying that in summons cases where the presence of is dispensed with, his examination under clause (b) may also be dispensed with. Sub-section (2) of Section 313 reproduces the old sub- section (4), asd the present sub-section (3) corresponds to the old sub-section (2) except for the change necessitated on account of the abolition of the jury system. The present sub-section (4) with which we are concerned is a verbatim 13 reproduction of the old sub-section (3). Therefore, the aforestated observations apply with equal force.”

#14. It was laid down by the Hon’ble Supreme Court in Mohan Singh v. Prem Singh, (2002) 10 SCC 236: 2003 SCC (Cri) 1514: 2002 SCC OnLine SC 933, that the statement made by the accused under Section 313 CrPC can be used to lend credence to the evidence led by the prosecution, but such statement cannot form the sole basis for conviction. It was observed at page 244:

#27. The statement made in defence by the accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled that the statement under Section 313 CrPC of the accused can either be relied on in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. See Nishi Kant Jha v. State of Bihar (1969) 1 SCC 347: AIR 1969 SC 422: (SCC pp. 357-58, para 23) “23. In this case, the exculpatory part of the statement in Exhibit 6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury that the appellant received was caused by the appellant's attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under Section 342 CrPC to the effect that he had received the injury in a scuffle with a herdsman. The injury found on his body when he was examined by the doctor on 13-10-1961 negates both these versions. Neither of these versions accounts for the 14 profuse bleeding which led to his washing his clothes and having a bath in River Patro, the amount of bleeding and the washing of the bloodstains being so considerable as to attract the attention of Ram Kishore Pandey, PW 17 and asking him about the cause thereof. The bleeding was not a simple one, as his clothes all got stained with blood, as also his books, his exercise book, his belt and his shoes. More than that, the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner. According to the post-mortem report, this knife could have been the cause of the injuries on the victim. In circumstances like these, there being enough evidence to reject the exculpatory part of the statement of the appellant in Exhibit 6, the High Court had acted rightly in accepting the inculpatory part and piercing the same with the other evidence to come to the conclusion that the appellant was the person responsible for the crime.” (emphasis supplied)

#15. It was laid down in Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257: (2012) 2 SCC (Cri) 382: 2012 SCC OnLine SC 213, that the statement of the accused under Section 313 CrPC, in so far as it supports the prosecution’s case, can be used against him for recording a conviction. It was observed at page 275: - “52. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording a statement under this provision of the CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 15 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering a conviction. Even under the latter, he faces the consequences in law.”

#16. This position was reiterated in Ashok Debbarma v. State of Tripura, (2014) 4 SCC 747: (2014) 2 SCC (Cri) 417: 2014 SCC OnLine SC 199, and it was held that the statement of the accused recorded under Section 313 of the CrPC can be used to lend corroboration to the statements of prosecution witnesses. It was held at page 761: -

#24. We are of the view that, under Section 313 statement, if the accused admits that, from the evidence of various witnesses, four persons sustained severe bullet injuries by the firing by the accused and his associates, that admission of guilt in Section 313 statement cannot be brushed aside. This Court in State of Maharashtra v. Sukhdev Singh [(1992) 3 SCC 700: 1992 SCC (Cri) 705 held that since no oath is administered to the accused, the statement made by the accused under Section 313 CrPC will not be evidence stricto sensu and the accused, of course, shall not render himself liable to punishment merely on the basis of answers given while he was being examined under Section 313 CrPC. But, sub-section (4) says that the answers given by the accused in response to his examination under Section 313 CrPC can be taken into consideration in such an inquiry or trial. This Court, in Hate Singh Bhagat Singh v. State of Madhya Bharat, 1951 SCC 1060: AIR 1953 SC 468: 1953 Cri LJ 1933, held that the answers given by the accused under Section 313 examination can be used for proving his guilt as much as the evidence given by the prosecution witness. In Narain Singh v. State of Punjab (1964) 1 Cri LJ 730: (1963) 3 SCR 678, this Court held that when the accused confesses to the commission of the offence with which he is charged, 16 the court may rely upon the confession and proceed to convict him.

#25. This Court in Mohan Singh v. Prem Singh (2002) 10 SCC 236: 2003 SCC (Cri) 1514 held that: (SCC p. 244, para 27) “27. The statement made in defence by the accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 CrPC cannot be made the sole basis of his conviction.” In this connection, reference may also be made to the judgments of this Court in Devender Kumar Singla v. Baldev Krishan Singla (2005) 9 SCC 15: 2005 SCC (Cri) 1185 and Bishnu Prasad Sinha v. State of Assam (2007) 11 SCC 467: (2008) 1 SCC (Cri) 766. The abovementioned decisions would indicate that the statement of the accused under Section 313 CrPC for the admission of his guilt or confession as such cannot be made the sole basis for finding the accused guilty, the reason being he is not making the statement on oath, but all the same the confession or admission of guilt can be taken as a piece of evidence since the same lends credence to the evidence led by the prosecution.

#26. We may, however, indicate that the answers given by the accused while examining him under Section 313, fully corroborate the evidence of PW 10 and PW 13 and hence the offences levelled against the appellant stand proved, and the trial court and the High Court have rightly found him guilty for the offences under Sections 326, 436 and 302 read with Section 34 IPC.”

#17. Therefore, the learned trial Court had rightly accepted the informant's version that he was deputed to distribute water in various villages from Tatehra Oel Water tank 17

#18. Naresh Kumar (PW-5) stated that he was returning from CHC on 28.05.2011 at about 01.30 p.m. when he heard some noise near Hanuman temple Oel. He went to the spot and saw that accused Balram was beating Ravi Kumar with fists and kicks. He tried to rescue Ravi Kumar from the accused, but the accused inflicted a blow on his face with a fist, and blood started oozing out. Sukhdev, Pramod and Mahatmaji Ramdas had also witnessed the incident. The accused also tore his (Naresh Kumar’s) T-shirt. He carried the injured Ravi Kumar to the office. The officials of the department directed him to lodge the complaint with the police. They also handed over one application (Ext PW3/A). They went to the police station and handed over the applications (Ext.PW3/A and Ext.PW3/B) to the SHO. He stated in his cross- examination that Ravi Kumar is his cousin. He had heard the noises near Shiv temple and rushed to the place of incident. Shiv temple is located at a distance of about 15 meters from Hanuman temple. 10-15 persons were present at the spot at the time of his arrival on the spot. Sukhdev reached the spot first, and Pramod came after him (Naresh Kumar). He could not tell the exact number of punches and kicks given by the accused to the informant. The scuffle continued for 8-10 minutes. Ravi Kumar 18 moved an application to the department, which was addressed to the SHO. Blood was oozing from Ravi Kumar’s eyebrows and mouth. The house of Sukhdev is located at a distance of 300 meters from the spot, and the house of Pramod is further away from the house of Sukhdev. He could not tell the names of the persons who were present at the spot. He did not know the exact cause of the quarrel between Ravi Kumar and the accused, but he found out subsequently that the quarrel had started over the distribution of water from the village. He admitted that Ravi's buffalo calf had died due to electrocution in the year 2007 in the field of the accused. His relationship with the accused Balram was cordial.

#19. Sukhdev (PW-6) also supported the prosecution version. He stated that he was present near Hanuman Temple on

28.03.2011 at about 01.30-02.00 p.m. Ravi Kumar was going to release the water. The accused caught Ravi Kumar and enquired as to why he (Ravi Kumar) had not supplied the water to the village of the accused. Ravi Kumar replied that he would release the water in the evening. The accused started beating Ravi Kumar. He tried to rescue Ravi Kumar, but the accused pounced upon Ravi Kumar and pushed him to the ground. He saw blood 19 coming out of the eye of Ravi Kumar. Naresh Kumar reached the spot and tried to rescue Ravi Kumar from the accused, but the accused gave beatings to Naresh with kicks and fists. Shirt of Naresh was torn in the incident. He stated in his cross- examination that the accused is his cousin. He admitted that there was a land dispute between his family and the family of the accused. He was confronted with a previous statement in which it was not recorded that the accused had asked Ravi Kumar why he had not released the water to his village. He had visited his house during lunchtime. He and Ravi Kumar were walking together, but Ravi Kumar stopped when Balram caught him. He heard the noise about 10-15 steps ahead of the place of the incident. Mahatma Ramji came after him. The other people gathered within 5-10 minutes. The incident continued for 10-15 minutes. He denied that he was making a false statement because of the inimical relationship. It was submitted that Naresh Kumar was related to the informant, and this would make his testimony suspect. This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Laltu Ghosh v. State of W.B., (2019) 15 SCC 344: (2020) 1 SCC (Cri) 275: 2019 SCC OnLine SC 2 that a related witness is 20 not an interested witness and his testimony cannot be rejected on the ground of interestedness. It was observed: “12. As regards the contention that the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an “interested” witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between “interested” and “related” witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki, (1981) 2 SCC 752: 1981 SCC (Cri) 593; Amit v. State of U.P., (2012) 4 SCC 107 : (2012) 2 SCC (Cri) 590 and Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182).

#13. Recently, this difference was reiterated in Ganapathi v. State of T.N., (2018) 5 SCC 549 : (2018) 2 SCC (Cri) 793, in the following terms, by referring to the three-Judge Bench decision in State of Rajasthan v. Kalki, (1981) 2 SCC 752: 1981 SCC (Cri) 593 : (Ganapathi v. State of T.N., (2018) 5 SCC 549 : (2018) 2 SCC (Cri) 793), SCC p. 555, para 14) “14. “Related” is not equivalent to “interested”. A witness may be called “interested” only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be “interested”.…

#14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by 21 labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465, wherein this Court observed: (AIR p. 366, para 26) “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted, and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person.”

#15. In the case of a related witness, the Court may not treat his or her testimony as inherently tainted and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. State (UT of Pondicherry), (2010) 1 SCC 199; (2010) 2 SCC (Cri) 966: (SCC p. 213, para 23) “23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses, must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses, but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.”

#20. It was laid down by the Hon’ble Supreme Court in Thoti Manohar vs State of Andhra Pradesh (2012) 7 SCC 723 that the 22 court cannot discard the testimony of a witness on the ground of a relationship. It was observed: “31. In this context, we may refer with profit to the decision of this Court in Dalip Singh v. State of Punjab AIR 1953 SC 364, wherein Vivian Bose, J., speaking for the Court, observed as follows: - If requires corroboration. “We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased, we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. The State of Rajasthan (1952) SCR 377 at p. 390 = (AIR 1952 SC 54 at page 59).”

#32. In the said case, it was further observed that: to be is normally “A witness considered independent unless he or she springs from sources which are likely to be tainted, and that usually means unless the witness has a cause, such as an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true that when feelings run high, and there is a personal cause for enmity, there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but the foundation must be laid for such criticism, and the mere fact of relationship, far from being a foundation, is often a sure guarantee of truth.”

#33. In Masalti v. State of U.P. AIR 1965 SC 202, it has been ruled that normally close relatives of the deceased would 23 not be considered to be interested witnesses who would also mention the names of the other persons as responsible for causing injuries to the deceased.

#34. In Hari Obula Reddi and others v. State of Andhra Pradesh AIR 1981 SC 82, a three-judge Bench has held that evidence of interested witnesses is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. It can be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to scrutiny and accepted with caution. If, on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently in the probable, circumstances of the particular case, to base a conviction thereon. itself, be sufficient, it may, by

#35. In Kartik Malhar v. State of Bihar (1996) 1 SCC 614, it has been opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term ‘interested’ postulates that the witness must have some interest in having the accused, somehow or other, convicted for some animus or some other reason.

#36. In Pulicherla Nagaraju alias Nagaraja Reddy v. State of Andhra Pradesh AIR 2006 SC 3010, while dealing with the liability of interested witnesses who are relatives, a two- judge Bench observed that: “It is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or close relative to the deceased if it is otherwise found to be trustworthy and credible.” The said evidence only requires scrutiny with more care and caution, so that neither the guilty escapes nor the innocent is wrongly convicted. If, on such scrutiny, the evidence is found to be reliable and probable, then it can be acted upon. 24 “If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted.”

#21. This position was reiterated in Rajesh Yadav vs. State of Bihar 2022 Cr.L.J. 2986 (SC) as under: “28. A related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstands the rigour of cross-examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness only when he is desirous of implicating the accused in rendering a conviction, on purpose.

#29. When the court is convinced of the quality of the evidence produced, notwithstanding the classification as quoted above, it becomes the best evidence. Such testimony being natural, adding to the degree of probability, the court has to rely upon it in proving a fact. The aforesaid position of law has been well laid down in Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591: “32. Coming back to the appreciation of the evidence at hand, at the outset, our attention is drawn to the fact that the witnesses were interrelated, and this Court should be cautious in accepting their statements. It would be beneficial appreciation of evidence of a related witness. In Dalip Singh v. State of Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465, Vivian Bose, J., for the Bench, observed the law as under (AIR p. 366, para 26) law concerning to recapitulate “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted, and that usually means 25 unless the witness has a cause, such as an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true when feelings run high, and there is a personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but the foundation must be laid for such a criticism, and the mere fact of relationship, far from being a foundation, is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.”

#33. In Masalti v. State of U.P., (1964) 8 SCR 133: AIR 1965 SC 202: (1965) 1 Cri LJ 226, a five-judge Bench of this Court has categorically observed as under (AIR pp. 209-210, para 14) “14. … There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence, whether or not the evidence strikes the court as genuine, whether or not the story disclosed by the evidence is probable, are all matters that must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to the failure of justice. No hard-and-fast rule can be laid down as to how 26 much evidence should be appreciated. The judicial approach has to be cautious in dealing with such evidence, but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.”

#34. In Darya Singh v. State of Punjab [(1964) 3 SCR 397: AIR 1965 SC 328: (1965) 1 Cri LJ 350], this Court held that evidence of an eyewitness who is a near relative of the victim should be closely scrutinised, but no corroboration is necessary for acceptance of his evidence. In Harbans Kaur v. State of Haryana [(2005) 9 SCC 195: 2005 SCC (Cri) 1213: 2005 Cri LJ 2199], this Court observed that: (SCC p. 227, para 6) “6. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused.”

#35. The last case we need to concern ourselves with is Namdeo v. State of Maharashtra (2007) 14 SCC 150: (2009) 1 SCC (Cri) 773, wherein this Court, after observing previous precedents, has summarised the law in the following manner: (SCC p. 164, para 38) is found to be “38. … It is clear that a close relative cannot be characterised as an “interested” witness. He is a “natural” witness. His evidence, however, must be scrutinised carefully. If, on such scrutiny, his evidence intrinsically reliable, inherently probable and wholly trustworthy, a conviction can be based on the “sole” testimony of such a witness. A close relationship of the witness with the deceased or the victim is no ground to reject his evidence. On the contrary, a close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.”

#36. From the study of the aforesaid precedents of this Court, we may note that whoever has been a witness 27 before the court of law, having a strong interest in the result, if allowed to be weighed in the same scales with those who do not have any interest in the result, would be to open the doors of the court for perverted truth. This sound rule, which remains the bulwark of this system and which determines the value of evidence derived from such sources, needs to be cautiously and carefully observed and enforced. There is no dispute about the fact that the interest of the witness must affect his testimony is a universal truth. Moreover, under the influence of bias, a man may not be in a position to judge correctly, even if they earnestly desires to do so. Similarly, he may not be in a position to provide evidence in an impartial manner when it involves his interests. Under such influences, man will, even though not consciously, suppress some facts, soften or modify others, and provide the most controlling considerations in respect to the credibility of human testimony, and should never be overlooked in applying the rules of evidence and determining its weight in the scale of truth under the facts and circumstances of each case.” favourable colour. These are

#30. Once again, we reiterate with a word of caution that the trial court is the best court to decide on the aforesaid aspect, as no mathematical calculation or straightjacket formula can be made on the assessment of a witness, as the journey towards the truth can be seen better through the eyes of the trial judge. In fact, this is the real objective behind the enactment itself, which extends the maximum discretion to the court.”

#22. Similar is the judgment in M Nageswara Reddy vs. State of Andhra Pradesh 2022 (5) SCC 791, wherein it was observed: “10. Having gone through the deposition of the relevant witnesses -eye-witnesses/injured eye-witnesses, we are there are no major/material contradictions in the deposition of the eye-witnesses and injured eye-witnesses. All are consistent insofar as the opinion 28 accused Nos. 1 to 3 are concerned. As observed hereinabove, PW6 has identified Accused Nos. 1 to 3. The High Court has observed that PW1, PW3 & PW5 were planted witnesses merely on the ground that they were all interested witnesses, being relatives of the deceased. Merely because the witnesses were the relatives of the deceased, their evidence cannot be discarded solely on the aforesaid ground. Therefore, circumstances of the case, the High Court has materially erred in discarding the deposition/evidence of PW1, PW3, PW5 & PW6 and even PW7.”

#23. It was laid down by the Hon’ble Supreme Court in Mohd. Jabbar Ali v. State of Assam, 2022 SCC OnLine SC 1440, that relationship is no reason to discard the witnesses’ testimonies. The Court is required to see their testimonies with due care and caution. It was observed:

#55. It is noted that great weight has been attached to the testimonies of the witnesses in the instant case. Having regard to the aforesaid fact, this Court has examined the credibility of the witnesses to rule out any tainted evidence given in the court of Law. It was contended by learned counsel for the appellant that the prosecution failed to examine any independent witnesses in the present case and that the witnesses were related to each other. This Court, in a number of cases, has had the opportunity to consider the said aspect of related/interested/partisan witnesses and the credibility of such witnesses. This Court is conscious of the well-settled principle that just because the witnesses are related/interested/partisan witnesses, their testimonies cannot be disregarded; however, it is also true that when the witnesses are related/interested, their testimonies have to be scrutinised with greater care and circumspection. In the case of Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381, this Court held that the 29 testimony of such related witnesses should be analysed with caution for its credibility.

#56. In Raju alias Balachandran v. State of Tamil Nadu, (2012) 12 SCC 701, this Court observed: “29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised, and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh [AIR 1953 SC 364] and pithily reiterated in Sarwan Singh [(1976) 4 SCC 369] in the following words: (Sarwan Singh case [(1976) 4 SCC 369, p. 376, para 10) “10. … The evidence of an interested witness does not suffer from any infirmity as such, but the courts require, as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the is satisfied that the evidence of interested witnesses has a ring of truth, such evidence could be relied upon even without corroboration.”

#57. Further delving into the same issue, it is noted that in the case of Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, this Court held that in several cases when only family members are present at the time of the incident and the case of the prosecution is based only on their evidence, Courts have to be cautious and meticulously evaluate the evidence in the process of trial.

#24. This position was reiterated in Baban Shankar Daphal v. State of Maharashtra, 2025 SCC OnLine SC 137, wherein it was observed: 30 “27. One of the contentions of the learned counsel for the appellants is that the eyewitnesses to the incident were all closely related to the deceased, and for prudence, the to have examined some other prosecution ought independent eyewitnesses as well who were present at the time of the unfortunate incident. This was also the view taken by the Trial Court, but the High Court has correctly rejected such an approach and held that merely because there were some more independent witnesses, who had also reached the place of the incident, the evidence of the relatives cannot be disbelieved. The law nowhere states that the evidence of the interested witness should be discarded altogether. The law only warrants that their evidence should be scrutinised with care and caution. It has been held by this Court in the catena of judgments that merely because a witness is a relative, their testimony cannot be discarded on that ground alone.

#28. In criminal cases, the credibility of witnesses, particularly those who are close relatives of the victim, is often scrutinised. However, being a relative does not automatically render a witness “interested” or biased. The term “interested” refers to witnesses who have a personal stake in the outcome, such as a desire for revenge or to falsely implicate the accused due to enmity or personal gain. A “related” witness, on the other hand, is someone who may be naturally present at the scene of the crime, and their testimony should not be dismissed simply because of their relationship to the victim. Courts must assess the reliability, consistency, and coherence of their statements rather than labelling them as untrustworthy.

#29. The distinction between “interested” and “related” witnesses has been clarified in Dalip Singh v. State of Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465, where this Court emphasised that a close relative is usually the last person to falsely implicate an innocent person. Therefore, in evaluating the evidence of a related witness, the court should focus on the consistency and credibility of their testimony. This approach ensures that the evidence is not discarded merely due to familial ties, 31 but is instead assessed based on its inherent reliability and consistency with other evidence in the case. This position has been reiterated by this Court in: i. Md. Rojali Ali v. The State of Assam, Ministry of Home Affairs through Secretary (2019) 19 SCC 567; ii. Ganapathi v. State of T.N. (2018) 5 SCC 549; iii. Jayabalan v. Union Territory of Pondicherry (2010) 1 SCC 199.

#30. Though the eyewitnesses who have been examined in the present case were closely related to the deceased, namely his wife, daughter and son, their testimonies are consistent with respect to the accused persons being the assailants who inflicted wounds on the deceased. As is revealed from the sequence of events that transpired, one of the family members was subjected to an assault. It was thus quite natural for the other family members to rush on the spot to intervene. The presence of the family members on the spot and thus being eyewitnesses has been well established. In such circumstances, merely because the eyewitnesses are family members, their testimonies cannot be discarded solely on that ground.

#25. Therefore, the testimony of a related witness cannot be rejected because of the relationship with the victim. The court is required to see the testimony with due care and caution.

#26. Doctor, Sukhwinder Singh (PW-8) examined Ravi Kumar and found that he had sustained injuries. Dr O.P. Ramdev (PW-7) went through the X-ray and found that Ravi Kumar had sustained fractures of the 7th and 8th ribs. Hence, Dr Sukhinder opined the injury to be grievous. He also examined Naresh Kumar and found that there was an upper lip injury on the left side, 32 which was simple in nature. The injuries sustained by Ravi Kumar and Naresh could have been caused by kicks and fist blows. He admitted in his cross-examination that the injuries noticed by him could have been caused by means of a fall on the hard surface. This admission will not help the defence because it is an alternative hypothesis and will not make the prosecution's case suspect. It was laid down by the Hon’ble Supreme Court in Ramakant Rai v. Madan Rai, (2003) 12 SCC 395: 2003 SCC OnLine SC 1086, that when the testimonies of the witnesses are found credible, the medical evidence pointing to alternative possibilities is not sufficient to discard the prosecution’s case. It was observed at page 404: “22. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of the trial process. Eyewitnesses' accounts would require a careful independent assessment and evaluation for their credibility, which should not be adversely prejudged, including the medical making any other evidence, evidence, the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the “credit” of the witnesses; their performance in the witness box; their power of observation, etc. Then the 33 probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.”

#27. The statements of Dr Sukwinder Singh (PW-8) and Dr O.P. Ramdev (PW-7) corroborate the victim's testimony that they had sustained injuries in the incident. It was held by the Hon’ble Supreme Court in Neeraj Sharma v. State of Chhattisgarh, (2024) 3 SCC 125: 2024 SCC OnLine SC 13 that the testimony of the injured witness has to be accepted as correct unless there are compelling circumstances to doubt his testimony. It was observed: “22. The importance of an injured witness in a criminal trial cannot be overstated. Unless there are compelling circumstances or evidence placed by the defence to doubt such a witness, this has to be accepted as extremely valuable evidence in a criminal trial.

#23. In Balu Sudam Khalde v.State of Maharashtra [Balu Sudam Khalde v.State of Maharashtra, (2023) 13 SCC 365: 2023 SCC OnLine SC 355], this Court summed up the principles which are to be kept in mind when appreciating the evidence of an injured eyewitness. This Court held as follows: (SCC para 26) “26. When the evidence of an injured eyewitness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:

26.1. The presence of an injured eyewitness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.

26.2. Unless it is otherwise established by the evidence, it must be believed that an injured 34 witness would not allow the real culprits to escape and falsely implicate the accused.

26.3. The evidence of the injured witness has greater evidentiary value, and unless compelling reasons exist, their statements are not to be discarded lightly.

26.4. The evidence of the injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.

26.5. If there be any exaggeration or immaterial embellishment in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of the injured, but not the whole evidence.

26.6. The broad substratum of the prosecution version must be taken into consideration, and discrepancies which normally creep due to loss of memory with the passage of time should be discarded.” (emphasis supplied)

#28. This position was reiterated in Rajan v. State of Haryana, 2025 SCC OnLine SC 1952, wherein it was observed: “33. When the evidence of an injured eyewitness is to be appreciated, the undernoted legal principles enunciated by the Courts are required to be kept in mind: “(a) The presence of an injured eyewitness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition. (b) Unless it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused. (c) The evidence of an injured witness has greater evidentiary value, and unless compelling reasons exist, their statements are not to be discarded lightly. 35 (d) The evidence of an injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. immaterial (e) If there be any exaggeration or embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of the injured, but not the whole evidence. (f) The broad substratum of the prosecution version must be taken into consideration, and discrepancies which normally creep due to loss of memory with passage of time should be discarded.”

#34. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, from those witnesses circumstances either elicited themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence. (See: Maharashtra:(2023) 13 SCC 365). Khaldev. State Sudam Balu

#29. It was laid down by the Hon’ble Supreme Court in State of Punjab vs. Hari Singh 1974 (3) SCR 725 that a person speaking on oath should be presumed to be a truthful witness 36 unless there is something inherently improbable in his testimony. It was observed: “The ordinary presumption is that a witness speaking under an oath is truthful unless and until he is shown to be untruthful or unreliable in any particular respect. The High Court, reversing this approach, seems to us to have assumed that witnesses are untruthful unless it is proved that they are telling the truth. Witnesses, solemnly deposing on oath in the witness box during a trial upon a grave charge of murder, must be presumed to act with a full sense of responsibility for the consequences of what they state. It may be that what they say is so very unlikely or unnatural or unreasonable that it is safer not to act upon it or even to disbelieve them.”

#30. It was laid down by the Hon’ble Supreme Court in State of U.P. Versus Smt. Noorie Alias Noor Jahan and Others, (1996) 9 SCC 104, that while assessing the evidence of an eyewitness, the Court must adhere to two principles, namely, whether, in the circumstances of the case, the eyewitness could be present and whether there is anything inherently improbable or unreliable. It was observed: - “7. The High Court having acquitted the accused persons on appreciation of the evidence, we have ourselves scrutinised the evidence of PWs 1, 2 and 3. The conclusion is irresistible that their evidence on material particulars has been brushed aside by the High Court by entering into the realm of conjecture and fanciful speculation without even discussing the evidence, more particularly the evidence relating to the basic prosecution case. While assessing and evaluating the evidence of eyewitnesses, the Court must adhere to two principles, namely, whether, in the 37 circumstances of the case, it was possible for the eyewitness to be present at the scene and whether there is anything inherently improbable or unreliable. The High Court, in our opinion, has failed to observe the aforesaid principles and, in fact, has misappreciated the evidence, which has caused a gross miscarriage of justice. The credibility of a witness has to be decided by referring to his evidence and finding out how he has fared in cross-examination and what impression is created by his evidence, taken insofar as the context of the case, and not by entering into the realm of conjecture and speculation. On scrutinising the evidence of PWs. 1, 2 and 3, we find they are consistent with one another so far as the place of occurrence, the manner of assault, the weapon of assault used by the accused persons, the fact of dragging of the dead body of the deceased from the place to the grove and nothing has been brought out in their cross-examination to impeach their testimony. The aforesaid oral evidence fully corroborates the medical evidence. In that view of the matter, we unhesitatingly come prosecution has been able to establish the charge against the accused persons and the High Court committed an error in acquitting the three respondents, namely Inder Dutt, Raghu Raj and Bikram.” (emphasis supplied) the conclusion

#31. The injuries sustained by the victims establish their presence on the spot, and their testimonies are entitled to a great weight and cannot be rejected without any cogent reasons.

#32. Letter (Ext.PW-3/B) mentions that the application made by Ravi Kumar Beldar was annexed. It was submitted that no such application was produced on record. The submission is not acceptable. Naresh Kumar specifically stated that the application (Ext.PW-3/A) was addressed to the Station House 38 Officer (SHO) and was handed over to the department. It was thereafter handed over to the police along with a letter (Ext.PW- 3/B). He also identified his signature on the application (Ext.PW- 3/A); therefore, application (Ext.PW-3/A) is the one which was annexed to the letter (Ext.PW-3/B).

#33. It was submitted that the incident was witnessed by Parmod Kumar and Ramji Dass; however, they were not examined by the prosecution and an adverse inference has to be drawn against the prosecution for withholding them. This submission cannot be accepted. The learned Public Prosecutor made a statement before the Court that he was giving up witnesses Parmod, Ramji Dass, Sashi Pal, Kishori Lal and Hardeep as repetitive. It was held in Hukam Singh v. State of Rajasthan, (2000) 7 SCC 490: 2000 SCC (Cri) 1416: 2000 SCC OnLine SC 1311 that the Public Prosecutor is not obliged to examine all the witnesses. It was observed at page 495: “13…. If there are too many witnesses on the same point, the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects. That principle applies when there are too many witnesses cited if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open 39 to him to inform the Court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the Court considerably in lessening the workload. The time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice.”

#34. It was laid down by the Hon’ble Supreme Court in Pohlu v. State of Haryana, (2005) 10 SCC 196: 2005 SCC (Cri) 1496: 2004 SCC OnLine SC 1393 that the intrinsic worth of the testimony of witnesses has to be assessed by the Court, and if the testimony of the witnesses appears to be truthful, the non-examination of other witnesses will not make the testimony doubtful. It was observed at page 199: “10. It was then submitted that some of the material witnesses were not examined, and in this connection, it was argued that two of the eyewitnesses named in the FIR, namely, Chander and Sita Ram, were not examined by the prosecution. Dharamvir, son of Sukhdei, was also not examined by the prosecution, though he was a material witness, being an injured eyewitness, having witnessed the assault that took place in the house of Sukhdei, PW 2. It is true that it is not necessary for the prosecution to multiply witnesses if it prefers to rely upon the evidence of the eyewitnesses examined by it, which it considers sufficient to prove the case of the prosecution. However, the intrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the court. If their evidence appears to be truthful, reliable and acceptable, the mere fact that some other witnesses have not been examined will not adversely affect the case of the prosecution. We have, therefore, to examine the evidence 40 of the two eyewitnesses, namely, PW 1 and PW 2, and to find whether their evidence is true, on the basis of which the conviction of the appellants can be sustained.”

#35. This position was reiterated in Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434: 2013 SCC OnLine SC 496, and it was held that the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. It was observed at page 442: “Whether the prosecution must examine all the witnesses

#14. A common issue that may arise in such cases where some of the witnesses have not been examined, though the same may be material witnesses, is whether the prosecution is bound to examine all the listed/cited witnesses. This Court, in Abdul Gani v. State of M.P. [(1952) 1 SCC 253: AIR 1954 SC 31: 1954 Cri LJ 323], has examined the aforesaid issue and held that as a general rule, all witnesses must be called upon to testify in the course of the hearing of the prosecution, but that there is no obligation compelling the public prosecutor to call upon all the witnesses available who can depose regarding the facts that the prosecution desires to prove. Ultimately, it is a matter left to the discretion of the public prosecutor, and though a court ought to, and no doubt would take into consideration the absence of witnesses whose testimony would reasonably be expected, it must adjudge the its conclusion evidence as a whole and arrive at accordingly, taking into consideration the persuasiveness of the testimony given in the light of such criticism, as may be levelled at the absence of possible material witnesses.

#15. InSardul Singh v. State of Bombay [AIR 1957 SC 747: 1957 Cri LJ 1325], a similar view has been reiterated, observing that a court cannot normally compel the prosecution to examine a witness which the prosecution does not choose 41 to examine, and that the duty of a fair prosecutor extends only to the extent of examination of such witnesses, who are necessary for the purpose of disclosing the story of the prosecution with all its essentials.

#16. In Masalti v. State of U.P. [AIR 1965 SC 202: (1965) 1 Cri LJ 226], this Court held that it would be unsound to lay down as a general rule that every witness must be examined, even though the evidence provided by such a witness may not be very material, or even if it is a known fact that the said witness has either been won over or terrorised. In such cases, it is always open to the defence to examine such witnesses as their own witnesses, and the court itself may also call upon such a witness in the interests of justice under Section 540 CrPC. (SCC p. 209, para 12) emphasis supplied) (See also Bir Singh v. State of U.P. [(1977) 4 SCC 420: 1977 SCC (Cri) 640])

#17. In Darya Singh v. State of Punjab [AIR 1965 SC 328: (1965) 1 Cri LJ 350], this Court reiterated a similar view and held that if the eyewitness(s) is deliberately kept back, the court may draw an inference against the prosecution and may, in a proper case, regard the failure of the prosecutor to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case.