Holding

In a case involving a large number of participants, if more than one reliable witness fails to identify an accused, the benefit of doubt must be given and the conviction cannot stand.

Summary

Eighteen persons were charged under Sections 302 and 302 read with 149 of the Indian Penal Code for the murder of Parshuram Bind and his father. The prosecution relied mainly on two eyewitnesses, PW5 and PW6, who identified all the accused except for Accused No.12 (not identified by PW5) and Accused Nos.9 and 10 (not identified by PW6). Two other eyewitnesses, PW1 and PW4, turned hostile and refused to name any accused, though they confirmed that the incident occurred. The trial court and the High Court convicted all accused. On appeal, the Supreme Court applied the "two‑witness theory" for large unlawful‑assembly cases, holding that where more than one reliable witness fails to identify an accused, the benefit of doubt must be given. Consequently, the convictions of Accused Nos.9, 10 and 12 were set aside, while the convictions of the remaining accused were upheld. The Court also rejected a last‑minute submission under the Juvenile Justice (Care and Protection of Children) Act, 2000, as it had not been raised before the lower courts and involved a mixed question of law and fact.

Issues considered

Whether a conviction can be sustained when only one of two reliable eyewitnesses identifies an accused in a large unlawful‑assembly case.
Whether the Juvenile Justice (Care and Protection of Children) Act, 2000 can be invoked for the first time before the Supreme Court when it was not raised before the trial or appellate courts.
Whether the question of applying the Juvenile Justice Act is a pure question of law or a mixed question of law and fact.

Legislation cited

Indian Penal Code, 1860s. 149, s. 302
Juvenile Justice (Care and Protection of Children) Act, 2000

Subjects

IPCMurderUnlawful AssemblyEyewitness IdentificationBenefit of DoubtTwo‑Witness TheoryJuvenile Justice ActMixed Question of Law and FactConviction Set Aside

Judgment

A CHANDRA SHEKHAR BIND AND ORS.
v.
STATE OF BIHAR

OCTOBER 9, 2001

B [K.T. THOMAS AND S.N. VARIAVA, JJ.]

Penal Code; 1860-Sections 302 and 302 read with 149-Conviction
under-Prosecution case supported by 2 eyewitnesses-All the accused except
3 ident{fied by both the eyewitnesses-Convicted by Court.1: below-On appeal
C conviction of 3 accused set aside giving benefit of doubt-Convicrion of other
accused upheld.

Constitution of India, 1950-Article 136-Specicil leave-New Plea-,-
Mixed question of law and facts mu/ not pure question of law-Held, cannot be
permitted to be raised .for the .first time in Supreme Court.
D
Eighteen accused including the appellants were charge-sheeted under
section 302 and 302 read with sectiOn 149'!.P.C. PW_s 1, 4, 5 and 6 were the
eye witnesses to the incident. PW 5 had lodged FIR. In trial, PW5 who had
identified all the accused except accused No. 12 and PW 6 who had id_entified
all the accused except accused Nos. 9_ and 10 supported the prosecution
E case. PWs 1 and 4_ on whom injury w~s proved turned hostile as they
refused to id~ntify the accused but confirmed that the incident had taken
place. Defence examined two witnesses to prove alibi and DWs 3, 4 and 5
stated that after the incident. when they had gone to t~e house of the
deceased, PWs S and 6 had not _named any o~ the accused. However, this
F was not pu:t to PWs S and 6 in their cross-examination.

Trial Court relying on the evidence of PWs 5 and 6 and rejecting the
evidence of defence, convicted the accused, High Court ·confirmed the
conviction.

G In appeal to this_ Court appellants for the first time sought to make
submission on the basis of Juvenile Justice (Care and Proteetion of Children)·
Act, Jooo: ;--
' Dismissing the appeals, the Court

H HELD : 1. The evidence of DWs 3, 4 and' S has rightly not been
658
CHANDRASEKHAR BIND v. STATE 659
accepted by the trial court and the High Court. PWs 5 and 6 are trustworthy A
and reliable witnesses. Their presence on the scene could not be denied.
·There is absolutely no reason why they should falsely implicate the accused.
All the accused were known to these witnesses and, therefore, they could
identify the accused. [661-D; E; F]

Masalti v. State of U.P., AIR (1965) SC 202 and Binay Kumar Singh v.
B
State of Bihar, [1997] 1 SCC 283, referred to.

2. PWs 1 and 4 were injured witnesses and their injuries had been
proved. PW4 ~as also the informant who had lodged the first information
report. Though PWs 1 and 4 turned hostile and refused to identify any c
person, they however confirmed that the incident had taken place. PWS
has not identified.accused No. 12 and PW 6 has not identified accused Nos.
9and10. However, PWs 5 and 6 have both identified all the other accused.
Considering the large number of people involved, it would be prudent in
. this case to adopt the two witness theory. On the basis of this two witness
theory, benefit of doubt would have to be and is given to accused Nos. 9, 10
D
and 12 inasmuch as more than one witness has not identified them.
..... [662-D; G; 662-E-G]

3. The Court cannot permit to take up point regarding Juvenile
Justice (Care and Protection of Children) Act, 2000. It has not been urged E
before the trial court that any of the accused was a juvenile. No such point
had been taken before the High Court. No such point has been taken in the
S.bP filed before this Court. This is not a pure question of law which can be
taken up for the first time in this Court. It is mixed question of law and
fact. [663-A; 662-H]
F
... CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 337-
338 of 1999.

From the Judgment and Order dated 9.1.98 of the Patna High Court in
Crl. A. No. 407 of 1991 with Cr!. A. No. 433 of 1991.
.G
WITH

Crl. A. No. 339 of 1999 and Cr!. A. No. 1366 of 1999.

P.S. Mishra and H.L. ·Agrawal, Rakesh Khanna R.P. Singh, Chandra
Shekhar, Vishnu Sharma, Upendra Mishra, Anil Kumar Gupta-II (A.C.) H
660 SUPREME COURT REPORTS . (2001] SUPP. 3 S.C.R.
A Jayai;it Bhushan (A.C.) Ms. Sunita R. Singh and B.E. Singh for the appearing
parties.

The.Judgment of the Court was delivered by

S.N. VARIAVA, J. These Appeals are against lhe Judgment dated 9th
B January, 1998 by which the High Court has dismissed the Criminal Appeals
filed by the Appellants herein.

Briefly stat~d the facts are as follows :
;
According to the prosecution, on 3rd June, 1989 Tungnath Mistri,
c ParshuramBind,Shiv.Nath Bind, Ram Vinod Bind and certain others villagers
were sitting in front of the house of Parshuram Bind. All of a sudden 22 to 23
persons came run.ning from the western 'gali' armed with.rifles, guns, country
made pistols, pasulis and lathis and started firing from the fire-arms. It'is lhe
case of the prosecution that these assailants started firing at Parshuram Bind.
D Appellant No. 1 (Chandra Shekhar Bind) fired at Tungnath Mistri causing
injuries on his left elbow. One Suresh Bind also fired at Tungnath. Mistri
causing injury on his right hand. It is the case of the prosecution that when
Parshuram Bind tried to enter his house he was chased by the assailants who
caught him and brought him out and then he was assaulted with a pasuli. It is
the case of the prosecution that Sita Rani Bind, father of Parshuram Bind, came .
E
out of the house ~nd he was also fired 'at. It is the case of the prosecution that
as a result, of this Parshuram B.~nd and his father Sita Ram Bind died and the
assailants
; t
then fled away. It is the case of the prosecution that the motive behind
I ~

this was previous
I l J
enmity as well as a dispute
•
between
"
Parshuram
• '
Bind and
•
the
assailants for catching fish in a 'ahar'. It is the case of the prosecution .that
F Parshuram Bind was a supporter of Bhartiya Janta Party and the Appellants
were members of IPF, being a rival political party.

As a result of the first information repOJ."t lodged by P.W. 4 investigation
-
was taken up. Ultimately 18. persons were charge-sheeted. The trial court
convicted, on 10th September, 1991,. 11 persons under Section 302 Indian
G
Penal Code and 7 other persons under Section 302 read with 149 Indian ~enal
Code. All were sentenced to undergo imprisonment for life.

All the accused filed Appeals before the High Court. During the peridency
of the ,Appeal (before the High Court) Suresh Bind died. The High Court by
H the impugned Judgment dismissed the Appeals.
CHANDRASEKHAR BIND v. STATE [VARIAVA, J.] 661

The original Accused Nos. 6 and 13 have not filed any S.L.P. before this A
Court. The other 15 accused have filed these Criminal Appeals.

In order to prove its case the prosecution has examined 10 witnesses.
PWs. 1, 4, 5 and 6 are the eye witnesses. P.Ws. 1 and 4 turned hostile and
refused to identify any of the accused in Court~ They, however, confirmed that
the incident, as alleged, had taken place. P."':s. 5 and 6 have supported the B
prosecution. The prosecution also examined two doctors. P.W. 7 carried out the
post-mortem on both the deceased persons and proved that their death was
homicidal as a result of gun shot injuries. P.W. 9 proved injuries on P.Ws. 1
and 4.

The defence examined 5 witnesses. P.Ws 1and2 were examined in order
c
to try and prove an alibi set up by Appellant No. 5. Both the Courts below have
disbelieved this evidence. Both the Courts below have disbelieved the case of
alibi. The other three defence witnesses deposed that after the incident they
came to the house of the deceased and that at that time neither P.W. 5 nor P.W.
6 had named anybody. However, when P.Ws. 5 and 6 had given evidence it had D
not been put to them that they had not named any person to D.Ws. 3, 4 and
5. Thus the evidence of these witnesses has rightly not been accepted by the
trial Court and the High Court.

Both the trial Court and the High Court have based the conviction on the
evidence of P.Ws. 5 and 6. We have gone through the evidence of P.Ws. 5 and E
6. We are in agreement with the trial court and the High Court that both these
witnesses are trustworthy and reliable witnesses. Their presence on the scene
could not be denied. There is absolutely no reason why they should falsely
implicate the accused. All the accused were known to these witnesses and,
therefore, they could identify the accused. F

However, this is an incident in which a large number of accused had
participated. The Constitution Bench of this Court has, in the case ofMasalti
v. State of U.P. reported in AIR (1965) SC 202, held that under the Evidence
Act trustworthy evidence given by a sillgle witness would be enough to convict
.... an accused person, whereas evidence given by half a dozen witnesses which G
is not o;ustworthy woµld not be enough to sustain the conviction. It was held
that where a criminal court has to deal wjth evidence pertaining to the commission
of an offence involving a large number of offenders it is usual to adopt the test
that the conviction could be sustained only if it is supported by two or three
or more witnesses who give a consistent account of the incident. It was held H
662 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A as
that in a sense, the test may be described mechanical, but it cannot be treated
as irrational or unreasonable. It was held that even though it is the quality of
the evidence that matters and not the number of witnesses, still it is useful to
adopt such a mechanical test.
•
..,,. -
This two-witness theory has also been adopted by this Court in the case
B of Binay Kumar Singh v. Statfi of Bihar reported in [1997] 1 SCC 283. It is
held that ·there is no rule of evidence that no conviction can oe based unless
a certain minimum number of witnesses have identified a particular accused as
a rnember of the unlawful assembly. It is held that it is axiomatic that evidence
is not to be counted but only weighed and it is not the quantity of evidence but
c the q~ality that matters. It is held that even the testimony of one single witness, .....
if wholly reliable, is sufficient to establish the identification of an accused as
a member of an unlawful assembly. It is held that all the same, when the siZ;e
of the unlawful assembly is quite large and many persons would have witnessed
the incident, it would be a prudent exercise to insist on at foast two reliable
witnesses to vouchsafe the identification of an accused as .a participant in the· ~-
D ri~ting.

P.Ws. 1 and 4 were injured witnesses and their injuries had been proved.
f
P.W. 4 was also the informant who had lodged the first'information report. Yet,
as stated above, P.Ws. 1 and 4 turned hostile and refused to identify any person.
They however confirmed that the incident had taken place. On a careful reading
E
of the evidence of P.Ws. 5 and 6 we find that P.W. 5 has identified Accused
Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, ll, 13, 14, 15, 16, 17 and l8 whereas P.W.
6 has identified Accused Nos. 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17
and 18. Thus P.W. 5 has not identified Accused.No. 12 and P.W. 6 has not 'l'A
identified Accused Nos. 9 and 10. However, P.Ws. 5 and 6 have both identified
F all the other accused.

In our view, considering the large number of people involved, it would
be prudent in this case to adopt the two-witness theory. On the basis of this two-
witness theory benefit of doubt would have to be and is given to Accused Nos.
9, 10 and 12 inasmuch as more than one witness has not identified them. JI"!.,
G
Mr. Mishra, who came in at a later stage, sought to make a submission
on the basis of the Juvenile Justice (Care and· Protection of Children) Act 2000.
We, however, find that it had not been argued before the trial court that any
of the accused was a juvenile. No such point had been taken before the High
Court. No such point has been taken in the SLP filed before this Court. In our
_:__1
H
c

CHANDRASEKHAR BIND v. STATE [VARIAVA, J.] 663

view, this is not a pure question of law which can be taken up for the first time A
in this Court. It is mixed question of law and fact. We, therefore, do not permit
Mr. Mishra to take up this point and do not deal with theis aspect.

In this view of the matter, we set aside the conviction of Accused Nos.
9, 10 and 12. They shall be set free forthwith unless they are required in some
other case. The Appeals of the other Appellants are dismissed. Their conviction, B
as passed by the High Court, stands confirmed. They shall serve out their
sentences.

K.K.T. Appeals dismissed.