Does the non-examination of an independent witness by the prosecution necessarily mean accused was falsely implicated?

The author discusses whether the non-examination of an independent witness by the prosecution necessarily mean accused was falsely implicated. The author further discusses the relevant case laws.

Introduction

Examination of an independent witness is a part of the case of prosecution but it is not the most essential condition. This position has been reiterated by the courts time and again. Just because the testimony is provided by police witnesses it does not means that it is tainted or inadmissible without any other specific reason.

The term independent witness was discussed by the court in the case Dalip Singh vs. State of Punjab[1]“A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has caused, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true when feelings run high and there is personal cause’ for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but the foundation must be laid for such criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” The decision of this case has been relied upon by Gulichand vs state of Rajasthan[2].

Legal Position of Courts in various cases

  1. In Aganu Singh Yadav vs. Triveni Dusad[3] the court stated that “The non-examination of independent witnesses was also a vital issue and in absence of examination of such witnesses the prosecution case must necessarily fail.” But it was never established as an essential condition to prove the prosecutions or case or that its absence would lead false implication of the accused.
  2. In the case Suresh vs. state[4] it was stated that “ there is no reason to doubt the version of police witnesses merely on the account that prosecution’s case is set forth by police witnesses, there evidence should not be disbelieved for want of examination of witnesses from an independent source.”
  3. In the case Khalek Shaikh vs. State of WB[5], the court held that “There is no prohibition on a conviction being recorded on the basis of testimony of official witnesses if they are found to be trustworthy.”
  4. In the case of Kashmiri Lal vs. State of Haryana[6] it was stated that “There is no absolute command of law that the police officers cannot be cited as witnesses and there testimony should always be treated with suspicion. If the testimony of police official is found to be reliable and trustworthy, the court can definitely act upon the same.” It was further stated that “this is also based on the principle quality of evidence weighs over quantity if evidence.”
  5. In State (Govt. of NCT of Delhi) vs. Sunil[7] the court viewed that “…but if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.”
  6. In Munish Mubar vs. state of Haryana[8]the court had stated that “ there is no independent witnesses to the recoveries and the panch witnesses are only police perssonel, it may not affect the merits of the case..”

Surinder Kumar v. The State of Punjab

The question of examination of an independent witness kept arising in front of the court. In the case of Surinder Kumar vs. the state of Punjab[9], the court firmly established that the “non- examination of an independent witness will not necessarily mean that the accused is falsely implicated.” The case has been discussed below –

Facts

In the present case, the petitioner was convicted for an offense under Section 18 of the Narcotic Drugs and Psychotropic Substance Act, 1985[10] which provides for punishment for contravention in relation to opium. On 12th September 1996, the petitioner was seen walking on a road near the canal minor by police officials passing from the road. Upon seeing a police jeep approaching, the petitioner turned towards the southern part of the canal. He was questioned by the police on suspicion. ASP Abhor was called on the spot, the bag was searched in his presence and was found to have 1.75 Kilogram opium. Two samples of 10 grams each were duly sealed and taken into custody. An FIR was registered and the accused was arrested and challaned. A charge under S.18 NDPS Act[11] was filed, where he pleaded not guilty and claimed trial. 

To prove the charges, the prosecution examined 4 witnesses, namely Devi Lal (HC), Darbara Singh (SI), SI, and Sham Lal (Constable). The accused claimed ‘false implication’ but presented no evidence to his defence. Upon considering all the evidence and witnesses, the session court sentenced the accused to imprisonment for 10 years along with a fine of 1,00,000 rupees. 

The accused filed an appeal in the High Court of Punjab and Haryana where the hon’ble court rejected his appeal and confirmed the judgment passed by the sessions court.

In the appeal in Supreme Court, the petitioner argued that Shri Joginder Singh (ASI) who present at the scene of incidence, was not examined by the prosecution and hence, the trial court and high court erred in convicting the prosecution as his conviction is based solely on the statement of official witnesses. The petitioner further argued that S K Asthana (ASP) was not examined, opium was not recovered in his presence. Moreover, there’s a violation of S.15 of the NDPS Act[12].

Judgment

The counsel for petitioner placed reliance on the following cases –

  1. Trimukh Maroti Kirkan vs. the State of Maharashtra[13]
  2. Noor Aga vs. State of Punjab and Anr[14]– in this case, the court held that “Non-examination of an independent witness and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellant’s guilt. Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if the cumulative view of the scenario is taken, the prosecution’s case must be held to be lacking in credibility.”
  3. Mohan Lal vs. State of Punjab[15]

The counsel for the respondent submitted to the court that accused charges have been proved beyond reasonable doubt and there are no gaps left to fill. He placed reliance on the following judgments to prove that mere non-examination of independent witnesses does not result in false implication.

  1. Jarnail Singh vs. State of Punjab[16] – In this case, the court clearly stated that “Merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status.”
  2. Varinder Kumar vs. State of Himachal Pradesh[17]

The court while considering the question of tampering of evidences by ASI Joginder Singh said that although Joginder Singh was handed over the case property by SHO Yogi Raj, he never opened it and returned it to Yogi Raj, who noticed that it is sealed and that Joginder Singh is not in possession of any seals, hence the court ruled that the question of tampering evidence by Joginder Singh does not arise.

On the contention of the appellant that ASP who was summoned to the spot of incidence and in whose presence the substance was taken into custody was not questioned which is legally wrong as per S. 50 of the NDPS Act, 1985[18]. The court observed that the ASP was called multiple times to the court by both trial court and high court but due to some but due to some legitimate reasons he could not come to the proceedings. Therefore, the court ruled that “ It is clear from the evidence on record that he was summoned at the time of search and seizure and only in his presence search was conducted, as such, there is no violation of Section 50 of the NDPS Act.”

Father the appellant submitted that there was no examination of an independent witness by the prosecution despite the fact that they were available. The court relied on the judgement of Jarnail Singh stated above and State, Govt of NCT of Delhi vs. Sunil and ANr.[19]in which the court had stated that “It is an archaic notion that actions of the Police Officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Courts cannot start with the presumption that the police records are untrustworthy. As a presumption of law, the presumption would be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature”.

By relying on the abovementioned judgments, the court stated that we are satisfied with the order passed by the sessions court and high court. The appellant’s guilt has been proved beyond reasonable doubt. 

Conclusion and Discussion

 The court has been absolutely right in ruling that ‘non-examination of an independent witness would not necessarily mean that the accused has been falsely implicated’. Just because the witnesses are police officials, does not mean that their testimony is tainted or inadmissible. If the situations are so that no independent witnesses are available and the court is satisfied with the testimony provided by the police officials, there is no case of false implication of accused. Hence, the principle is now well established that the testimony of police officials is admissible if there’s no other reason for suspicion and cannot be a ground for false implication.

Also read A Comparative Analysis of Witness Protection in India and Developed Countries


[1]Dalip Singh vs. State of Punjab, AIR 1953 SC 364.

[2]Guli Chand vs. State of Rajasthan, AIR 1974 SC 276.

[3]Aganu Singh YadavvsTriveniDusadh, AIR 1993 SC 290.

[4]Suresh vs. State, 2010 SCC OnLine Mad 3744.

[5]Khalek Shaikh vs State of West Bengal, AIR 2006 SC 355.

[6]Kashmiri Lal vs. State of Haryana, (2013) 6 SCC 595.

[7]State (Govt. of NCT of Delhi) vs. Sunil, (2001) 1 SCC 652.

[8]MunishMubar vs. State of Haryana, (2012) 10 SCC 464.

[9]Surinder Kumar vs. State of Punjab, (2012) 10 SCC 120.

[10]Narcotic Drugs and Psychotropic Substance Act, 1985, §18.

[11]Ibid.

[12]Narcotic Drugs and Psychotropic Substance Act, 1985, §15.

[13]TrimukhMarotiKirkan vs. the state of Mahrashtra,(2006) 10 SCC 681.

[14]Noor Aga vs. State of Punjab and Anr.,(2018) 16 SCC 417.

[15]Mohan Lal vs. State of Punjab,  (2018) SCC Online SC 974.

[16]Jarnail Singh vs. State of Punjab, (2011) 3 SCC 521.

[17]Varinder Kumar vs. State of Himachal Pradesh,(1997) 5. SCC 201.

[18]Narcotic Drugs and Psychotropic Substance Act, 1985, §50.

[19]State (Govt. of NCT of Delhi) vs. Sunil, (2001) 1 SCC 652.