Non-examination of material eyewitnesses warrants adverse inference when remaining testimony lacks credibility.

The appellants were prosecuted in Sessions Trial No. 341 of 2008 arising from Case Crime No. 275 of 2007, Police Station Kotwali Bikapur, District Faizabad, for offences under Sections 307, 504 and 506 IPC.

The prosecution alleged that, due to prior enmity, the appellants and their juvenile brother chased the complainant, abused him, and that appellant No. 1 fired a country-made pistol at him with intent to kill; the complainant allegedly escaped into Ashok Kumar Singh’s house.

The trial court convicted both appellants under Sections 307 read with 34 IPC and 506(2) IPC, acquitted them under Section 504 IPC, and imposed sentences of ten years’ rigorous imprisonment with fine under Section 307/34 IPC and seven years’ rigorous imprisonment under Section 506(2) IPC.

The complainant and his mother supported the prosecution version as PW-1 and PW-4. However, the alleged independent eyewitness Ashok Kumar Singh, examined as PW-2, denied that the incident had occurred in his presence and was declared hostile.

The complainant’s sister, Ashok Kumar Singh’s mother, and the other alleged eyewitnesses were not examined. No medical examination of the complainant was conducted, no weapon or empty cartridge was recovered, and the Investigating Officer was not examined.

The appellants challenged the conviction in the present appeal under Section 374(2) Cr.P.C.

1. Whether the uncorroborated testimony of the complainant and his mother was sufficient to prove beyond reasonable doubt that the appellants committed an offence under Section 307 read with Section 34 IPC.

2. Whether the prosecution’s failure to examine the alleged independent eyewitnesses and the Investigating Officer warranted an adverse inference under Section 114, Illustration (g), of the Indian Evidence Act, 1872.

3. Whether the conviction of the appellants under Section 506(2) IPC could be sustained in view of the deficiencies and inconsistencies in the prosecution evidence.

The Court applied Sections 307 and 34 IPC concerning attempt to murder with common intention and Section 506(2) IPC concerning aggravated criminal intimidation.

Under Section 114, Illustration (g), of the Indian Evidence Act, 1872, the Court may presume that evidence withheld by a party would have been unfavourable to that party.

Relying on Ritesh Chakarvarti v. State of M.P., (2006) 12 SCC 321, the Court recognised that an adverse inference may be drawn from the non-examination of material witnesses.

It further relied on Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145, as quoted in Davinder Singh v. State of Punjab, (2023) 19 SCC 229, holding that non-examination of a material witness may weaken the prosecution where that witness could have filled a material gap in the case; however, such non-examination is not material where the existing evidence is reliable and unimpeachable.

The prosecution bears the burden of proving guilt beyond reasonable doubt, and conviction cannot rest on testimony that is unreliable, materially inconsistent, or unsupported by available corroborative evidence.

The Court found that the prosecution case rested substantially on the evidence of PW-1 and PW-4, both of whom were closely related to the complainant and admittedly involved in longstanding hostility with the appellants’ family.

Their testimony was not corroborated by the alleged independent eyewitnesses: PW-2 expressly denied the occurrence, while the complainant’s sister, Ashok Kumar Singh’s mother, and the other alleged eyewitnesses were not examined.

The Court considered the mother’s account inherently doubtful because she claimed to have heard the accused abusing the complainant from a location requiring approximately thirty minutes to reach, making it improbable that she heard the incident from that distance.

Her statement that all the accused had beaten the complainant was also inconsistent with the complainant’s version and unsupported by medical evidence.

The alleged firearm assault was likewise unsupported by objective evidence: neither the country-made pistol nor an empty cartridge was recovered, the complainant was not medically examined, and the site plan did not show any point where the shot allegedly struck after missing the complainant or any mark caused by the firing.

In these circumstances, the non-examination of the available eyewitnesses assumed significance and justified an adverse inference under Section 114, Illustration (g), of the Evidence Act.

The Court therefore held that the evidence did not inspire confidence and was insufficient to establish either the attempted murder charge or the criminal intimidation charge beyond reasonable doubt.

The convictions and sentences imposed on both appellants under Sections 307 read with 34 IPC and 506(2) IPC were quashed, and the appellants were acquitted of all charges.

They were directed to comply with Section 437-A Cr.P.C. by executing personal bonds and furnishing two sureties, to remain in force for six months, undertaking to appear before the Supreme Court if required in any appeal against the judgment.