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CASE NO.:

Appeal (crl.) 337-338 of 1999

PETITIONER:

CHANDRA SHEKHAR BIND AND ORS.

RESPONDENT:

STATE OF BIHAR

DATE OF JUDGMENT: 09/10/2001

BENCH:

K.T. THOMAS & S.N. VARIAVA

JUDGMENT:

JUDGMENT

2001 Supp(3) SCR 658

The Judgment of the Court was delivered by

S.N. VARIAVA, J. These Appeals are against the Judgment dated 9th January,

1998 by which the High Court has dismissed the Criminal Appeals filed by

the Appellants herein.

Briefly stated the facts are as follows :

According to the prosecution, on 3rd June, 1989 Tungnath Mistri, Parshuram

Bind, 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 running from the western 'gali' armed with rifles, guns,

country made pistols, pasulis and lathis and started firing from the fire-

arms. It is the case of the prosecution that these assailants started

firing at Parshuram Bind. 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 Ram

Bind, father of Parshuram Bind, came out of the house and he was also fired

at. It is the case of the prosecution that as a result of this Parshuram

Bind and his father Sita Ram Bind died and the assailants then fled away.

It is the case of the prosecution that the motive behind this was previous

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 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 report 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

Penal Code and 7 other persons under Section 302 read with 149 Indian Penal

Code. All were sentenced to undergo imprisonment for life.

All the accused filed Appeals before the High Court. During the pendency of

the Appeal (before the High Court) Suresh Bind died. The High Court by the

impugned Judgment dismissed the Appeals. The original Accused Nos. 6 and 13

have not filed any S.L.P. before this 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.Ws. 5 and 6 have

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supported the 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 1 and 2 were examined in order 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 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

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.

However, this is an incident in which a large number of accused had

participated. The Constitution Bench of this Court has, in the case of

Masalti v. State of U.P. reported in AIR (1965) SC 202, held that under the

Evidence Act trustworthy evidence given by a single witness would be enough

to convict an accused person, whereas evidence given by half a dozen

witnesses which is not trustworthy would not be enough to sustain the

conviction. It was held that where a criminal court has to deal with

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 that in a sense, the

test may be described as 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 of

Binay Kumar Singh v. State of Bihar reported in [1997] 1 SCC 283. It is

held that there is no rule of evidence that no conviction can be based

unless a certain minimum number of witnesses have identified a particular

accused as a member 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 the quality 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 size 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 least two reliable witnesses

to vouchsafe the identification of an accused as a participant in the

rioting.

P.Ws. 1 and 4 were injured witnesses and their injuries had been proved.

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 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, 11, 13, 14, 15, 16,

17 and 18 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

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Accused No. 12 and P.W. 6 has not identified Accused Nos. 9 and 10.

However, P.Ws. 5 and 6 have both identified 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.

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 view, 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.

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, as passed by the High Court, stands confirmed. They shall serve

out their sentences.