LALLI ALIAS CHIRANJIB BHOWMICK Vs. STATE

JUDGEMENT

(1.) The prosecution case may briefly be stated as follows : -

(2.) Mr. Das, Mr. Roy and Mr. Dutt, learned Advocates appearing on behalf of the appellants, submit that in this case the prosecution relies on three items of evidence, Firstly on the uncorroborated testimoney of a single witness P. W. 26 - Haradhone Das who claims to have seen the occurrence. Secondly, on the evidence under Sec. 27 of the Evidence Act and thirdly, on the retracted confession of a co -accused. It is contended that the learned Judge ought not to have placed any reliance on the evidence of P. W. 26 as on a scrutiny of the evidence adduced by this witness, it will be clear that he did not see the occurrence and has been procured by the police about two months after the incident. The reasons offered by the learned Advocate for not accepting the testimoney of P.W. 26 will be discussed subsequently. With regard to the evidence on the point of recovery of dead bodies it has been submitted that the statements of the accused persons have not been proved in this case and as such the fact of recovery cannot go under Sec. 27 of the Evidence Act. Again, it has been contended that it is the evidence of the investigating officer that three accused persons made statements together. It has been contended that in such circumstances, the statements of the accused who was the first to state can only be admissible in evidence and the statements of the other accused should be rejected. This point will also be discussed at length subsequently. As regards the judicial confession of Ram Abatar broadly it bas been pointed out that the confession is self -exculpatory and as such cannot implicate the other accused persons. It has also been pointed out that though a confession was made by Ram Abatar he has been acquitted. In such circumstances, such a confession cannot be used against other co accused. It has also been submitted that the learned Magistrate did not observe the required formalities of law and as such the confession ought not to have been admitted in evidence.

(3.) The learned Advocates for the appellants, with much emphasis, contend that it will be risky to rely on the uncorroborated testimony of a single witness namely. P. W. 26 who was examined by the police only on 8.10.78, the incident having taken place on 26 6 78. In this connection it has also been contended that though the witness narrated the incident to his mother and wife but none of them has been examined in this case. The two night guards who were with him on the night of the occurrence have also not been examined It is gathered from the evidence of the investigating officer that the two night guards left their services and were not available. It has not transpired in evidence that P.W. 26 stated to the investigating officer that he narrated the incident to his mother and wife If that be so, then there was absolutely no necessity for the investigating officer to examine mother and wife of P.W. 26. On behalf of the appellants, reliance has been placed on a decision, reported in : AIR 1976 SC 2488 (State of Orissa Vs. Mr. Brahmanda Nanda). In this case, the only eye witness to the occurrence did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for nondisclosure was unbelievable. In the facts and circumstances of the case, it was held that "such non disclosure was a serious infirmity of the evidence of the witness and that the High Court was correct in rejecting it as untrustworthy and acquitting the accused." It is true that in this case also the only eye witness is P.W. 26 - Haradhone. P.W. 26 deposes that after seeing the entire incident he met the two night guards. He did not disclose the incident to them. After the incident he did not go to the police. He, however, admits that he narrated the incident to his mother and wife. On the following day, he narrated about the lorry hijacking incident to the Secretary, He forbade to tell the incident to anybody and not to bother about it. The Secretary further stated that as a nightguard his duty was to look after the security of the shops and not to bother about any other incident. One and a half months after the incident the police officer came to his house and interrogated him. He stated to him what he knew. As has been stated earlier, this witness though a simple and unsophisticated person and a vegetable dealer and a nightguard impressed us very much as a truthful witness. He was cross examined at length, but was not shaken a little. From a close scrutiny of his evidence we are of the opinion that it cannot be said that he is a tutored witness. He has given the minutest detail from the beginning to end in a most systematic, convincing and reliable manner and that being so, though he is the only eye witness we are not in a position to reject his evidence, as his evidence, gets fully corroborated by other items of evidence which we will discuss soon. On behalf of, the accused reliance has also been placed on another decision, reported in : AIR 1954 SC 51 (Habeeb Mohammad Vs. State of Hyderabad). It has been held "it is the bounden duty of the prosecution to examine a material witness, particularly when no allegation has been made that, if produced, he would not speak the truth. Not only does an adverse inference arise against the prosecution case from his non production as a witness in view of the illustration (g) to Sec. 114 of the Evidence Act, but the circumstances of his being withheld from the Court casts a serious reflection on the fairness of the trial." The prosecution case is that P.W. 26 is the only eye witness. There was no other witness to the actual occurrence. It is true that on that night other two night guards were with him, but they were standing at a distance and they did not see any part of the incident. Even then, they ought to have been examined to prove that on that night they were doing duties as night guards with P. W. 26. The Explanation for non examination of these witnesses has been offered by the investigating officer. P W. 26 also slates that he does not know the whereabouts of these two night guards. Mr. Mukherji, the learned Public Prosecutor in this connection relies on a decision reported in : AIR 1979 SC 1116 (Pal Singh and others Vs. State of Uttar Pradesh), In this case, it has been held that after the High Court had believed the eyewitness Nos. 1 and 2, and having found that their testimony was absolutely credit worthy and truthful, it cannot have rejected the prosecution case merely because some of the eye witnesses mentioned in the F.I.R. were not examined. In such cases, the question which has to be determined is not whether the absence of the examination of the independent witnesses would vitiate the prosecution case by itself but whether the evidence actually produced is reliable or not. Once the court given a finding of fact that the evidence led by the prosecution is reliable and trust worthy, the infirmities arising out of non -examination of witnesses will not be sufficient to put the prosecution out of Court". Mr. Mukherji, with much emphasis, submits that in the present case there is absolutely nothing for which the veracity of the evidence of P.W. 26 can be questioned. The learned trial court was satisfied that P.W. 26 is a truthful witness and Mr. Mukherji submits that this Court also should consider that P.W. 26 is a truthful witness and should not reject his evidence.