11. Heard the learned Counsel for the parties.
12. The questions for determination can be summarized as under :
1. Whether Praveen and Jitendra were taken away by Gappe @ Vimlesh and he handed over them to Lalla and Dinesh?
2. Whether any letter written by Praveen was actually received by Rambaran Singh on 24-10-2006?
3. Whether Rambaran Singh went to Itawah jail and met with Appellant Raju @ Ganga Singh?
4. Whether any demand of ransom was made by Appellant Raju @ Ganga Singh?
5. Whether any clothes of the abductees were shown or given to Rambaran Singh by Appellant Raju @ Ganga Singh in the jail?
6. Whether the F.I.R. was lodged on 24-10-2006 and mandatory provision of Section 157 of Cr.P.C. was complied with and whether the F.I.R. is ante-dated and ante-timed?
7. Whether Rambaran Singh had paid an amount of Rs. 6 lacs by way of ransom to any body?
8. Whether the abductees Praveen and Jitendra were released by the kidnappers?
9. Whether the appellants have been falsely implicated in the matter?
13. Before considering the evidence which has come on record, it would be appropriate to consider that whether these “related witnesses” are merely “related witnesses” or they are “interested witnesses” also. It is also well settled principle of law that the evidence of a witness cannot be rejected or discarded merely because he is “related” or “interested witness”. However, their testimony should be scrutinized very cautiously.
14. The Supreme Court in the case of Joginder Singh v. State of Haryana, reported in (2014) 11 SCC 335 has held as under :
“37. At this juncture, we may note with profit another aspect that has been highlighted by the learned counsel for the respondent. The prosecution has not examined Chander, husband of the deceased, a relevant eyewitness, Bala, Murti and Bimla, three other injured witnesses. No explanation has been given by the prosecution. Though there have been certain suggestions to PW 16 in the cross-examination, but his answer is evasive. It is well settled in law that nonexamination of the material witness is not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses are available for being examined in the court and were yet withheld by the prosecution. (See State of H.P. v. Gian Chand [(2001) 6 SCC 71].)
38. In this context, we may also note with profit a passage from Takhaji Hiraji v. Thakore Kubersing Chamansing [(2001) 6 SCC 145]: (SCC p. 155, para 19)
“19. … It is true 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. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself— whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. 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 nonexamination of other witnesses.”
39. Recently in Manjit Singh v. State of Punjab [(2013) 12 SCC 746], this Court, after referring to earlier decisions, has opined thus: (SCC p. 757, para 24)
“24. … it is quite clear that it is not the number and quantity but the quality that is material. It is the duty of the Court to consider the trustworthiness of evidence on record which inspires confidence and the same has to be accepted and acted upon and in such a situation no adverse inference should be drawn from the fact of nonexamination of other witnesses. That apart, it is also to be seen whether such nonexamination of a witness would carry the matter further so as to affect the evidence of other witnesses and if the evidence of a witness is really not essential to the unfolding of the prosecution case, it cannot be considered a material witness (see State of U.P. v. Iftikhar Khan [(1973) 1 SCC 512]).”
40. In the case at hand, non-examination of the material witnesses is of significance. It is so because PW 11 is really an interested witness though the High Court has not agreed with the same. It appears from the material brought on record that he had an axe to grind against the appellant. That apart, Chander, who was present from the beginning, would have been in a position to disclose more clearly about the genesis of the occurrence. He is the husband of the deceased and we find no reason why the prosecution had withheld the said witness. Similarly, the other three witnesses who are said to be injured witnesses when available should have come and deposed. Therefore, in the obtaining factual matrix that their nonexamination gains significance”.
15. The Supreme Court in the case of Raju v. State of T.N., reported in (2012) 12 SCC 701, has held as under :
“21. What is the difference between a related witness and an interested witness? This has been brought out in State of Rajasthan v. Kalki [(1981) 2 SCC 752]. It was held that: (SCC p. 754, para 7)
“7. … True, it is, she is the wife of the deceased; but she cannot be called an ‘interested’ witness. She is related to the deceased. ‘Related’ is not equivalent to ‘interested’. A witness may be called ‘interested’ only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be ‘interested’.”
22. In light of the Constitution Bench decision in State of Bihar v. Basawan Singh [AIR 1958 SC 500], the view that a “natural witness” or “the only possible eyewitness” cannot be an interested witness may not be, with respect, correct. In Basawan Singh [AIR 1958 SC 500], a trap witness (who would be a natural eyewitness) was considered an interested witness since he was “concerned in the success of the trap”. The Constitution Bench held: (AIR p. 506, para 15)
“15. … The correct rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before convicting the accused person.”