RAJESH YADAV vs STATE OF U.P.

RAJESH YADAV vs STATE OF U.P. - Supreme Court Judgement 2022

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 339-340 OF 2014

RAJESH YADAV & ANR. ETC. …APPELLANTS

 VERSUS

STATE OF U.P. …RESPONDENTS

J U D G M E N T

M.M. SUNDRESH, J.

1. These two appeals arise out of the judgment rendered by the High Court

convicting the appellants for life, while acquitting all of them for the offence

charged under Section 307 of the Indian Penal Code (IPC), with the confirmation

of conviction and sentence under Section 25 of the Arms Act except one. Of the

five accused, the High Court thought it fit to remit the matter on the adequacy of

charge for one. This accused was once again convicted and resultantly his appeal

is pending under consideration before the High Court.

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BRIEF FACTS:

2. Two persons were done to death on 17.09.2004 at about 08.15 a.m. The death was

caused by multiple bullet injuries. An FIR was lodged within an hour’s time by

PW-1, who is none other than the nephew of one of the deceased.

3. The motive for the occurrence appears to be a prolonged election dispute between

two groups. On the fateful day, two of the eye-witnesses were having tea. The

deceased, passing the road on a two-wheeler were waylaid by the accused also

travelling in two two-wheelers. Both the deceased died on the spot. The

postmortem was done by PW-4 on the very same date. The First Information

Report (FIR) was registered by PW-7. PW-13, 8 and 14 were the Investigating

Officers. PW-13 did the substantial part of the investigation and on his transfer,

the final report was filed by PW-8. Pertaining to the charge under Section 25 of

the Arms Act, it was PW-14 who filed the subsequent final report.

4. Recoveries have been made from all the accused before us. In so far as Accused

No.3 is concerned, on his statement the recovery was made from the custody of

his wife from his house.

5. The seized articles were sent to the Forensic Science Laboratory (FSL) and a

report was received. PW-10, the police constable was the one who took the arms

to the laboratory.

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6. On behalf of the prosecution, 14 witness have been examined while marking 47

documents including the FSL report. The accused persons let in only one witness

and that too to support Accused No. 5 who is not before us.

7. PW-1 is the de facto complainant. He along with PWs-2 & 3 form the eyewitnesses to the case. PW-2 is the brother of one of the deceased. PW-3, who is

an independent witness, turned hostile after his deposition in chief in favour of

the prosecution. PW-4 is the doctor who conducted the postmortem and gave his

opinion. The other witnesses are the official witnesses including the three

investigating officers. Of these witnesses, PW-13 who was the one to undertake

the investigation. After elaborate chief examination followed by another detailed

cross-examination, despite efforts made by the courts including the issuance of

non-bailable warrant, he did not turn up to depose further. One witness, by name

Om Prakash, stated to be an injured witness, has not been examined by the

prosecution on the premise that he could not be secured. Taking note of the

above, the High Court rightly acquitted the appellants for the offence punishable

under Section 307 IPC.

8. During the questioning by the Court under Section 313 of the Criminal Procedure

Code (CrPC), all the accused made a simple denial, though incrementing

materials- both oral and documentary, were brought to their notice. The

conviction and sentence rendered by the trial court was modified by the High

Court as aforesaid resulting in imposition of life sentence. The High Court went

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into all the aspects and rendered a well-considered decision which is sought to be

impugned before us.

SUBMISSIONS:

 Submissions of the Appellants:

9. The learned counsel appearing for the appellants submitted that for inexplicable

reasons the independent injured eye-witness, Om Prakash was screened by the

prosecution. The other two eye-witnesses being related and chance witnesses are

obviously interested in getting convection. The evidence of PW-13 ought not to

have been accepted as he was not put to cross examination fully. If the deceased

were running and the injuries were caused by chasing them, the cartridges could

not have been found at a particular place near their bodies instead of spreading

them over. There is a considerable delay in receiving the FSL report. There is an

unrelated cartridge recovered which creates serious suspicion on the version of

the prosecution. Reliance has been made on the following decisions in support of

the aforesaid contentions:

 Gopal Saran v. Satyanarayana, (1989) 3 SCC 56

 State of Orissa v. Prasanna Kumar Mohanty, (2009) 7 SCC 412

 Santa Singh v. State if Punjab, AIR 1956 SC 526

 Anter Singh v. State of Rajasthan, (2004) 10 SCC 657

 Jagir Singh v. State (Delhi Administration), 1975 Crl LJ 1009

 Submissions of the State:

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10.Learned counsel appearing for the State submitted that the trial court and the

High Court made adequate assessment of the materials for coming to the

conclusion. Merely because PWs-1 & 2 are the relatives of the deceased, their

testimonies cannot be disbelieved. The courts rightly took into consideration the

evidence PW-3 though turned hostile along with that of PW-13. The other

witnesses also speak about the investigation.

11.The report submitted by the experts would clearly indicate that weapons

recovered from the appellants were indeed used for committing the offence. There

is no need to examine all the witnesses. PW-13 has clearly stated the reason for

his inability to produce the injured witness, Om Prakash. In any case, the High

Court has set aside the conviction under Section 307 IPC. Hence, there is

absolutely no ground made out for interference by this Court.

PRINCIPLES OF LAW:

Section 3 of the Evidence Act, 1872:

“3. Interpretation-clause.––In this Act the following words and

expressions are used in the following senses, unless a contrary intention

appears from the context: ––

xxx xxx xxx

“Evidence”. ––“Evidence” means and includes ––

(1) all statements which the Court permits or requires to be made

before it by witnesses, in relation to matters of fact under inquiry,

such statements are called oral evidence;

(2) [all documents including electronic records produced for the

inspection of the Court],

such documents are called documentary evidence.

“Proved”. –– A fact is said to be proved when, after considering the matters

before it, the Court either believes it to exist, or considers its existence so

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probable that a prudent man ought, under the circumstances of the particular

case, to act upon the supposition that it exists.

“Disproved”. –– A fact is said to be disproved when, after considering the

matters before it, the Court either believes that it does not exist, or considers

its non-existence so probable that a prudent man ought, under the

circumstances of the particular case, to act upon the supposition that it does

not exist.”

12.Section 3 of the Evidence Act defines “evidence”, broadly divided into oral and

documentary. “Evidence” under the Act is the means, factor or material, lending a

degree of probability through a logical inference to the existence of a fact. It is an

“Adjective Law” highlighting and aiding substantive law. Thus, it is neither

wholly procedural nor substantive, though trappings of both could be felt.

13.The definition of the word “proved” though gives an impression of a mere

interpretation, in effect, is the heart and soul of the entire Act. This clause,

consciously speaks of proving a fact by considering the “matters before it”. The

importance is to the degree of probability in proving a fact through the

consideration of the matters before the court. What is required for a court to

decipher is the existence of a fact and its proof by a degree of probability, through

a logical influence.

14.Matters are necessary, concomitant material factors to prove a fact. All evidence

would be “matters” but not vice versa. In other words, matters could be termed

as a genus of which evidence would be a species. Matters also add strength to the

evidence giving adequate ammunition in the Court’s sojourn in deciphering the

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truth. Thus, the definition of “matters” is exhaustive, and therefore, much wider

than that of “evidence”. However, there is a caveat, as the court is not supposed to

consider a matter which acquires the form of an evidence when it is barred in law.

Matters are required for a court to believe in the existence of a fact.

15.Matters do give more discretion and flexibility to the court in deciding the

existence of a fact. They also include all the classification of evidence such as

circumstantial evidence, corroborative evidence, derivative evidence, direct

evidence, documentary evidence, hearsay evidence, indirect evidence, oral

evidence, original evidence, presumptive evidence, primary evidence, real

evidence, secondary evidence, substantive evidence, testimonial evidence, etc.

16.In addition, they supplement the evidence in proving the existence of a fact by

enhancing the degree of probability. As an exhaustive interpretation has to be

given to the word “matter”, and for that purpose, the definition of the expression

of the words “means and includes”, meant to be applied for evidence, has to be

imported to that of a “matter” as well. Thus, a matter might include such of those

which do not fall within the definition of Section 3, in the absence of any express

bar.

17.What is important for the court is the conclusion on the basis of existence of a

fact by analysing the matters before it on the degree of probability. The entire

enactment is meant to facilitate the court to come to an appropriate conclusion in

proving a fact. There are two methods by which the court is expected to come to

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such a decision. The court can come to a conclusion on the existence of a fact by

merely considering the matters before it, in forming an opinion that it does exist.

This belief of the court is based upon the assessment of the matters before it.

Alternatively, the court can consider the said existence as probable from the

perspective of a prudent man who might act on the supposition that it exists. The

question as to the choice of the options is best left to the court to decide. The said

decision might impinge upon the quality of the matters before it.

18.The word “prudent” has not been defined under the Act. When the court wants to

consider the second part of the definition clause instead of believing the existence

of a fact by itself, it is expected to take the role of a prudent man. Such a prudent

man has to be understood from the point of view of a common man. Therefore, a

judge has to transform into a prudent man and assess the existence of a fact after

considering the matters through that lens instead of a judge. It is only after

undertaking the said exercise can he resume his role as a judge to proceed further

in the case.

19.The aforesaid provision also indicates that the court is concerned with the

existence of a fact both in issue and relevant, as against a whole testimony. Thus,

the concentration is on the proof of a fact for which a witness is required.

Therefore, a court can appreciate and accept the testimony of a witness on a

particular issue while rejecting it on others since it focuses on an issue of fact to

be proved. However, we may hasten to add, the evidence of a witness as whole is

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a matter for the court to decide on the probability of proving a fact which is

inclusive of the credibility of the witness. Whether an issue is concluded or not is

also a court’s domain.

Appreciation of Evidence:

20.We have already indicated different classification of evidence. While appreciating

the evidence as aforesaid along with the matters attached to it, evidence can be

divided into three categories broadly namely, (i) wholly reliable, (ii) wholly

unreliable and (iii) neither wholly reliable nor wholly unreliable. If evidence,

along with matters surrounding it, makes the court believe it is wholly reliable

qua an issue, it can decide its existence on a degree of probability. Similar is the

case where evidence is not believable. When evidence produced is neither wholly

reliable nor wholly unreliable, it might require corroboration, and in such a case,

court can also take note of the contradictions available in other matters. The

aforesaid principle of law has been enunciated in the celebrated decision of this

Court in Vadivelu Thevar v. State of Madras, 1957 SCR 981:

“In view of these considerations, we have no hesitation in holding that

the contention that in a murder case, the court should insist upon

plurality of witnesses, is much too broadly stated. Section 134 of the

Indian Evidence Act has categorically laid it down that “no particular

number of witnesses shall in any case, be required for the proof of any

fact”. The legislature determined, as long ago as 1872, presumably after

due consideration of the pros and cons, that it shall not be necessary for

proof or disproof of a fact to call any particular number of witnesses. In

England, both before and after the passing of the Indian Evidence Act,

1872, there have been a number of statutes as set out in Sarkar's Law of

Evidence — 9th Edn., at pp. 1100 and 1101, forbidding convictions on

the testimony of a single witness. The Indian Legislature has not insisted

on laying down any such exceptions to the general rule recognized in

s.134 quoted above. The section enshrines the well-recognized maxim

that “Evidence has to be weighed and not counted”. Our Legislature has

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given statutory recognition to the fact that administration of justice may

be hampered if a particular number of witnesses were to be insisted

upon. It is not seldom that a crime has been committed in the presence

of only one witness, leaving aside those cases which are not of

uncommon occurrence, where determination of guilt depends entirely on

circumstantial evidence. If the Legislature were to insist upon plurality

of witnesses, cases where the testimony of a single witness only could

be available in proof of the crime, would go unpunished. It is here that

the discretion of the presiding judge comes into play. The matter thus

must depend upon the circumstances of each case and the quality of the

evidence of the single witness whose testimony has to be either accepted

or rejected. If such a testimony is found by the court to be entirely

reliable, there is no legal impediment to the conviction of the accused

person on such proof. Even as the guilt of an accused person may be

proved by the testimony of a single witness, the innocence of an accused

person may be established on the testimony of a single witness, even

though a considerable number of witnesses may be forthcoming to

testify to the truth of the case for the prosecution. Hence, in our opinion,

it is a sound and well-established rule of law that the court is concerned

with the quality and not with the quantity of the evidence necessary for

proving or disproving a fact. Generally speaking, oral testimony in this

context may be classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

In the first category of proof, the court should have no difficulty in

coming to its conclusion either way — it may convict or may acquit on

the testimony of a single witness, if it is found to be above reproach or

suspicion of interestedness, incompetence or subornation. In the second

category, the court, equally has no difficulty in coming to its conclusion.

It is in the third category of cases, that the court has to be circumspect

and has to look for corroboration in material particulars by reliable

testimony, direct or circumstantial. There is another danger in insisting

on plurality of witnesses. Irrespective of the quality of the oral evidence

of a single witness, if courts were to insist on plurality of witnesses in

proof of any fact, they will be indirectly encouraging subornation of

witnesses. Situations may arise and do arise where only a single person

is available to give evidence in support of a disputed fact. The court

naturally has to weigh carefully such a testimony and if it is satisfied

that the evidence is reliable and free from all taints which tend to render

oral testimony open to suspicion, it becomes its duty to act upon such

testimony. The law reports contain many precedents where the court had

to depend and act upon the testimony of a single witness in support of

the prosecution. There are exceptions to this rule, for example, in cases

of sexual offences or of the testimony of an approver; both these are

cases in which the oral testimony is, by its very nature, suspect, being

that of a participator in crime. But, where there are no such exceptional

reasons operating, it becomes the duty of the court to convict, if it is

satisfied that the testimony of a single witness is entirely reliable. We

have, therefore, no reasons to refuse to act upon the testimony of the

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first witness, which is the only reliable evidence in support of the

prosecution.”

Hostile Witness:

21.The expression “hostile witness” does not find a place in the Indian Evidence Act.

It is coined to mean testimony of a witness turning to depose in favour of the

opposite party. We must bear it in mind that a witness may depose in favour of a

party in whose favour it is meant to be giving through his chief examination,

while later on change his view in favour of the opposite side. Similarly, there

would be cases where a witness does not support the case of the party starting

from chief examination itself. This classification has to be borne in mind by the

Court. With respect to the first category, the Court is not denuded of its power to

make an appropriate assessment of the evidence rendered by such a witness.

Even a chief examination could be termed as evidence. Such evidence would

become complete after the cross examination. Once evidence is completed, the

said testimony as a whole is meant for the court to assess and appreciate qua a

fact. Therefore, not only the specific part in which a witness has turned hostile but

the circumstances under which it happened can also be considered, particularly in

a situation where the chief examination was completed and there are

circumstances indicating the reasons behind the subsequent statement, which

could be deciphered by the court. It is well within the powers of the court to make

an assessment, being a matter before it and come to the correct conclusion.

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22.On the law laid down in dealing with the testimony of a witness over an issue, we

would like to place reliance on the decision of this Court in C. Muniappan v.

State of T.N., (2010) 9 SCC 567:

“81. It is settled legal proposition that:

“6. … the evidence of a prosecution witness cannot be rejected

in toto merely because the prosecution chose to treat him as

hostile and cross-examined him. The evidence of such

witnesses cannot be treated as effaced or washed off the record

altogether but the same can be accepted to the extent their

version is found to be dependable on a careful scrutiny

thereof.”

(Vide Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389, Rabindra

Kumar Dey v. State of Orissa, (1976) 4 SCC 233, Syad Akbar v. State of

Karnataka, (1980) 1 SCC 30 and Khujji v. State of M.P., (1991) 3 SCC

627, SCC p. 635, para 6.)

82. In State of U.P. v. Ramesh Prasad Misra [(1996) 10 SCC 360: 1996

SCC (Cri) 1278] this Court held that (at SCC p. 363, para 7) evidence of

a hostile witness would not be totally rejected if spoken in favour of the

prosecution or the accused but required to be subjected to close scrutiny

and that portion of the evidence which is consistent with the case of the

prosecution or defence can be relied upon. A similar view has been

reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra

[(2002) 7 SCC 543: 2003 SCC (Cri) 112], Gagan Kanojia v. State of

Punjab [(2006) 13 SCC 516: (2008) 1 SCC (Cri) 109], Radha Mohan

Singh v. State of U.P. [(2006) 2 SCC 450: (2006) 1 SCC (Cri) 661],

Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360: (2009) 1

SCC (Cri) 188] and Subbu Singh v. State [(2009) 6 SCC 462: (2009) 2

SCC (Cri) 1106].

83. Thus, the law can be summarised to the effect that the evidence of a

hostile witness cannot be discarded as a whole, and relevant parts

thereof which are admissible in law, can be used by the prosecution or

the defence.

84. In the instant case, some of the material witnesses i.e. B. Kamal (PW

86) and R. Maruthu (PW 51) turned hostile. Their evidence has been

taken into consideration by the courts below strictly in accordance with

law. Some omissions, improvements in the evidence of the PWs have

been pointed out by the learned counsel for the appellants, but we find

them to be very trivial in nature.

85. It is settled proposition of law that even if there are some omissions,

contradictions and discrepancies, the entire evidence cannot be

disregarded. After exercising care and caution and sifting through the

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evidence to separate truth from untruth, exaggeration and improvements,

the court comes to a conclusion as to whether the residuary evidence is

sufficient to convict the accused. Thus, an undue importance should not

be attached to omissions, contradictions and discrepancies which do not

go to the heart of the matter and shake the basic version of the

prosecution's witness. As the mental abilities of a human being cannot

be expected to be attuned to absorb all the details of the incident, minor

discrepancies are bound to occur in the statements of witnesses.”

Vide Sohrab v. State of M.P., [(1972] 3 SCC 751 : (1972) SCC (Cri)

819 : AIR 1972 SC 2020], State of U.P. v. M.K. Anthony, [(1985) 1 SCC

505 : 1985 SCC (Cri) 105], Bharwada Bhoginbhai Hirjibhai v. Sate of

Gujrat, [(1983) 3 SCC 217 : 1983 SCC (Cri) 728 : AIR 1983 SC 753],

State of Rajasthan v. Om Prakash, [(2007) 12 SCC 381 : (2008) 1 SCC

(Cri) 411], Prithu v. State of H.P., [(2009) 11 SCC 585 : (2009) 3 SCC

(Cri) 1502], State of U.P. v. Santosh Kumar, [(2009) 9 SCC 626 : (2010)

1 SCC (Cri) 88] and State v. Saravanan, [(2008) 17 SCC 587 : (2010) 4

SCC (Cri) 580].

23.This Court in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 had already

dealt with a situation where a witness after rendering testimony in line with the

prosecution’s version, completely abandoned it, in view of the long adjournments

given permitting an act of manoeuvring. While taking note of such situations

occurring with regularity, it expressed its anguish and observed that:

“51. It is necessary, though painful, to note that PW 7 was examined-inchief on 30-9-1999 and was cross-examined on 25-5-2001, almost after

1 year and 8 months. The delay in said cross-examination, as we have

stated earlier had given enough time for prevarication due to many a

reason. A fair trial is to be fair both to the defence and the prosecution as

well as to the victim. An offence registered under the Prevention of

Corruption Act is to be tried with all seriousness. We fail to appreciate

how the learned trial Judge could exhibit such laxity in granting so much

time for cross-examination in a case of this nature. It would have been

absolutely appropriate on the part of the learned trial Judge to finish the

cross-examination on the day the said witness was examined. As is

evident, for no reason whatsoever it was deferred and the crossexamination took place after 20 months. The witness had all the time in

the world to be gained over. We have already opined that he was

declared hostile and re-examined.

52. It is settled in law that the testimony of a hostile witness can be

relied upon by the prosecution as well as the defence. In re-examination

by the Public Prosecutor, PW 7 has accepted about the correctness of his

statement in the court on 13-9-1999. He has also accepted that he had

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not made any complaint to the Presiding Officer of the court in writing

or verbally that the Inspector was threatening him to make a false

statement in the court. It has also been accepted by him that he had

given the statement in the court on account of fear of false implication

by the Inspector. He has agreed to have signed his statement dated 13-9-

1999 after going through and admitting it to be correct. It has come in

the re-examination that PW 7 had not stated in his statement dated 13-9-

1999 in the court that recovery of tainted money was not effected in his

presence from the accused or that he had been told by the Inspector that

amount has been recovered from the accused. He had also not stated in

his said statement that the accused and witnesses were taken to the

Tehsil and it was there that he had signed all the memos.

53. Reading the evidence in entirety, PW 7's evidence cannot be brushed

aside. The delay in cross-examination has resulted in his prevarication

from the examination-in-chief. But, a significant one, his examinationin-chief and the re-examination impels us to accept the testimony that he

had gone into the octroi post and had witnessed about the demand and

acceptance of money by the accused. In his cross-examination he has

stated that he had not gone with Baj Singh to the Vigilance Department

at any time and no recovery was made in his presence. The said part of

the testimony, in our considered view, does not commend acceptance in

the backdrop of entire evidence in examination-in-chief and the reexamination.

xxx xxx xxx

57. Before parting with the case we are constrained to reiterate what we

have said in the beginning. We have expressed our agony and anguish

for the manner in which trials in respect of serious offences relating to

corruption are being conducted by the trial courts:

57.1. Adjournments are sought on the drop of a hat by the counsel, even

though the witness is present in court, contrary to all principles of

holding a trial. That apart, after the examination-in-chief of a witness is

over, adjournment is sought for cross-examination and the disquieting

feature is that the trial courts grant time. The law requires special

reasons to be recorded for grant of time but the same is not taken note

of.

57.2. As has been noticed earlier, in the instant case the crossexamination has taken place after a year and 8 months allowing ample

time to pressurise the witness and to gain over him by adopting all kinds

of tactics.

57.3. There is no cavil over the proposition that there has to be a fair and

proper trial but the duty of the court while conducting the trial is to be

guided by the mandate of the law, the conceptual fairness and above all

bearing in mind its sacrosanct duty to arrive at the truth on the basis of

the material brought on record. If an accused for his benefit takes the

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trial on the path of total mockery, it cannot be countenanced. The court

has a sacred duty to see that the trial is conducted as per law. If

adjournments are granted in this manner it would tantamount to

violation of the rule of law and eventually turn such trials to a farce. It is

legally impermissible and jurisprudentially abominable. The trial courts

are expected in law to follow the command of the procedure relating to

trial and not yield to the request of the counsel to grant adjournment for

non-acceptable reasons.

57.4. In fact, it is not at all appreciable to call a witness for crossexamination after such a long span of time. It is imperative if the

examination-in-chief is over, the cross-examination should be completed

on the same day. If the examination of a witness continues till late hours

the trial can be adjourned to the next day for cross-examination. It is

inconceivable in law that the cross-examination should be deferred for

such a long time. It is anathema to the concept of proper and fair trial.

57.5. The duty of the court is to see that not only the interest of the

accused as per law is protected but also the societal and collective

interest is safeguarded. It is distressing to note that despite series of

judgments of this Court, the habit of granting adjournment, really an

ailment, continues. How long shall we say, “Awake! Arise!”. There is a

constant discomfort. Therefore, we think it appropriate that the copies of

the judgment be sent to the learned Chief Justices of all the High Courts

for circulating the same among the learned trial Judges with a command

to follow the principles relating to trial in a requisite manner and not to

defer the cross-examination of a witness at their pleasure or at the leisure

of the defence counsel, for it eventually makes the trial an apology for

trial and compels the whole society to suffer chicanery. Let it be

remembered that law cannot allowed to be lonely; a destitute.”

Section 33 of the Indian Evidence Act:

“33. Relevancy of certain evidence for proving, in subsequent

proceeding, the truth of facts therein stated.—Evidence given by a

witness in a judicial proceeding, or before any person authorized by law

to take it, is relevant for the purpose of proving, in a subsequent judicial

proceeding, or in a later stage of the same judicial proceeding, the truth

of the facts which it states, when the witness is dead or cannot be found,

or is incapable of giving evidence, or is kept out of the way by the

adverse party, or if his presence cannot be obtained without an amount

of delay or expense which, under the circumstances of the case, the

Court considers unreasonable:

Provided— that the proceeding was between the same parties or their

representatives in interest; that the adverse party in the first proceeding

had the right and opportunity to cross-examine; that the questions in

issue were substantially the same in the first as in the second proceeding.

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Explanation—A criminal trial or inquiry shall be deemed to be a

proceeding between the prosecutor and the accused within the meaning

of this section.”

24.Section 33 is an exception to the general rule which mandates adequate facility

for cross examining a witness. However, in a case where a witness after the

completion of the chief examination and while subjecting him to a substantial and

rigorous cross examination, did not choose to get into the witness box on purpose,

it is for the court to utilize the said evidence appropriately. The issues over which

the evidence is completed could be treated as such by the court and then proceed.

Resultantly, the issues for which the cross examination is not over would make

the entire examination as inadmissible. Ultimately, it is for the court to decide the

aforesaid aspect.

Evidentiary Value of a Final Report:

25.Section 173(2) of the CrPC calls upon the investigating officer to file his final

report before the court. It being a report, is nothing but a piece of evidence. It

forms a mere opinion of the investigating officer on the materials collected by

him. He takes note of the offence and thereafter, conducts an investigation to

identify the offender, the truth of which can only be decided by the court. The

aforesaid conclusion would lead to the position that the evidence of the

investigating officer is not indispensable. The evidence is required for

corroboration and contradiction of the other material witnesses as he is the one

who links and presents them before the court. Even assuming that the

investigating officer has not deposed before the court or has not cooperated

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sufficiently, an accused is not entitled for acquittal solely on that basis, when

there are other incriminating evidence available on record. In Lahu Kamlakar

Patil v. State of Maharashtra, (2013) 6 SCC 417, this Court held:

“18. Keeping in view the aforesaid position of law, the testimony of PW

1 has to be appreciated. He has admitted his signature in the FIR but has

given the excuse that it was taken on a blank paper. The same could

have been clarified by the investigating officer, but for some reason, the

investigating officer has not been examined by the prosecution. It is an

accepted principle that non-examination of the investigating officer is

not fatal to the prosecution case. In Behari Prasad v. State of

Bihar [(1996) 2 SCC 317: 1996 SCC (Cri) 271], this Court has stated

that non-examination of the investigating officer is not fatal to the

prosecution case, especially, when no prejudice is likely to be suffered

by the accused. In Bahadur Naik v. State of Bihar [(2000) 9 SCC 153:

2000 SCC (Cri) 1186] , it has been opined that when no material

contradictions have been brought out, then non-examination of the

investigating officer as a witness for the prosecution is of no

consequence and under such circumstances, no prejudice is caused to the

accused. It is worthy to note that neither the trial Judge nor the High

Court has delved into the issue of non-examination of the investigating

officer. On a perusal of the entire material brought on record, we find

that no explanation has been offered. The present case is one where we

are inclined to think so especially when the informant has stated that the

signature was taken while he was in a drunken state, the panch witness

had turned hostile and some of the evidence adduced in the court did not

find place in the statement recorded under Section 161 of the Code.

Thus, this Court in Arvind Singh v. State of Bihar, [(2001) 6 SCC 407:

2001 SCC (Cri) 1148], Rattanlal v. State of J&K [(2007) 13 SCC 18:

(2009) 2 SCC (Cri) 349] and Ravishwar Manjhi v. State of

Jharkhand [(2008) 16 SCC 561: (2010) 4 SCC (Cri) 50], has explained

certain circumstances where the examination of investigating officer

becomes vital. We are disposed to think that the present case is one

where the investigating officer should have been examined and his nonexamination creates a lacuna in the case of the prosecution.”

Chance Witness:

26.A chance witness is the one who happens to be at the place of occurrence of an

offence by chance, and therefore, not as a matter of course. In other words, he is

not expected to be in the said place. A person walking on a street witnessing the

commission of an offence can be a chance witness. Merely because a witness

17

happens to see an occurrence by chance, his testimony cannot be eschewed

though a little more scrutiny may be required at times. This again is an aspect

which is to be looked into in a given case by the court. We do not wish to reiterate

the aforesaid position of law which has been clearly laid down by this Court in

State of A.P. v. K. Srinivasulu Reddy, (2003) 12 SCC 660:

“12. Criticism was levelled against the evidence of PWs 4 and 9 who are

independent witnesses by labelling them as chance witnesses. The

criticism about PWs 4 and 9 being chance witnesses is also without any

foundation. They have clearly explained as to how they happened to be

at the spot of occurrence and the trial court and the High Court have

accepted the same.

13. Coming to the plea of the accused that PWs 4 and 9 were “chance

witnesses” who have not explained how they happened to be at the

alleged place of occurrence, it has to be noted that the said witnesses

were independent witnesses. There was not even a suggestion to the

witnesses that they had any animosity towards any of the accused. In a

murder trial by describing the independent witnesses as “chance

witnesses” it cannot be implied thereby that their evidence is suspicious

and their presence at the scene doubtful. Murders are not committed

with previous notice to witnesses; soliciting their presence. If murder is

committed in a dwelling house, the inmates of the house are natural

witnesses. If murder is committed in a street, only passers-by will be

witnesses. Their evidence cannot be brushed aside or viewed with

suspicion on the ground that they are mere “chance witnesses”. The

expression “chance witness” is borrowed from countries where every

man's home is considered his castle and everyone must have an

explanation for his presence elsewhere or in another man's castle. It is

quite unsuitable an expression in a country where people are less formal

and more casual, at any rate in the matter explaining their presence.”

27.The principle was reiterated by this court in Jarnail Singh v. State of Punjab,

(2009) 9 SCC 719:

“21. In Sachchey Lal Tiwari v. State of U.P. [(2004) 11 SCC 410: 2004

SCC (Cri) Supp 105] this Court while considering the evidentiary value

of the chance witness in a case of murder which had taken place in a

street and a passerby had deposed that he had witnessed the incident,

observed as under:

If the offence is committed in a street only a passerby will be

the witness. His evidence cannot be brushed aside lightly or

viewed with suspicion on the ground that he was a mere

18

chance witness. However, there must be an explanation for his

presence there.

The Court further explained that the expression “chance witness” is

borrowed from countries where every man's home is considered his

castle and everyone must have an explanation for his presence elsewhere

or in another man's castle. It is quite unsuitable an expression in a

country like India where people are less formal and more casual, at any

rate in the matter of explaining their presence.

22. The evidence of a chance witness requires a very cautious and close

scrutiny and a chance witness must adequately explain his presence at

the place of occurrence (Satbir v. Surat Singh [(1997) 4 SCC 192: 1997

SCC (Cri) 538], Harjinder Singh v. State of Punjab [(2004) 11 SCC 253:

2004 SCC (Cri) Supp 28], Acharaparambath Pradeepan v. State of

Kerala [(2006) 13 SCC 643: (2008) 1 SCC (Cri) 241] and Sarvesh

Narain Shukla v. Daroga Singh [(2007) 13 SCC 360: (2009) 1 SCC

(Cri) 188]). Deposition of a chance witness whose presence at the place

of incident remains doubtful should be discarded

(vide Shankarlal v. State of Rajasthan [(2004) 10 SCC 632: 2005 SCC

(Cri) 579]).

23. Conduct of the chance witness, subsequent to the incident may also

be taken into consideration particularly as to whether he has informed

anyone else in the village about the incident (vide Thangaiya v. State of

T.N. [(2005) 9 SCC 650: 2005 SCC (Cri) 1284]). Gurcharan Singh (PW

18) met the informant Darshan Singh (PW 4) before lodging the FIR and

the fact of conspiracy was not disclosed by Gurcharan Singh (PW 18)

and Darshan Singh (PW 4). The fact of conspiracy has not been

mentioned in the FIR. Hakam Singh, the other witness on this issue has

not been examined by the prosecution. Thus, the High Court was

justified in discarding the part of the prosecution case relating to

conspiracy. However, in the fact situation of the present case, acquittal

of the said two co-accused has no bearing, so far as the present appeal is

concerned.”

Related and Interested Witness:

28.A related witness cannot be termed as an interested witness per se. One has to see

the place of occurrence along with other circumstances. A related witness can also

be a natural witness. If an offence is committed within the precincts of the

deceased, the presence of his family members cannot be ruled out, as they assume

the position of natural witnesses. When their evidence is clear, cogent and

withstood the rigor of cross examination, it becomes sterling, not requiring

19

further corroboration. A related witness would become an interested witness, only

when he is desirous of implicating the accused in rendering a conviction, on

purpose.

29.When the court is convinced with the quality of the evidence produced,

notwithstanding the classification as quoted above, it becomes the best evidence.

Such testimony being natural, adding to the degree of probability, the court has to

make reliance upon it in proving a fact. The aforesaid position of law has been

well laid down in Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591:

“32. Coming back to the appreciation of the evidence at hand, at the

outset, our attention is drawn to the fact that the witnesses were

interrelated, and this Court should be cautious in accepting their

statements. It would be beneficial to recapitulate the law concerning the

appreciation of evidence of related witness. In Dalip Singh v. State of

Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465], Vivian

Bose, J. for the Bench observed the law as under: (AIR p. 366, para 26)

“26. 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 cause,

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

foundation must be laid for such a 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.”

33. In Masalti v. State of U.P., (1964) 8 SCR 133 : AIR 1965 SC 202 :

(1965) 1 Cri LJ 226] , a five-Judge Bench of this Court has categorically

observed as under: (AIR pp. 209-210, para 14)

“14. … There is no doubt that when a criminal court has to

appreciate evidence given by witnesses who are partisan or

interested, it has to be very careful in weighing such evidence.

20

Whether or not there are discrepancies in the evidence;

whether or not the evidence strikes the court as genuine;

whether or not the story disclosed by the evidence is probable,

are all matters which must be taken into account. But it would,

we think, be unreasonable to contend that evidence given by

witnesses should be discarded only on the ground that it is

evidence of partisan or interested witnesses. Often enough,

where factions prevail in villages and murders are committed

as a result of enmity between such factions, criminal courts

have to deal with evidence of a partisan type. The mechanical

rejection of such evidence on the sole ground that it is

partisan would invariably lead to failure of justice. No hardand-fast rule can be laid down as to how much evidence

should be appreciated. Judicial approach has to be cautious in

dealing with such evidence; but the plea that such evidence

should be rejected because it is partisan cannot be accepted as

correct.”

34. In Darya Singh v. State of Punjab [(1964) 3 SCR 397 : AIR 1965 SC

328 : (1965) 1 Cri LJ 350] , this Court held that evidence of an

eyewitness who is a near relative of the victim, should be closely

scrutinised but no corroboration is necessary for acceptance of his

evidence. In Harbans Kaur v. State of Haryana [(2005) 9 SCC 195 :

2005 SCC (Cri) 1213 : 2005 Cri LJ 2199] , this Court observed that:

(SCC p. 227, para 6)

“6. There is no proposition in law that relatives are to be

treated as untruthful witnesses. On the contrary, reason has to

be shown when a plea of partiality is raised to show that the

witnesses had reason to shield actual culprit and falsely

implicate the accused.”

35. The last case we need to concern ourselves is Namdeo v. State of

Maharashtra [(2007) 14 SCC 150 : (2009) 1 SCC (Cri) 773] , wherein

this Court after observing previous precedents has summarised the law

in the following manner: : (SCC p. 164, para 38)

“38. … it is clear that a close relative cannot be characterised

as an “interested” witness. He is a “natural” witness. His

evidence, however, must be scrutinised carefully. If on such

scrutiny, his evidence is found to be intrinsically reliable,

inherently probable and wholly trustworthy, conviction can be

based on the “sole” testimony of such witness. Close

relationship of witness with the deceased or victim is no

ground to reject his evidence. On the contrary, close relative of

the deceased would normally be most reluctant to spare the

real culprit and falsely implicate an innocent one.”

36. From the study of the aforesaid precedents of this Court, we may

note that whoever has been a witness before the court of law, having a

strong interest in result, if allowed to be weighed in the same scales with

those who do not have any interest in the result, would be to open the

21

doors of the court for perverted truth. This sound rule which remains the

bulwark of this system, and which determines the value of evidence

derived from such sources, needs to be cautiously and carefully

observed and enforced. There is no dispute about the fact that the

interest of the witness must affect his testimony is a universal truth.

Moreover, under the influence of bias, a man may not be in a position to

judge correctly, even if they earnestly desire to do so. Similarly, he may

not be in a position to provide evidence in an impartial manner, when it

involves his interest. Under such influences, man will, even though not

consciously, suppress some facts, soften or modify others, and provide

favourable colour. These are most controlling considerations in respect

to the credibility of human testimony, and should never be overlooked in

applying the rules of evidence and determining its weight in the scale of

truth under the facts and circumstances of each case.”

30.Once again, we reiterate with a word of caution, the trial court is the best court to

decide on the aforesaid aspect as no mathematical calculation or straightjacket

formula can be made on the assessment of a witness, as the journey towards the

truth can be seen better through the eyes of the trial judge. In fact, this is the real

objective behind the enactment itself which extends the maximum discretion to

the court.

Non-examination of witness:

31.A mere non-examination of the witness per se will not vitiate the case of the

prosecution. It depends upon the quality and not the quantity of the witnesses and

its importance. If the court is satisfied with the explanation given by the

prosecution along with the adequacy of the materials sufficient enough to proceed

with the trial and convict the accused, there cannot be any prejudice. Similarly, if

the court is of the view that the evidence is not screened and could well be

produced by the other side in support of its case, no adverse inference can be

drawn. Onus is on the part of the party who alleges that a witness has not been

22

produced deliberately to prove it. The aforesaid settled principle of law has been

laid down in Sarwan Singh v. State of Punjab, (1976) 4 SCC 369:

“13. Another circumstance which appears to have weighed heavily with

the Additional Sessions Judge was that no independent witness of

Salabatpura had been examined by the prosecution to prove the

prosecution case of assault on the deceased, although the evidence

shows that there were some persons living in that locality like the

‘pakodewalla’, hotelwalla, shopkeeper and some of the passengers who

had alighted at Salabatpura with the deceased. The Additional Sessions

Judge has drawn an adverse inference against the prosecution for its

failure to examine any of those witnesses. Mr Hardy has adopted this

argument. In our opinion the comments of the Additional Sessions Judge

are based on serious misconception of the correct legal position. The

onus of proving the prosecution case rests entirely on the prosecution

and it follows as a logical corollary that the prosecution has complete

liberty to choose its witnesses if it is to prove its case. The court cannot

compel the prosecution to examine one witness or the other as its

witness. At the most, if a material witness is withheld, the court may

draw an adverse inference against the prosecution. But it is not the law

that the omission to examine any and every witness even on minor

points would undoubtedly lead to rejection of the prosecution case or

drawing of an adverse inference against the prosecution. The law is

well-settled that the prosecution is bound to produce only such witnesses

as are essential for unfolding of the prosecution narrative. In other

words, before an adverse inference against the prosecution can be drawn

it must be proved to the satisfaction of the court that the witnesses who

had been withheld were eyewitnesses who had actually seen the

occurrence and were therefore material to prove the case. It is not

necessary for the prosecution to multiply witnesses after witnesses on

the same point; it is the quality rather than the quantity of the evidence

that matters. In the instant case, the evidence of the eyewitnesses does

not suffer from any infirmity or any manifest defect on its intrinsic

merit. Secondly, there is nothing to show that at the time when the

deceased was assaulted a large crowd had gathered and some of the

members of the crowd had actually seen the occurrence and were cited

as witnesses for the prosecution and then withheld. We must not forget

that in our country there is a general tendency amongst the witnesses in

mofussil to shun giving evidence in courts because of the cumbersome

and dilatory procedure of our courts, the harassment to which they are

subjected by the police and the searching cross-examination which they

have to face before the courts. Therefore nobody wants to be a witness

in a murder or in any serious offence if he can avoid it. Although the

evidence does show that four or five persons had alighted from the bus

at the time when the deceased and his companions got down from the

bus, yet there is no suggestion that any of those persons stayed on to

witness the occurrence. They may have proceeded to their village

homes…”

(Emphasis supplied)

23

32.This Court has reiterated the aforesaid principle in Gulam Sarbar v. State of

Bihar, (2014) 3 SCC 401:

“19. In the matter of appreciation of evidence of witnesses, it is not the

number of witnesses but quality of their evidence which is important, as

there is no requirement under the Law of Evidence that any particular

number of witnesses is to be examined to prove/disprove a fact. It is a

time-honoured principle that evidence must be weighed and not counted.

The test is whether the evidence has a ring of truth, is cogent, credible

and trustworthy or otherwise. The legal system has laid emphasis on

value provided by each witness, rather than the multiplicity or plurality

of witnesses. It is quality and not quantity, which determines the

adequacy of evidence as has been provided by Section 134 of the

Evidence Act. Even in probate cases, where the law requires the

examination of at least one attesting witness, it has been held that

production of more witnesses does not carry any weight. Thus,

conviction can even be based on the testimony of a sole eyewitness, if

the same inspires confidence. (Vide Vadivelu Thevar v. State of

Madras [AIR 1957 SC 614: 1957 Cri LJ 1000] , Kunju v. State of

T.N. [(2008) 2 SCC 151: (2008) 1 SCC (Cri) 331] , Bipin Kumar

Mondal v. State of W.B. [(2010) 12 SCC 91: (2011) 2 SCC (Cri) 150 :

AIR 2010 SC 3638] , Mahesh v. State of M.P. [(2011) 9 SCC 626 :

(2011) 3 SCC (Cri) 783], Prithipal Singh v. State of Punjab [(2012) 1

SCC 10 : (2012) 1 SCC (Cri) 1] and Kishan Chand v. State of

Haryana [(2013) 2 SCC 502 : (2013) 2 SCC (Cri) 807: JT (2013) 1 SC

222].)”

ON FACTS:

33.There are three eye-witnesses examined by the prosecution. We find PWs-1 & 2

have not contradicted between themselves being the eye-witnesses. Merely

because they are related witnesses, in the absence of any material to hold that

they are interested, their testimonies cannot be rejected. There is also no delay in

the registration of the FIR. PW-3 though turned hostile, spoke about the incident

in his chief examination. Strangely, in the cross examination he turned turtle,

while disputing the very factum of his chief examination made before the court.

We do not wish to say anything on the credibility of the said witness in view of

24

the evidence of PWs -1 & 2. The view of the courts on this witness also deserves

to be accepted.

34.The High Court has rightly set aside the conviction rendered by the trial court for

the charge under Section 307 IPC. PWs-1 & 2 have not spoken about the presence

of the injured witness, Om Prakash. The circumstances under which he could not

be produced was explained by the prosecution. Merely because he was not

produced, the entire case of the prosecution would not become false.

35.The FSL report was placed on record. Both the courts have considered and relied

upon the said report. The entire circumstances under which the material was

collected including the cartridges, along with the recoveries made which were

sent to the expert, have been explained by the official witnesses. We do not find

anything unnatural in the testimony.

36.On a perusal of the evidence available we do not find any delay in either sending

the recovered arms to the expert or receiving the FSL report. The circumstances

under which they were sent and received were spoken about and explained. The

appellants have neither shown any prejudice being caused by the alleged delay,

nor have disputed the findings of the said report.

37.The learned counsel appearing for the appellants submitted that the investigating

officer could not be cross examined further with respect to the injuries and the

recoveries. We find that evidence was also let in to that extent along with the

25

cross-examination. The High Court has considered this aspect in the correct

perspective. It is very unfortunate that the investigating officer could not be

produced despite the best efforts made. The reason is obvious. There are three

investigating officers. The other two investigating officers have been examined

including for the charge under the Arms Act. PW-13, the first investigating

officer, has been examined in extenso during cross examination. It is only for the

further examination he turned turtle. That per se would not make the entire case

of the prosecution bad is law particularly when the final report itself cannot be

termed as a substantive piece of evidence being nothing but a collective opinion

of the investigating officer. The trial court as well as the High court considered

the evidence threadbare in coming to the right conclusion. Similarly, the

contention that there is non-explanation for the existence of some other empty

cartridge recovered from the place of occurrence would not facilitate an acquittal

for the appellants as there are materials sufficient enough to implicate and prove

the offence against them.

38.Thus, on the aforesaid conclusion arrived at, we are in conformity with the well

merited judgment of the High court. The appeals stand dismissed.

39.Before we part with this case, we are constrained to record our anguish on the

deliberate attempt to derail the quest for justice. Day in and day out, we are

witnessing the sorry state of affairs in which the private witnesses turn hostile for

obvious reasons. This Court has already expressed its views on the need for a

26

legislative remedy to curtail such menace. Notwithstanding the above stated

directions issued by this court in Vinod Kumar (supra), we take judicial note of

the factual scenario that the trial courts are adjourning the cross examination of

the private witnesses after the conclusion of the cross examination without any

rhyme or reason, at the drop of a hat. Long adjournments are being given after the

completion of the chief examination, which only helps the defense to win them

over at times, with the passage of time. Thus, we deem it appropriate to reiterate

that the trial courts shall endeavor to complete the examination of the private

witnesses both chief and cross on the same day as far as possible. To further

curtail this menace, we would expect the trial courts to take up the examination of

the private witnesses first, before proceeding with that of the official witnesses. A

copy of this judgment shall be circulated to all the trial courts, to be facilitated

through the respective High Courts.

…….………………………J.

(SANJAY KISHAN KAUL)

……………………………J.

(M.M. SUNDRESH)

New Delhi

February 04, 2022

27

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले