BANTI @ GUDDU versus STATE OF MADHYA PRADESH

Citation: [2003] SUPP. 5 S.C.R. 119 · Decided: 04-11-2003 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Dismissed

Judgment (excerpt)

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 of the 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 of such 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 of such 
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 
c 
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. 
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 p

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