SOME RULINGS

EVIDENCE: EXAGGERATION OR EMBROIDERY BY WITNESSES.

State of U.P. v Anil Singh, 1989 Cri.L.J. 88 = AIR 1988 S.C. 1998 observed, “....With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reasons to believe that the inconsistencies of falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside a criminal trial merely to see that no innocent man is punished. A Judge also presides over to see that a guilty does not escape. One is as important as the other. Both are public duties which the Judge has to perform....”

DISCREPANCIES IN THE EVIDENCE OF WITNESSES

Hon'ble SC in Bhoginbhai v. State of Gujarat, AIR 1988 SC 753 = 1983 Cri.L.J. 1096 observed, “Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious—

• 1. 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.

  2. 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.

  3. The power 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.

  4. 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 the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

  5. In regard to exact time of an incident, usually people make their estimates by guesswork 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.

  6. Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take pace in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

  7. A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by the 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 sub-conscious 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 – perhaps it is a sort of psychological defence mechanism activated on the spur of the moment.

Discrepancies which do not go to the root of the matter and shake the basic version of the witness, therefore, cannot be annexed with undue importance. More so when the all important “probabilities-factor” echoes in favour of the witness.”

DELAY IN LODGING F.I.R.

Ram Jug and others v. The State of Uttar Pradesh, 1954 Cri.L.J. SC 116

Justice Chandrachud in para 17 of the Judgement observed, “ According to the prosecution, the occurrence took place at about night at the Tarabganj P.S. which is at a distance of about 4 miles from the scene of occurrence, the ld. Sessions Judge held that there was undue delay in lodging the report and that the delay was not satisfactorily explained. It is true that witnesses cannot be called upon to explain every hour's delay and a common sense view has to be taken in ascertaining whether the F.I.R. was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of prosecution case must depend a variety of factors which would vary from case to case. Even a long delay in filing report of occurrence can be condoned if the witnesses on whose evidence the prosecution relies has no motive for implicating the accused. On the other hand, prompt filing of the report, is not an unmistakable guarantee of the truthfulness of the version of the prosecution.

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Tara Singh and others v. State of Punjab 1990 Cri.L.J. (SC) 2681

Criminal p.c. (1974), S.154 -F.I.R. - Delay in filing – Not by itself sufficient to doubt prosecution case – Murder case – Tendency to falsely implicate persons belonging to opposite faction – Courts should subject evidence as well contents of F.I.R. to careful and closer scrutiny – whether to reject F.I.R. on grounds of delay – Depends on facts and circumstances of each case. ( Evidence Act, S.3)

The delay in giving the F.I.R. by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but a natural in these circumstances for them to take some time to go to the police station for giving the report. Of course, in cases arising out of acute factions, there is a tendency to implicate persons belonging to the opposite factions falsely. In order to avert the danger of convicting such innocent persons, the Courts should be cautious to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so, the contents of the F.I.R. also will have to be scrutinised carefully. However, unless there are indications of fabrication, the Court cannot reject the prosecution version as given in the F.I.R. and later substantiated by the evidence, merely on the ground of delay. These are all matters of appreciation and much depends on the facts and circumstances of each case. (Para 4)

In the instant case the names of the accused were consistently mentioned throughout. There was absolutely no grounds to hold that the F.I.R. was brought into existence subsequently during the investigation and the mere delay in lodging the report by itself could not give scope for an adverse inference leading to rejection of the prosecution case outright. The evidence of eye witnesses was consistent and corroborated by medical evidence. There was no inordinate and unexplained delay in FIR (Para 3 and 4)

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DISCREPANCIES AND REACTION OF WITNESSES TO A CRIME:

Appabhai and others v . State of Gujarat, AIR 1988 SC 696=1988 Cri.L.J. 848

(B) Penal Code (45 of 1860), S.300 – Murder – Failure of prosecution to examine independent witnesses – Held, prosecution case cannot be thrown out on that ground alone. (Evidence Act (1 of 1872), S.3.

It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case can not be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think the crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this hardship with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witness at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. (Para 11 and 12)

(C)Penal Code (45 of 1860), S.300 – Murder – Evidence – contradictions in evidence of –victim of assault - Held, there is no ground to reject his entire testimony.

It is true that there are many contradictions in the evidence of the victim of assault. He has not attributed overt acts to individual accused in his statement before the police, whereas he has attributed such overt acts in his evidence before the Court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of assault. Fortunately, he has survived. He must, therefore, be considered the best eye witness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shape the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court calling into aid its vast experience of men and matters in different cases must evaluate the different cases must evaluate the entire material on record by excluding the exaggerated version given by the witness when a doubt arises in respect of certain facts as alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witness now a days go on adding embellishments to their versions perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. ( Para 13 )

REACTION OF WITNESSES: NO SET RULE OF NANTURAL REACTIOnN

Rana Pratap v State of Haryana, AIR 1983 SC 680 observed. “...Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even, going to the extent of of counter-attacking the assailants. Everyone reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.”

CAN  F.I.R.  BE EXPECTED TO BE AN ENCYCLOPEDIA? - No.

In Mani v. State of Kerala,1987, Hon'ble Kerala H.C. observed, “A first information report is not, and need not be, a catalogue of all information that may be in the mind of the informant. Several fat ors would determine what would be said and what would be missed. The dimensions of perception, the sense of importance or unimportance of events in the mind of the maker of the statement, his own state of mind, his views of relevancy and irrelevancy would all form the backdrop in which the state made will have to be considered. A first information report is not an encyclopedia of the entire prosecution case , but only a starting point that alerts the investigating machinery into the process of probe the result of which will be evaluated y the Court. Therefore, no fault can be found with the first information report about a murder case lodged by a witness because the informant did not mention the injuries sustained by one of the witnesses in the course of the same transaction.”

A similar view was taken by Hon’ble SC in Rattan Singh v State of H.P., AIR 1997 SC 768 wherein Hon’ble SC observed, “It is settled law that FIR are not taken as encyclopedia and omission of a fact therein, even if material, cannot by itself make the witness deposing about that fact unbelievable at that point.”

SECOND F.I.R. AND FAIR TRIAL.

CIVIL APPEAL NOS. 6198-6199 OF 2008

(Arising out of SLP (C) Nos. 24777 - 24778 of 2005)

ALSO REPORTED IN 2009 Cri. L.J. 958

Nirmal Singh Kahlon .... Appellant

Versus

State of Punjab and others .... Respondents

WITH

CIVIL APPEAL NOS. 6200-6201 OF 2008

(Arising out of SLP (C) Nos. 25226 - 25227 of 2005)

J.P. Singla and others .... Appellant

Versus

State of Punjab and others .... Respondents

VICTIM AND THE FAIR TRIAL

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An accused is entitled to a fair investigation. Fair investigation and fair trial are concomitant to preservation of fundamental right of an accused under Article 21 of the Constitution of India. But the State has a larger obligation i.e. to maintain law and order, public order and preservation of peace and harmony in the society. A victim of a crime, thus, is equally entitled to a fair investigation.

SECOND FIR

52. Yet again, in Upkar Singh v. Ved Prakash and Others [(2004) 13 SCC 292], a Three-Judge Bench of this Court held:

"21. From the above it is clear that even in

regard to a complaint arising out of a complaint on

further investigation if it was found that there was

a larger conspiracy than the one referred to in the

previous complaint then a further investigation

under the court culminating in another complaint

is permissible."

53. If, in a situation of this nature, lodging of the second FIR was not impermissible in law, the main plank of submission of Mr. Rao that whereas in terms of Section 173(8) of the Code of Criminal Procedure further investigation is permissible, re-investigation is not, takes a back seat.

54. The question can be considered from another angle. If the State has the ultimate supervisory jurisdiction over an investigation for an offence and if it intends to hand over a further investigation even after filing of the chargesheet, it may do so. However, it appears from the records that those officers including the Chief Secretary who were dealing with the public interest litigation were not aware that the chargesheet had been filed in the earlier case. The State Government and the High Court had proceeded on

the basis that the investigation was to be handed over to the CBI. The High Court came to know thereof only when an application for modification was filed by the appellants therein. It may be true that the High Court proceeded on the basis that although the CBI had lodged the FIR, the same would be deemed to have been lodged only for the purpose of carrying out further investigation, but, in our opinion, for the views we have taken, its conclusions are correct.

55. The High Court in this case was not monitoring any investigation. It only desired that the investigation should be carried out by an independent agency. Its anxiety, as is evident from the order dated 3.04.2002, was to see that the officers of the State do not get away. If that be so, the submission of Mr. Rao that the monitoring of an investigation comes to an end after the chargesheet is filed, as has been held by this Court in Vineet Narain (supra) and M.C. Mehta (Taj Corridor Scam) v. Union of India and Others [(2007) 1 SCC 110], loses all significance.

56. Moreover, it was not a case where the High Court had assumed a jurisdiction in regard to the same offence in respect whereof the Special Judge had taken cognizance pursuant to the chargesheet filed. The chargesheet was not filed in the FIR which was lodged on the intervention of the High Court.

As the offences were distinct and different, the High Court never assumed the jurisdiction of the Special Judge to direct reinvestigation as was urged or otherwise.

57. The Act is a special statute. By reason of the said enactment, the CBI was constituted. In relation to the matter which were to come within the purview thereof, the CBI could exercise its jurisdiction. The law and order, however, being a State subject, the CBI derives jurisdiction only when a consent therefor is given by the statute. It is, however, now beyond any controversy that the High Court and this Court also direct investigation by the CBI. Our attention has been drawn to the provisions of the CBI Manual, from a perusal whereof it appears that the Director, CBI exercises his power

of superintendence in respect of the matters enumerated in Chapter VI of the CBI Manual which includes reference by the State and/ or reference by the High Courts and this Court as also the registration thereof. The reference thereof may be received from the following:

"(a) Prime Minister of India

(b) Cabinet Ministers of Government of India/

Chief Ministers of State Governments or

their equivalent

(c) The State Governments

(d) Supreme Court/ High Courts"

The CBI Manual having been framed by the Union of India, evidently, it has accepted that reference for investigation to the CBI may be made either by this Court or by the High Court.

58. Thus, even assuming that reference had been made by the State Government at the instance of the High Court, the same by itself would not render the investigation carried out by it to be wholly illegal and without jurisdiction as assuming that the reference had been made by the High Court in exercise of its power under Article 226 of the Constitution of India in a public interest litigation, the same would also be valid.

59. The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as a when the same surfaced, it was open to the State and/ or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged.

60. An order of further investigation in terms of Section 173 (8) of the Code by the State in exercise of its jurisdiction under Section 36 thereof stands on a different footing. The power of the investigating officer to make further investigation in exercise of its statutory jurisdiction under Section 173(8) of the Code and at the instance of the State having regard to Section 36 thereof read with Section 3 of the Police Act, 1861 should be considered in different contexts. Section 173(8) of the Code is an enabling provision.

Only when cognizance of an offence is taken, the learned Magistrate may have some say. But, the restriction imposed by judicial legislation is merely for the purpose of upholding the independence and impartiality of the judiciary. It is one thing to say that the court will have supervisory jurisdiction to ensure a fair investigation, as has been observed by a Bench of this Court in Sakiri Vasu v. State of Uttar Pradesh and Others [(2008) 2 SCC 409], correctness whereof is open to question, but it is another thing to

say that the investigating officer will have no jurisdiction whatsoever to make any further investigation without the express permission of the Magistrate.

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SECOND FIR EVEN IF PROVED - CAN CONVICTION BE RECORDED?

Hon'ble SC in one such case upheld conviction of the accused persons inspite of established factum of existence of a prior FIR.

In State of Orissa v. Dibakar Naik, 2002 Cri.L.J. 2826 (Para 4), Hon'ble SC recorded some crucial facts. “......PW1 made over the written report to the said officer in charge who advised him to score that portion of the report which related to the phone message and also to delete the names of some of the accused persons. His signature was obtained on blank papers. He was directed to proceed to the spot where the police accompanied by chowkidar reached. Some of the accused persons were arrested and again as per direction of PW36, PW1 wrote the FIR dictated to him because the earlier report had been destroyed by Prusty Babu.” Hon'ble SC in the said case further observed, “In State of H.P. v. Lekh Raj and another (2000(1) SCC 247) this Court held, “ The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt rational approach and judge the evidence by its intrinsic worth and on the animus of the witnesses. The hypertechnicalities of figment of imagination should not be allowed to divert the Court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstances keeping in view the peculiar facts of each case, the social position, interest of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The Courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a utopian thought but have to be considered as part and parcel of the human civilisation and the realities of life. The values of life which are a common feature of the present system. Such erosion cannot be given a bonus in favour of those who are guilty of polluting society and the mankind.”

NON SEIZURE OF ALAMATS

Regarding non-seizure of the torch light, used by the witness to see the occurrence, it was held in Balo Yadav & others v. State of Bihar (1997(5) SCC 360 that such an omission cannot be considered as a lapse on the part of investigating officer and as such it was not a ground for impairing the testimony of the witness concerned. Even if there was failure on the part of the investigating agency to take steps for the seizure of torchlight, such an omission cannot be treated as a ground to reject the prosecution case.

Much has been made out by the High Court for the alleged failure of PW1 to disclose the name of the accused persons to PW10 and PW13. Non mentioning of the names of the accused is factually not borne out and even if accepted would not render his testimony unacceptable. Post event conduct of witnesses varies from person to person as different people react differently under different situations. PW1had lost his wife in a most ghastly crime committed by the culprits. He apprehended danger to his life and was under shock. PW10 and PW13 did not ask him about the names of the persons involved in the crime nor did he think it proper to disclose such names. Under such circumstances, no adverse inference could be drawn against PW1 making his testimony doubtful or unbelievable.”

EVIDENCE OF A CLOSE RELATIVE

Hon'ble SC in Dalip Singh and others v. The State of Panjab, AIR 1953 SC 364 (Vol,40 C.N. 81) observed, “ A witness is normally considered to be independent unless he or she springs from sources which are likely to be tainted and that usually means that 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 person to screen the real culprit and falsely implicate an innocent person and hence the mere fact of relationship far from being the foundation of criticism of the evidence is often a sure guarantee of truth. No doubt no sweeping generalisations can be possible in all cases, but at the same time, there can not be any general rule of prudence to require corroboration before the evidence is believed. Each case must be limited to and governed by its own facts.”

EVIDENCE OF A CHILD WITNESS.

2001 Cr.L.J. 705 (Supreme Court)

Suryanarayan vs. State of Karnataka

Penal Code (45 of 1860), S. 300 – Evidence Act – (1 of 1872), S.3 – Murder – Sole testimony of Child witness – veracity of – Child witness to occurrence aged 4 years – making statement that accused had inflicted fatal blows on the body of deceased with knife on date she had gone with deceased to lake to wash clothes – Child witness standing test of cross-examination. No inherent defect pointed out in her testimony – Mere fact that words spoken to by child witness were not in language which child witness knew, no ground to reject her testomony – Possibility of child witness being tutored ruled out – Her testimony to the effect of deceased living with her brother sufficiently corroborated – Factum of deceased having received knife injuries, proved by medical evidence – Recovery of knife at instance of accused leaves no doubt to believe her statement. Evidence of child witness not infirm and corroborated in all material paeticulars – Conviction based solely on testimony of child witness – Sustainable. (Para 9, 11)

VICTIM- A LADY OF LOOSE CHARACTER: HER EVIDENCE

State of U.P.  v  Pappu @ Yunus and another, 2005 Cri.L.J. 331

(A)Penal Code (45) of 1860) S.376 Rape – Finding that the prosecutrix was not having good character and was girl of easy virtues – Held, not ground for acquittal of accused.

11. Even assuming that the victim was previously accustomed sexual intercourse, that is not a determinative question. On the contrary, the question which was required to be adjudicated was did the accused commit rape on the victim on the occasion complained of. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give license to any person to rape her. It is the accused who was on trial and not the victim. Even if the victim in a given case has been promiscuous in her sexual behavior earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not vulnerable object or prey for being sexually assaulted by anyone and everyone.

            PUNISHMENT

State of U.P. v. Kishan, 2005 Cri. L.J. 333

7.        The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.

8.        Imposing of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or  taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

9.        The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim, but also against the society to which the criminal and the  victim belong. The punishment to be awarded for a crime must not be irrelevant but it should also conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal.”

MAINTENANCE : UNABLE TO MAINTAIN HERSELF – MEANING

1980 Cri.L.J. 232 (Allahabad High Court)

Abdul Salim v. Smt Najima Begum and another (Cri. Misc. Case No.7109 of 1978 dated 31-08-1979.

(A) Criminal P.C. (1974), S.125(1)(a) - “Unable to maintain herself” - Meaning.

The wife if found unable to maintain herself will be entitled to claim maintenance. By the phrase “unable to maintain herself” it is not meant that she should be absolute destitute and should be first on the street, should beg and be in tattered clothes and then only she will be entitled to move an application under Sec.125. When she leave's her husband's house, she can be maintained for some time by her relatives. But that alone will not be sufficient. What is necessaary is that she herself should be in a position to maintain herself, not much below the status which she was used to at her husband's place (Para 4)

CRUELTY : LEGAL CRUELTY – CONCEPT

In Sirajmohemmed Khan v. Hafizuddin, AIR 1981 SC 1972 the SUPREME COURT observed:

“In Smt Pancho v. Ram Prasad AIR 1956 All 41, Roy J. while dealing with the Hindu Married Women's Right to Separate Residence and Maintenance Act (19 of 1946 ) expounded the concept of 'legal cruelty', and observed thus

“............conception of legal cruelty undergoes changes and advancement of our social conceptions, this feature has obtained legislative recognition that a second marriage is a sufficient ground for separate residence and a separate maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be necessarily used. Continuous ill treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband and an assertion on the part of the husband that the wife is unchaste are all factors which may undermine the health of a wife.”

The ld. Judge has put his fingers on the correct aspect and object of mental cruelty. The fact that this case did not arise out of the proceedings under S.125 makes no difference because we have already observed that the concept of cruelty remains the same whether it is a civil case or a criminal case or a case under any other similar nature.”

ONE RULING: SEVERAL PRINCIPLES OF LAW

SUCHA SINGH & ANR V. STATE OF PUNJAB [2003] INSC 338 (31 July 2003) =2003 Cri.L.J. 3876.

DORAISWAMY RAJU & ARIJIT PASAYAT.

WITH

CRIMINAL APPEAL NO. 1014 OF 2002 ARIJIT PASAYAT,J Since these two appeals are inter-linked and a common judgment of Punjab and Haryana High Court at Chandigarh is the subject matter of challenge, they are taken up together for disposal.

Nearly two decades ago, Surjit Singh (hereinafter referred to as the 'deceased') lost his life. Three appellants along with two others were stated to be responsible for his homicidal death.

The litigious history starts from 4.2.1986 and has seen one round of litigation before this Court. By the impugned judgment, the three appellants have been found guilty of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short the 'IPC'), and Section 201 IPC. They were each sentenced to undergo imprisonment for life and fine of Rs.5,000/- with default stipulation of one year RI for the former and one and a half years RI and fine of Rs.500/- with default stipulation of 3 months RI for the later.

Allegations giving birth to the prosecution are essentially as follows:

On 4.2.1986 at about 9.30 a.m. Lakhvinder Singh (PW9), his brother Sukhvinder Singh and a relative Pritam Singh (PW10) were returning from their fields. When they reached turning of the street near the house of one Rattan Singh, deceased-Surjit Singh met them on his way towards fields.

Suddenly, they found the accused appellants Satnam Singh, Sucha Singh and Rachpal Singh who were armed with various deadly weapons, and Gurdip Singh and Rattan Singh (who were acquitted by the High Court) surrounded the deceased. Rattan Singh raised a 'lalkara' saying that the deceased should be taught a lesson for not vacating a plot. Gurdip Singh made a similar lalkara. All the accused persons surrounded the deceased and Sucha Singh gave two gandasa blows which hit the deceased on the temple on the right side and on the neck below the right ear and the deceased fell down. Satnam Singh gave kirpan blows on the nose below the chin on the right cheek on his right deltoid and on his left hand. He also thrust the kirpan on his back. Rachpal Singh gave datar blows on his head and neck. The deceased breathed his last at the spot. Thereafter, all the accused persons brought the dead body of the deceased to the house of Rattan Singh and raised a lalkara that they would see if anybody would come to take the dead body. These macabre acts were witnessed by Lakhvinder Singh (PW9) and Pritam Singh (PW10).

Report was lodged in the police station by Lakhvinder Singh (PW9). Because of hostility between the parties, earlier security proceedings were initiated under Sections 107/151 of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.'). Investigation was undertaken and on completion thereof, charge sheet was filed. The accused appellants along with two acquitted accused persons were tried for alleged commission of offence punishable under Sections 302, 148, 149 and 201 of IPC. It is to be noted that the post mortem was conducted on 4.2.1986 by Dr. R.P.

Maingi (PW2). He found 16 injuries on the body of the deceased. He further opined that injuries 1 to 11 were caused by sharp edged weapon while injuries 12 to 16 were caused by blunt weapon. To establish the accusations, thirteen witnesses were examined. The accused persons were arrested on 4.2.1986, 5.2.1986 and 6.2.1986. At the time of arrest, it was noticed that four injuries were present on the person of Rattan Singh and three of the injuries were simple and of minor nature, and one was caused by sharp edged weapon.

During trial, the accused persons took the plea that they were innocent and have been falsely implicated. Accused Rattan Singh took the plea that on the date of occurrence in the morning, he was present in the lane in front of his house and he found the deceased coming with a kirpan in an aggressive mood. While he was trying to run away, the deceased gave a kirpan blow on his left arm. Both he and the deceased entered his courtyard and when he cried for help, his brother-Harbans Singh armed with a dang, his servants Ram Singh and Ramu armed with different weapons intervened and rescued him by causing injuries on the deceased. Rattan Singh claimed that while he was running away, he fell down and suffered minor injuries. He alleged that his son had gone to the police station and returned to the village with the police. But, instead of taking action against the main culprit he and his family members were falsely implicated.

Accused-appellants took the stand that they were arrested on 4.2.1986. The police officials manipulated the records to show as if they were arrested later on. In order to substantiate their plea, the accused persons examined four witnesses. Dalbir Singh (DW1) produced the record to show that Lakhvinder Singh was studying in class 6th when he discontinued studies on 2.5.1981 and his date of birth is 20.4.1968. Harbhajan Singh (DW2) produced the school records to show that Lakhvinder Singh had studied in his school up to class 5th. R.S. Kumar (DW3) stated that one Harbans singh was confined in the Sub-Jail, Dasuya under the orders of SDM in a case under Sections 107/115 of Cr.P.C. and had a injury on the person at the time of admission into jail . Dr.

Kamlesh Kumar (DW4) stated about the injuries on Harbans Singh.

Learned Additional Sessions Judge, Hoshiarpur held that the prosecution has been able to establish its accusations against all the five accused persons. The matter was carried in appeal before the High Court which held that the prosecution has not been able to bring home the accusations against the accused appellants and by judgment and order dated 2.5.1988 directed acquittal of all the accused persons.

The State of Punjab assailed correctness of the said judgment before this Court in Criminal Appeal Nos.525- 526/1989. By judgment dated 24.7.1997 the appeals were allowed and the matter was remitted to the High Court for a fresh disposal on merits. The High Court was requested to dispose of the appeals as early as possible preferably within a period of three months from the date of communication of the order.

By the impugned judgment the High Court has taken the view that the accusations against the accused appellants have been fully established; but held the evidence to be inadequate so far as accused Rattan Singh and Gurdip Singh are concerned. The accused-appellants assail correctness of the said judgment in these appeals.

In support of the appeals, learned counsel for the appellants submitted that there are several infirmities which rendered the prosecution version vulnerable, but the Trial Court and the High Court lost sight of these vital factors. Had these factors been considered, there was no scope for finding the accused appellants guilty. It was, inter alia, submitted that there was no independent witnesses examined. Only son and close relative of the deceased have been examined. No co-villager came to depose for the prosecution and this is unusual. Conclusion that in a faction ridden village independent witnesses are not easy to find is a surmise. The conclusion that the Panchayat was siding with the accused persons is a factor in favour of accused persons. It indicates that the defence version as projected by Rattan Singh was true and should have been accepted. One of the so-called eye-witnesses and the son of the deceased Sukhvinder Singh was not examined. Body was found inside of the house of Rattan Singh which probabilises the defence version. It was the prosecution version that the body was lifted from the spot of occurrence to the house of Rattan Singh. But no blood stains were found at the place of occurrence from where the body was claimed to have been lifted. Conduct of PWs 9 and 10 in not coming to rescue of the deceased and not even raising an alarm is rather unusual. PW10 who belongs to another village has not even signed the inquest report though he claimed to be present when inquest was done. This clearly establishes that he could not have been present as claimed. Injuries on the accused persons have not been explained. In view of the fact that two of the accused persons against whom similar evidence was tendered have been acquitted it would not be proper and legal to convict rest of accused persons on the same set of evidence. Benefit of doubt should be given on account of co-accused's acquittal. It was submitted that the evidence is inadequate to fasten guilt, and therefore prosecution cannot be said to have established its case beyond doubt.

Per contra, learned counsel for the State submitted that the trial Court and the High Court have analysed the various points now urged in detail and have rightly come to the conclusion that the accused appellants were guilty. In view of the admitted position that village was faction ridden and there was lot of hostility, it would be too much to expect non-partisan witnesses. As noted above, there has been an elaborate analysis of the evidence of PWs 9 and 10.

After carefully weighing the evidence, the trial Court and the High Court have come to the conclusion that their evidence suffers from no infirmity to be viewed with suspicion.

We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid down as under:- "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 relation 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 generalization.

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 above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614) was also relied upon.

We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses.

Speaking through Vivian Bose, J. it was observed:

"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in – 'Rameshwar v.State of Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel." Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this Court observed: (p, 209-210 para 14):

"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.......The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and 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." To the same effect is the decision in State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana (2002 (3) SCC 76). Stress was laid by the accused- appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Alli v.

The State of Uttar Pradesh (AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurucharan Singh and Anr. v. State of Punjab ( AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead- stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh 1972 3 SCC 751) and Ugar Ahir and Ors. v. The State of Bihar (AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v.

State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and Ors. v. The State of Punjab. (AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v.

State of Bihar etc. (JT 2002 (4) SC 186). Accusations have been clearly established against accused-appellants in the case at hand. The Courts below have categorically indicated the distinguishing features in evidence so far as acquitted and convicted accused are concerned.

As observed by this Court in State of Rajasthan v. Teja Ram and Ors. (AIR 1999 SC 1776) the over-insistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house or nearby the most natural witnesses would be the inmates of that house. It would be unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against non- examination of such person as prosecution witness.

Otherwise, merely on surmises the Court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also.

Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See: Gurbachan Singh v. Satpal Singh and Others [AIR 1990 SC 209]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava [AIR 1992 SC 840]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v.

Anil Singh (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.

In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahebrao Bobade v. State of Maharashtra [1974 (1) SCR 489 (492-493)]:

"......The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt......." ".....The evil of acquitting a guilty person light-heartedly as a learned author Clanville Williams in 'Proof of Guilt' has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless....." ".......a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....." The position was again illuminatingly highlighted in State of U.P. v. Krishna Gopal (AIR 1988 SC 2154). Similar view was also expressed in Gangadhar Behera and Ors. v.

State of Orissa (2002 (7) Supreme 276).

So far as inaction of PWs 9 and 10 in not coming to rescue of deceased is concerned, it has been noted by the trial Court and the High Court that both of them were unarmed and bare handed and the accused persons were armed with deadly weapons. How a person would react in a situation like this cannot be encompassed by any rigid formula. It would depend on many factors, like in the present case where witnesses are unarmed, but the assailants are armed with deadly weapons. In a given case instinct of self-preservation can be the dominant instinct.

That being the position, their inaction in not coming to rescue of the deceased cannot be a ground for discarding their evidence.

One of the pleas is that the prosecution has not explained the injuries on the accused. Issue is if there is no such explanation what would be its effect? We are not prepared to agree with the learned counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should automatically be rejected, without any further probe. In Mohar Rai and Bharath Rai v. The State of Bihar (1968 (3) SCR 525), it was observed:

"...In our judgment, the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants." In another important case Lakshmi Singh and Ors. v. State of Bihar (1976 (4) SCC 394), after referring to the ratio laid down in Mohar Rai's case (supra), this Court observed:

"Where the prosecution fails to explain the injuries on the accused, two results follow:

(1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants." It was further observed that:

"In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one." In Mohar Rai's case (supra) it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise in Lakshmi Singh's case (supra) it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case.

But such a non-explanation may assume greater importance where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case. These aspects were highlighted by this Court in Vijayee Singh and Ors. v.

State of U.P. (AIR 1990 SC 1459).

Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this Court in Ramlagan Singh v.

State of Bihar (AIR 1972 SC 2593) prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare krishna Singh and Ors.

v. State of Bihar (AIR 1988 SC 863), it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence.

If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifle and superficial injuries on accused are of little assistance to them to throw doubt on veracity of prosecution case, particularly, when the accused who claimed to have sustained injuries has been acquitted.

The fact that name of PW10 does not figure in the inquest report or that the DDR entry does not contain the name of Pritam Singh does not in any way corrode the credibility of the prosecution version, particularly when the reason as to why these were absent in the relevant documents has been plausibly explained by the witnesses, and after consideration accepted by the trial Court and the High Court.

Above being the position, the appeals are without merit and deserve dismissal, which we direct.

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RESTRICTION ON RECALL OF WITNESSES FOR CROSS EXAMINATION: SEE THE ATTACHMENT “RECALL OF WITNESSES"

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THE OBJECT OF TRIAL, ROLE OF THE COURTS, I.O.,

ZAHIRA HABIBULLA H SHEIKH AND ANR V. STATE OF GUJARAT & ORS [2004] INSC 250 (12 April 2004) : 2004 C Cr.L.R. (SC) 524.

DORAISWAMY RAJU & ARIJIT PASAYAT

30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts.

Application of these principles involve a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.

36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson's eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.

• 1. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.

51. Need for circumspection was dealt with by this Court in Mohanlal Shamji Soni's case (supra) and Ram Chander v. State of Haryana (1981 (3) SCC 191) which dealt with the corresponding Section 540 of Code of Criminal Procedure, 1898 (in short the 'Old Code') and also in Jamatraj's case (supra). While dealing with Section 311 this Court in Rajendra Prasad v. Narcotic Cell thr. Its officer in Charge, Delhi (1999 (6) SCC 110) held as follows:

"It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the court could not "fill the lacuna in the prosecution case". A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up.

Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better".

• 1. As pithily stated in Jennison v. Backer (1972 (1) All E.R. 1006), "The law should not be seen to sit limply, while those who defy it go free and, those who seek its protection lose hope". Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, Courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. (See Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Anr.,(2003 (7) SCC 749).

  2. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair. It would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. (1995 (5) SCC 518).

71. Time and again, this Court stressed upon the need of the investigating officer being present during trial unless compelling reasons exist for a departure. In the instant case, this does not appear to have been done, and there is no explanation whatsoever why it was not done. Even Public Prosecutor does not appear to have taken note of this desirability. In Shailendra Kumar v. State of Bihar and Ors. (2001 (8) Supreme 13), it was observed as under:

" 9. In our view, in a murder trial it is sordid and repulsive matter that without informing the police station officer-in-charge, the matters are proceeded by the court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. From the facts stated above, it appears that accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Addl. Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the duty of the sessions judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on part of any witness to remain present, it is the duty of the court to take appropriate action including issuance of bailable/non-bailable warrants as the case may be. It should be well understood that prosecution can not be frustrated by such methods and victims of the crime cannot be left in lurch."

BEBEFIT OF DOUBT SHOULD NOT BE A FETISH

Hon'ble Kerala H.C. in State of Kerala vs. Narayan Bhaskaran & others,1992 Cri.L.J. 238 (Para 14) observed, “Criminal Law has a purpose to serve. The object is to suppress criminal enterprise, and punish the guilty. In this process, it must however, be ensured that reasonable doubts are given to the accused. This is a guideline, not a fetish. Sir Carlton Allen said:

“I dare say some sentimentalists would assent to the proposition that it is better that a thousand or even a million guilty persons should escape, than one innocent person should suffer........ If our ratio is extended indefinitely, there comes a point when the whole system of justice is broken down and society left in a State of chaos. Viscount Simon in Strrland v. Director of Public Prosecutions (1944) AC 315 pointed out that miscarriage of justice may arise from the acquittal of the guilty, no less than the conviction of the innocent. The function of the Court is not to look for reasons for acquittal. In State of U.P. v. Anil Singh, AIR 1988 S.C.1998 = 1989 Cri.L.J. 88 stated the Law (Para 15):

“A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that aguilty man does not escape.........Both are public duties..........”

TALAQUE  HOW PRONOUNCED: SUPREME COURT

BY HON’BLE JUSTICES : R.C. LAHOTI AND P VENKATARAMANA REDDI.

Shamim Ara vs. State of U.P. 2002(4) CHN (S.C. Suppl.)182

Para 17. We are also of the opinion that talaq to be effective  has to be pronounced. The term ‘pronounced’ means to proclaim, to utter formally, to utter rhetorically, to declare, to utter, to articulate (see Chambers 20th Century Dictionary, New Edition, p.1030). there is no proof of Talaq having taken place in the Written Statement and its communication to the wife by delivering a copy of the written statement on 5.12.1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the Written Statement to the wife. The respondent No.2 ought to have adduced evidence and proved the pronouncement of talaq on 11.07.1987 and if he failed in proving the plea raised in the W.S., the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the Written Statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the Written Statement.

THE WITNESS AND THE COURT OF LAW : S.C.

The Apex court had taken judicial notice of certain distressing and unethical

tendencies in Swaran Singh v. State of Punjab- AIR 2000 SC 2017 wherein it has been observed as follows:

“It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no protection for him. In adjourning the matter without any valid cause a court unwittingly becomes party to miscarriage of justice. A witness is then not treated with respect in the Court. He is pushed out from the crowded courtroom by the peon. He waits for the whole day and then he finds that the matter is adjourned. He has no place to sit and no place even to have a glass of water. And when he does appear in Court, he is subjected to unchecked and prolonged examination and cross-examination and finds himself in a hapless situation. For all these reasons and others a person abhors becoming a witness. It is the administration of justice that suffers. The appropriate diet money for a witness is a far cry. Here again the process of harassment starts and he decides not to get the diet money at all. High Courts have to be vigilant in these matters. Proper diet money must be paid immediately to the witness (not only when he is examined but for every adjourned hearing) and even sent to him and he should not be left to be harassed by the subordinate staff. If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish State machinery. Each trial should be properly monitored. Time has come that all the courts, district courts, subordinate courts are linked to the High Court with a computer and a proper check is made on the adjournments and recordings”.

MEANING OF IMPRISONMENT FOR LIFE

Imprisonment of life means imprisonment for the remainder of the biological life of the convict unless the sentence is commuted or remitted by the appropriate authority. Hence the life imprisonment does not expire at the end of 14 years or 20 years. (AIR 1961 SC 600; AIR 1980 SC 2147: 1976 (3) SCC 470; 1991 SCC (Crl) 845 and AIR 1991 SC 2296).

Consequently, the question of setting off under Section 428 Cr.P.C. the period of detention undergone by an accused as an undertrial prisoner against a sentence for life imprisonment, can arise only if an order is passed by the appropriate government either under Sec. 432 Cr.P.C. or under Sec. 55 I.P.C. read with Sec. 433 (b) Cr.P.C. (Vide Kattintavida Suresh v.State of Kerala - 2005 (3) KLJ 241

NATURE OF LIFE IMPRISONMENT

Life imprisonment is necessarily rigorous. (Vide Ranjit Singh v.Union Territory of Chandigarh and another - AIR 1991 SC 2296) .Hence, by virtue of Sec. 66 I.P.C., the imprisonment which the Court can impose in default of payment of fine to which an accused is sentenced under Section 302 I.P.C., can only be rigourous. (Vide 2006 (1) KLT 78 - Suresh v. State of Kerala)

EXAMINATION ON THE QUESTION OF SENTENCE: 302 IPC

In Ram Deo Chauhan V. State of Assam – 2001 (5) SCC 714 the Apex Court observed that if a Sessions Judge who convicts the accused under Section 302 I.P.C. (with or without the aid of other sections) does not propose to award death penalty the court need not waste time on hearing the accused on the question of sentence.

EVIDENCE OF TWO WITNESSES: LARGE NUMBER OF ASSAILANTS AND VICTIMS

KRISHNEGOWDA & ORS V. STATE OF KARNATAKA [1999] INSC 403 (25 November 1999) :2000 SCC(Cri)174

CRIMINAL TRIAL – APPRECIATION OF EIDENCE – GROUP RIVALRY – WHERE LASRGE NUMBER OF ASSAILATS AND VICTIMS INVOLVED, CONVICTION CAN BE SUSTAINED IF IT IS SUPPORTED BY TWO OR MORE WITNESSES WHO GIVE A CONSISTENT ACCOUNT OF THE INCIDENT – ACCUSED PERSONS COMING TOGETHER IN LARGE NUMBER AND ASSAULTING THE DECEASED AND PWs BELONGING TO THE OPPOSITE GROUP – TWO OR MORE PERSONS SPECIFICALLY SPEAKING ABOUT PRESENCE OF THE ACUSED – WITNESSES GIVING CONSISTENT ACCOUNT OF THE INCIDENT AND ROLE PLAYED BY THE INDIVIDUAL ACCUSED – INJURED EYEWITNESSES, SINCE BEGINNING, CONSISSTENTLY ASSIGNING A SPECIFIC ROLE TO A PARTICULAR ACCUSED – IN THE CIRCUMSTANCES CONVICTION UNDER Ss 148, 324, 341, 302 r/w S.149 IPC UPHELD – THERE IS NO QUESTION OF GIVING BENEFIT OF DOUBT TO SOME OF THE ACCUSED – EVIDENCE ACT, 1872, S.134 – PENAL CODE, 1860, Ss 147 & 149.

HON'BLE SC IN PARA 4 OBSERVED:-

“4. The learned counsel appearing on behalf of the appellants after referring to the evidence on record was not in a position to challenge the findings that:-

• 1. There were rival groups and elections disputes including criminal cases were pending; and

  2. The accused came together and assaulted the deceased Kengegowda and injured witnesses.

However, he has produced, for our perusal, a chart showing overt acts attributed to the accused by witnesses and submitted that those accused, who were not armed with any weapon or who were alleged of having stones may be given the benefit of doubt. He has submitted that in a case where large number of assailants and victims are involved it would be prudent to follow the rule of appreciation of evidence stated by this Court in Masalti v. State of U.P., {(1964) 8 SCR 133} (para 16) which is as under:-

“Mr. Sawhney also urged that the test applied by the High Court in convicting the appellants is mechanical. He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable.”

5. He further submitted that the aforesaid rule of appreciation of evidence is followed by this Court in Binay Kumar Singh etc. v. State of Bihar {(1997) 1 SCC 283} and Baddi Venkata Narasayya & Ors. v. The State of Andhra Pradesh {JT 1997 (9) SC 293}.

IDENTIFACATION OF ACCUSED AND SINGLE/PLURALITY OF WITNESSES

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 22 OF 2007

Ravi ...Appellant

Vs.

State Rep. by Inspector of Police ...Respondent

(With Criminal Appeal No.23 of 2007)

( Also reported in AIR 2009 SC 214 )

JUDGMENT

DR. ARIJIT PASAYAT, J.

BRIEF FACTS OF THE CASE

1. Challenge in these appeals is to the judgment of a Division Bench of the Madras High Court. Two persons have filed the appeal and the appellant Ravi was A-1 in Criminal Appeal No. 22 of 2007, and Ravi, appellant in Criminal Appeal No. 23 of 2007 was A3. Ten persons had faced trial before the learned Principal Sessions Judge, Kanyakumari. During the pendency of trial one of them i.e. A-10 died and the charge

against him had abated. A-5 to A-9 were acquitted by the trial Court and the remaining four were appellants before the High Court. A1 to A4 were convicted for offence punishable under Section 302 of Indian Penal Code, 1860 (in short the `IPC').

2. Prosecution version in a nutshell are as follows: There was previous enmity between the elder brother of Albert Walter (hereinafter referred to as the deceased) i.e. Robert Victor Singh (P.W.1) and Al and one Sasi, residing at R.C. Street, Monday market. There was a case that, Al had hacked Sasiat his leg. In the murder case related to one Kumar, deceased Albert Walter was implicated as an accused. On 24.12.1991, when P.W.1 and deceased were going near Neyyoor Hospital, Al to A4 chased the deceased. On 7.1.1992, when P.W.1, deceased and one Ranjith Singh were coming towards the south from Neyyoor Mission Hospital, opposite to the Primary School, at around 7 or 7.15 in the night, Al to A4armed with choppers in their hands chased deceased who ran

from north towards the south. Near the house of one Shahul Hameed, Al to A4 caught hold of deceased. A1 hacked him at his neck, jaw and right cheek. A-2 hacked deceased at his right hand and back. A3 hacked him on his head 3 times with a chopper. A4 hacked him on his abdomen. Consequent to the injuries inflicted by Al to A4, he died at the very place of occurrence. The occurrence was witnessed by P.W.1, Ranjith Guna Singh (PW 2) and Jagdeesh Chandran (PW3) in the light shed by the electric light near the place of occurrence. P.W.1, at around 8.30 in the night, went to the Police Station, Eraniel and lodged a written complaint Ex.P.1 signed by him regarding the occurrence. At the time of occurrence Albert Walter was wearing a shirt M.0.1 and a lungi M.0.2.

IDENTIFACATION OF THE ACCUSED

6. So far as the identification aspect is concerned PW-1 has categorically stated that there was light in the nearby church and the street lights near Primary School were burning at the time of occurrence and he could see the occurrence in that light. The trial Court and the High Court referred to the presence of street lights in Ext.P-20, the rough sketch. Therefore the plea of identification being not possible has no substance. Further the accused persons were known to the witness. That is also a relevant factor.

SINGLE WITNESS AND PLURALITY OF WITNESSES

7. The law relating to the approach of the courts when prosecution version essentially rests on the testimony of a single witness has been highlighted by this Court in many cases.

8. On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, 1872 (in short the `Evidence Act') the following propositions may be safely stated as firmly established:

(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.

(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.

9. Therefore, there is 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.

10. The above position was highlighted in Vadivelu Thevar v. The State of Madras (1957 SCR 981).

11. The position has been re-iterated in large number of cases. Reference may be made to Joseph v. State of Kerala (2003 (1) SCC 465), Yakub Ismailbhai Patel v. State of Gujarat (2004 (12) SCC 229) , Bhimapa Chandappa Hosamani and Ors. v. State of Karnataka (2006 (11) SCC 323) and to Kunju Balachandran v. State of Tamil Nadu [2008(2)SCC 151].

XXXXX XXX XXX XXXXX

(Dr. ARIJIT PASAYAT)

(Dr. MUKUNDAKAM SHARMA) JJ.

New Delhi,

September 5, 2008

SCOPE OF APPLICATION OF SECTION 360 OF THE Cr.P.C.

Chhanni v State of Uttar Pradesh, 2006 Cri.L.J.4068(SC)

(A)   Criminal P.C. (2 of 1974) S.360 – Probation of Offenders Act (20 of 1958), S.4 – Applicability – Provisions of S.360 of Criminal P.C. – Wholly inapplicable in areas where Act is made applicable – Provisions of two statutes have significant differences – General Clauses Act 10 of 1897), Sec.8.

Enforcement of Probation Act in particular area excludes the applicability of the provisions of Ss.360, 361 of the Code in that area.  (Para 8).

    Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishment with death or imprisonment for life. The scope of S.4 of the Probation of Offender’s Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. S.360 of the Code does not provide for any role for Probation Officers in relation to supervision and other matters while Probation Act does make such a provision. While S.12 of Probation Act states that the person found guilty of an offence and dealt with under S.3 or 4 of the Probation Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain any parallel provision. Two statutes could not be intended to  co-exist at the  same time in the same area.