No Adverse Inference Against Prosecution Merely Because Witnesses Are Withheld: Supreme Court

While dismissing a criminal appeal, the Supreme Court (on December 13) opined that withholding witnesses from the court doesn't always mean that an 'adverse inference' can be drawn against the prosecution.

“It is not axiomatic that in every case where the eyewitnesses are withheld from the court, an adverse inference must be drawn against the prosecution. The totality of the circumstances must be considered for concluding whether an adverse inference could be drawn.” Justices Abhay S. Oka and Pankaj Mithal.

While addressing the issue of eyewitnesses being the close relatives of the deceased, the Court held that there is no ground to discard their testimony. However, their evidence may require closer scrutiny. After having made closer scrutiny, the Court found their version to be of a very sterling quality.

Taking its cue from the above findings, the Court further opined that "when independent witnesses are available who are not connected with the rival parties, and the prosecution omits to examine them by confining its case to examining related witnesses, an adverse inference can undoubtedly be drawn against the prosecution. When the evidence of the eyewitnesses is of sterling quality, an adverse inference need not be drawn. Quality is more important than quantity."

In the present case, three accused persons were convicted of killing the deceased and assaulting prosecution witnesses. The main accused, who shot the bullet at the deceased, was convicted under Section 302 of the IPC. However, the other two accused persons (appellants) were convicted for the same provision read with Section 34 of the IPC. The appellants preferred separate appeals and accused No. 3 before the Patna High Court. The same were dismissed. Against this backdrop, the matter travelled to the Apex Court. It may also be noted that the appeal preferred by the accused no. 3 was already dismissed.

At the outset, the Court noted that accused No. 3 was charged only under Section 302 of the IPC, and Section 34 was not applied. The same was applied only to the present appellants. Thus, one of the questions for consideration before the Court was when the main accused, who had inflicted fatal injuries on the deceased, was not charged with Section 34 of the IPC, whether the conviction of appellants can be sustained.

“In a given case, where the offence is punishable under Section 302 of IPC, when the common intention is proved, but no overt act of assaulting the deceased is attributed to the accused who have been implicated based on Section 34, vicarious liability under Section 34 will be attracted. In this case, the bullet was fired by the accused No. 3, as a result of which, the deceased lost his life.,” the Court added.

Thus, the Court opined that to convict accused No. 3, the application of Section 34 was unnecessary. However, Section 34 was required to punish the appellants as they shared common intention with accused No. 3.  The Court further explained:

"To bring a case within Section 34, it is not necessary to prove prior conspiracy or pre­meditation. It is possible to form a common intention just before or during the occurrence."

In view of this, the Court upheld their sentences and asked them to surrender before the Trial Court.

Notably, at the end, the Court also mentioned that when the appellants qualify for consideration for a grant of permanent remission, their case can be considered by the State Government. The same shall be per the applicable remission policy.

Case Details: MAHESHWARI YADAV vs. THE STATE OF BIHAR., Diary No.- 9126 - 2011

Citation : 2023 LiveLaw (SC) 1063

Click here to read the judgment