Paragraph numbers below are the court’s original numbering, recovered from the source text.
26. It is next contended by Mr. Giri, learned counsel for the appellants that all the eyewitnesses are related to the deceased Badan Pal and they being interested witnesses, their version requires scrutiny with care, caution and circumspection and when their evidence is scanned with the said parameters, it does not withstand the said test for which the case set forth by the prosecution gets corroded and the principle of beyond reasonable doubt gets shattered. The aforesaid submission, as we perceive, has no legs to stand upon, for PWs-1 to 3 have deposed in detail about the previous enmity between the parties, their presence at the spot, the weapons the accused persons carried. their proximity to the shed and establishment of the identity of all the four accused. They have also testified as regards the deceased lying in a pool of blood. There is no reason why they would implicate the appellants forthe murder of their relation leaving behind the real culprit.
That apart, nothing has been elicited in the cross-examination for which their testimony can be discredited. In this regard reference to a passage from Hari Obuht Reddy mu/ Ors. v. State of Andftra Pradesh" would be fruitful. In the said case, a three-Judge Bench has ruled that it cannot 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 the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the· interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. It is worthy to note that there is a distinction "(i981)3SCC675 VIJENDRA SINGH v. STATE OF UTTAR PRADESH . 127 [DIPAK MISRA, J.l between a witness who is related and an interested witness.
A relative is a natural witness. The Court in K(lrfik M(ll/wr v. Sf(lfe of Bilwr" has 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 the other, convicted for some animus or for some other reason.
27. Mr. Giri, learned senior counsel for the appellant has also impressed upon us to discard the testimony of PW-3, Tedda, on the ground that he is a chance witness. According to him, his presence at the spot is doubtful and his evidence is not beyond suspicion. Commenting on the argument of chance witness, a two-Judge Bench in Rana Pratap and Ors'. v. Sf(lfe of Hary(lna'° was compelled to observe:- "We do not understand the expression "chance witnesses". Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of_the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witnesses" is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are "chance witnesses", even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence." c
28. Tested on the anvil of the aforesaid observations, there is no material on record to come to the conclusion that PW-3 could not have accompanied PW-2 while he was going to the shed near the tube-well. What has been elicited in the cross-examination is that he was not going daily to the tu~e-well. We cannot be oblivious of the rural milieu. No adverse inference can be drawn that he was not going daily and his testimony that he had accompanied PW-2 on the fateful day should be " (1996) 1sec614 "'(1983)3SCC327 [20 I 7] I S.C.R. · brushed aside. We are convinced that his evidence is neither doubtful nor create any suspicion in the mind. c
29. Thus, the.real test is whether the testimony of PWsl to 3 are intrinsically reliable or not. We have already scrutinized the same and we have no hesitation in holding tliat they satisfy the test of careful scrutiny and cautious approach. They can be relied upon.
30. The next plank of argument of Mr. Giri is that since Nepal Singh who had been stated to have accompanied PW-2 and PW-3 has not been examined and similarly, Ram Kala and Bansa who had been stated to have arrived at the tube-well as per the testimony of PW-2, have not been examined, the prosecution's version has to be discarded, for it has deliberately not cited the independent material witnesses. It is noticeable from the decision of the trial court and the High Court, reliance has been placed on the testimony of PWs 1 to 3 and their version has been accepted. They have treated PW-2 and PW-3 as natural witnesses who have testified that the accused persons were leaving the place after commission of the offence and they had seen them quite closely. The contention that they were interested witnesses and their implication is due to inimical disposition towards accused persons has not been accepted and we have concurred with the said finding.
It has come out in evidence that witnesses and the accused persons belong to the same village. The submission of Mr. Giri is that non-examination Nepal Singh, Ramlal and Kalsa is quite critical for the case of the prosecution and as put forth by him, their non-examination crucially affects the prosecution version and creates a sense of doubt. According to Mr. Giri, Nepal Singh is a material witness. In this regard we may refer to the authority in Stllte of H.P. v. Gilln Clwnd'' wherein it has been held that non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record hows.oever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the ·prosecution should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses are available for being examined in the court and were yet withheld by the prosecution.
The Court after so holding further ruled that it is the duty of the court to first assess the trustworthiness of the evidence available on record and if the court finds the evidence adduced worthy of being relied on and deserves acceptance, then non- "(2001)6SCC71 VIJENDRA SINGH v. STATE OF UTTAR PRADESH 129. fDIPAK MISRA, J.l examination of any other witnesses available who could also have been examined but were not examined, does not affect the case of the prosecution.
31. In T"klwji Hir"ji v. Tlwkore Kubersing C/wmansing (111{/ Ors.", it has been held that ifa material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that ifthe witness would have been examined it would not have supported the prosecution case. On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable, the court can safely act upon it, uninfluenced by the factum of non- examination of other witnesses. In Dttlwri and Ors. v. St"le of U.P". while discussing about the non-examination of material witness, the Court expressed the view that when he was not the only competent witness who would have been fully capable of explaining the factual situation correctly and the prosecution case stood fully corrobo.rated by the medical evidence and the testimony of other reliable witnesses, no adverse inference could be drawn against the prosecution. Similar view has been expressed in M"njit Sing It and Anr. v. St"te of Punj"b mul Anr." and Jogimler Singlt v. State of Hary""""·
32. Tested on the aforesaid parameters, we are unable to accept the submission of Mr. Giri that non-examination of Nepal Singh and other two persons who had been referred to by PW-2 affects the prosecution version or creates any doubt in the mind of the Court. We arrive at such a conclusion since the witnesses examined by the prosecution are trustworthy and the court can safely act on their testimony. There is no justification in the instant case to draw any adverse "(2001) 6 sec 145 " (2012) lO sec 256 "(2013) 12 sec 746 23 (2014) II SCC335 c c [2017] I S.C.R. inference against the prosecution.
33. Mr. Giri, learned counsel for the appellants laying stress on the absence of injury caused by lathi on the person of the deceased has urged that the appel !ant- Mahendra Singh cannot be convicted in aid of Section 34 !PC. In that regard, he has commended us to the authority in Bijendra Bltag11t (supra). Learned counsel has drawn inspiration from paragraph four of the said decision. The relevant part of the said paragraph is as follows:- " … According to the witnesses these i"o ~ccused were also armed with country-made pistols. The injuries suffered by the deceased are incised wounds and one firearm injury. However, none of the injuries on the person of the deceased could be attributed to the lathi which was supposedly in the hands of the appellant. Undoubtedly, three injuries on the person of Sanjay Kumar could be caused by a hard and blunt object. But having gone through the testimony of the witnesses and the other materials on record, the presence of the appellant and his involvement in the incident clearly appears to be doubtful. We, therefore, deem it appropriate to give the appellant bencfiCOf doubt. … "
34. Relying on the same, it is contended by Mr. Giri that when there is no lathi blow on the person of the deceased as noticeable from the post.mo1tem report, the appellant- Mahendra Singh deserves to be acquitted. The passage that has been commended to us has to be correctly appreciated. In that case, the Court has referred to injury caused on the person of the deceased and noticed how the injury was caused but the reason for acquittal is that the presence of the appellant therein and his involvement in the incident appeared to the Cou1t to be doubtful. If a person is not present at the spot. the question of common intention does not arise. As has been held in P1111d11ra11g (supra), if the common intention is established, an accused can be convicted. We have already discussed the role attributed to the appellant- Mahendra Singh by the prosecution. He had gone with other accused persons, who were carrying pistols and ballam. He himself was carrying a lathi. Similarly, accused-appellant Vijendra Singh was carrying a ballam and accompanying others. Their intention was to go to the shed where the deceased was studying because of availability of the electric light, has been established. Common intention can be gathered from the facts and circumstances and in the instant case, the same is clearly discernable VIJENDRA SINGH v. STATE OF UTTAR PRADESH 13 I [DlPAK MISRA, J.] and hence, the decision in Bijemlra Bhagat (supra) is of no assistance to the appellant.
35. In view of the aforesaid analysis. we do not find any merit in Criminal Appeal No. 1452 of 20 l 0 preferred by Mahendra Singh and the same is, accordingly, dismissed. 36: As far as appellant-Vijendra Singh is concerned, a report was called for and he has been found to be a juvenile being 16 years 3 months ··-To days old on the date ofoffence. The said report has gone unchallenged and Mr. Dash, learned senior counsel appearing for the State, has fairly stated that he was a juvenile on the date of offence. Mr. Giri has commended us to the authority in Hari Ram (supra). We find that the Court relying on Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the amendments introduced in Section 20 of the 2000 Act whereby the proviso and Explanation were added to Section 20 and the Juvenile Justice (Care and Protection of Children) Rules, 2007, remitted t[ie matter to the Juvenile Justice Board with the observation that if he had been detained for more than the maximum period for which a juvenile may be confined to a special home, the Board shall release him from custody forthwith. In the case at hand, as the appellant-Vijendra Singh remained in custody for more than the maximum period for which he could have been confined to a special home, while sustaining the conviction, we release him from custody forthwith.
37. Consequently, Criminal Appeal No. 1452 of2010 is dismissed · and Criminal Appeal No. 1448 of20 I 0 is disposed of treating the appellant- . Vijendra Singh as ajuvenife and directions issued in that regard as stated herein before. c Nidhi Jain Appeals dispos~d of.