CITATIONS ON NON EXAMINATION OF WITNESSES*

*Compiled by Adv Mir Nagman Ali Bombay High Court Nagpur Bench 9028401027/8380069591*

*SOME IMPORTANT CITATIONS ON NON EXAMINATION OF WITNESSES*

State of U.P. v. Madan  Mohan [(1989) 3 SCC 390])
Where the prosecution version differs from the version as given in the dying   declaration , the said  declaration  cannot be acted upon.
Constitution of India,1950 -- Article 136 -- Appeal against acquittal by the High Court -- No reason given for interference -- Supreme Court refused to interfere the order of the High Court in acquitting the accused. -Failure of the prosecution to explain cut injury on the thing of the accused who reached police station with bleeding injury -- No inference could be drawn that the injury was self inflicted.
The doubtful circumstance as stated by the High Court is that the respondent had suffered a cut injury on his thing and he has immediately gone to the police station with bleeding injury which was admited by the Investigating Officer. It is also not disputed that the accused had lodged a complaint giving his own version regarding the incident. It is, therefore, clear from the evidence that the respondent had reached the police station promptly after the incident. No importance was attached to this fact. In this circumstances the High Court was justified in taking the view that the inability of the witnesses to explain the injury to the accused addes to the doubts regarding their claim who have seen the incidence. Therefore, the view taken by the High Court is reasonable and upheld.

CRIMINAL PROCEDURE CODE 1973 -- Section 231 -- Non examination of witnesses of the locality by the Prosecution however, statements of some of the residents was recorded -- No explanation for non examination of such witnesses -- Held: Prosecution version was doubtful -- Benefit of doubt was given to the accused.

STATE OF U.P.VERSUS PUNNI & ORS.
2008 STPL(LE) 39428 SC [AIR 2008 SC 932 = (2008) 11 SCC 153 = JT 2008 (1) SC 164 = 2008 AIR(SCW) 376 = 2008 CRI. L. J. 1028 = 2008 (1) SCR 85 = (2008) 1 Scale 43 = (2009) 1 SCC(Cri) 372]  SUPREME COURT OF INDIA

Penal Code, 1860, Sections 399 and 402 - Arms Act, 1959,Section 27 - Adverse inference - Non examination of witness - Non examination of Station house officer and investigation officer - Station officer (SO) after getting secret information nabbed dacoits - FIR of the case was also dictated by him - So was the architect of the facts of the case - Non examination of both the witnesses fatal to the prosecution case.

SOWAM KISKU & ORS.  VERSUS STATE OF BIHAR (NOW JHARKHAND)
2006 STPL(LE-Crim) 25810JHARKHAND HIGH COURT

Evidence Act, 1872, Sec. 60 - Post-mortem report - Evidentiary value - Cause of death - Non- examination of doctor who conducted autopsy - Effect - By examining of doctor appellants could have opportunity to cross -examine him on account of injuries suffered by deceased - Whether the injuries are fatal in nature, deceased died on account of such injuries or the said injuries are sufficient in ordinary course of nature to cause death of deceased - Prosecution denied the opportunity by non-examining the doctor - No evidence that the deceased died due to homicidal violence - Prosecution failed to establish cause of death - Conviction set aside - Appeal allowed with order of acquittal.
[Paras 7, 8, 9 and 11]

2001 CrLJ 3656 MAD Jerald vs State

Doctor who conducted the Post mortem has not been examined by the prosecution without there being any explanation for the same. It is fatal to the prosecution.

STATE OF HARYANA VERSUSASU RAM
2014 STPL(LE-Crim) 54724 P&H [2014(4) Crimes 193 (P&H)]

Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 18 - NDPS - Acquittal - Requirement u/s 50 regarding search & seizure not complied - Non examination of independent witness on plea that he had been won over by accused - Trial court rightly taken this aspect as adverse inference as it was highly improbable that a poor person accused could have won over the police witness. Change in quantity of sample and delay in sending it to FSL laboratory - Possibility of tempering could not be ruled out - Acquittal upheld.
(Paras 15 to 17)

(Babu Ram vs. State of Punjab, 2008 AIR(SCW) 1276)

and more particularly paragraph 13 thereof is relied upon by learned Advocate Shri Dhorde for the appellant in support of his argument that non examination of independent witness raises doubt about truthfulness of prosecution case. However, in that case, independent witness was not examined. Overall evidence probabilised defence version. There was injury on the person of accused. There was non explanation of the same. The wife of the accused had sustained grievous injury and it was held that the accused could be said to have apprehended danger to his and his wife's life and therefore infliction of a single injury by accused with cobblers weapon was held to be in exercise of private defence.

(A) Indian Penal Code, 1860, Sec. 302 - Evidence Act, 1872, Sec. 32 - Murder - Conviction for, on basis of dying declaration - Legality - Accused allegedly poured kerosene on his deceased wife and she died due to burn injuries - Only evidence brought on record were three dying declarations and two oral dying declarations - However, all three recorded dying declarations were found not reliable - Held, oral dying declaration is weak piece of evidence, hence, accused cannot be convicted solely on basis of oral dying declaration. Conviction was set aside. (Paras 8,9, 10, 11 & 12)

(B) Evidence Act, 1872, Sec. 32 - Dying declaration - Non-examination of scribe - Evidentiary value of - Held, in absence of evidence of person who had scribed dying declaration, contents of said dying declaration have remained to be proved in accordance with law. (Para 9)

WAMAN KADAM VS STATE OF MAH 2011 ALL MR CRI 3334
[Indian] Penal Code,1860,Sections.302 and 452 r.w.S.34--Evidence Act,1872,Section 32--Murder--Appellants allegedly committing murder of deceased by setting him of fire and fleeing away on immediate arrival of wife of deceased at spot--Prosecution not examining wife of deceased before trial Court which affecting credibility of two dying declarations--Deceased though allegedly sustaining 95 % burn injuries giving two dying declarations which were found mirror copies of each other--Medical evidence falsifying thumb impression on both dying declarations--Non-examination of wife of deceased held fatal to the prosecution case--Conviction based on dying declarations in absence of any independent corroboration, held unsustainable.
State Of Mah vs Abdul majid
2001 All.M.R.(Cri) 1327 : 2001 BCI 251 :

Penal Code (1860), S.302 - Evidence Act (1872), Ss.3, 27 - Appreciation of evidence - police witness - Murder - pointing out the blood stained clothes of the accused and recovery of knives - panchas of non-examination of the accused persons on were afraid the prosecution would not be able to depose to the ground - is held, it is not the test was not a valid ground - in such an event, it would be unsafe to accept the testimony of a police witness.
AIR 1971 SC 1586 - followed. (Para 4)…

STATE OF MAHARASHTRA VS VISHA MOHAR 2001 ALL MR CRI 1441

[Indian] Penal Code, 1860, Section 302--Evidence Act, 1872, Sections 3, 27--Murder--Appreciation of evidence--Recovery of stick and iron rod at the instance of accused--Investigating officer to whom the accused had made disclosures leading to recovery was not examined--His non-examination was fatal to prosecution as it caused prejudice to accused--Further held that since stick was commonly available with agriculturists and it had no blood stains, recovery of same would not constitute an incriminating evidence.   [Para 16]

BALDEV SONI VERSUS STATE OF MADHYA PRADESH
2012 STPL(LE-Crim) 43368 CHH CHHATTISGARH HIGH COURT 2012 CrLJ 282

Indian Evidence Act; 1872 - Section 3 - Police witnesses - Evidentiary value - Witnesses being police officers does not by itself create a doubt about their credit - worthiness if non-examination of Panch witnesses is explained satisfactorily.
(Para 20)

VIJAY LAHU PATIL VS STATE OF MAH 2013 ALL MR CRI 1062

A.  [Indian] Penal Code, 1860, Sections 148,304 Part II and 452 r.w. Section 149--Arms Act,1959,Section 27--Riot and culpable homicide not amounting to murder by unlawful assembly--Appellants allegedly by forming unlawful assembly attacking on victim by sticks, iron bars and  swords resulting in to his death--Discrepancies found in evidence of alleged eye witnesses in respect of injuries and weapons allegedly used in assault in the wake of medical evidence--Non-examination of first informant i.e. brother of victim and the ASI to whom the report is received casting doubt on prosecution case--Mistakes in recording of time in panchanama and its recitals read with wrong referance to surnames of two appellants along with the fact that document not bearing signature of deceased but bearing thumb mark who died soon after incident giving rise to suspicion of making of statement by deceased itself--Conviction and sentence quashed by extending benefit of doubt. [Paras 46,48 and 49]

A.I.R. 2001 S.C. 1380 Sohan and anr. Vs. State of Haryana and anr.

Non-examination of the witnesses mentioned in F.I.R.

A.I.R. 1976 S.C. 2423 Ilam Singh and ors. Vs. State of U.P

Non-examination of the material witnesses

A.I.R. 2008 S.C. 1260 Babu Ram and ors. Vs. State of Punjab

Non-examination of independent witnesses

A.I.R. 2003 S.C. 854 (Lallu Manjhi and anr. Vs. State of Jharkhand)

Non-examination of independent witnesses

Gajanan Jiddewar Vs Mah  2016 (2) Bom.C.R.(Cri.) 496 :