Demeanour of the witness
6. Now we turn to the deposition of PW4 Kanwarbai, who is the mother of the deceased. According to her version, PW3 Krishna came to her weeping and stated that 30-35 persons were beating her father. When she rushed to the spot, she found her son (Raghunath) crying in pain. She stated that in her presence, Gopal (accused no. 17) inflicted a blow on the ear of the deceased. She stated that accused no. 20 gave a lathi blow on the arm and left armpit of her son. She stated that accused no. 1 Raghunath, accused no. 7 Pratap and accused no. 5 also gave lathi blows to her son. When she was questioned whether she was able to identify 30-35 accused persons with their names, her response was that she knew their names and also their father’s names and she was in a position to identify them. Thereafter she stated several names. When she was called upon to identify the accused, she could not identify any one of the accused with reference to their names. The learned Judge noted in the deposition that PW4 could not identify any accused. The note made by the learned Sessions Judge reads thus :
“Note: The witness by going close the accused, taking round again and again, by pushing aside in front and by going close the rear person tried to have a look, identified in this manner and sometime by standing for a moment close to the accused went ahead and on return could identify someone, also stated that vision is not clear because there is some darkness. Two tube lights are burning in court whereby sufficient light is there and one tube light is on the side of the accused themselves. The witness stated that though the light is sufficient and faces are also visible but it is not assessed as to who are these persons.”
Thereafter PW4 was asked who were the accused out of the persons present. She stated that all of them were there but their faces were not clear for identification.
Minor witness
8. We have already discussed the evidence of PW3, the minor witness. Her testimony shows that she got confused while identifying at least two accused though five accused whom she allegedly named were made to stand separately from the remaining accused. The version of PW3 Krishna, when it comes to the identity of the accused, does not inspire confidence. In any case, it is very unsafe to convict the accused on the basis of such testimony, especially when the only other eye witness (PW4) believed by the Trial Court could not identify a single accused in the Court. The learned Trial Judge noted that there was sufficient light in the courtroom and faces of the accused were clearly visible.
PARTY: Radhey Shyam & Ors. Versus State of Rajasthan – CRIMINAL APPEAL NO.2203 of 2010 – April 12, 2023.
https://main.sci.gov.in/supremecourt/2010/24321/24321_2010_16_1501_43346_Judgement_12-Apr-2023.pdf
