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—
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.
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.
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.
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.
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.
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.
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.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-==-=-
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)
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
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
27
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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.
Xxxxx xxxx xxxxxxx
xxxxx xxxxxxxx xxxxxxx
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.
--------0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=0=00=0=0=0...........
RESTRICTION
ON RECALL OF WITNESSES FOR CROSS EXAMINATION: SEE THE ATTACHMENT
“RECALL OF WITNESSES"
....................-=-=-=-=-=-=-=-=-=-==-==-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=--=-=-=-=-=-==-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
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.
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".
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).
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:-
There were rival groups and elections disputes including
criminal cases were pending; and
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.
