TMI Blog2022 (2) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... nterested, their testimonies cannot be rejected. There is also no delay in the registration of the FIR. PW-3 though turned hostile, spoke about the incident in his chief examination. Strangely, in the cross examination he turned turtle, while disputing the very factum of his chief examination made before the court. We do not wish to say anything on the credibility of the said witness in view of the evidence of PWs -1 2. The view of the courts on this witness also deserves to be accepted. The High Court has rightly set aside the conviction rendered by the trial court for the charge under Section 307 IPC. PWs-1 2 have not spoken about the presence of the injured witness, Om Prakash. The circumstances under which he could not be produced was explained by the prosecution. Merely because he was not produced, the entire case of the prosecution would not become false - the trial court as well as the High court considered the evidence threadbare in coming to the right conclusion. Similarly, the contention that there is non-explanation for the existence of some other empty cartridge recovered from the place of occurrence would not facilitate an acquittal for the appellants as there a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort. The accused persons let in only one witness and that too to support Accused No. 5 who is not before us. 7. PW-1 is the de facto complainant. He along with PWs-2 3 form the eyewitnesses to the case. PW-2 is the brother of one of the deceased. PW-3, who is an independent witness, turned hostile after his deposition in chief in favour of the prosecution. PW-4 is the doctor who conducted the postmortem and gave his opinion. The other witnesses are the official witnesses including the three investigating officers. Of these witnesses, PW-13 who was the one to undertake the investigation. After elaborate chief examination followed by another detailed cross-examination, despite efforts made by the courts including the issuance of non-bailable warrant, he did not turn up to depose further. One witness, by name Om Prakash, stated to be an injured witness, has not been examined by the prosecution on the premise that he could not be secured. Taking note of the above, the High Court rightly acquitted the appellants for the offence punishable under Section 307 IPC. 8. During the questioning by the Court under Section 313 of the Criminal Procedure Code (CrPC), all the accused made a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is absolutely no ground made out for interference by this Court. PRINCIPLES OF LAW: Section 3 of the Evidence Act, 1872: 3. Interpretation-clause. In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context: xxx xxx xxx Evidence . Evidence means and includes (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; (2) [all documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence. Proved . A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Disproved . A fact is said to be disproved when, after consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an exhaustive interpretation has to be given to the word matter , and for that purpose, the definition of the expression of the words means and includes , meant to be applied for evidence, has to be imported to that of a matter as well. Thus, a matter might include such of those which do not fall within the definition of Section 3, in the absence of any express bar. 17.What is important for the court is the conclusion on the basis of existence of a fact by analysing the matters before it on the degree of probability. The entire enactment is meant to facilitate the court to come to an appropriate conclusion in proving a fact. There are two methods by which the court is expected to come to such a decision. The court can come to a conclusion on the existence of a fact by merely considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best left to the court to decide. The said de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that no particular number of witnesses shall in any case, be required for the proof of any fact . The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence - 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s.134 quoted above. The section enshrines the well-recognized maxim that Evidence has to be weighed and not counted . Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution. Hostile Witness: 21.The expression hostile witness does not find a place in the Indian Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. We must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra [(2002) 7 SCC 543: 2003 SCC (Cri) 112], Gagan Kanojia v. State of Punjab [(2006) 13 SCC 516: (2008) 1 SCC (Cri) 109], Radha Mohan Singh v. State of U.P. [(2006) 2 SCC 450: (2006) 1 SCC (Cri) 661], Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360: (2009) 1 SCC (Cri) 188] and Subbu Singh v. State [(2009) 6 SCC 462: (2009) 2 SCC (Cri) 1106]. 83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. 84. In the instant case, some of the material witnesses i.e. B. Kamal (PW 86) and R. Maruthu (PW 51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. Some omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature. 85. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r no reason whatsoever it was deferred and the crossexamination took place after 20 months. The witness had all the time in the world to be gained over. We have already opined that he was declared hostile and re-examined. 52. It is settled in law that the testimony of a hostile witness can be relied upon by the prosecution as well as the defence. In re-examination by the Public Prosecutor, PW 7 has accepted about the correctness of his statement in the court on 13-9-1999. He has also accepted that he had not made any complaint to the Presiding Officer of the court in writing or verbally that the Inspector was threatening him to make a false statement in the court. It has also been accepted by him that he had given the statement in the court on account of fear of false implication by the Inspector. He has agreed to have signed his statement dated 13-9- 1999 after going through and admitting it to be correct. It has come in the re-examination that PW 7 had not stated in his statement dated 13-9- 1999 in the court that recovery of tainted money was not effected in his presence from the accused or that he had been told by the Inspector that amount has been recovered from the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to violation of the rule of law and eventually turn such trials to a farce. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non-acceptable reasons. 57.4. In fact, it is not at all appreciable to call a witness for crossexamination after such a long span of time. It is imperative if the examination-in-chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial. 57.5. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safeguarded. It is distressing to note that despite series of judgments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ross examination is not over would make the entire examination as inadmissible. Ultimately, it is for the court to decide the aforesaid aspect. Evidentiary Value of a Final Report: 25.Section 173(2) of the CrPC calls upon the investigating officer to file his final report before the court. It being a report, is nothing but a piece of evidence. It forms a mere opinion of the investigating officer on the materials collected by him. He takes note of the offence and thereafter, conducts an investigation to identify the offender, the truth of which can only be decided by the court. The aforesaid conclusion would lead to the position that the evidence of the investigating officer is not indispensable. The evidence is required for corroboration and contradiction of the other material witnesses as he is the one who links and presents them before the court. Even assuming that the investigating officer has not deposed before the court or has not cooperated sufficiently, an accused is not entitled for acquittal solely on that basis, when there are other incriminating evidence available on record. In Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417, this Court held: 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reet witnessing the commission of an offence can be a chance witness. Merely because a witness happens to see an occurrence by chance, his testimony cannot be eschewed though a little more scrutiny may be required at times. This again is an aspect which is to be looked into in a given case by the court. We do not wish to reiterate the aforesaid position of law which has been clearly laid down by this Court in State of A.P. v. K. Srinivasulu Reddy, (2003) 12 SCC 660: 12. Criticism was levelled against the evidence of PWs 4 and 9 who are independent witnesses by labelling them as chance witnesses. The criticism about PWs 4 and 9 being chance witnesses is also without any foundation. They have clearly explained as to how they happened to be at the spot of occurrence and the trial court and the High Court have accepted the same. 13. Coming to the plea of the accused that PWs 4 and 9 were chance witnesses who have not explained how they happened to be at the alleged place of occurrence, it has to be noted that the said witnesses were independent witnesses. There was not even a suggestion to the witnesses that they had any animosity towards any of the accused. In a murder trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oga Singh [(2007) 13 SCC 360: (2009) 1 SCC (Cri) 188]). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan [(2004) 10 SCC 632: 2005 SCC (Cri) 579]). 23. Conduct of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident (vide Thangaiya v. State of T.N. [(2005) 9 SCC 650: 2005 SCC (Cri) 1284]). Gurcharan Singh (PW 18) met the informant Darshan Singh (PW 4) before lodging the FIR and the fact of conspiracy was not disclosed by Gurcharan Singh (PW 18) and Darshan Singh (PW 4). The fact of conspiracy has not been mentioned in the FIR. Hakam Singh, the other witness on this issue has not been examined by the prosecution. Thus, the High Court was justified in discarding the part of the prosecution case relating to conspiracy. However, in the fact situation of the present case, acquittal of the said two co-accused has no bearing, so far as the present appeal is concerned. Related and Interested Witness: 28.A related witness cannot be termed as an interested witness p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no such general rule. Each case must be limited to and be governed by its own facts. 33. In Masalti v. State of U.P., (1964) 8 SCR 133 : AIR 1965 SC 202 : (1965) 1 Cri LJ 226] , a five-Judge Bench of this Court has categorically observed as under: (AIR pp. 209-210, para 14) 14. There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hardand- fas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his testimony is a universal truth. Moreover, under the influence of bias, a man may not be in a position to judge correctly, even if they earnestly desire to do so. Similarly, he may not be in a position to provide evidence in an impartial manner, when it involves his interest. Under such influences, man will, even though not consciously, suppress some facts, soften or modify others, and provide favourable colour. These are most controlling considerations in respect to the credibility of human testimony, and should never be overlooked in applying the rules of evidence and determining its weight in the scale of truth under the facts and circumstances of each case. 30.Once again, we reiterate with a word of caution, the trial court is the best court to decide on the aforesaid aspect as no mathematical calculation or straightjacket formula can be made on the assessment of a witness, as the journey towards the truth can be seen better through the eyes of the trial judge. In fact, this is the real objective behind the enactment itself which extends the maximum discretion to the court. Non-examination of witness: 31.A mere non-examination of the witness per se will not vit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s who had been withheld were eyewitnesses who had actually seen the occurrence and were therefore material to prove the case. It is not necessary for the prosecution to multiply witnesses after witnesses on the same point; it is the quality rather than the quantity of the evidence that matters. In the instant case, the evidence of the eyewitnesses does not suffer from any infirmity or any manifest defect on its intrinsic merit. Secondly, there is nothing to show that at the time when the deceased was assaulted a large crowd had gathered and some of the members of the crowd had actually seen the occurrence and were cited as witnesses for the prosecution and then withheld. We must not forget that in our country there is a general tendency amongst the witnesses in mofussil to shun giving evidence in courts because of the cumbersome and dilatory procedure of our courts, the harassment to which they are subjected by the police and the searching cross-examination which they have to face before the courts. Therefore nobody wants to be a witness in a murder or in any serious offence if he can avoid it. Although the evidence does show that four or five persons had alighted from the bus at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de before the court. We do not wish to say anything on the credibility of the said witness in view of the evidence of PWs -1 2. The view of the courts on this witness also deserves to be accepted. 34.The High Court has rightly set aside the conviction rendered by the trial court for the charge under Section 307 IPC. PWs-1 2 have not spoken about the presence of the injured witness, Om Prakash. The circumstances under which he could not be produced was explained by the prosecution. Merely because he was not produced, the entire case of the prosecution would not become false. 35.The FSL report was placed on record. Both the courts have considered and relied upon the said report. The entire circumstances under which the material was collected including the cartridges, along with the recoveries made which were sent to the expert, have been explained by the official witnesses. We do not find anything unnatural in the testimony. 36.On a perusal of the evidence available we do not find any delay in either sending the recovered arms to the expert or receiving the FSL report. The circumstances under which they were sent and received were spoken about and explained. The appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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