2001 JTR(SC) 1391
2001 4 AICLR 340 ; 2001 AIR(Jhar)(R) 511 ; 2001 AIR(SC) 4024 ; 2001 AIR(SCW) 4010 ; 2001 43 AllCriC 970 ; 2001 AllMR(Cri)(SC) 2158 ; 2001 3 BBCJ(SC) 240 ; 2002 3 BBCJ(SC) 244 ; 2002 CriLR 541 ; 2001 CrLJ 4693 ; 2002 1 EastCrC(SC) 159 ; 2001 2 JCC 258 ; 2002 1 JCR(SC) 326 ; 2001 2 JLJR(SC) 915 ; 2001 8 JT 386 ; 2001 4 PLJR(SC) 203 ; 2001 4 RCR(Cri) 445 ; 2001 7 Scale 56 ; 2001 8 SCC 690 ; 2002 SCC(Cri) 90 ; 2001 SCR 658 ; 2001 KHC 1683 ; 2001 3 KLT(Online) 1001 ; 2001 7 Supreme 802
2001(7) Supreme 802
SUPREME COURT OF INDIA
(From Patna High Court)
K.T. Thomas & S.N. Variava, JJ.
Chandra Shekhar Bind & Ors. -Appellants
versus
State of Bihar -Respondents
Criminal Appeal Nos. 337-338 of 1999
Decided on 9-10-2001
Counsel for the Parties :
For the Appearing Parties : Mrs. P.S. Mishra and Mr. H.L. Agrawal, Sr. Advocates, Mr. Rakesh Khanna, Mr. R.P. Sethi, Mr. Chandra Shekhar, Mr. Vishnu Sharma, Mr. Upendra Mishra, Mr. Anil Kumar Gupta-II (A.C.), Mr. Jayant Bhushan (A.C.) Ms. Sunita R. Singh and Mr. B.B. Singh, Advocates.
IMPORTANT POINT
Two - witness theory advised in AIR 1965 SC 202 and adopted in 1997(1) SCC 283 in an incident in which a large number of accused had participated is no doubt a mechanical test but it cannot be treated as irrelevant or unreasonable. Based on this test, accused 9, 10 and 12 ho are identified only by one witness have to be acquitted and the rest are identified by two reliable and trustorthy witnesses their concurrent convictions and sentences need no interference.
Act
Referred
:CONSTITUTION OF INDIA : Art.136
EVIDENCE ACT : ., S.134, S.9
INDIAN PENAL CODE : S.302, S.149
JUVENILE JUSTICE CARE AND PROTECTION OF CHILDREN ACT : .
(A) The Juvenile Justice (Care and Protection of Children) Act, 2000, the Indian Penal Code (Sections 302, 149), the Evidence Act (Sections 134, 9, 100), and Article 136 of the Constitution of India are the principal statutory references in this appeal concerning convictions for homicide and unlawful assembly. Section 302 IPC read with Section 149 IPC was invoked to charge the accused for murder committed in furtherance of a common unlawful assembly, where the act of one is attributable to all. Section 134 Evidence Act relates to the assessment of witness credibility, while Section 9 Evidence Act addresses the relevance of facts in issue. Article 136 governs the grant of special leave to appeal, and the admissibility of a late-raised statutory plea under the Juvenile Justice Act was evaluated under these provisions.
(B) Key legal principles include: conviction can rest on the testimony of two reliable witnesses even in large unlawful assemblies; the mechanical two-witness test is a prudent guideline but not rigid; credible eye-witnesses who are injured and were informants can sustain conviction; benefit of doubt operates in favor of the accused when not identified by two or more witnesses; and a mixed question of law and fact cannot be first raised in this Court without prior adjudication below.
Facts of the case:
On 3rd June, 1989, a group of villagers including the appellants were sitting outside a house when a large number of assailants arrived armed and started firing, causing deaths of two persons. The prosecution case was that the fight stemmed from a political dispute and a prior enmity related to a fishing area. The trial and High Court convicted eleven persons under Section 302 and others under Section 302 read with Section 149, sentencing them to life imprisonment. During the appeal, one accused died, and certain accused did not file special leave petitions.
Findings of Court:
The court found PWs 5 and 6 to be reliable and truthful eyewitnesses. Applying the two-witness theory in the context of a large unlawful assembly, the court acquitted three accused (Nos. 9, 10, and 12) due to lack of identification by more than one witness, while affirming the convictions of the remaining appellants based on consistent testimony of the two witnesses.
Issues:
Whether the convictions can be sustained on the basis of two witnesses in a case involving a large unlawful assembly; whether a late-raised plea under the Juvenile Justice Act could be entertained in this Court; and whether the acquittal of three accused was correct.
Ratio Decidendi:
In cases involving numerous participants in an unlawful assembly, the law requires at least two credible witnesses to identify an accused for conviction to persist, adhering to the two-witness theory; the benefit of doubt must be given to the accused if not identified by multiple witnesses, and mixed questions of law and fact cannot be first raised in special leave proceedings.
Result:
The appeals of Accused Nos. 9, 10, and 12 are allowed, and they are set free. The convictions of the remaining appellants are upheld, and they are directed to serve their sentences.
(A) The Juvenile Justice (Care and Protection of Children) Act, 2000, the Indian Penal Code (Sections 302, 149), the Evidence Act (Sections 134, 9, 100), and Article 136 of the Constitution of India are the principal statutory references in this appeal concerning convictions for homicide and unlawful assembly. Section 302 IPC read with Section 149 IPC was invoked to charge the accused for murder committed in furtherance of a common unlawful assembly, where the act of one is attributable to all. Section 134 Evidence Act relates to the assessment of witness credibility, while Section 9 Evidence Act addresses the relevance of facts in issue. Article 136 governs the grant of special leave to appeal, and the admissibility of a late-raised statutory plea under the Juvenile Justice Act was evaluated under these provisions.
(B) Key legal principles include: conviction can rest on the testimony of two reliable witnesses even in large unlawful assemblies; the mechanical two-witness test is a prudent guideline but not rigid; credible eye-witnesses who are injured and were informants can sustain conviction; benefit of doubt operates in favor of the accused when not identified by two or more witnesses; and a mixed question of law and fact cannot be first raised in this Court without prior adjudication below.
Facts of the case:
On 3rd June, 1989, a group of villagers including the appellants were sitting outside a house when a large number of assailants arrived armed and started firing, causing deaths of two persons. The prosecution case was that the fight stemmed from a political dispute and a prior enmity related to a fishing area. The trial and High Court convicted eleven persons under Section 302 and others under Section 302 read with Section 149, sentencing them to life imprisonment. During the appeal, one accused died, and certain accused did not file special leave petitions.
Findings of Court:
The court found PWs 5 and 6 to be reliable and truthful eyewitnesses. Applying the two-witness theory in the context of a large unlawful assembly, the court acquitted three accused (Nos. 9, 10, and 12) due to lack of identification by more than one witness, while affirming the convictions of the remaining appellants based on consistent testimony of the two witnesses.
Issues:
Whether the convictions can be sustained on the basis of two witnesses in a case involving a large unlawful assembly; whether a late-raised plea under the Juvenile Justice Act could be entertained in this Court; and whether the acquittal of three accused was correct.
Ratio Decidendi:
In cases involving numerous participants in an unlawful assembly, the law requires at least two credible witnesses to identify an accused for conviction to persist, adhering to the two-witness theory; the benefit of doubt must be given to the accused if not identified by multiple witnesses, and mixed questions of law and fact cannot be first raised in special leave proceedings.
Result:
The appeals of Accused Nos. 9, 10, and 12 are allowed, and they are set free. The convictions of the remaining appellants are upheld, and they are directed to serve their sentences.
JUDGMENT
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.
2. 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 ith 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 iwth 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 betewwen 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.
3. As a result of the first information report lodged by PW 1 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 17 other persons under Sections 302 read with 149 Indian Penal Code. All were sentenced to undergo imprisonment for life.
4. 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.
5. The original Accused Nos. 6 and 13 have not filed by SLP before this Court. The other 15 accused have filed these Criminal Appeals.
6. In order to prove its case the prosecution has examined 10 witnesses. PWs 1, 4, 5 and 6 are the eye witnesses. PWs 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. PWs 5 and 6 have supported the prosecution. The prosecution also examined two doctors. PW 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. PW 9 proved injuries on PWs 1 and 4.
7. The defence examined 5 witnesses. DWs 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 PW 5 nor PW 6 had named anybody. However, when PWs 5 and 6 had given evidence it had not been put to them that they had not named any person to DWs 3, 4 and 5. Thus the evidence of these witnesses has rightly not been accepted by the trial Court and the High Court.
8. Both the trial Court and the High Court have based the conviction on the evidence of PWs 5 and 6. We have gone through the evidence of PWs 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.
9. 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 trustworty evidence given by a single witness would be enough to convict an accused persons, whereas evidence given by halt 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 ususal 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 h eld that in a sense, the test may be described a 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.
10. 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 witness to vouchsafe the identification of an accused as a participant in the rioting.
11. PWs 1 and 4 were injured witnesses and their injuries had been proved. PW 4 was also the informant who had lodged the first information report. Yet, as stated above, PWs 1 and 4 turned hostile and refused to identify any person. They however confirmed that the including had taken place. On a careful reading of the evidence of PWs 5 and 6 we find that PW 5 has identified Accused Nos. 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 13, 14, 15, 16, 17 and 18, whereas PW 6 has identified Accused Nos. 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17 and 18. Thus PW 5 has not identified Accused No. 12 and PW 6 has not identified Accused Nos. 9 and 10. However, PWs 5 and 6 have both identified all the other accused.
12. In our view, considering the large number of people involved. It would be prudent in the 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.
13. 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 has 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 make up this point and do not deal with this aspect.
14. 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.
(N.K.R.) Order accordingly.
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