9. As observed earlier, there is serious doubt whether PW1 and PW2 had really seen the appellant assaulting the deceased with the blunt edge of the spade. There was a prior enmity between the two eyewitnesses and the accused. Moreover, at least three independent eyewitnesses were available whose statements under Section 161 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) were admittedly recorded. One of them (Munif) admittedly attended the Court but was not examined. It is true that when there are a number of eyewitnesses, the prosecution’s case cannot be disbelieved on the ground that few of the eyewitnesses were not examined, especially when the version of the eyewitnesses examined before the Court, inspires confidence. In the present case, version of PW1 and PW2 does not inspire confidence. That is how the failure of the prosecution to examine three independent eyewitnesses whose statements were recorded, becomes very relevant. Moreover, one of the three witnesses attended the Court but was not examined. Considering the fact that the testimony of PW1 and PW2 who were allegedly injured witnesses, cannot be believed, adverse inference will have to be drawn on account of the prosecution’s failure to examine the three eyewitnesses.
SITA RAM versus THE STATE OF UTTAR PRADESH – CRIMINAL APPEAL NO. 1029 OF 2023 – April 12, 2023
https://main.sci.gov.in/supremecourt/2020/24793/24793_2020_16_1503_43346_Judgement_12-Apr-2023.pdf
