Full Judgment
S.N. Variava, J.
1. These Appeals are against the Judgment dated 9th January, 1998 by which the High Court has dismissed the Criminal Appeals filed by the Appellants herein.
2. Briefly stated the facts are as follows:
According to the prosecution, on 3rd June, 1989 Tungnath Mistri, Parshuram Bind, Shiv Nath Bind, Ram Vinod Bind and certain others villagers were sitting in front of the house of Parshuram Bind. All of a sudden 22 to 2(SIC) persons came running from the western 'gali' armed with rifles, guns, country made pistols, pasulis and lathis and started firing from the fire-arm. It is the case of the prosecution that these assailants started firing Parshuram Bind. Appellant No. 1 (Chandra Shekar Bind) fired at Tungnath Mistri causing injuries on his left elbow. One Suresh Bind also fired at Tungnath Mistri causing injury on his right hand. It is the case of the prosecution that when Parshuram Bind tired to enter his house he was chased by the assailants who caught him and brought him out and then he was assaulted with a pasuli. It is the case of the prosecution that Sita Ram Bind, father of Parshuram Bind, came out of the house and he was also fired at. It is the case of the prosecution that as a result of this Parshuram Bind and his father Sita Ram Bind died and the assailants then fled away. It is the case of the prosecution that the motive behind this was previous enmity as well as a dispute between Parshuram Bind and the assailants for catching fish in a 'ahar'. It is the case of the prosecution that Parshuram Bind was a supporter of Bhartiya Janta Party and the Appellants were members of IPF, being a rival political party.
3. As a result of the first information report lodged by P.W.(SIC) investigation was taken up. Ultimately 18 persons were charge-sheeted. The trial court convicted, on 10th September, 1991, 11 persons under Section 302 Indian Penal Code and 7 other persons under Sections 302 read with 149 Indian Penal Code. All were sentenced to undergo imprisonment for life.
4. All the accused filed Appeals before the High Court. During the pendency of the Appeal (before the High Court) Suresh Bind died. The High Court by the impugned Judgment dismissed the Appeals.
5. The original Accused Nos. 6 and 13 have not filed any S.L.P. before this Court. The other 15 accused have filed these Criminal Appeals.
6. In order to prove its case the prosecution has examined 10 witnesses. P.Ws. 1, 4, 5 and 6 are the eye witnesses. P.Ws. 1 and 4 turned hostile and refused to identify any of the accused in Court. They, however, confirmed that the incident, as alleged, had taken place. P.Ws. 5 and 6 have supported the prosecution. The prosecution also examined two doctors. P.W. 7 carried out the post-mortem on both the deceased persons and proved that their death was homicidal as a result of gun shot injuries. P.W. 9 proved injuries on P.Ws. 1 and 4.
7. The defence examined 5 witnesses. D.Ws. 1 and 2 were examined in order to try and prove an alibi set up by Appellant No. 5. Both the Courts below have disbelieved this evidence. Both the Courts below have disbelieved the case of alibi. The other three defence witnesses deposed that after the incident they came to the house of the deceased and that at that time neither P.W. 5 nor P.W. 6 had named anybody. However, when P.Ws. 5 and 6 had given evidence it had not been put to them that they had no(SIC) named any person to D.Ws. 3, 4 and 5. Thus the evidence of these witnesses has rightly not been accepted by the trial Court and the High Court.
8. Both the trial Court and the High Court have based the conviction on the evidence of P.Ws. 5 and 6. We have gone through the evidence of P.Ws. 5 and 6. We are in agreement with the trial court and the High Court that both these witnesses are trustworthy and reliable witnesses. Their presence on the scene could not be denied. There is absolutely no reason why they should falsely implicate the accused. All the accused were know to these witnesses and, therefore, they could identify the accused.
9. However, this is an incident in which a larger number of accused had participated. The Constitution Bench of this Court has, in the case of Masalti v. State of U.P. reported in : [1964]8SCR133 , held that under the Evidence Act trustworthy evidence given by a single witness would be enough to convict an accused persons, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. It was held that where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. It was held that in a sense, the test may be described as mechanical, but it cannot be treated as irrational or unreasonable. It was held that even though it is the quality of the evidence that matters and not the number of witnesses, still it is useful to adopt such a mechanical test.
10. This two-witness theory has also been adopted by this Court in the case of Binay Kumar Singh v. State of Bihar : 1997 CriLJ362 . It is held that there is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly. It is held that it is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but the quality that matters. It is held that even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly. It is held that all the same, when the size of the unlawful assembly is quite large and many persons would have witnessed the incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouchsafe the identification of an accused as a participant in the rioting.
11. P.Ws. 1 and 4 were injured witnesses and their injuries had been proved. P.W. 4 was also the informant who has lodged the first information report. Yet, as stated above, P.Ws. 1 and 4 turned hostile and refused to identify any person. They however confirmed that the incident had taken place. On a careful reading of the evidence of P.Ws. 5 and 6 we find that P.W. 5 has identified Accused Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17 and 18, whereas P.W. 6 has identified Accused Nos. 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17 and 18. Thus P.W. 5 has not identified Accused No. 12 and P.W. 6 has not identified Accused Nos. 9 and 10. However, P.Ws. 5 and 6 have both identified all the other accused.
12. In our view, considering the large number of people involved, it would be prudent in this case to adopt the two-witness theory. On the basis of this two-witness theory benefit of doubt would have to be and is given to Accused Nos. 9, 10 and 12 inasmuch as more than one witness has not identified them.
13. Mr. Mishra, who came in at a later stage, sought to make a submission on the basis of the Juvenile Justice (Care and Protection of Children) Act, 2000. We, however, find that it had not been argued before the trial court that any of the accused was a juvenile. No such point had been taken before the High Court. No such point has been taken in the SLP filed before this Court. In our view, this is not a pure question of law which can be taken up for the first time in this Court. It is mixed question of law and fact. We, therefore, do not permit Mr. Mishra to take up this point and do not deal with this aspect.
14. In this view of the matter, we set aside the conviction of Accused Nos. 9, 10 and 12. They shall be set free forthwith unless they are required in some other case. The Appeals of the other Appellants are dismissed. Their conviction, as passed by the High Court, stands confirmed. They shall serve out their sentences.