Shahaja @ Shahajan Ismail Mohd. Shaikh vs State of Maharashtra

HELD: 1. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:

I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.

II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.

III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person’s mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.

XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. [Para 27][211-A-H; 212-A-H; 213-AC]

2. To put it simply, in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence. [Para 28][213-E-G]

3. There is nothing palpable or glaring in the evidence of the two eye-witnesses on the basis of which we can take the view that they are not true or reliable eye-witnesses. Few contradictions in the form of omissions here or there is not sufficient to discard the entire evidence of the eye-witnesses. Thus, having regard to the aforesaid, we are of the view that both the courts below rightly believed the two eye witnesses i.e. the PW-1 and PW-8 resply. [Paras 29 and 33][213-H; 214-A, G] DISCOVERY PANCHNAMA DRAWN UNDER SECTION

27 OF THE EVIDENCE ACT:

4. This Court has noticed a serious infirmity in the reasonings assigned by the trial court as affirmed by the High Court so far as the position of law as regards the discovery of weapon of offence under Section 27 of the Act is concerned. If we overlook or ignore the same then probably the trial courts may keep committing the same mistake & in such circumstances, we would like to explain the correct position of law and how to appreciate the evidence of discovery in accordance with the provisions of the Section 27 of the Act. [Para 34][215-A-B]

5. What emerges from the evidence of the PW-4 & PW-10 resply is that the appellant stated before the panch witnesses to the effect that “I will show you the weapon concealed adjacent the shoe shop at Parle”. This statement does not suggest that the appellant indicated anything about his involvement in the concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence. [Para 45][219-B-E]

6. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the Investigating Officer in his evidence, and also without proving the contents of the panchnamas, the trial Court was not justified in placing reliance upon the circumstance of discovery of weapon. [Para 47]2[219-H; 220-A]

7. Even while discarding the evidence in the form of discovery panchnama the conduct of the appellant herein would be relevant under Section 8 of the Act. The evidence of discovery would be admissible as conduct under Section 8 of the Act quite apart from the admissibility of the disclosure statement under Section 27. [Para 48][220-B]

State of Uttar Pradesh v. Deoman Upadhyaya AIR (1960) SC 1125 : [1961] 1 SCR 14 – followed.

H.P. Admn. v. Om Prakash (1972) 1 SCC 249 : [1972]

2 SCR 765; Balak Ram v. State of U.P. (1975) 3 SCC

219 : [1975] 1 SCR 753; Arunachalam v P.S.R.

Sadhanantham (1979) 2 SCC 297; Nain Singh v.State of U.P. (1991) 2 SCC 432 : [1991] 1 SCR 685; State of U.P. v. Babul Nath (1994) 6 SCC 29 : [1994] 2 Suppl. SCR 598; State of U.P. v. Anil Singh AIR 1988 SC 1998 : [1988] 2 Suppl. SCR 611; Murli and Another v. State of Rajasthan (2009) 9 SCC 417 : [2009] 13 SCR 378; A. N. Venkatesh v. State of Karnataka (2005) 7 SCC 714; State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79 – relied on. Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983 SC 753 : [1983] 3 SCR 280; Leela Ram v. State of Haryana AIR 1999 SC 3717 : [1999] 3 Suppl. SCR 435; Tahsildar Singh v. State of UP AIR 1959 SC 1012 : [1959] 2 Suppl. SCR 875; Mohmed Inayatullah v. The State of Maharashtra AIR (1976) SC 483 : [1976] 1 SCR 715; Kirshnappa v. State of Karnataka AIR (1983) SC 446 : [1983] 2 SCR 552; Phulukuri Kottaya v. Emperor AIR (1947) PC 67; Dudh Nath Pandey v. State of U.P. AIR (1981) SC 911 : [1981] 2 SCR 771 – referred to.