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Misuse of 498a – False 498A Legal Terrorism says Supreme Court in Sushil Kumar

IN THE SUPREME COURT OF INDIA

Civil appeal No. 4399 of 2005 (Arising out of SLP (C) no. 17656 of 2004

Decided On: 19.07.2005

Appellants: Sushil Kumar Sharma
Vs.
Respondent: Union of India (UOI) and Ors.

JUDGMENT:

By this petition purported to have been filed under Article 32 of the Constitution of India, 1950 (in short ‘the Constitution’) prayer is to declare Section 498A of Indian Penal Code, 1860 (in short ‘the IPC’) to be unconstitutional and ultra vires in the alternative

to FORMULATE GUIDELINES so that INNOCENT PERSONS ARE NOT VICTIMIZED by unscrupulous persons making false accusations

2. Further prayer is made that whenever, any court comes to the conclusion that the allegations made regarding commission of offence under Section 498A IPC are unfounded, stringent action should be taken against person making the allegations. This, according to the petitioner, would discourage persons from coming to courts with unclean hands and ulterior motives. Several instances have been highlighted to show as to how commission of offence punishable under Section 498A IPC has been made with oblique motives and with a view to harass the husband, in-laws and relatives.

 3. According to the petitioner there is no prosecution in these cases but persecution. Reliance was also placed on a decision rendered by a learned Single Judge of the Delhi High Court wherein concern was shown about the increase in number of false and frivolous allegations made. It was pointed out that accusers are more at fault than the accused. Persons try to take undue advantage of the sympathies exhibited by the courts in matters relating to alleged dowry torture.

 4. Section 498A appears in Chapter XXA of IPC.

 5. Substantive Section 498A IPC and presumptive Section 113B of the Indian Evidence Act, 1372 (in short ‘Evidence Act’) have been inserted in the respective statutes by Criminal Law ( Second Amendment) Act, 1983.

 6. Section 498A IPC and Section 113B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.

 7. Section 498A reads as follows: “498A: Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation – For the purpose of this section ‘cruelty’ means –

 (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

 Section 113B reads as follows:-

 “113B: Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

 Explanation – For the purposes of this section ‘dowry death’ shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).”

 8. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the explanation for the purpose of Section 498A. It is to be noted that. Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The explanation to Section 498A gives the meaning of ‘cruelty’. In Section 304B there is no such explanation about the meaning of ‘cruelty’. But having regard to common background to these offences it has to betaken that the meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in the Explanation to Section 498A under which ‘cruelty’ by itself amounts to an offence.

 9. The object for which Section 498A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As clearly stated therein the increase in number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, which constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short ‘the Cr.P.C.’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-law and relatives. The avowed object is to combat the menace of dowry death and cruelty.

 10. One other provision which is relevant to be noted is Section 306 IPC. The basic difference between the two Sections i.e. Section 306 and Section 498A is that of intention. Under the latter, cruelty committed by the husband or his relations drag the women concerned to commit suicide,

 while under the former provision suicide is abetted and intended.

 11. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless contrary is proved, that administration and application of a particular law would be done “not with an evil eye and unequal hand” (see: A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised Official and Income-Tax Officer and Anr.)

 12. In Budhan Choudhry and Ors. v. State of Bihar a contention was raised that a provision of law may not be discriminatory but it may land itself to abuse bringing about discrimination between the persons similarly situated. This court repelled the contention holding that on the possibility of abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of Article 14 of the Constitution.

 13. From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional. In such cases, “action” and not the “section” may be vulnerable. If it is so, the court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved.

 14. In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors., a Bench of 9 Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty (1962 (3) SCR 786) this Court observed:

 

 “The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.” It was said in State of Rajasthan v. Union of India “it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief.” (Also see: Commissioner, H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Meth (1954 SCR 1005).

 

 15. As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat. Unique Butle Tube Industries (P) Ltd. v. U.P. Financial Corporation and Ors. and Padma Sundara Rao (dead) and Ors. v. State of Tamil and Ors., while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.

 

 16. The judgment of the Delhi High Court on which reliance was made was rendered in the case of Savitri Devi v. Ramesh Chand and Ors. In that case while holding that the allegations regarding commission of offence punishable under Section 498A IPC were not made out. Certain observations in general terms were made about the need for legislative changes. The complainant had moved this Court against the judgment on merits in SLP(Crl)……of 2003 entitled Savitri Devi v. Ramesh Chand and Ors. By order dated 28.11.2003 this Court observed, as follows:

  “Heard learned counsel for the petitioner. Delay condoned.

  We do not see any merit in the challenge made to the order of the High Court in Criminal Revision No. 462 of 2002, on the facts of the case. The special leave petition is, therefore, dismissed.

  At the same time, we express our disapproval of some of the generalized views expressed in paragraphs 23 to 32 of the judgment of the High Court by the learned Single Judge. The learned Judge ought to have seen that such observations, though may be appropriate for seminars or workshops, should have been avoided being incorporated as part of a court judgment. Some of the views also touch upon Legislative measures and wisdom of legislative policy in substance, which according to the learned Judge need to be taken into account. There was no scope for considering all such matters in the case which was before the learned Judge. It is, therefore, appropriate that such generalized observations or views should meticulously avoided by Courts in the judgments.”

  17. Above being the position we find no substance in the plea that Section 498A has no legal or constitutional foundation.

  18. The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what REMEDIAL MEASURES can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new

  LEGAL TERRORISM

 can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to ARRIVE AT TRUTH, PUNISH THE GUILTY AND PROTECT THE INNOCENT. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.

 19. Prayer has been made to direct investigation by the Central Bureau of Investigation (in short the ‘CBI’) in certain matters where the petitioner is arrayed as an accused. We do not find any substance in this plea. If the petitioner wants to prove his innocence, he can do so in the trial, if held.

Held : The Writ Petition is accordingly disposed of.
 
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Family Law

Supreme Court convicting man for wife’s murder – circumstantial evidence.

In this interesting case – the Court convicted the man for murdering his wife, on the basis of following evidence – the chain of circumstantial evidence :-
i) Motive (Suspected infidelity on part of wife – strained relations on that count)
ii) Last Seen together.
iii) Unnatural subsequent conduct.
iv) killed wife at hotel – court matched his signatures on visitor’s book and vakalatnama in appeal and also matched in court u/s 73. 
Supreme Court of India
Ajit Savant Majagavi vs State Of Karnataka on 14 August, 1997
Author: S S Ahmad
Bench: M K Mukherjee, S S Ahmad

PETITIONER:

AJIT SAVANT MAJAGAVI

Vs.

RESPONDENT:

STATE OF KARNATAKA

DATE OF JUDGMENT: 14/08/1997

BENCH:

M. K. MUKHERJEE, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:

Present :

Hon’ble Mr. Justice M.K. Mukherjee

Hon’ble Mr. Justice S. Saghir Ahmad

Mukul Sharma, Adv. for S.R. Bhat, Adv. for the appellant Ms. Manjula Kulkarni, Adv. for M. Veerappa, Adv. for the Respondent

J U D G M E N T

The following Judgment of the Court was delivered : J U D G M E N T

S. Saghir Ahmad, J.

Padmavathi, a house wife, in this case, has been strangulated to death, of all persons, by her husband, the appellant before us.

2. BATTLE OF SEXES has always been a battle of wits. Today it is denuded of its charms. It has degenerated into a WAR involving physical violence, torture, mental cruelty and murder of the female, including particularly, the WIFE.

3. Social thinkers, philosophers, dramatists, poets and writer have eulogised the female species of the human race and have always used beautiful epithets to describe her temperament and personality and have not deviated from that path even while speaking of her odd behaviour, at times. Even in sarcasm, they have not crossed the literary limit and have adhered to a particular standard of nobility of language. Even when a member of her own species, Madame De Stael, remarked “I am glad that I am not a man; for then I should have to marry a woman”, there was wit in it. When Shakespeare wrote, “Age cannot wither her; nor custom stale; Her infinite variety”, there again was wit. Notwithstanding that these writers have cried hoarse for respect for “Woman”, notwithstanding that Schiller said “Honour Women! They entwine and weave heavenly rose in our earthly life.” and notwithstanding that Mahabharat mentioned her as the source of salvation, the crime against “woman” continues to rise and has, today undoubtedly, risen to alarming proportions.

4. It is unfortunate that in an age where people are described as civilised, crime against “Female” is committed even when the child is in the womb as the “female” foetus is often destroyed to prevent the birth of female child. If that child comes into existence, she starts her life as a daughter, then becomes a wife and in due course, a Mother. She rocks the cradle to rear up her infant, bestows all her love on the child and as the child grows in age, she gives to the child all that she has in her own personality. She shapes the destiny and character of the child. To be cruel to such a creature is unthinkable. To torment a wife can only be described as the most hated and derisive act of a human being.

5. In this appeal, we have to deal with the unfortunate story of torture of a wife and her sudden and untimely death at the hands of a person who had promised to the God, before the altar of fire, to be her protector.

6. The appellant was married to a young woman, by name, Padmavathi @ Janki, in or about April, 1984 in Belgaum Taluk. Her father was P.W. 8, Paris Savant Kaggodi who was, incidentally, also brother of appellant’s mother. Padmavathi, after bidding a-dieu to her father and other relations, came to live with the appellant in her new house where her parent-in-laws also lived. She became the victim of mental torture and cruelty for a charge, which, unfortunately, can be levied easily against any virtuous woman, that she was involved in extra marital relationship; in this case with one Gundu Badasad.

7. On becoming pregnant, Padmavathi came back to her father’s house of performance of certain ceremonies connected with the pregnancy and continued to stay there till she delivered a mala child. The information of birth of the child was conveyed to the appellant and his parents but nobody, not even the appellant, came to see Padmavathi or the child although, in normal course, the birth of a male child has the effect of bringing smile even on a frowning face. Like a lull before the storm, this cold-shouldering was the precursor of the evils that were to befall Padmavathi.

8. Four months after the delivery, the appellant suddenly, on a Saturday, came to the house of his father-in-law (P.W. 8) and sought his permission to take his wife and the child to a temple at Stanvanidhi which was a sacred and holy place for the Jains. The next morning, that is, on Sunday, the appellant, his wife and the child were seen off by his sister-in-law at the Bus Station where they boarded a Karnataka State Road Transport Corporation Bus and came to Halaga village where on Monday, at 1.00 A.M., the appellant, with his wife and child came to the house of a person named Gopal Bhimappa Inchal. The appellant told Gopal Bhimappa Inchal that on their return from the temple, they could not get the “Bus” and, therefore, they had come to this house for the night halt. As promised, the appellant with his wife and the child left the house in the early morning and came to “Ashoka Lodge” in Belgaum where he checked in Room No. 113 at 9.30 A.M. on 09.09.85. That was the most unfortunate, as also, the last day in Padmavathi’s life. At about 12.00 Noon, the appellant came to the reception counter of “Ashoka Lodge” and informed the people there that his wife has died of heart-attack and that he was going to bring his relations. he left the “Lodge”, with child in his lap, never to come back. Her gave the child to a lady called Gangavva, in village Halaga who, later, sent the child to Padmavathi’s father.

9. The police was informed of the matter in due course which visited the “Lodge” and held the inquest. The body of Padmavathi was sent for post mortem examination which revealed that Padmavathi had died not because of cardiac arrest, but on account of asphyxia. Her death was homicidal.

10. The police arrested, challenged and prosecuted the appellant, who was found “not guilty” by the trial court but the High Court, on appeal by the State, reversed the verdict and convicted the appellant u/s 302 IPC and sentenced him to life imprisonment. Now, the matter is before us.

11. Learned counsel for the appellant has contended that the High Court should not have interferred with the judgment passed by the trial Court unless it was of the positive opinion that the judgment was perverse and that it had to be reversed for “substantial and compelling reasons”. It is contended that since substantive and compelling reason have not been indicated, the judgment of the High Court is liable to be set aside and that of the trial court is to be restored. It is also contended that even if all circumstance appearing against the appellant are taken into consideration, the cumulative effect of those circumstance does not lead to the irresistible conclusion that the appellant was guilty.

12. Section 378 of the Code of Criminal Procedure 1973 which corresponds to Section 417 of the old Code provides for appeal in case of acquittal.

13. There was quite a controversy among the Court with considerable divergence of judicial opinion as to the scope of appeal against an order of acquittal. This controversy remained unabated till some guideline was indicated by the Privy Council in Sheo Swarup & Ors. v. King Emperor, L.R. 61 Indian Appeals 398 = AIR 1934 P.C. 227(2). This decision was considered inSanwat Singh vs. State of Rajasthan, (1961) 3 SCR 120, in which the legal position was explained by this Court as under :-

(1) The evidence upon which the

order of acquittal was passed by

the trial court can reviewed,

reappreciated and reappraised by

the Appellate Court.

(2) The principle laid down by the

Privy Council in Sheo Swarup & ors.

v. King Emperor, L.R.. 61 Indian

Appeals 398 (supra); provide

correct guidelines for the

Appellate Court while disposing of

the appeal against the order of

acquittal.

(3) The words “substantial and

compelling reasons”, “good and

sufficiently cogent reasons” or

“strong reasons” used by this court

in its various judgments do not

have the effect of curtailing power

of the High Court to reconsider,

review or scrutinise the entire

evidence on record so as to come to

its own conclusions in deciding the

appeal against an order of

acquittal.

14. As a matter of fact, the power of the High Court are not different from its powers in an ordinary appeal against conviction. The additional burden which is placed on the High Court is that it has to consider each of the grounds which has prompted the trial court to pass the order of acquittal and to record its own reasons for not agreeing with the trial court.

15. In State of Uttar Pradesh vs. Samman Das, AIR 1972 SC 677 – (1972) 3 SCR 58, this Court again reiterated the above principles and pointed out that there were certain cardinal rules which had always to kept in view in appeal against acquittal. It was pointed out that there is a presumption of innocence in favour of the accused especially when he has been acquitted by the trial court. It was further to be kept in view that if two views of the matter are possible. the view which favours the accused has to be adopted. The Appellate Court has also to keep in view the fact that the trial judge has the advantage of looking at the demeanour of witnesses and that the accused is still entitled to the benefit of doubt. The doubt should be such as a rational thinking person will reasonably, honestly and conscientiously entertain and not the doubt of an irrational mind. (See also : Sohrab vs. State of Madhya Pradesh, (1973) 1 SCR 472 = (1972) 3 SCC 751 = AIR 1972 SC 2020; Ediga Sanjnna vs. State of Andhra Pradesh, (1976) 2 SCC 210; Satbir Singh & Anr. vs. State of Punjab, (1977) 3 SCR 195 = (1977) 2 SCC 263; Chandrakanta Devnath vs. State of Tripura, (1986) 1 SCC 549 = 1986 Cr.L.J. 809; G.B. Patel & Anr. vs. State of Maharashtra, AIR 1979 SC 135; Awadesh & Anr. vs. State of Madhya Pradesh, (1988) 3 SCR 513 = (1988) 2 SCC 557; Anokh Singh vs. State of Punjab, (1992) 1 (Supp) SCC 426; Gajanan Amrut Gaykwad & Ors. vs. State of Maharashtra, (1995) 3 (Supp) SCC 607; Ram Kumar vs. State of Haryana, AIR 1995 SC 280; Betal Singh vs. State of Madhya Pradesh, (1996) 4 SCC 203).

16. This Court has thus explicitly and clearly laid down the principle which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under :- (1) In an appeal against an order

of acquittal, the High Court

possesses all the powers, and

nothing less than the powers, it

possesses while hearing an appeal

against an order of conviction.

(2) The High Court has the power to

reconsider the whole issue,

reappraise the evidence and come to

its own conclusion and finding in

place of the findings recorded by

the trial court, if the said

findings are against the weight of

the evidence on record, or in other

words, perverse.

(3) Before reversing the findings

of acquittal, the High Court has to

consider each ground on which the

order of acquittal was based and to

record its own reason for not

accepting those grounds and not

subscribing to the view expressed

by the trial court that the accused

is entitled to acquittal.

(4) In reversing the finding of

acquittal, the High Court has to

keep in view the fact that the

presumption of innocence is still

available in favour of the accused

and the same stands fortified and

strengthened by the order of

acquittal passed in his favour by

the trial court.

(5) If the High Court, on a fresh

scrutiny and reappraisal of the

evidence and other material on

record, is of the opinion that

there is another view which can be

reasonably taken, then the view

which favours the accused should be

adopted.

(6) The High Court has also to keep

in mind that the trial court had

the advantage of looking at the

demeanour of witnesses and

observing their conduct in the

Court especially in the witness-

box.

(7) The High Court has also to keep

in mind that even at that stage,

the accused was entitled to benefit

of doubt. The doubt should be such

as a reasonable person would

honestly and conscientiously

entertain as to the guilt of the

accused.

17. It is in the light of these principle that it has to be seen whether the High Court, in the instant case, was justified in reversing the order of acquittal.

18. Before taking up this task, it may be stated that for a crime to be proved, it is not necessary that the crime must be seen to have been committed and must in all circumstances, be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principle fact or “factum probandum” may be proved indirectly by means of certain inferences drawn from “factum probans”, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal fact can legally inferred or presumed.

19. It has been consistently laid down by this Court that were a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused of the guilt of any other person. (See : Hukam Singh vs. State of Rajasthan, AIR 1977 SC 1063; Eradu and other vs. State of Hyderabad, AIR 1956 SC 316; Earabhadrappa vs. State of Karnataka, AIR 1983 SC 446;State of U.P. vs. Sukhbasi and others. AIR 1985 SC 1224; Balwinder Singh vs. State of Punjab, AIR 1987 SC 350; Ashok Kumar Chatterjee vs. State of Madhya Pradesh. AIR 1989 SC 1890).

20. The circumstance from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram vs. State of Punjab, AIR 1954 SC 621, it was laid down that where the case depends upon the conclusions drawn from circumstance, the cumulative effect of the circumstance must be such a to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

21. In Padala Veera Reddy vs. State of Andhra Pradesh and others, 1991 SCC (Crl.) 407 = AIR 1990 SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :- (1) the circumstance from which an

inference of guilt is sought to be

drawn, must be cogently and firmly

established;

(2) those circumstances should be

of a definite tendency unerringly

pointing towards guilt of the

accused;

(3) the circumstance, taken

cumulatively, should form a chain

so complete that there is no escape

from the conclusion that within all

human probability the crime was

committed by the accused and none

else; and

(4) the circumstantial evidence in

order to sustain conviction must be

complete and incapable of

explanation of any other hypothesis

than that of the guilt of the

accused and such evidence should

not only be consistent with the

guilt of the accused but should be

inconsistent with his innocence.

22. (See also : State of Uttar Pradesh vs. Ashok Kumar Srivastava, (1992) 2 SCC 86 = 1992 Cr.LJ 1104) in which it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inference, the one in favour of the accused must be accept. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

23. What is important is that the possibility of the conclusions being consistent with the innocence of the accused must be ruled out altogether.

24. Let us now delve into the merits.

25. In order to prove its case, the prosecution has examined many witnesses to establish the link between the appellant and the crime. Paris Savant Kaggodi (P.W. 8) stated that his daughter Padmavathi was married to the appellant who was being ill-treated at the house of her in- laws principally because the appellant entertained a doubt that she was having extra marital relationship with Gundu Badasad. When Padmavathi became pregnant, she came to live with her parents and at the house of her parents, she gave birth to a child.

26. The learned Session Judge and the High Court have both found that this part of the statement of Padmavathi’s father has not been challenged and, therefore, it was established that Padmavathi was not treated fairly at the house of her in-law and the appellant carried doubt in his mind that she was involved in post-marital sex with Gundu Badasad. It was also established that she gave birth to a child at the house of her father.

27. The appellant, however, denied the prosecution story that he came to the house of his father-in-law and took away his wife and child. The trial court, namely, the IInd Addl. Sessions Judge, Belgaum has found that the prosecution had failed to establish that the appellant had come to the house of his father-in-law and requested him to take his wife and child to a temple or that, thereafter, he took his wife to the “Ashoka Lodge” at Belgaum where she was throttled to death by the appellant. The High Court, however, has reversed this finding and come to the conclusion that the death of Padmavathi, in Room No. 113 of “Ashoka Lodge”, at the hands of the appellant, was established by the fact that her dead body, which was identified by Mallasarja (P.W. 1) of Gandigawad village who was working at Belgaum, was found in that room. She had not died a natural death but was strangulated to death which was established by the post- mortem examination conducted by the Doctor (P.W. 12). Ajit (P.W. 2) who was the room-boy of “Ashoka Lodge” categorically stated that the appellant with his wife and the child had come to the “Lodge” and occupied Room No. 113. He also stated that the appellant later left the “Lodge” with his child on the pretext that his wife had died and that he was going to call his relations.

28. It is contended by the learned counsel for the appellant that since P.Ws. 9, 14, 17 and 18 as also P.W. 3 had turned hostile and had not supported the prosecution case, their statements are liable to be excluded and if this is done, the result will be that the link in the prosecution story would stand broken and the appellant could not be held guilty on the basis of broken circumstantial evidence. The Addl. Sessions Judge had fallen into the web of this, apparently, forceful argument but the High Court, and in our opinion, rightly, accepted the remaining evidence and held that in spite of hostility of the aforesaid witnesses, the prosecution story was fully established.

29. We would like to add a few words of our own on the effect of exclusion of statements of those witnesses who had turned hostile.

30. Gangavva (P.W. 3), with whom the child was left by the appellant on his return from “Lodge”, was the witnesss who was treated as hostile. Even if her statement is excluded, the main part of the prosecution story that the appellant had come with Padmavathi to “Ashoka Lodge” where they had occupied Room No. 113 is not affected. Their presence in “Ashoka Lodge” is testified by Ajit (P.W. 2), the room-boy of “Ashoka Lodge”. Padmavathi was, therefore, last seen in the company of the appellant. The appellant left the “Lodge” on the pretext that his wife had died and he was going to call his relations. But he did no return. His conduct of not returning back to Room No. 113 eloquently indicates that he, in order to avoid arrest, did not return to “Lodge”. He left the dead body of Padmavathi lying in Room No. 113 to be found out there by the hotel and police people. An innocent person would not have behaved in that fashion. His innocence would have been reflected in his conduct of coming back to the “Lodge”.

31. Apart from the appellant’s conduct in not returning to “Ashoka Lodge”, aft having left the “Lodge” at 12.00 Noon, another conduct of the appellant is significantly eloquent. When he reported at “Ashoka Lodge”, he was sporting a beard and had also unkempt hairs on his head. In the evening of the day of incident, he got his head and the beard shaved which is proved by the barber (P.W. 5), examined in the case. This was done obviously to the conceal his identity but police was vigilant and the appellant was apprehended without difficulty.

32. The appellant’s further conduct in taking away the child with him at 12.00 Noon is also significant. The child was hardly four months old and was a breast-suckling infant. Had Padmavathi been alive, the appellant; would have left the child with her. His taking away the child with him coupled with his statement made to the room-boy that his wife had died of heart-attack, establishes that Padmavathi was already dead. Since she was strangulated to death, there was non else except the appellant to have done it. It was positively that act of the appellant. He took the extreme step on account of suspected infidelity of his wife which he had been harbouring since his marriage.

33. The other hostile witnesses are Jaipal (P.W. 14) who had seen the appellant and his wife Padmavathi with their child in a Karnataka State Road Transport Corporation Bus, P.W. 9 before whom extra judicial confession was alleged made the appellant, P.Ws. 17 and 18 who were the witnesses for the Panchanamas apart from P.W. 15 who was also the witness of Panchanama but he did not turn hostile. If the statements of these witnesses are excluded, the prosecution case is still not affected on merits inasmuch as the story that the appellant had gone to the house of his father-in- law and taken away his wife and child and that the ultimately stayed in “Ashoka Lodge” at Belgaum where Padmavathi was found dead is not affected. Whether the appellant with his wife and the child had gone to the temple or had stayed with a friend in the night, cannot be said to be essential links in the chain of events leading to the conclusion that the appellant had committed the crime. The appellant was last seen with Padmavathi in Room No. 113 of “Ashoka Lodge” where he had stayed on the fateful day and had left the “Lodge with his child on the pretext that he was going to call his relations as Padmavathi had died of heart-attack. As pointed out earlier, Padmavathi had died of strangulation. The appellant’s presence in the Room immediately before the death of Padmavathi and his conduct in not coming back to the “Lodge” are circumstances strong enough to establish his guilt.

34. Some dispute appears to have been raised before the High Court as also before us that the hotel records should not be relied upon to indicate that the appellant had stayed in “Ashoka Lodge”.

35. Ajit (P.W. 2), room-boy of the “Lodge”, in his statement on oath, has given out that the appellant had come with his wife and child to the “Ashoka Lodge” and had taken one Room on the ground-floor for his stay. The necessary entry (Ex.P1(a)) was made by the Manager of the “Lodge” in the “Register of Lodgers”. The appellant had put his signature on the Register which is Ex.P1(b). The appellant, his wife and the child had been taken by the room-boy to Room No. 113 where he also supplied an extra bed. The hotel Manager, though mentioned as a witness in the charge-sheet, was not examined as he had already left the service of the “Lodge”. These facts stand proved by the statement of the room-boy and the High Court has already recorded a finding that the appellant had stayed in Room No. 113 of the “Ashoka Lodge”.

36. The original records were also placed before us and we have perused those records. Since learned counsel for the appellant contended that the appellant had not stayed in the “Ashoka Lodge”, we looked into the “Register of Lodgers”. It contains the relevant entry against which signature of the appellant also appears. His signature also appears on the “Vakalatnama” filed by him in this appeal. In the presence of the learned counsel for the parties, we compared the signature of the appellant on the “Vakalatnama” with the signature in the “Register of Lodgers”. A mere look at the signatures was enough to indicate the similarity which was so apparent that it required no expert evidence. This comparison was done by us having regard to the provisions of Section 73 of the Evidence Act which provides as under:- S.73. Comparison of signature,

writing or seal with others

admitted or proved.- In order to

ascertain whether a signature,

writing or seal is that of the

person by whom it purports to have

been written of made, any

signature, writing or seal admitted

or proved to t satisfaction of the

Court to have been written or made

by that person may be compared with

the one which is to be proved,

although that signature, writing or

seal has not been produced or

proved for any other purpose.

The Court may direct any

person present in Court to write

any words or figures for the

purpose of enabling the Court to

compare the words or figures so

written with any words or figures

alleged to have been written by

such person.”

37. This Section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or finger prints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The Section does not specify by whom the comparison shall made. However, looking to the other provision of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.

38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature of handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not power to compare the disputed signature with admitted signature as this power is clearly available under Section 73 of the Act. (See : State (Delhi Administration) vs. Pali Ram, AIR 1979 SC 14 = (1979) 2 SCC 158)

39. We have already recorded above that on the comparison of the signature in the “Register of Lodgers” with the appellant’s signature on the “Vakalatnama”, we have not found any dissimilarity and are convinced that the appellant himself had signed the “Register of Lodgers” in token of having taken Room No. 113 in “Ashoka Lodge” on rent wherein he had stayed with his wife and the child.

40. On an overall consideration of the matter, we are of the opinion that the High Court, in reversing the judgment of the trial court, had fully adhered to the principles laid down by this Court in various decisions and there is no infirmity in its judgment.

41. The circumstance, the conduct and behaviour of the appellant conclusively establish his guilt on no amount of innovative steps by him including sporting a beard and later shaving off the beard and the head could conceal the offence or his identity. It was rightly remarked by the famous Urdu poet, Amir Meenai in a couplet :-

“Qareeb hai yaro jo Roz-i-Mahshar

Chhupey ga kuston ka khoon keonkar

Jo chup Rehegi Zaban-i-Khanjar

Lahoo Pukarega Aastin Ka”

42. Translated into English, it will mean :- “On the day of Judgment, you will

not be able to conceal the killing

of innocents. If the sword will

keep silent, the blood stains on

your sleeves will reveal your

guilt.”

43. For the reasons stated above, we find no merit in the appeal which is dismissed. The appellant is no bail. His bail bonds are cancelled. He shall be take into custody forthwith to serve out the life sentence.

Uncategorized

Role of Judge in a Criminal Trial

A judgment of seminal important on the role of a judge in a criminal trial, the breadth of the 165/311 inquisitorial aspects of court’s jurisdiction are dealt with. 
 
Supreme Court
Ram Chander vs State Of Haryana on 25 February, 1981
Equivalent citations: 1981 AIR 1036, 1981 SCR (3) 12
Bench: Reddy, O Chinnappa

PETITIONER:

RAM CHANDER

Vs.

RESPONDENT:

STATE OF HARYANA

DATE OF JUDGMENT25/02/1981

BENCH:

REDDY, O. CHINNAPPA (J)

BENCH:

REDDY, O. CHINNAPPA (J)

ISLAM, BAHARUL (J)

CITATION:

1981 AIR 1036 1981 SCR (3) 12

1981 SCC (3) 191 1981 SCALE (1)428

ACT:

Role of a Judge trying a criminal case explained- Evidence Act, section 165 read with section 172(2) of the Code of Criminal Procedure, whether a Judge in a criminal case may put any question to the witness and if so what are its limitations-Evidence Act, section 11, scope of.

HEADNOTE:

The appellant Ram Chander and Mange were tried by the learned Additional Sessions Judge, Jind, for the murder of Dunni. Both were convicted under section 302 read with section 34 Indian Penal Code and sentenced to imprisonment for life. On appeal the High Court acquitted Mange but confirmed the conviction and sentence of Ram Chander. In appeal by special leave it was contended that the conviction and sentence were vitiated as the principle of fair trial was abandoned by the Sessions Judge who rebuked the witnesses and threatened them with prosecution for perjury and based his conviction on such extorted evidence. Allowing the appeal, the Court

^

HELD: 1: 1. If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. The Court has wide powers and must actively participate in the trial to elicit the truth and to protect the weak and the innocent. It is the duty of a judge to discover the truth and for that purpose he may “ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant”. But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten, coerce, confuse, intimidate or bully witnesses. He must take the prosecution and the defence with him. The Court. the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The judge, “like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and old.” [14 B, F, D; 15E- F]

Sessions Judge, Nellore v. Intna Ramana Reddy and Anr., I.L.R. 1972 AP 683, approved.

Jones v. National Coal Board, [1957] 2 All E.R. 155, quoted with approval.

1: 2. In the instant case, the questions put by the learned Sessions Judge, particularly the threats held out to the witnesses that if they changed their statements they would involve themselves in prosecution for perjury were certainly intimidating, coming as they did from the presiding judge. In an effort to compel

13

the witnesses to speak what he thought must be truth, the learned Sessions Judge, very wrongly, firmly rebuked them and virtually threatened them with prosecutions for perjury. He left his seat and entered the ring. The principle of “fair trial” was abandoned. [19 F-H]

2. The Evidence Act contains detailed provisions dealing with statements of persons who cannot be called as witnesses and former statements of persons who are called as witnesses. These provisions would appear to become redundant if the evidence of a witness is to be tested and accepted or rejected with reference to the former statement of another witness on the ground that such former statement renders the evidence highly probable or improbable. Even assuming that under certain circumstances it is permissible to use the first information report under the first part of section 11 there is in the present case no question of invoking the first part of section 11, which is inapplicable since the first information report is now not sought to be used as being inconsistent with the prosecution case. Nor can first information report be used by resort to the second part of section 11. [20 H-21 A; 20 F-G]

Ram Kumar Pande v. The State of Madhya Pradesh, [1975] 3 S.C.R. 519 @ 522, discussed.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.390/75.

Appeal by special leave from the Judgment and Order dated 2.7.1975 of Punjab & Haryana High Court in Cr. A. No. 1554/74.

Kapil Sibal, Subhash Sharma and Ravindra Bana for the Appellant.

K.G. Bhagat and R. N. Poddar for the Respondent. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. What is the true role of a judge trying a criminal case ? Is he to assume the true role of a referee in a football match or an umpire in a cricket match, occasionally answering, as Pollock and Maitland(1) point out, the question ‘How is that’, or, is he to, in the words of Lord Kenning ‘drop the mantle of a judge and assume the role of an advocate ?(2) Is he to be a spectator or a participant at the trial ? Is passivity or activity to mark his attitude ? If he desires to question any of the witnesses, how far can he go ? Can he put on the gloves and ‘have a go’ at the witness who he suspects is lying or is he to be soft and suave ? These are some of the questions which we are compelled to ask ourselves in this appeal on account of the manner in which the judge who tried the case put questions to some of the witnesses.

14

The adversary system of trial being what it is, there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive element entering the trial procedure. If a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. As one of us had occasion to say in the past.

“Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may ‘ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. Section 172 (2) of the Code of Criminal Procedure enables the Court to send for the police diaries in a case and use them to aid it in the trial. The record of the proceedings of the committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial.” (1) With such wide powers, the Court must actively participate in the trial to elicit the truth and to protect the weak and the innocent. It must, of course, not assume the role of a prosecutor in putting questions. The functions of the counsel, particularly those of the Public Prosecutor, are not to be usurped by the judge, by descending into the arena, as it were. Any questions put by the judge must be so as not to frighten, coerce, confuse or intimidate the witnesses. The danger inherent in a judge adopting a much too stern an attitude towards witnesses has been explained by Lord Justice Birkett:

“People accustomed to the procedure of the Court are likely to be over-awed or frightened, or confused, or distressed when under the ordeal of prolonged questioning from the presiding Judge. Moreover, when the questioning takes on a sarcastic or ironic tone as it is apt to do, or when it takes on a hostile note as is sometimes almost inevitable, the danger is 15

not only that witnesses will be unable to present the evidence they may wish, but the parties may begin to think, quite wrongly it may be, that the judge is not holding the scales of justice quite eventually”(1) In Jones v. National Coal Board Lord Justice Denning observed:

“The Judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been over looked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of the judge and assumes the role of an advocate; and the change does not become him well.”

We may go further than Lord Denning and say that it is the duty of a judge to discover the truth and for that purpose he may “ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant” (Sec. 165 Evidence Act). But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. He must take the prosecution and the defence with him. The Court, the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The judge, ‘like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and old’.

Let us now take a look at the facts of the case before us. Ram Chander and Mange were tried by the learned Additional Sessions Judge, Jind, for the murder of Dunni. Both were convicted under Sec. 302 read with Sec. 34 Indian Penal Code and sentenced to imprisonment for life. On appeal the High Court acquitted Mange but confirmed the conviction of Ram Chander. The prosecution case was that on February 14, 1974, at about 11 a.m. Dunni was proceeding from his field towards the village, Sucha Khera and was 16

passing near the field of Ram Chander and Mange when he was attacked by them with Jatus (wooden pegs fixed to a cart). They inflicted several injuries on Dunni. Mewa (P.W.9) who was working in his field tried to rescue Ram Chander. He was given a lathi blow on his head. On hearing the alarm raised by Dunni, Hari Chand (P.W.8) and Jiwana (P.W.2) and others came there and witnessed the occurrence. The assailants ran away. Jiwana the Lambardar proceeded to the village to inform the relatives of Dunni. On the way he met Dhan Singh (P.W. 10), and told him about the occurrence. Jiwana thereafter went to the Police Station at Narwana and lodged the First Information Report at about 5.15 p.m. The Sub Inspector of Police went to the village. He held the inquest and sent the dead body for post mortem examination. He looked for Mewa and Hari Chand. Both of them were not available in the village. A constable was sent to fetch them from Sucha Khera. Neither of them was brought that night. Next morning he was able to examine Mewa but Hari Chand was not to be found. Hari Chand was finally examined on 16th. The Doctor who conducted the autopsy found thirteen injuries on the body of Dunni. There were fractures of the left partial, frontal and occipital bones. According to the Doctor that was due to “compression of brain with multiple fractures of skull”. On February 15, 1974, at about 4 P.M. the Doctor also examined Mewa and found on the right side of his head an abrasion 1″ x 1/4″.

In support of its case the prosecution examined P.Ws. 2, 8 and 9 as eye witnesses to the occurrence. P.W. 10 was examined to speak to the information alleged to have been given to him by P.Ws. 2 and 8 that the deceased had been beaten by the two accused persons. P.W. 2 did not support the prosecution case and was declared hostile. P.Ws. 8 and 9, the remaining eyewitnesses seemingly supported the prosecution case in varying degrees in the examination-in- chief, but they made some damaging admissions in cross- examination. P.W. 9 even in examination-in-chief stated that Mange was not armed with any weapon though he was present alongwith Ram Chander. The learned Sessions Judge convicted both Ram Chander and Mange but having regard to the evidence of P.W. 9 the High Court acquitted Mange and confirmed the conviction of Ram Chander.

It was argued by Shri Kapil Sibal, learned Counsel for the appellant that in view of the several statements made by P.Ws. 8 and 9 in their cross examination, their evidence should not have been

17

accepted by the Courts below. Shri Sibal also submitted that the accused did not have a fair trial as the learned Sessions Judge particularly assumed the role of a Prosecutor.

Hari Chand, P.W. 8 said in his examination-in-chief that when he was working in his field he heard a noise from the side of the field of Mange. He and Jiwana (P.W. 2) went in that direction. From a distance they saw Mange and Ram Chander giving blows to Dunni with dandas. By the time they went near, Ram Chander and Mange ran away. They saw Mange tying a piece of cloth round the head of Dunni. Dunni was bleeding and was hardly able to breathe. They went to the village to inform the people about the occurrence. On the way they met P.W. 10 and told him about Dunni. having been beaten by the two accused. Later that day he went to Sucha Khera for official work. The police examined him on 16.2.74. We have already referred to the circumstance that he was not available for examination by the Police on 14th and 15th. He sought to explain his absence from the village by stating that he went to Sucha Khera in connection with his official work. In cross-examination he admitted that he did not mention this fact in the Roznamcha (daily diary). He also admitted that the village Sucha Khera was not within his jurisdiction. He further admitted that the notice for serving which he went to Sucha Khera was with regard to water shoot No. 14750 at Sucha Khera. In answer to a question whether he only saw the accused running away or doing something else, he categorically stated that he did not see those persons causing injuries but only saw them running away. Thereupon the Sessions Judge told him that in his examination-in-chief he had said that he had seen Mange and Ram Chander causing injuries and that if he made inconsistent statements on material points he could be prosecuted for perjury. The Sessions Judge has made a note to this effect in the deposition itself. In answer to a further question P.W. 8 stated that when they were running away their backs were towards him. The Sessions Judge once again repeated the warning which he had given earlier. The Sessions note with regard to the first warning is in the following words:

“The witness has been explained right here his statement which has gone on record and he has been told that in examination-in-chief he has said that he had seen Mange and Ram Chander causing injuries. He had also been informed that

18

a person can be prosecuted for perjury if on material points in-consistent statements are made.” The second warning which was given by the learned Sessions Judge has been recorded by the learned Sessions Judge in the following words:

“As was pointed out to you yesterday also, it is once more pointed out to you that in examination-in- chief yesterday, you clearly stated before the Court that you saw Ram Chander and Mange causing injuries to Dunni. Later on in cross-examination by Shri Shamsher Singh you said that you saw the accused persons running away. You have already been warned about the consequences of inconsistent replies. Without fear or favour tell the Court, which of the two statements is correct and whether you saw Mange and Ram Chander causing injuries to Dunni or not.”

To this question the answer of the witness was that when he was at some distance he saw them causing injuries but by the time he went near they had run away. P. W. 9 stated even in his chief examination that when he saw Mange and Ram Chander, they were running in the direction of Denuda. Ram Chander had a danda. Mange was empty handed. They started beating a person who was coming from Denuda side. He tried to rescue, the person. He was given a blow on his head with a stick. He felt giddy and sat down. He did not know what happened afterwards because he was feeling faint. He came to his senses when Lambardar and Patwari came there. Then he went to his village. He stated in cross- examination that on 15th he was called by the Police and taken to the field and from the field he was taken to Narwana where he was kept in the Police Station upto 16th. He was allowed to go away after his statement was recorded by the Magistrate under S. 164 Cr. Procedure Code. Jiwana was also there at that time. When he was asked whether the statement which he made to the Magistrate was tutored his reply was “Yes, the statement was told”. Later again he said “I gave the statement as told by the police.” He stated that he was not beaten but only threatened. He further stated that the day before he gave evidence in Court he was threatened by the Police that if he did not give the statement he would himself be involved in a case. He also said that he wanted to say whatever he actually saw but the police did not agree and said that he must give the entire statement as mentioned by them. During the course of the cross-examination of

19

the witness the learned Sessions Judge made two notes which may be extracted here. The first note runs: “This time the witness says that the police said that the police will make a case against him. Previously the witness was not prepared to go to that extent. I wonder whether the witness understands the difference between two things namely that the Police will make a case against him and between this that if he changed his statement he will involve himself in a case. The matter to be appreciated at appropriate stage.

The second note is as follows:

“I will examine the witness through Court questions as to which part of the statement he admits to be correct without fear of the police. The learned defence counsel may proceed further to build up his defence.”

Thereafter the learned Sessions Judge himself put some questions to the witness. The witness said that he did not tell the Magistrate that he was making the statement under the pressure of the Police. The learned Sessions Judge then put him the following question: “You have said that even before me you are making a statement under the pressure of the police. Please state whether you mean it. and you were giving the statement under pressure of the police.” The answer was that “I am giving the statement freely.” The learned Sessions Judge put him a few more questions one of which was whether he was honestly stating that Mange was bare headed and Ram Chander had a dunda. The witness answered that he said so honestly.

The questions put by the learned Sessions Judge, particularly the threats held out to the witnesses that if they changed their statements they would involve themselves in prosecutions for perjury were certainly intimidating, coming as they did from the presiding judge. The learned Sessions Judge appeared to have become irate that the witnesses were not sticking to the statements made by them under sections 161 and 164 and were probably giving false evidence before him. In an effort to compel them to speak what he thought must be the truth, the learned Sessions Judge, very wrongly, in our opinion, firmly rebuked them and virtually threatened them with prosecutions for perjury. He left his seat and entered the ring, we may say. The principle of ‘fair trial’ was abandoned. We find it impossible to justify the attitude adopted by the Sessions Judge and we also find it

20

impossible to accept any portion of the evidence of P.Ws 8 and 9, the two alleged eye witnesses.

Shri Bhagat very ingeniously argued that the evidence of P.Ws 8 and 9 could yet be acted upon to the extent their evidence was substantiated by the first information report given by P.W.2. When we pointed out that neither PW 8 nor PW9 was the author of the first information report and, therefore, the report could not be used to corroborate their evidence, Shri Bhagat suggested that we could do so by invoking the provisions of Section 11 of the Evidence Act. He relied upon the following observations of Beg J. in Ram Kumar Pande v. The State of Madhya Pradesh: (1) “No doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow of Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that omissions of such important facts, affecting the probabilities, of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case”.

Beg, J, apparently had the first part of Section 11 in mind and thought that the presence of the daughters at the scene was inconsistent with the failure of the father to refer to their presence in the first information report having regard to the circumstances under which the report must have been made. Even assuming that under certain circumstances it is permissible to use the first information report under the first part of Section 11 (we say nothing about the correctness of the view), there is in the present case no question of invoking the first part of Section 11, which is inapplicable since the first information report is now not sought to be used as being inconsistent with the prosecution case. Nor do we think that the first information report can be used by resort to the second part of section 11, The Evidence Act contains detailed provisions dealing with statements of persons who cannot be called as witnesses and former statements of persons who are called as witnesses. These

21

provisions would appear to become redundant if the evidence of a witness is to be tested and accepted or rejected with reference to the former statement of another witness, on the ground that such former statement renders the evidence highly probable or improbable. We can do no better than to refer to Stephen, the framer of the Section who said: “It may possibly be argued that the effect of the second paragraph of Section 11 would be to admit proof of such facts as these (viz. statements as to facts by persons not called as witness; transactions similar to but unconnected with the facts in issue; opinions formed by persons as to facts in issue or relevant facts). It may, for instance, be said: A (not called as a witness) was heard to declare that he had seen B commit a crime. This makes highly probable that B did commit that crime. Therefore A’s declaration is a relevant fact under Section 11 this was not the intention of the section as is shown by the elaborate provision contained in the following part of Chapter 11 (Sections 31 to 39) as the particular classes of statements, which are regarded as relevant facts either because the circumstances under which they are made invest them with importance, or because no better evidence can be got. The sort of facts which the section was intended to include are facts which either exclude or imply more or less distinctly the existence of the facts sought to be proved”. We, therefore, do not think that section 11 may be invoked in the present case, in the manner suggested by the learned counsel. In the result we accept the appeal, set aside the conviction and sentence and direct the appellant to be set at liberty forthwith. V.D.K. Appeal allowed.

Criminal Justice System

Perusal of Defence testimony

Comment :  defence witnessess cannot always be termed to be tainted one. defences witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of prosecution 
Supreme Court of India
State Of Haryana vs Ram Singh on 15 January, 2002
Equivalent citations: AIR 2002 SC 620, 2002 (1) ALT Cri 123
Author: Banerjee
Bench: U Banerjee, N S Hegde

JUDGMENT

Banerjee, J.

1. While it is true that the postmortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the postmortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis-a-vis the injuries appearing on the body of the deceased person and likely use of the weapon therefore and it would then be the prosecutor’s duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses.

2. These two criminal appeals being Crl. Appeal No. 78 of 1999 and Crl. Appeal No. 79 of 1999 arising from the same Judgment of the High Court against that of the learned Additional Sessions Judge, Hissar in Sessions Case No. 80 of 1992 in which (1) Bhajan Lal (2) Rai Sahab, (3) Ram Singh and (4) Ram Kumar faced trial. All the accused faced charge under Section 302 IPC read with Section 201 IPC and the learned Additional Sessions Judge, Hissar by his Judgment dated 9th/10th August, 1995 convicted Bhajan Lal under Section 302 IPC and sentenced him to imprisonment for life, whereas the accused Rai Sahab, Ram Singh and Ram Kumar were convicted under Sections 302/149 IPC and sentenced in the manner alike. The learned Additional Sessions Judge did not convict any of the accused under Section 201 IPC by reason of the conviction under Section 302 IPC read with Section 149 IPC. The case of the prosecution however, runs as below:-

3. Complainant-Budh Ram is the brother of Manphool (deceased). They are residents of village Chinder. On 22.1.1992, Budh Ram and Manphool went to the temple at about 6 a.m. and returned at about 6.15 a.m. When Manphool was ahead of Budh Ram by about 10 paces and had reached near the house of Kishan Lal, a jeep RJI-3407 was there and Rich Pal, a resident of Chinder and Appellant Bhajan Lal were standing near it, armed with guns. Appellant Rai Sahab was sitting on the driver seat, while Appellant Ram Kumar and Ram Singh alias Singha were also sitting by his side on the front seat. Accused Ram Kumar and Ram Sing, on seeing Manphool, stated that Manphool had won money in gambling dishonestly from Ram Singh, and that he should be taught a lesson for dishonesty. Rich Pal and Bhajan Lal fired a shot each from their respective guns, and as a result of receiving the shots, Manphool feel down. Complainant-Budh Ram took shelter in the temple out of fear. Dholu Ram, son of Manphool on hearing the report of the gunshot, reached there. Prosecution case further has been that immediately thereafter Ram Kumar and Singha alighted from the jeep and all four of them tied the body in a blanket and put the same in the jeep and then went away in their jeep after threatening the persons present at site. Complainant-Budh Ram informed his brother — Ranjit and thereafter chased the jeep in a truck. They made a thorough search on the canals and roads at Badopal and Bhola etc. but did not find any clue. Therefore, Complainant-Budh Ram along with Dholu Ram went to Agroha Police Station, to lodge the report. The statement of Budh Ram was recorded at 3.05 p.m., which formed the basis of the FIR (Ex.-PF).

4. The Station House Officer SI Kishan Dutt being PW-12 in the examination-in-chief, inter alia, stated as below:-

“On 22.1.92 I was posted as SHO P.S. Agroha. On that day, Budh Ram came to me in the police station. He was accompanied by Dholu Ram. He made statement before me upon which I recorded FIR Ex.PF which was read over and explained to him to which he signed in token of its correctness. I recorded police proceedings on it, handed over one copy of FIR to him and obtained his signature. Then I left for the post and reached the place of occurrence alongwith Budh Ram and Dholu Ram. I lifted blood stained earth, 2-3 pieces of bones from the spot, which were converted into separate sealed parcels. Seal of KD was used. Seal after use was given to Dholu Ram PW. I lifted blood stained earth Ex.P. 12 and three pieces of bones Exs. P. 13/1-3 vide recovery memo Ex.PG, attested by Dholu Ram and Budh Ram. I prepared rough site plan of the place of occurrence Ex.PR, recorded statements of Dholu and Budh Ram. I raided the houses of the accused but they were found absconding. I searched for the dead-body in the canal. I stayed for the night in village Budha Khera. On 23.1.92 I deposited the case property with the MHC.

On 26.1.92 I along with Ranjit and Dholu Ram was going in search of the accused and dead body. At Chable minor (mori) Yad Ram met me and told me that he along with Atma Ram has recovered dead body of Manphool from the Chuli Bagrian minor near the field of Ram Pat. Then I reached there I held inquest proceedings on the dead body of Manphool and prepared inquest report Exs.PD/1. I recorded statements of Dholu, Ranjit, Yad Ram and Atma Ram in the inquest proceedings I hand over the dead body along with application for post-mortem examination Ex.PD to constable Sadhu Ram and HC Jagdish.”

5. It is at this stage it would be convenient to note the postmortem report which reads as below:-

“It was a dead-body of a man, moderately built and nourished, necked without any belongings with mouth and eyes closed. Rigor mortis was absent in all the limbs. The body was wet and smeared with mud, crass and leaves. The skin of the hands was swollen and was sodden. The nails and the hair could be pulled out easily. A tattooed mark “Manphool” was present on the anterior aspect of the right fore-arm and also found the following injuries. The height of the dead-body was 5 feet 11 inches:-

1. A crushed wound posterior and right lateral aspect of skull of irregular shape and size was 10 cms anterio posteriorly and 12 cms side to side involving the skin, sub coetaneous tissues and underlying bones which were right and left parietal bone, right temporal and occipital. Most of the brain matter was absent except a few brain matter left in the posterior coronial fosse. Pieces of bones involved were absent.

2. An oval punctured would in the left scapular area of the chest (However I have written abdomen by mistake). Measuring 1.5 cms x 1 cm with a collar of abrasion all around the wound. The direction of the wound was oblique going downward and forward. On dissection and 4th rib was fractured in the middle. The left lung was lacerated and congested. Clotted blood was present in left pleural cavity. Few pellet and foreign body were recovered. Anterior wall of pleural cavity was also congested and there was sub coetaneous hemorrhage in the left memory area.

3. A punctured wound on left side of abdomen 8 cms away towards left from the umbilicus. Omentum and few lops of intestines were coming out of the wound. The wound was showing a collar of abrasion along the whole margins of the wound. Black tattooing was present around the wound. On dissection there was congestion in the skin Sub Coetaneous tissue and huge blood was present in the peritoneum cavity. Omentum was congested and loop of small intestines were showing the congestion. Spleen was ruptured. Few pellets of fire-arm and foreign body was recovered. Small intestines showed semi digested small amount of food which was semi liquid.semi-digested.”

6. The facts shortly put thus reveal the date of occurrence being 22.1.1992 at 6.15 a.m. and the body was recovered on 26.1.1992 by one Atma Ram and Yad Ram. Atma Ram stated:

“On 26/27 of January, 1993 i.e. about two years and two months ago, I and Yad Ram were searching for the dead-body of Manphool. We reached Chuli minor near the field of Rajpat. There we saw a dead-body floating in the Chuli Minor. That dead-body was that of Manphool. We took out that dead-body from Chuli Minor (a canal). Name of Manphool was tattooed on the hand of the dead-body. I had also identified the dead-body by seeing the fact. The skull was empty (khokhli), as the skull was in torn condition. Yad Ram then left to the Police Station for giving intimation. I stayed at the spot near the dead-body. Yad Ram brought the Police. Dholu and Ranjeet also accompanied the police. Police prepared the inquest report of the dead-body and then recorded my statement.

On 13.2.91 I and Ranjeet were going to the P.S. Agroha to enquire if Singha alias Ram Singh had been arrested or not. Dead-body was found 18/19 days prior to our going to the police station. Thanedar had met us at the Bus Stand of village Khara Kheri. There a secret information was received by Sub Inspector (Thanedar) that accused Ram Singh was coming from the side of village Chinder. In the meantime of four-wheeler came there from which accused Ram Singh had alighted. On our pointing out SI apprehended Ram Singh now present in the court. Upon interrogation by the police he (Ram Singh) disclosed that 18/19 days ago he along with four other persons after committing the murder of Manphool Singh had thrown his dead-body in the canal and before throwing the same he had removed a golden ring from the finger of the dead-body of Manphool and the same was conceded by him at his house in the Niwar (strings) of the Palang (bed) and could get the same recovered. In this regard his statement Ex.PQ was recorded which was thumb marked by Singh accused and attested by me and Ranjeet Singh. Thereafter accused led the Police party in his house situated at village Chinder and then got recovered the ring. (At this stage, a sealed Parcel bearing seals of SS has been broken open and ring taken out there-from). The ring is Ex.P. 12. It is the same ring which was got recovered from the palang as stated above and the same was made into a sealed parcel and taken into possession vide recovery memo. Ex.PQ/1, attested by me and Ranjeet.”

7. It is on this state of evidence, the High Court has passed an Order of acquittal so far as Ram Singh is concerned and as such partly allowed the appeal. In its Judgment, the High Court recorded the reasoning for such an Order of acquittal of one of the accused persons as below:

“…..The evidence of PW 12-Kishan Dutt shows that accused-Ram Singh alias Singh was arrested only on 13.2.1992. But Ex.PL/2 also shows that Ram Singh alias Singha had allegedly thumb-marked the disclosure statement on 29.1.1992. If accused-Ram Singh alias Singha was arrested only on 13.12.1992, then he could not have made a disclosure statement on 29.1.1992. Further, Ex.PQ is the alleged disclosure statement of Ram Singh alias Singha made on 13.2.1992. Atma Ram (PW-11) also stated in his evidence that Ram Singh alias Singha was arrested on 13.2.1992 and that he made the disclosure statement (Ex.PQ) in pursuance of which the ring (Ex.P. 12) was recovered. This inconsistency casts a lot of doubt as the involvement of accused-Ram Singh. Even according to prosecution, he was only sitting in the jeep and had raised a lalkara that Manphool should be taught a lesson. It is further alleged that he along with 3 of the accused wrapped Manphool in a blanket and put him in the jeep. But in view of that we have pointed out above, we are of the view that it is wholly unsafe to convict this accused on the basis of the available material and therefore, we are of the view that he (Ram Singh alias Singha) should be acquitted, giving him the benefit of doubt……”

8. Incidentally, the factual score depicts that Rich Pal had expired during the course of trial before the learned Additional Sessions Judge and having regard to the death of Rich Pal, the conviction and sentence pertaining to two other accused persons were maintained by the High Court and the present appeal by the accused persons pertain thereto. The State Government, also however, being aggrieved by the Order of acquittal moved this Court in appeal. Since these appeals arise out of the same Judgment, appeals were consolidated and were heard together.

9. The principal contention raised in support of the appeal filed on behalf of the accused persons has been that medical evidence as is available on record completely demolished the prosecution case. Let us, therefore, have a look at the medical evidence as is available on record. The postmortem report has already been noticed above and as such we need not dilate on the injuries inflicted on the body of the deceased excepting what is required presently for our purpose herein. Dr. R.K. Kataria conducted the postmortem examination on the body of the deceased on 27.1.1992. In this evidence he has been rather specific that injuries No. 1, 2 and 3 were the result of three independent shots though, however, possibility of injury No. 1 being caused by some heavy weapon cannot be ruled out. As regards direction of injury No. 2, Dr. Kataria explained that the nature of the injury itself indicates that it was caused by weapon from above to downward and injuries No. 2 and 3 were possible by a firearm weapon within a range of 3 ft.: whereas injury No. 2 Dr. Kataria stated could be caused by a firearm from behind, injury No. 3 is possible by firearm only from the front side. Dr. Kataria, however, went on to depose:

“Since I had X-rayed injury No. 1, therefore, I did not think it proper to give any details about nature of injury being ante mortem or post mortared or whether is attributed in causing the death. I also did not mention the nature of weapon used for injuries No. 2 and 3 also. In fact I had referred the dead-body for X-ray examination of injury No. 1 in order to ascertain the weapon used. It is correct that X-ray report was not shown to me till today. I was also not shown the pieces of bones in this case. It is correct that my opinion given in the post-mortem report the injuries No. 2 and 3 were sufficient to cause death due to shock and hemorrhage is wrong. Volunteered in fact mentioning of injury No. 1 omitted I had referred the X-ray examination of injury No. 1. It is incorrect to suggest that I did not mention about injury No. 1 while giving opinion about the cause of death as I wanted to toe the line of police.”

10. A bare perusal of the evidence of the doctor depicts three specific features, namely, (i) Dr. Kataria had referred to have injury No. 1 X-rayed; (ii) nature of the weapon used by the accused persons has not been mentioned, as no such column was there in the Performa prepared for postmortem report and as such Dr. Kataria did not give the nature of the weapon used for injuries. As a matter of fact only for the ascertainment of the weapon used, the body of the deceased was referred for X-ray. The X-ray report, however, was not shown to the doctor till the date of examination, or even produced before the court; (iii) Dr. Kataria was also not shown the pieces of bones in the case. These three factors go a long way in support of the defence contention that it was a blind murder and thus a false implication.

11. The state of evidence available on record has been quoted extensively in this Judgment, which could otherwise be also avoided but has been so done so as to appreciate the trustworthiness or the credibility of the prosecution case. Medical evidence points out an injury having a downward stint: medical evidence points out two several gun shots injuries one from the front and one from the back – the eye-witnesses account does not, however, obtain any support from the medical evidence rather runs counter thereto. A definite evidence of availability of some bones at the place of occurrence was admittedly not shown to the postmortem doctor. Eye-witnesses account (PW-8) Budh Ram records that after giving the lalkara accused Bhajan Lal fired upon his brother Manphool and Rich Pal accused had fired one shot upon his brother. Rich Pal accused had since died and the brother on receiving the firearm injuries fell down on the spot. Immediately, thereafter an alarm was raised by the eye-witness upon which accused Bhajan Lal and Rich Pal threatened him that in case of any alarm they would also kill the PW-8 by reason wherefore the latter took the shelter by the side of the Mandir. The witness went on to record that after Manphool, his brother, fell down and all the accused except Rai Sahab wrapped him in a blanket and put in the jeep and the accused Rai Sahab then drove the jeep. The witness thereafter stated that:-

“… We then i.e. Dholu Ram, Ranjit and myself followed the accused in a truck. We went to the canal of Badopal. We also saw the accused on the roads but they were not visible. We went on the Bank of canal of Badopal. We also went to Bhoda, Sarangpur, Kherampur, Kohli and other roads and then on the canal but could not find the accused and the jeep and Manphool. Ultimately, I lodged report Ex.PF in P.S. Agroha. In this regard my signature are there on FIR Ex.PF. The contents of the FIR were read over to me and after admitting the same to be correct put my signatures.

Police then came to the place of occurrence and lifted three pieces of bones, blood stained earth. Both were made into parcel and then sealed. Both were sealed separately seal after use was handed over to me. Both the parcels were taken into possession vide recovery memo Ex.PG.”

(Emphasis supplied)

12. Significantly; the prosecutor produced the bundle containing three pieces of bones, which are identified by PW-8 as the same pieces of bones, which were under seizure by the police authorities at the place of occurrence — these bones, however, were not produced and placed for examination before the postmortem doctor as to whether they can be co-related with that of the deceased person. The Serological Report of these bones did not see the light neither the Ballistic Experts’ Report as to the nature of the weapons used. It is a duty cast on the prosecution to prove the guilt of the accused persons beyond all reasonable doubts. High Court has dealt with the issue that the thumb marked disclosure statement of Ram Singh dated 29.1.1992 casts a lot of doubt as to the involvement of accused Ram Singh since Ram Singh was arrested only on 13.2.1992 as such disclosure statement of 29.1.1992 cannot be had — it is this inconsistency which was noticed by the High Court and Ram Singh, at whose instance the ring was supposed to have been recovered, stands acquitted on the ground of benefit of doubt. The High Court, however, has not considered the medical evidence vis-a-vis the eye-witnesses’ account — the conflict and inconsistency between the two also raises a very great suspicion in the mind of the Court: credibility of the prosecution case stands at zero level by reason of the conclusion of the High Court and accordingly benefit of doubt to Ram Singh. It is the same prosecutor, which has recovered the pieces of bones, had it exhibited but not produced before the postmortem doctor, who would otherwise be able to identify the bones as that of the deceased. This failure of the prosecution, in our view, cannot be taken as a mere omission but a failure, which would go a long way in the matter of reposing confidence thereon.

13. While it is true that the law is well settled in regard to the issue that in an appeal against conviction for the offence of murder Supreme Court would be rather slow to intervene in the event of there being a concurrent finding of fact but it is equally settled that in the event the finding, which suffers from the vice of perversity of any fundamental rules or even a definite procedural injustice going to the root of the prosecution case question of the Apex Court being slow in intervention would not arise. In this context, reference may be made to the decision of this Court in Arjun Marik and Ors. v. State of Bihar (1994 Supp (2) SCC 372) wherein this Court in paragraph 15 stated as below:-

“15. We are also aware of the fact that as a rule of practice, in appeal against conviction for offence of murder Supreme Court is slow to disturb a concurrent finding of fact unless it is shown that the finding is manifestly erroneous, clearly unreasonable, unjust or illegal or violative of some fundamental rule of procedure or natural justice. Further it has also to be remembered that in a murder case which is cruel and revolting it becomes all the more necessary for the Court to scrutinise the evidence with more than ordinary care lest the shocking nature of the crime might induct instinctive reaction against a dispassionate judicial scrutiny of the evidence in law.”

14. The Judgment under appeal admittedly does not contain a whisper even pertaining to the contradictions between eye-witnesses account and the medical evidence. In the contextual facts and as noticed above, medical evidence runs positively counter to the eye-witnesses’ account rendering the ocular testimony not being dependable or trustworthy. There is no credible evidence on record. It is significant that all the so-called eye-witnesses were produced in Court by the police from its custody in handcuff condition and it is only on the witness box that the handcuffs were released and taken up from the body of the person. All of them are under-trial prisoners being involved in a murder trial. The Court thus has to scrutinise its evidence with a title bit of caution and scrutiny so as to judge their veracity. Admittedly all the supposed eye-witnesses are relations of the deceased. As such they fall within a category of interested witnesses. It is not that the evidence ought to be discredited by reason of the witness being simply an interested witness but in that event the Court will be rather strict in its scrutiny as to the acceptability of such an evidence. High Court has principally relied on the 161 statements and the contradictions available on the record have not been taken note of. In our view this is a clear error on the part of the High Court. Some weapons have been seized along with the cartridges and it has been stated that such recovery was effected in terms of the disclosure statement. Before this Court it has been strongly urged that the same is in contravention of Section 27 of the Evidence Act. Undoubtedly, Section 27, though provides an exception, but the Court should always be vigilant about the circumvention of its provision — “Sarkar on Evidence (15th Edition)” has the following to state on Section 27:-

“…..The protection afforded by the wholesome provisions of Sections 25 and 26 is sought to be whittled down by the police by their ingenuity in manipulating the record of the information given by the accused in the case-diary in such a manner as to make it appear that it led to the discovery of some facts although the police might have made such discovery from other sources. When a fact is once discovered from information received from another source, there can be no discovery again even if any information relating thereto is subsequently extracted from the accused. A devise sometimes adopted by the police is to stage a scene and take the accused to the place where the things discovered lay buried or hidden and require him to make a search for them at the spot indicated to the accused, or sometimes the articles are first produced before the accused and thereafter statements purporting to have been made by him about the so-called discovery are recorded. Court should be watchful that the protection afforded by Sections 25 and 26 should not be dependent on the ingenuity of the police officer in composing the narrative conveying the information relating to the alleged recovery of a fact.”

15. In Pulukuri Kotayya v. Emperor 741 Ind. APP 65: (AIR 1947 PC 67), the Privy Council considered the provision of Section 27 of Evidence Act and observed:-

“It is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’., these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” (p. 77 of Ind App)”

16. The observations stand accepted by this Court in Prabhoo v. State of Uttar Pradesh .

17. Let us however, at this stage, analyse the evidentiary value of such discoveries.

(i) Licensed double barrel .12 bore gun bearing No. 70002-1978 along with license No. 240-VII/Fatehabad (valid upto 2.8.1992) along with three .12 bore cartridges and one fired cartridge case of .12 bore — this recovery memo stands witnessed by Dholu Ram (PW-10) and Budh Ram (PW-8).

(ii) Recovery memo of Jeep No. RJI-3407 — this recovery stands witnessed by Dholu Ram and Budh Ram, PWs 10 and 8.

(iii) Pointing out memo — Rai Sahab, Ram Kanwar, Rich Pal and Bhajan Lal led the police party to Badipal Canal, at Chable Mori and pointed out the place where on the left bank of the canal the jeep had been parked and thereafter the dead body was put into the canal: this pointing out memo also stands witnessed by Dholu Ram and Budh Ram.

(iv) Four disclosure statements of Bhajan Lal, Ram Kanwar, Rich Pal and Rai Sahab accused persons and all the four statements stand witnessed by Dholu Ram and Budh Ram, PWs 10 and 8.

(v) Recovery memo of blood stained earth lifted from left bank of Badipal Canal near the bridge of Chable Mori stands witnessed by Dholu Ram and Budh Ram.

(vi) Disclosure statement/memo of the accused Ram Singh: while in the process of throwing the dead body of Manphool in the canal, a golden ring was removed from his person and that ring has been kept concealed though led to the subsequent recovery of the same. This statement however stands witnessed by Ranjit and Atma Ram (PW-11).

(vii) Recovery memo of golden ring in terms of the disclosure statement witnessed by Ranjit and Atma Ram (PW-11).

“Ranjit happens to be the brother of Manphool, the deceased: the memos mentioned in No. 1-5 are all dated 29.1.1992 whereas 6th and 7th memos are dated 13.2.1992.”

18. Two of the recoveries, as noticed above, thus stood witnessed by Atma Ram: let us briefly, at this stage, refer to the deposition of Atma Ram noticed herein before to the extent that on 26/27.1.192 when Atma Ram was searching for the dead body of Manphool, he reached Chable more and saw a dead body floating — the dead body was then lifted to the bank of the canal and whereas Atma Ram was keeping a watch, Yad Ram was sent to inform the police. The police came along with Dholu and Ranjit. On the second occasion again Atma Ram and Ranjit enquired, after having discovered that though the dead body was recovered some time back, whether Ram Singh had been arrested or not — when Thanedar met them and in the meantime a four wheeler came from which the accused Ram Singh had alighted and on the pointing out by Atma Ram, Ram Singh was arrested and thereupon interrogation started by the police, which made Ram Singh to disclose the commission of the offence and throwing up of the dead body in the canal as also removal of the golden ring from the finger of the dead body and subsequently recovery thereof, as noticed herein before. The ring was identified. The High Court, however, thought it fit to acquit Ram Singh by reason of discrepancy in the records.

19. These are, however, the evidence available on record for the recoveries effected upon disclosure being made. The High Court obviously did not place any reliance on the evidence of Atma Ram as otherwise no acquittal could have been ordered for Ram Singh.

20. Significantly all disclosures, discoveries and even arrests have been made in the presence of three specific persons, namely, Budh Ram, Dholu Ram and Atma Ram — no independent witness could be found in the aforesaid context — is it deliberate or is it sheer coincidence — this is where the relevance of the passage from Sarkar on Evidence comes on. The ingenuity devised by the prosecutor knew no bounds — Can it be attributed to be sheer coincidence? Without any further consideration of the matter, one thing can be more or less with certain amount of conclusiveness be stated that these at least create a doubt or suspicion as to whether the same has been tailor-made or not and in the event of there being such a doubt, the benefit must and ought to be transposed to the accused persons. The trial Court addressed itself on scrutiny of evidence and came to a conclusion that the evidence available on record is trustworthy but the High Court acquitted one of the accused persons on the basis of some discrepancy between the oral testimony and the documentary evidence as noticed fully herein before. The oral testimony thus stands tainted with suspicion. If that be the case, then there is no other evidence apart from the omni present Budh Ram and Dholu Ram, who however are totally interested witnesses. While it is true that legitimacy of interested witnesses cannot be discredited in any way nor termed to be a suspect witness but the evidence before being ascribed to be trustworthy or being capable of creating confidence, the Court has to be consider the same upon proper scrutiny. In our view, the High Court was wholly in error in nor considering the evidence available on record in its proper perspective. The other aspect of the matter is in regard to the defence contention that Manphool was missing from village for about 2/3 days and is murdered on 21.1.1992 itself. There is defence evidence on record by DW-3 Raja Ram that Manphool was murdered on 21.1.1992. The High Court rejected the defence contention by reason of the fact that it was not suggested to Budh Ram or Dholu Ram that the murder had taken place on 21.1.1992 itself and DW-3 Raja Ram had even come to attend the condolence and it is by reason therefore Raja Ram’s evidence was not accepted. Incidentally be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one — the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by defence witness has been effected rather casually by the High Court. Suggestion was there to the prosecution’s witnesses in particular PW-10 Dholu Ram that his father Manphool was missing for about 2/3 days prior to the day of the occurrence itself — what more is expected of the defence case : a doubt or a certainty — jurisprudentially a doubt would be enough : when such a suggestion has been made prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejection of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet — it is prosecutor’s duty to prove beyond all reasonable doubts and not the defence to prove its innocence — this itself is a circumstance, which cannot but be termed to be suspicious in nature.

21. Considering the aforesaid, we do feel it expedient to record that the High Court fell into a manifest error in coming to a conclusion as reflected in the Judgment under appeal and which thus cannot be sustained. The appeal (Criminal Appeal No. 79/1999), therefore, succeeds and is allowed and the appellants be released from the custody, if not required in any other proceedings.

22. In view of the decision above, Criminal Appeal No. 78/1999 (State of Haryana v. Ram Singh)fails and stands dismissed.