NON EXAMINATION OF MATERIAL WITNESSES

(2013) 7 SCC 45 Harivadan Babubhai Patel vs State Of Gujarat

In Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors. MANU/SC/0345/2001 : (2001)

6 SCC 145, it has been held that if a material witness, who would unfold the genesis of the
incident or an essential part of the prosecution case, not convincingly brought to fore
otherwise, or where there is a gap or infirmity in the prosecution case which could have
been supplied or made good by examining a witness who though available is not examined,
the prosecution case can be termed as suffering from a deficiency and withholding of such a
material witness would oblige the court to draw an adverse inference against the
prosecution by holding that if the witness would have been examined it would not have
supported the prosecution case. On the other hand, if already overwhelming evidence is
available and examination of other witnesses would only be a repetition or duplication of
the evidence already adduced, non-examination of such other witnesses may not be
material. If the witnesses already examined are reliable and the testimony coming from
their mouth is unimpeachable, the court can safely act upon it, uninfluenced by the factum
of non-examination of other witnesses.

Vijendra Singh and Ors. vs. State of Uttar Pradesh (04.01.2017 - SC) :
MANU/SC/0017/2017

Vijendra Singh and Ors. vs. State of Uttar Pradesh (04.01.2017 - SC) :
MANU/SC/0017/2017

In Dahari and others v. State of Uttar Pradesh (2012) 2 SCC 273) [16], while discussing
about the non-examination of material witness, the Court expressed the view that when he
was not the only competent witness who would have been fully capable of explaining the
factual situation correctly and the prosecution case stood fully corroborated by the medical
evidence and thetestimony of other reliable witnesses, no adverse inference could be
drawn against the prosecution. Be it noted, the Court also took note of the fact that during
the cross-examination of the Investigating Officer, none of the accused persons had voiced
their concerns or raised any apprehension regarding the non-examination of the material
witness therein.

None of the said accused voiced their concerns or raised any apprehension regarding the
non-examination of Ashok. He was the only competent witness who would have been fully
capable of explaining correctly, the factual situation. In such a situation, the appellants
cannot be permitted to advance an argument stating that since the most material witness
was withheld by the prosecution therefore, adverse inference should be drawn against
them.

From the aforesaid authorities, it is quite vivid that non-examination of material witnesses would not
always create a dent in the prosecution's case.

Deny Bora vs. State of Assam (27.08.2014 - SC) : MANU/SC/0766/2014

Basically non examination of major witnesses does not harm the prosecution case if there is
a reason for the absence of the material witness. But according to clause g of section 114
iea states that if a person withholds a document or evidence the court may presume that if
produced it may harm the case of the party not producing it.
MAJOR CONTRADICTIONS

Bhoginbhai Hirjibhai Vs. State of Gujarat

"Discrepancies which do not go to the root of the matter and shake the basic version of the
witnesses cannot be annexed with undue importance. More so, when the all important
"probabilities factor" echoes in favour of the version narrated by the witnesses"

State of U.P. Vs. Nagesh (2011 Cr.L.J. 2162 (SC)).

Unless discrepancies, contradictions and inconsistencies affect the core of the prosecution case, they
cannot be basis to reject their evidence. Normal discrepancies are bound to occur in the depositions of
witnesses due to errors of observations, errors of memory due to mental disposition at the time of the
occurrence. –

In reversing the judgment of the Sessions Court, the factors that have been taken into consideration and
weighed with the High Court are:

1. Absence of proof of light;

2. Improvements and contradictions in the testimony of prosecution witnesses;

3. Difference between the ocular and medical evidence regarding injuries.

State of U.P. vs. Premi and Ors. (20.02.2003 - SC) : MANU/SC/0140/2003

NO EYEWITNESS

Kallu v. State Of Uttar Pradesh

the accused was tried for the murder of the deceased by shooting him with a country made
pistol. A cartridge was found near the bed of the deceased. The accused was arrested at a
distance of 14 miles from the village which was the place of occurrence. He produced a
pistol from his house which indicated that he could have alone have known of its existence
there. The fire-arms expert proved that it was the same pistol from which the shot was fired
and deceased was killed. The Hon’ble Supreme Court while convicting the accused held
"Circumstantial Evidence has established that the death of the deceased was caused by
the accused and no one else."

State of U.P. v. Satish

Ramreddy Rajeshkhanna Reddy and Ors. vs. State of Andhra Pradesh (24.03.2006 - SC) :
MANU/SC/8070/2006

The last-seen theory comes into play where the time-gap between the point of time when the accused
and the deceased were last seen alive and when the deceased is found dead is so small that possibility
of any person other than the accused being the author of the crime becomes impossible.

Ramreddy Rajeshkhanna Reddy and Ors. vs. State of Andhra Pradesh (24.03.2006 - SC) :
MANU/SC/8070/2006