BANTI @ GUDDUversusSTATE OF MADHYA PRADESH

                          BANTI @ GUDDU                                            A
                                v.
                     STATE OF MADHYA PRADESH

                           NOVEMBER 4, 2003

          [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]                                B


      Penal Code, 1860-Section J02-Murder-Prosecution for-Incident
seen by eye-witnesses-One ofthe eye-witnesses resiled from original statement
and examined as defence witness-False implication pleaded-Conviction by C
Trial Court and High Court-On appeal, held: Conviction justified-Guilt of
the accused proved beyond reasonable doubt.

      Criminal Trial :

       Delayed examination of witnesses-Affect on prosecution case-Held: It        D
is not rule of universal application that in case ofsuch delay, prosecution case
becomes suspect.

      Non-examination of certain persons as prosecution witnesses-Affect of
on prosecution case-Held: Non-examination not fatal-Public prosecutor
has liberty to pick and choose. witnesses, but without impairing the cause of E
justice-Code of Criminal Procedure, 1973-Sections 226 and 23/.

      Defence witness-Evidentiary value of-Held: Evidentiary value ofsuch
witness is to be tested like any other witness on the touchstone of reliability,
credibility and trustworthiness, particularly when he resi/es and speaks against
the records.                                                                     F
      Appellant-accused were charged for offences u/s 302 r/w Section 34
IPC. Prosecution case was that the accused penons assaulted the deceased
with knives which resulted in his death. The incident was seen by PWI,
PW2 and DWI. Motive of the incident was alleged to be the deceased
beating the accused for eve- teasing. Appellants-accused pleaded innocence         G
and alleged false implication by PWs I and 2 as they were brother and
friend respectively of the deceased. DWI resiled from his original
statement and was examined by defence to falsify the claim of PWs I and
2 to have witnessed the occurrence. He denied to be present at the time of
                                     119                                           H
    120                       SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.

A   lodging FIR, and to have identified the assailants because of dim light.
    He also disowned his signatures on various documents alleging that his
    signatures were taken on blank papers. Trial Court convicted the
    appellants-accused for the offence punishable u/s 302 IPC and the same
    was confirmed by High Court.

B         In appeal to this Court appellants contended that the judgments of
    courts below are indefensible as evidence of DWI was not taken into
    consideration; that there was delay in examination of witnesses; that
    certain persons stated to be present at the place of occurrence were not
    examined; and that the alleged motive was not established.
c         Dismissing the appeals, the Court

         HELD : I. There is no justifying reason or ground substantiated on
    behalf of the appellants to interfere with the concurrent findings recorded
    by both the courts based on relevant, cogent and trustworthy evidence
D   adduced by the prosecution to prove the guilt of the appellants beyond
    reasonable doubt. (128-A-B)

            2. Evidence of DW-1, establishes that he is a compulsive liar who
    was made to somersault to help the accused. He tried to rule out the
    presence of light facilitating identification. He has at ·the same time made
E   a statement that he can identify the assailant. This even does not appeal
    to common sense. On an overall reading of the evidence of DWI, it appears
    that his evidence to the extent he has gone out of the way to oblige the
    accused is not truthful. In the first information report itself, the fact that
    he bad accompanied the complainant has been specifically mentioned. DW-
    I accepted that he had accompanied the deceased to the hospital, but
F   thereafter denied going to the police station. His statement that bis
    signatures were taken on blank paper appears to be a cock and bull story.
    It is true, the evidence of defence witness is not to be Ignored by the courts.
    Like any other witnesses, his evidence has to be tested on the touchstone
    of reliability, credibility and trustworthiness particularly when he attempts
G   to resile and speak against records and in derogation of his earlier conduct
    and behaviour. If after doing so, the Court finds it to be untruthful, there
    is no legal bar in discarding it. (125-8-FJ

         3. In view of the cross-examination of PWs I and 2 nothing infirm
    has been elicited to cast doubt on their veracity. If the lack of motive as
H   pleaded by the accused appellants is a factor, at 1he same time it cannot
                       BANTI @GUDDU v. STATE M.P.                       121
 be lost sight of that there is no reason as to why PW-I would falsely         A
 implicate the accused persons. There was no suggestion of any motive for
 such alleged false implication. Merely because PW-I is a relation of the
 deceased and PW-2 was known to him, that per se cannot be a ground to
 discard their evidence. Careful scrutiny has been done of their evidence
 and it has been found acceptable by both the trial court and the High
 Court. There is no reason to take a different view. (125-G-H; 126-AI          B
       4.1. It is clear from Section 231 Cr.P.C. that the Public Prosecutor
 is expected to produce evidence "in support of the prosecution" and not
 in derogation of the prosecution case. If there are too many witnesses on
 the same point the Public Prosecutor is at liberty to choose two or some      C
 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. (126-D-FI

        4.2. Section 226 Cr.P.C. enjoins on Public Prosecutor to open up his
 case by describing the charge brought against the accused. He has to state D
 what evidence he proposes to adduce for proving the guilt of the accused.
 The situation is a case where the prosecution cited two categories of
 witnesses to the occurrence, one consisting of persons closely related to
 the victim and the other consisting of witnesses who have no such relation,
 the Public Prosecutor's duty to the Court may require him to produce
 witnesses from the latter category, also subject to his discretion to limit E
 to one or two among them. But if the Public Prosecutor got reliable
 information that any one among that category would not support the
 prosecution version he is free to sta., in court about that fact and skip
 the witness from being examined as a prosecution witness. It is open to
 the defence to cite him and examine him as a defence witness. The decision p
 in this regard has to be taken by the Public Prosecutor in a fair manner.
 He can interview the witness beforehand to enable him to know well in
 advance the stand which that particular person would be adopting when
 examined as a witness in court. (126-H; 127-A-CI

      Masalti v. State of U.P., AIR (1965) SC 202, relied on.                  G
        Bava Hajee Hamsa v. State of Kera/a, (1974) 4 SCC 479; Shivaji
  Sahabrao Babade v. State of Maharashtra, (19731 2 SCC 793; Dalbir Kaur.
  v. State of Punjab, (1976) 4 SCC 158 and Hukam Singh and Ors. v. State of
. Rajasthan, (20001 7 SCC 490, referred to.
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    122                      SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.

A         5. Unless the investigating Officer is categorically asked as to why
    there was delay in examination of the witnesses the defence cannot gain
    any advantage therefrom. It cannot be laid down as a rule of universal
    application that if there is any delay in examination of a particular witness
    the prosecution version becomes suspect. It would depend upon several
B   factors. If the explanation offered for the delayed examination is plausible
    and acceptable and the court accepts the same as plausible, there is no
    reason to interfere with the conclusion. (127-G-H; 128-A)

        Ranbir and Ors. v. State. of Punjab, AIR (1973) SC 1409 and Bodhraj
    @bodha and Ors. v. State ofJammu and Kashmir, [2002) 8 SCC 45, referred
C to.
         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    713 of 2003.

          From the Judgment and Order dated 29.8.2002 of the Madhya Pradesh
D High Court at Gwaliar Bench in Crl. A.P. No. 214 of 1994.
                                       WITH

          Crl. A. No. 714 of 2003.

E         Dr. T.N. Singh, J.P. Pandey for S.K. Nandi and Mrs. M. Qamaruddin
    for the Appellant.

          Siddharth Dave for Ms. Vibha Datta Makhija for the Respondent.

          The Judgment of the Court was delivered by

F          ARIJIT PASAYAT, J. The tribe of roadside Romeos and eve teasers
    is fast increasing and their insane infatuations of grave depravity condescend
    to such condemnable proportions causing serious onslaught on the decency
    and sanctity of public life. Innocent women are the victims, and tlie fate of
    good Samaritans like Pravin Pathak (hereinafter referred to ~ 'deceased') is
G   untimely departure from this earth. Gone are the days when peop~e used to
    wish that the tribe of good Samaritans like Abu Ben Adhem would increase.
    On 30.9.1991, deceased was allegedly stabbed to death by appellants Bantia
    Guddu and Teekaram (hereinafter referred to as the accused by their respective
    names.

H         Prosecution version in a nutshell is as follows :
               BANTr@GUDDUv. STATEM.P. [PASAYAT, J.]                   123
       The occurrence took place in the street ofNagar Nigam Dhoti Buwa Ka A
 Pul on 30.9.1991 at 9.15 p.m. For that complainant Kamal Pathak (PW-I)
 lodged complaint in Janakganj police station on the same day at about 10.10
 p.m. in which it was stated that, at the time of occurrence the complainant
 and Laxuman Das (DW-1) were coming form market. At that time they heard
 the sound of altercation. They saw that accused Bantie Guddu and Teekaram
·were assaulting deceased with knives; they with the intention to kill were B
 assaulting on his face, chest, stomach and thigh as a result of which blood
 was oozing form injuries. Deceased fell down after crying and became
 senseless. The accused persons after assaulting ran away, towards Dholibuwa.
 He and Laxuman took Pravin on two wheeler to Hospital. Then on the way,
 they met Diwan (police constable) and with his help they took deceased to C
 hospital and in the hospital doctor declared Pravin dead.

       The reason of this occurrence was that the accused persons used to
move in the locality and were teasing the girls and due to this just about 4-
5 days previous of this incident, deceased Pravin had beaten the accused
person near Madhay College and the accused persons became inimical towards D
him and due to this they committed the murder of Pravin. On the basis of
complaint, Janakganh Police Station, registered Crime No. 303/91 under
Section 302/34. IPC. Spot map was prepared. Panchnama of dead body was
prepared and post mortem of dead body done. Cause of death was found to
be blood haemorrhage and heart attack due to multiple injuries. Blood-stained E
soil and footwear of deceased was seized from the place of occurrence.
Accused persons were arrested on 2.10.1991 and their statement under Section
27 of the Indian Evidence Act, 1872 (for short the 'Evidence Act') was
recorded on same day and on the basis of their disclosure statement, weapons
of assault were recovered from their possession. All the seized articles were
sent to Forensic Science Laboratory, Sagar for chemical examination where F
from report received. After investigation challan was filed and the case was
committed on 6.1.1992 to the Sessions Court for trial.

      The accused persons pleaded innocence and false implication. They
pleaded that complainant Kamal Pathak (PW-I) is brother of the deceased
and witness Trilokinath (PW-2) is a friend of the deceased, and they have G
with ma/a fide intent implicated them. They examined one Laxuman Das
(DW-1) to content that the so called eye-witnesses (PWs I and 2) could not
have witnessed the occurrence as claimed and, therefore, they are entitled to
acquittal.
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    124                       SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.

A          Learned First Additional Sessions Judge, Gwalior found the accused
    appellants guilty and convicted each one of them for offence punishable
    under Section 302 of the Indian Penal Code, 1860 (for short the '!PC') and
    sentenced each to undergo imprisonment for life. In appeal, Division Bench
    of the Madhya Pradesh High Court, Bench at Jabalpur confirmed the conviction
B   and the sentence. The two appeals are directed against the said judgment.

        In support of the appeals, Dr. T.N. Singh, learned senior council
  submitted that the approach of the trial Court and the High Court is erroneous
  and contrary to law. It was pleaded that no notice was taken of the evidence
  of DW-1 which unerringly rules out the presence of so-called eye-witnesses
C at the time of occurrence. His presence was admitted by the prosecution
  witnesses, but they have given a twist to show as if he had originally named
  the appellants to be the authors of the crime. Since there was no consideration
  of OW-l's evidence, the judgments of the trial Court and the High Court are
  indefensible. It was also submitted that though the occurrence was on
  30.9.1991, most of the so-called eye-witness and important witnesses were
D examined on 2.10.1991. No explanation has been given for such delayed
  examination.

          Additionally, the presence of many persons was indicated by the
    prosecution witnesses, but they have not been examined thereby attaching
    vulnerability to prosecution case. Presence of PW-2 is also doubtful as he has
E   not specifically explained as to how he happened to be at the spot of occurrence
    as claimed. Since the alleged motive for which the killings were claimed to
    have taken place has not been established by any record or concrete material,
    the prosecution case has been weakened.

F        In response, learned counsel for the State submitted that the defence of
  DW-1 is clearly make to believe as there is no trustworthiness. The prosecution
  has highlighted as to why he had reasons to depose falsely in spite of having
  been present throughout along with PW-I and subsequently resile from what
  he originally did. His evidence in respect of all essential contours corroborates
  prosecution version to a great extent, except to the departure made by him
G by saying that he was not present at the time of lodging the FIR and also he
  had not identified the assailants. The extent to which he has gone in disowning
  his signatures in various documents and the fallacious stand that his signatures
  were taken on blank paper clearly shows that he is not speaking the truth as
  to the actual and real involvement of the accused. The non-examination of
H the witnesses cannot be a factor to completely throw out the prosecution
                 BANTI@GUDDUv. STATEM.P.[PASAYAT,J.)                           125
 version when otherwise reliable witnesses have established it. According to          A
 him, both the trial Court and the High Court considered the evidence ofDW-
 1, analysed the entire evidence on record and have come to a conclusion that
 the prosecution has established its case.

         Since much stress was laid on the evidence of DW-1, we have gone
  through it carefully. Several features which attract our notice establishes that    B
  he is a compulsive liar who was made to somersault to help the accused. He
 claimed to have seen the assailants in a dim light of his scooter. He tried to
 rule out the presence of light facilitating identification by stating that though
  electric poles were existing around place of occurrence, there was electric
 failure. Interestingly, he has at the same time made a statement that he can         C
  identify the assailant. This even does not appeal to common sense. If the light
  was so dim and he could see the stabbing with the scooter light it is not only
  improbable but impossible that he would be in a position to identify the
 assailant who was a stranger as he claimed. On an overall reading Qf his
 evidence, it appears that his evidence to the extent he has gone out of the way
 to oblige the accused is not truthful. In the first information report itself, the   D
 fact that he had accompanied the complainant has been specifically mentioned.
 It has also been mentioned that he accompanied the complainant and the
 de\:CllSed to the hospital. DW-I accepts that he had accompanied that deceased
 to the hospital, but thereafter denies to have gone to the police station. His
 statement that his signatures were taken on blank paper appears to be a cock         E
 and bull story. It is true, the evidence of defence witness is not to be ignored
 by the courts. Like any other witnesses, his evidence has to be tested on the
 touchstone of reliability, credibility and trustworthiness partieularly when he
 attempts to resile and speak against records and in derog_ation of his earlier
 conduct and behaviour. It after doing so, the Court finds it to be untruthful,
 there is no legal bar in discarding it.                                              F
         Coming to the plea that the presence of PWs I and 2 at the spot of
' occurrence is doubtful, it is to be noticed that both PWs I and 2 were cross-
  examined at length. Nothing infirm has been elicited to cast doubt on their
  vercacity. If the lack of motive as pleaded by the accused appellants is a
  factor, at the same time it cannot be lost sight of that there is no reason as G
  to why PW-I would falsely implicate the accused persons. There was no
  suggestion of any motive for such alleged false implication. Merely because
  PW-I is a relation of the deceased, and PW-2 was known to him, thatper se
  cannot be a ground to discard their evidence. Careful scrutiny has been done
  of their evidence and it ha5 been found acceptable by both the trial Court and H
    126                        SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A the High Court. We find no reason to take a different view.
          Next plea is regar.; :ng non-examination of certain persons who were
    stated to be present.

          In trials before a Court of Session the prosecution "shall be conducted
B by a Public Prosecutor". Section 226 of the Code of Criminal Procedure,
    1993 (for short 'the Code') enjoins on him to open up his case by describing
    the charge brought against the accused. He has to state what evidence the
    proposes to adduce for proving the guilty of the accused. If he knew at that
    stage itself that certain persons cited by the investigating agency as witnesses
    might not support the prosecution case he is at liberty to state before the
C   Court that fact. Alternatively, he can wait further and obtain direct information
    about the version which any particular witness might speak in court. If that
    version is not iri support of the prosecution case it would be unreasonable to
    insist on the Public Prosecutor to examine those persons as witnesses for
    prosecution.
D
         When the case reaches the stage envisaged in Section 231 of Code the
  Sessions Judge is obliged "to take all such evidence as may be produced in
  support of the prosecution". It is clear form the said section that the Public
  Prosecutor is expected to produce evidence "in support of the prosecution"
  and not in derogation of the persecution case. At the said stage the Public
E Prosecutor would be in a position to take a decision as to which among the
  persons cited are to be examined. 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 form repetition depositions
  on the same factual aspects. That principle applies when there are too many
F 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 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
G help the Court considerably in lessening the workload. 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.

         The situation in a case where the persecution cited two categories of
    witnesses to the occurrence, one consisting of persons closely related to the
H
               BANTI@GUDDU v. STATE M.P. [PASAYAT, J.]                  127
victim and the other consisting of witnesses who have no such relation, the A
Public Prosecutor's duty to the Court may require him to produce witnesses
from the latter category, also subject to his discretion to limit to one or two
among them. But if the Public Prosecutor got reliable information that any
one among that category would not support the prosecution version he is free
to state in court about that fact and skip the witness from being examined as B
a prosecution witness. It is open to the defence to cite him and examine him
as a defence witness. The decision in this regard has to be taken by the Public
Prosecutor in a fair manner. He can interview the witness beforehand to
enable him to know well in advance the stand which that particular person
would be adopting when examined as a witness in court.

       A four-Judge Bench of this Court had stated the above legal position
                                                                              c
thirtY five years ago in Masalti v. State of U.P., AIR (1965) SC 202. It is
contextually apposite to extract the following observation of the Bench :

           "It is not unknown that where serious offences like the present
       are committed and a large number of accused persons are tried, D
       attempts are made either to terrorise or win over prosecution witnesses,
       and if the prosecutor honestly and bona fide believes that some of his
       witnesses have been won over, it would be unreasonable to insist that
       he must tender such witnesses before the Court".

      The said decision was followed in Bava Hajee Hamsa v. State ofKera/a,   E
[1974] 4 SCC 479. In Shivaji Sahabrao Babade v. State of Maharashtra,
[1993] 2 SCC 793 Krishna Iyer J., speaking for a three-Judge Bench has
struck a note of caution that while a Public Prosecutor has the freedom "to
pick and choose" witnesses he should be fair to the Court and to the truth.
This Court re-iterated the same position in Dalbir Kaur v. State of Punjab,    F
[1976] 4 SCC 158 and in Hukam Singh and Ors. v. State of Rajasthan,
[20001 1 sec 490.

      As regards delayed examination of certain witnesses, this Court in several
decisions has held that unless the Investigation Officer is categorically asked
as to why there was delay in examination of the witnesses the defence cannot G
gain any advantage therform. It canQot be laid down as a rule of universal
application that it there is any delay in examination of a particular witness the
prosecution version becomes suspect. It would depend upon several factors.
If the· examination offered for the delayed examination is plausible and
acceptable and the court accepts the same as plausible, there is no reason to H
    128                        SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A interfere with the conclusion [See Ranbir and Ors. v. State of Punjab, AIR
    (1973) SC 1409 and Bodhraj @Bodha and Ors. v. State of Jammu and
    Kashmir, [2002] 8 SCC 45]. Consequently, we find no justifying reason or
    ground substantiated on behalf of the appellants to interfere with the concurrent
    findings recorded by both the courts based on relevant, cogent and trustworthy
B   evidence adduced by the prosecution to prove the guilt of the appellants
    beyond reasonable doubt.

          The inevitable result of the appeals i:s dismissal, which we direct.

    K.K.T.                                                       Appeal dismissed.