LexDENY BORA versus STATE OF ASSAM
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[2014] 7 S.C.R. 1111 DENY BORA V. STATE OF ASSAM (Criminal Appeal No. 679 of 2013) AUGUST 27, 2014 [DIPAK MISRA AND ABHAY MANOHAR SAPRE, JJ.] Penal Code, 1860: A B s. 302 - Conviction on testimony of sole eye-witness - c Propriety of - A doctor shot dead by two miscreants - Conviction by Designated Court uls 302, but acquittal in TADA offence - Held: Trial court has placed reliance on the evidence of a witness who has come forward for recording his statement u!s 161 CrPC almost after two years and eight 0 months - The only explanation he has given is that he was threatened by the co-accused - Six years after his statement was recorded, accused was arrested - The plea of threat to keep him silent for almost two years and eight months does not inspire confidence - His testimony is thoroughly and E wholly unreliable - Therefore, conviction recorded by Designated Court on his testimony alone without any corroboration is totally unsustainable - Conviction is set aside. Evidence: Non-examination of material witnesses - A doctor shot dead by two miscreants in his clinic - Deceased's daughter, who was eye-witness and wife who was slightly away from scene of occurrence, not examined - Held: Both the wife and F the daughter of deceased are the most natural and competent G witnesses - They really could have throwrrimmense light on the factual score, but, they have not been examined - In the absence of any explanation, , their non-examination has affected prosecution case - The prosecution has otherwise 1111 H 1112 SUPREME COURT REPORTS [2014] 7 S.C.R.. A not been able to establish the case against appellant and, therefore, non-examination of material witnesses cannot be regarded as inconsequential. The appellant was prosecuted for committing 8 offences punishable u/s 302/34 IPC read with s.314 of TADA in connection with the death of a doctor, who was shot dead in his clinic while attending the patients. The Investigating Officer examined a number of witnesses who had heard about the occurrence from the daughter and wife of the deceased. Two years and 8 months after C the incident statement of PW 14 was recorded uls 161 CrPC. After about eight years of the incident the appellant was arrested. The Designated Court acquitted him of the offences under the Terrorist and Disruptive Activities (Prevention) Act, 1987, but convicted and sentenced him D to imprisonment for life uls 302 IPC. Allowing the appeal, the Court HELD: 1.1. There is no dispute over the fact that the E deceased was fired from the point blank range, as is evident from the post mortem report. Therefore, the death is homicidal, is beyond doubt. [para 8] [1118-B-C] 1.2. As regards the culpability of the appellant, it is manifest that neither the wife nor the daughter of the F deceased has been examined. Non-examination of material witnesses would not always create a dent in the prosecution's case. However, as has been held in the case of Gian Chand* the charge of withholding a material witness from the court levelled against the prosecution G should be examined in the background of facts and circumstances of each case so as to find out whether the witnesses were available for being examined in the court and were yet withheld by the prosecution. That apart, the. court has first to assess the trustworthiness of the H evidence adduced and available on record. If the court DENY BORA v. STATE OF ASSAM 1113 finds the evidence adduced worthy of being relied on A then the testimony has to be accepted and acted on though there may be other witnesses available who could also have been examined but were not examined. Another aspect which is required to be seen is whether such witness or witnesses are the only competent B witnesses who could have been fully capable of explaining correctly the factual situation. [paras 9 and 12] [1118-D; 1120-D-G] State of H.P. v. Gian Chand 2001 (3) SCR 247 = 2001 (6) SCC 71; Surinder Kumar v. State of Haryana 2011 (12) C SCR 1205 = 2011 (10) SCC 173; Takhaji Hiraji v. Thakore Kubersing Chamansing (2001) 6 SCC 145; Dahari v. State of U.P. 2012 (8) SCR 1219 = 2012 (10) SCC 256 - referred to. 1.3. In the case at hand, the daughter of the deceased was the eye witness and his.wife was slightly away from the scene of occurrence. They are the most natural and competent witnesses. They really could have thrown immense light on the factual score, but for the
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