Daya Chaudhary, J.@mdashThe present revision petition has been filed by the petitioner, who was an eye-witness to the incident, against the judgment of acquittal dated 15.09.2006 passed by the Additional Sessions Judge, Karnal. Briefly, the facts of the case as mentioned in the petition are that FIR No. 191 dated 13.10.2005 was registered against eight accused persons under Sections 148, 323, 326, 302, 307, 149 IPC and Section 25 of the Arms Act at Police Station Madhuban. After investigation, the final report was submitted, wherein 26 witnesses, in total, were cited including the present petitioner, who was at serial No. 16. He was an eye-witness to the incident. Another person namely Ram Kumar was also cited as eyewitness. The postmortem was conducted on the dead body of Raj Kumar and the case was committed to the Court of Sessions. However, only five witnesses i.e. PW-1 to PW-5 out of 26 were examined and none of them have supported the case of prosecution. The public prosecutor made a statement before the trial Court to close evidence. Both the aforementioned witnesses i.e., Swaraj Singh and Ram Kumar were not examined and the evidence was closed on that very day. The accused were acquitted of the charge by the trial Court vide judgment dated 15.09.2006.
2. The present revision petition has been filed by the petitioner, who has stated to be an eye-witness to the incident. Learned counsel for the petitioner submits that the judgment of acquittal was based on the statement made by witnesses PW-1 to PW-5, however, the petitioner as well as other eye-witnesses were not examined. Even the Investigating Officer was not examined. The doctors as well as other officials who prepared Ballistic Expert report were not examined. Learned counsel further submits that the petitioner as well as other eye-witness namely, Ram Kumar were willing to support the case of the prosecution but they were not examined in spite of the fact that they were present before the trial Court on that very day. The public prosecutor has not performed her duty properly and no justification on her part can be accepted to give up two eye-witnesses. The evidence was closed by the public prosecutor without recording the statement of aforementioned eye-witnesses as well as the Investigating Officer and also the doctor. There was stated to be a collusion between the accused persons and the public prosecutor and because of that reason only, five PWs were examined and after recording of their statement, the evidence was closed by making statement before the trial Court. It was the duty of the trial Court to issue summons to the Investigating Officer in case, he was not present at the time of recording of statement. Out of total 26 witnesses, the Doctors, Investigating Officer and witnesses of recoveries and also the Ballistic Expert were not allowed to get their statements recorded.
3. Learned counsel for the petitioner has also relied upon various judgments of Hon''ble the Apex Court in the cases
4. Learned counsel for the respondents has raised a preliminary objection that the present revision by one of the witnesses is not maintainable. The revision only by the complainant is maintainable. The evidence was closed as the remaining witnesses were won over and accordingly, they were given up and their statements were not recorded.
5. Learned counsel for the respondents also submits that it was a case of version and cross-version and both the parties were acquitted on the basis of statement made by material witnesses. The alleged occurrence took place in the year 2005 and the judgment was passed on 15.09.2006 and as such, the prayer of the petitioner, claiming re-trial of the whole case, is not justified. Learned counsel also submits that a very little scope is there to set aside the judgment of acquittal. He has relied upon the judgment of Hon''ble the Apex Court in case
6. Heard the arguments of learned counsel for the parties and have also perused the impugned judgment as well as other documents on the file.
7. Admittedly, the present revision petition has been filed by one of the witness of the case who was not examined by the prosecution. In the present case, the complaint was made by Jaswinder Singh, who is son of the deceased Dharambir. Wife of the deceased was also one of the witnesses in the case. As per the list of witnesses, there were total 26 witnesses. Statements of PW-1 to PW-5 were recorded before the trial Court but they did not support the case of the prosecution. PW-1 was complainant-Jaswinder Singh, who appeared on 12.10.2005 but did not support the prosecution story. Complainant PW-1 is son of the deceased but still he did not support the case of the prosecution and was declared hostile at the request of public prosecutor. PW-2 Dharambir, who was an eye witness to the incident, also did not support the case of the prosecution. Similarly, PW-3 Bir Singh and PW-4 Arvind also did not support the case of the prosecution and were declared hostile. PW-5 Birmati, who is wife of the deceased was also declared hostile. Even she has denied of making any statement Exhibit PE before the police u/s 161 Cr.P.C. In her statement, it was mentioned that Swaraj Singh (the present petitioner), and Ram Kumar were not present at the spot at the time of occurrence. After recording the statements of PW-1 to PW-5, the prosecution failed to bring about any incriminating evidence against any of the accused facing trial and even their statement u/s 313 Cr.P.C. were dispensed with.
8. The case of the petitioner in the present petition is that he was present at the time of recording of statement along with other PWs but still his statement was not recorded, whereas, nothing is on record whether he was present on that day or not. The evidence of the prosecution was closed on the making of statement by public prosecutor but PW-1 to PW-5 did not support the case of the prosecution. Similarly other accused also did not support the case of the prosecution and there was no necessity to record their statement. In the absence of any statement of PWs, it cannot be said that the accused were involved in commission of offence and the trial Court thought it proper not to recall the statement of remaining witnesses when PW-1 to PW-5 did not support the case of the prosecution. Even the son and wife of the deceased did not support the case of the prosecution and were declared hostile. The application by the present petitioner was moved after much delay as the judgment of acquittal was passed on 15.09.2006 and the application was moved on 05.10.2006 which appears to be made afterthought. PW-3 to PW-5 were eye witnesses to the incident but still they did not support the case of the prosecution. The statement of public prosecutor was recorded on 15.09.2006, wherein, it was stated that Swaraj Singh, the present petitioner as well as Ram Kumar were won over by the other side and hence were given up and the evidence was closed of the prosecution and there was no chance of improvement in the case of the prosecution in case the remaining witnesses were not examined.
9. The judgments relied upon by learned counsel for the petitioner are not applicable keeping in view the facts and circumstances of the present case. It is not the case of the petitioner that a complaint was made on that very day or the affidavit was submitted on that day itself. The judgment of acquittal was passed on 15.09.2006 and the complaint was made on 05.10.2006 which appears to be made with some ulterior motive and the same cannot be considered at this stage. Moreover, the judgment of acquittal has been passed on 15.09.2006 and to interfere at this stage i.e. after a delay of more than six years, would not be in the interest of justice.
10. The question which has arisen from the facts of the present case and is very much required to be answered for just decision of the case is that, whether the prosecution is bound to examine all the cited witnesses or not.
11. Hon''ble the Apex Court in
12. In
13. In
10. It is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.... In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.
14. In
22. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses, but the quality of their evidence which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time-honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. The legal system has laid emphasis on the value provided by each witness, as opposed to the multiplicity or plurality of witnesses. It is thus, the quality and not quantity, which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced over and above this, does not carry any weight.
15. Further in
17........ the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. The accused can also examine the cited, but not examined witnesses, if he so desires, in his defence. It is the discretion of the prosecutor to tender the witnesses to prove the case of the prosecution and "the court will not interfere with the exercise of that discretion unless, perhaps, it can be shown that the prosecution has been influenced by some oblique motive." In an extra-ordinary situation, if the court comes to the conclusion that a material witness has been withheld, it can draw an adverse inference against the prosecution, as has been provided u/s 114 of the Evidence Act. Undoubtedly, the public prosecutor must not take the liberty to "pick and choose" his witnesses, as he must be fair to the court, and therefore, to the truth. In a given case, the Court can always examine a witness as a court witness, if it is so warranted in the interests of justice. In fact, the evidence of the witnesses, must be tested on the touchstone of reliability, credibility and trustworthiness. If the court finds the same to be untruthful, there is no legal bar for it to discard the same.
Evidence of a hostile witness:
19. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof.
20. In
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Therefore, the law permits the court to take into consideration the deposition of a hostile witness, to the extent that the same is in consonance with the case of the prosecution, and is found to be reliable in careful judicial scrutiny.
16. There is very less scope to interfere with the judgment of acquittal in a revision petition filed by one of the witness. The interference with the judgment of acquittal is well settled. It is only in exceptional cases where there are compelling circumstances and the judgment of acquittal is found to be perverse, the appellate Court/revisional Court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court''s acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. The revision petition, being devoid of any merits, is hereby dismissed.
