Penal Code 1860: ss. 302, 307 – Two persons were done to death by bullet firing by the accused – Previous dispute between the groups – Two eye-witness present on the spot – Recoveries made from all the accused – Trial court convicted and sentenced all the accused – High Court convicted the appellants for life, while acquitting them for the offence charged u/s.307, with the confirmation of conviction and sentence u/s. 25 of the Arms Act – On appeal, held: 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 – No delay in the registration of the FIR – Nothing is said on the credibility of the witness who turned hostile in the cross-examination in view of the evidence of PWs -1 & 2 – High Court rightly set aside the conviction rendered by the trial court for the charge u/s. 307 – Merely because the injured witness was not produced, the entire case of the prosecution would not become false – 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, there is noting unnatural in the testimony – No delay is found in either sending the recovered arms to the expert or receiving the FSL report – Investigating officer could not be produced despite the best efforts made – 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 – Trial court as well as the High court considered the evidence threadbare in coming to the right conclusion – Material sufficient enough to implicate and prove the offence against the appellants - Non-explanation for the existence of some other empty cartridge recovered from the place of occurrence would not facilitate an acquittal for the appellants – Thus, the judgment passed by the High Court upheld – Arms Act – S. 25. Evidence Act, 1972:
s. 3 – “Evidence” – Explained.
Appreciation of “evidence” – Explanation of – Held: While appreciating evidence, evidence can be divided into three categories, wholly reliable, wholly unreliable and 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 – 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. s. 33 – Relevancy of certain evidence – Held: Section 33 is an exception to the general rule which mandates adequate facility for cross examining a witness– 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 – Issues over which the evidence is completed could be treated as such by the court and then proceed – Issues for which the cross examination is not over would make the entire examination as inadmissible.
Non-examination of witness – Effect of, on prosecution case – Held: 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 – Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it.
Expressions hostile witness, Chance Witness, Related and Interested Witness – Explained.
Code of Criminal Procedure, 1973 –s. 173 – Final Report – Evidentiary value of – Held: Final Report under Section 173 is nothing but a piece of evidence – It forms a mere opinion of the investigating officer on the materials collected by him – It is not indispensable – the evidence of investigating officer is required for corroboration and contradiction of the other material witnesses Even assuming that the investigating officer has not deposed before the court or has not cooperated sufficiently, an accused is not entitled for acquittal solely on that basis.
Dismissing the appeals, the Court
HELD: While appreciating the evidence, the 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. [Para 20][979-B-D]
1.1 The expression “hostile witness” does not find a place in the Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. 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. 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 has to be assessed. [Para 21][982-A-B; D-E]
1.2 Section 33, Evidence Act, 1872 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. [Para 24][988-G-H; 989-A]
1.3 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 sufficiently, an accused is not entitled for acquittal solely on that basis, when there are other incriminating evidence available on record. [Para 25][989-B-D]
1.4 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 happens to see an occurrence by chance, his testimony cannot be eschewed. 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. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose. [Paras 26, 28][990-E-F; 993-C, D]
1.5 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 produced deliberately to prove it. [Para 31][997-B-D]
1.6 There are three eye-witnesses examined by the prosecution. 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. Nothing is said on the credibility of the said witness in view of the evidence of PWs -1 & 2. The view of the courts on this witness also deserves to be accepted. [Para 33][1000-A-C]
1.7 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. 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. [Para 34][1000-C-D]
1.8 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. There is nothing unnatural in the testimony. On a perusal of the evidence available no delay is found 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. [Paras 36, 35][1000-E-G]
1.9 The appellants submitted that the investigating officer could not be cross examined further with respect to the injuries and the recoveries. 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. [Para 37][1000-G; 1001-B-C]
1.10 This Court takes 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, this Court deems 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, it is expected the trial courts to take up the examination of the private witnesses first, before proceeding with that of the official witnesses. [Para 39][1001-E-G]
Vadivelu Thevar v State of Madras, [1957] SCR 981; C. Muniappan v. State of T.N., (2010) 9 SCC 567: [2010] 10 SCR 262; Vinod Kumar v. State of Punjab (2015) 3 SCC 220: ; Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417: [2015] 1 SCR 504; State of A.P. v. K. Srinivasulu Reddy, (2003) 12 SCC 660: [2003] 6 Suppl. SCR 1050; Jarnail Singh v. State of Punjab (2009) 9 SCC 719: [2009] 13 SCR 774; Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591: [2018] 4 SCR 751 ; Sarwan Singh v. State of Punjab (1976) 4 SCC 369; Gulam Sarbar v. State of Bihar (2014) 3 SCC 401: [2013] 12 SCR 1 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.