Rohtash Kumar vs. State of Haryana, Criminal Appeal No. 896 of 2011, Decided on
May 29, 2013
“..the
prosecution is not bound to examine all the cited witnesses, and it can drop
witnesses to avoid multiplicity or plurality of witnesses. The accused can also
examine the cited, but not examined witnesses, if he so desires, in his
defence. It is the discretion of the prosecutor to tender the witnesses to
prove the case of the prosecution and “the court will not interfere with the
exercise of that discretion unless, perhaps, it can be shown that the
prosecution has been influenced by some oblique motive.” In an extra-ordinary
situation, if the court comes to the conclusion that a material witness has
been withheld, it can draw an adverse inference against the prosecution, as has
been provided under Section 114 of the Evidence Act. Undoubtedly, the public
prosecutor must not take the liberty to “pick and choose” his witnesses, as he
must be fair to the court, and therefore, to the truth. In a given case, the
Court can always examine a witness as a court witness, if it is so warranted in
the interests of justice. In fact, the evidence of the witnesses, must be
tested on the touchstone of reliability, credibility and trustworthiness. If
the court finds the same to be untruthful, there is no legal bar for it to
discard the same”
The Court also cited following
case laws:
Abdul Gani & Ors. v.
State of Madhya Pradesh, AIR 1954 SC 31, the SC has examined the aforesaid issue and held, that as a general rule, all
witnesses must be called upon to testify in the course of the hearing of the prosecution, but
that there is no obligation compelling the public
prosecutor to call upon all the witnesses available who can depose regarding the
facts that the prosecution desires to prove.
Ultimately, it is a matter left to the discretion of the public prosecutor, and though a
court ought to and no doubt would, take into consideration the absence of
witnesses whose testimony would reasonably be
expected, it must adjudge the evidence as a whole and arrive at its conclusion
accordingly, taking into consideration
the persuasiveness of the testimony given in the light of such criticism, as may be
levelled at the absence of possible material witnesses.
Sardul Singh v. State of
Bombay, AIR 1957
SC 747, a similar view has been reiterated, observing that a court cannot, normally
compel the prosecution to examine a witness which the prosecution does not
choose to examine, and that the duty of a fair prosecutor extends only to the
extent of examination of such witnesses, who are necessary for the purpose of
disclosing the story of the prosecution with all its essentials.
Masalti v. State of U.P., AIR 1965 SC 202, the SC held that
it would be unsound to lay down as a general rule, that every witness must be
examined, even though, the evidence provided by such witness may not be very
material, or even if it is a known fact that the said witness has either been
won over or terrorised. “In such cases, it is always open to the
defence to examine such witnesses as their own witnesses, and the court itself may also
call upon such a witness in the interests of justice under Section 540
Cr.P.C.”.
Darya Singh & Ors. v.
State of Punjab, AIR 1965
SC 328, the SC reiterated a similar view and held that if the eye-witness(s) is
deliberately kept back, the Court may draw inference against the prosecution
and may, in a proper case, regard the failure of the prosecutor to examine the
said witnesses as constituting a serious infirmity in the proof of the
prosecution case.
Raghubir Singh v. State of
U.P., AIR 1971
SC 2156, the SC held as under:
“…Material
witnesses considered necessary by the prosecution for unfolding the prosecution
story alone need be produced without unnecessary and redundant multiplication
of witnesses. The appellant's counsel has not shown how the prosecution story
is rendered less trustworthy as a result of the non-production of the witnesses
mentioned by him. No material and important witness was deliberately kept back
by the prosecution. Incidentally we may point out that the accused too have not considered it proper to produce those
persons as witnesses
for controverting the prosecution version…..”
Harpal Singh v. Devinder
Singh & Anr., AIR 1997 SC 2914,
the SC reiterated a similar view and further observed:
“….The
illustration (g) in Section 114 of the Evidence Act is only a permissible
inference and not a necessary inference. Unless there are other circumstances
also to facilitate the drawing of an adverse inference, it should not be a
mechanical process to draw the adverse inference merely on the strength of
non-examination of a witness even if it is a material witness…..”
Mohanlal Shamji Soni v.
Union of India & Anr., AIR 1991 SC 1346, the SC held:
“10.
It is cardinal rule in the law of evidence that the best available evidence
should be brought before the Court to prove a fact or the points in issue. But
it is left either for the prosecution or for the defence to establish its
respective case by adducing the best available evidence and the Court is not
empowered under the provisions of the Code to compel either the prosecution or
the defence to examine any particular witness or witnesses on their sides.
Nonetheless if either of the parties withholds any evidence which could be
produced and which, if produced, be unfavourable to the party withholding such
evidence, the Court can draw a presumption under illustration (g) to Section
114 of the
Evidence
Act…. In order to enable the Court to find out the truth and render a just
decision, the salutary provisions of Section 540 of the Code (Section 311 of
the new Code) are enacted whereunder any Court by exercising its discretionary
authority at any stage of enquiry, trial or other proceeding can summon any person
as a witness or examine any person in attendance though not summoned as a
witness or recall or re-examine any person in attendance though not summoned as
a witness or recall and re-examine any person already examined who are expected
to be able to throw light upon the matter in dispute; because if judgments
happen to be rendered on inchoate, inconclusive and speculative presentation of
facts, the ends of justice would be defeated.”
Banti @ Guddu v. State of M.P., AIR 2004 SC 261, the SC held:
“In
trials before a Court of Session the prosecution "shall be conducted by a
Public Prosecutor". Section 226 of the Code of Criminal Procedure, 1973 enjoins
on him to open up his case by describing the charge brought against the
accused. He has to state what evidence he proposes to adduce for proving the
guilt of the accused. ……If that version is not in support of the prosecution case
it would be unreasonable to insist on the Public Prosecutor to examine those
persons as witnesses for prosecution.
When
the case reaches the stage envisages in Section 231 of the 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 prosecution case. At the said
stage the Public Prosecutor would be in a position to take a decision as to
which among the presence 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 from
repetitious depositions on the same factual aspects. ……This will help not only
the prosecution in relieving itself of the strain of adducing repetitive
evidence on the same point but also 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. ……It is open to the defence to cite him and examine him
as a defence witness……..”
R. Shaji case the Court, after placing reliance
upon its judgments in Vadivelu
Thevar v. State of Madras; AIR 1957 SC 614; and Kishan Chand v. State of Haryana, JT 2013( 1) SC 222), held as
under: .
“22.
In the matter of appreciation of evidence of witnesses, it is not the number of
witnesses, but the quality of their evidence which is important, as there is no
requirement in the law of evidence stating that a particular number of
witnesses must be examined in order to prove/disprove a fact. It is a
time-honoured principle, that evidence must be weighed and not counted. The
test is whether the evidence has a ring of truth, is cogent, credible and
trustworthy, or otherwise. The legal system has laid emphasis on the value
provided by each witness, as opposed to the multiplicity or plurality of
witnesses. It is thus, the quality and not quantity, which determines the
adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Where
the law requires the examination of at least one attesting witness, it has been
held that the number of witnesses produced over and above this, does not carry any
weight.”
Bir Singh & Ors. v.
State of U.P., (1977) 4 SCC
420)
To see full
text follow the link: