Thursday 5 January 2017

How to appreciate evidence of chance witness?

The High Court has attached a lot of weight to the evidence of the
said Madho Singh (PW 9) as he is an independent witness. On
perusal of the record, it appears that the said person already had
deposed for the victim family on a number of previous occasions, that
too against the same accused. This being the fact, it is important to
analyze the jurisprudence on interested witness. It is a settled
principle that the evidence of interested witness needs to be
scrutinized with utmost care. It can only be relied upon if the evidence
has a ring of truth to it, is cogent, credible and trustworthy. Here we
may refer to chance witness also. It is to be seen that although the
evidence of a chance witness is acceptable in India, yet the chance
witness has to reasonably explain the presence at that particular
point more so when his deposition is being assailed as being tainted.
19. A contradicted testimony of an interested witness cannot be usually
treated as conclusive. The said Madho Singh (PW 9) has admitted
that he has been a witness in another case against the accused for
the deceased. Here it is to be seen that the said Madho Singh
(PW 9) has been acting as a pocket witness for the family.
Further, the credibility of this independent witness can be
challenged on the fact that the commotion was only heard by the
said Madho Singh (PW 9) whereas the rest of the members of the
locality did not come for help. As Madho Singh (PW 9) is a chance
witness as well as an interested witness herein, causes suspicion and
does not inspire confidence. This admission by Madho Singh (PW 9)
not only forces us to doubt the veracity of his own deposition but also
has created doubts on the version of Gambhir Singh (PW 7).
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1141 OF 2007
MAHAVIR SINGH 
VERSUS
STATE OF MADHYA PRADESH 
Citation:(2016) 10 SCC220
Dated:NOVEMBER 09, 2016


1. This appeal arises out of the judgment and order dated 19th March,
2007 passed by the High Court of Madhya Pradesh, Bench at
Gwalior in Criminal Appeal No. 36 of 1996 whereby the High Court
has partly allowed the appeal preferred by the State by confirming the
judgment of the Trial Court for the offence under Section 148 of IPC
and convicted the appellant herein for the offence under Section 302,
IPC and sentenced him to undergo imprisonment for life.
2. The brief facts of the case as culled out from the case of the
prosecution are that on 26th December, 1987 at about 1 p.m. while
Gambhir Singh (PW 7) (brother of the deceased) was having lunch at
his home, the appellant along with a group of co-accused persons,
each armed with deadly weapons rushed to his house hurling abusive
filthy words and picked up a quarrel with his brother Jagannath Singh
(deceased) who was sitting outside on a platform (Chabutara) along
with his nephew Bir Singh (PW 11). When Jagannath Singh
(deceased) raised objection to their behavior, the appellant fired a
gunshot in the abdomen of the deceased as a result of which he fell
down on the ground and succumbed to the injuries. Page 3
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3. Gambhir Singh (P.W. 7) carried the body of the deceased to the
police station, Lahar on a bullock cart and lodged the FIR (Annexure
P-1) at 4.15 PM on the same day. Dilip Singh Yadav (PW-13)
prepared inquest memo and Dr. A. K. Upadhyay (P.W. 12) conducted
autopsy on the dead body. On the next day, Dilip Singh Yadav (PW
13) seized blood stained soil and plain soil from the place of
occurrence, as per seizure memo. He also seized a gun, 12 live
cartridges and 9 empty cartridges from the possession of appellant
Mahavir Singh, an axe from Sobaran (co-accused) and a lathi from
Kanched Singh (another co-accused) as per seizure memo and sent
them to the Forensic Science Laboratory at Sagar. Consequently,
statements of witnesses were recorded under section 161 of Cr.P.C.,
spot map was prepared and Charge-sheet was filed against the
appellant under sections 302, 147, 148 and 149 of the IPC in the
Court of Judicial Magistrate First Class, Lahar who committed the
case to Court of Sessions for Trial. The Trial Court framed charges
u/s 302 and 148 of IPC against the appellant and under sections 148,
302/149 of IPC against co-accused. All the accused pleaded not
guilty and claimed to be tried. To prove the guilt of the accused, the
prosecution has examined 13 witnesses and marked several ExhibitsPage 4
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while the accused examined none in defence and no exhibits were
marked on his behalf.
4. The Trial Court by its judgment and order dated 30th November, 1994
acquitted the appellant from the alleged offences mainly on the
ground that there are contradictions in the evidence of eyewitnesses
to that of medical evidence, prosecution has failed to prove beyond
reasonable doubt formation of unlawful assembly with a motive of
committing murder of the deceased and also failed to establish that
the bullet had been fired with the firearm seized from the appellant.
5. Dissatisfied with the Judgment of the Trial Court, the State preferred
an appeal before the High Court claiming that the judgment of the
Trial Court is perverse and illegal inasmuch as it did not appreciate
the prosecution evidence in right perspective and ignored the
evidence of the eyewitnesses. The High Court, on a reanalysis of
evidence of prosecution witnesses and other material available on
record came to the conclusion that the Trial Court was right in
acquitting the other co-accused persons but found fault with the
acquittal of the appellant under Section 302 IPC. The High Court,Page 5
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therefore, partly allowed the appeal by confirming the judgment of the
Trial Court in respect of the charge under Section 148 and convicted
the appellant herein for the offence under Section 302, IPC and
sentenced him to undergo imprisonment for life. Aggrieved by the
Judgment of the High Court, the appellant approached this Court in
appeal.
6. Learned counsel for the appellant submitted that the Trial Court
rightly acquitted the appellant, after elaborately considering the
evidence on record, upon coming to the conclusion that there is lack
of credibility in the testimony of the prosecution witnesses, and, in
particular, the medical and ocular testimonies are conflicting; there
was considerable delay on the part of Investigating Officer in
recording the evidences of alleged eyewitnesses inasmuch as
statements by none of the eyewitnesses were recorded on the day of
occurrence of the incident.
7. In the background of this factual matrix, learned counsel for the
appellant has advanced his arguments that since the appellant and
victim parties have prior enmity over some pending criminal cases,Page 6
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the family members of the deceased, i.e., Gambhir Singh (PW 7),
Shanti Devi (PW 8), Bir Singh (PW 11) in connivance and with the
help of a pocket witness Madho Singh (PW 9) concocted the story, by
projecting himself as an eyewitness, and falsely implicated the
appellant. According to him, this fact is clearly established with the
contradictions in the medical evidence and the unreliable evidence of
the alleged interested eyewitness. The presence of Gambhir Singh
(PW 7), at the time of occurrence, as heavily relied upon by the
prosecution, proves to be false in the light of evidence of Bir Singh
(PW 11) who nowhere in his testimony mentioned that Gambhir Singh
(PW 7) alone came out of the house and witnessed the incident and
Madho Singh (PW 9) claimed that soon after the shooting, Gambhir
Singh (PW 7), Bir Singh (PW 11) and Shanti Devi (PW 8) came out of
the house and therefore the accused fled away from the spot. It is
also contended that the alleged eyewitnesses Gambhir Singh (PW 7),
Bir Singh (PW 11) and Shanti Devi (PW 8) made material
improvements in their testimonies before the Court in order to
connect the case of prosecution with the medical report. Thus, the
presence of the eyewitnesses at the place of occurrence is doubtful.Page 7
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8. Learned counsel further urged that as per the site plan prepared by
the Investigation Officer and also as per the medical evidence, the
deceased Jagannath Singh was standing when he was shot.
According to the medical report, the injuries sustained by the
deceased are possible only when the assaulter stands at a height
above the victim. Contrary to this, the case advanced by the
prosecution, coupled with the evidence of alleged eyewitness, is that
the appellant was standing on a lower level and the deceased was
standing on a higher level i.e. on the platform. In his statement
Madho Singh (PW 9) categorically mentioned that the deceased was
sitting on the platform (Chabutara) and the appellant was standing on
the ground, when he was shot. While the medical report indicated
that the margins of the wounds were inverted and the bullet must
have been fired from a distance of within 6 feet, and as per the
testimonies of the direct eyewitnesses, the said distance varied
between 12 to 22.5 feet. The absence of human blood at the alleged
place of incident i.e. on the platform and presence of blood on the
ground in front of the platform further renders the prosecution’s case
even more doubtful. This blood also could not be matched with that of
the deceased and therefore, recovery of weapons is of no relevance.
Simply for the reason that the post-mortem report indicated that the
deceased had died due to one single gunshot, and mere recovery ofPage 8
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nine empty cartridges from the appellant does not in any way connect
him with the crime, when the empty cartridges were not recovered
from the place of incident and also in the absence of authenticated
proof that the bullet shot at the deceased was fired from the gun
owned by the appellant. Learned counsel thus submits that the
statements of eyewitness are not trustworthy. Considering the facts in
their entirety, such as delayed recording of statements of the
eyewitnesses and an unsuccessful attempt to reveal as to where the
bullet had struck the victim and the unmatched statements by
prosecution witnesses with that of the medical expert, the learned
Trial Court was pleased to record the order of acquittal of the
appellant.
9. The learned counsel finally submitted that the High Court, on the
other hand, failed to appreciate the evidence in true legal perspective
and wrongly interfered with the well reasoned judgment of acquittal
passed by the Trial Court based on a cogent and detailed reasoning
and that the High Court committed a grave error by acquitting the
accused for the offence under Section 302 IPC. The impugned
judgment is contrary to the settled legal principles as it did not give
due weightage to the medical evidence and rejected the samePage 9
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without ascribing any reason. Thus, interference by the High Court
with the reasoned judgment of acquittal passed by the Trial Court is
unwarranted. Learned counsel submits that in the light of settled legal
principles, the conviction of the appellant by the High Court is vague
and uncalled for and the same requires to be set aside by this Court.
10. On the other hand, learned counsel appearing for the State, argued
that the judgment of the Trial Court acquitting the appellant was
wholly erroneous as it was passed without taking into account the
prosecution evidence in its right perspective. There was no
inconsistency in the evidence of eyewitnesses who were very much
present at the scene of offence and the Trial Court was not justified in
ignoring their evidences. The High Court, after re-appreciating the
entire evidence on record, took a justifiable stand in convicting the
accused under Section 302 of the IPC by a well reasoned judgment
and that there is no illegality or perversity in the conviction of the
accused calling interference by this Court.
11. We have heard the learned counsel on either side at length and
perused the material available on record. Now it is imperative to look
into the scope of interference by the appellate Court in an appealPage 10
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against acquittal and whether the High Court was justified in
convicting the accused under Section 302, IPC by reversing the order
of acquittal passed by the Trial Court.
12. In the criminal jurisprudence, an accused is presumed to be
innocent till he is convicted by a competent Court after a full-fledged
trial, and once the Trial Court by cogent reasoning acquits the
accused, then the reaffirmation of his innocence places more burden
on the appellate Court while dealing with the appeal. No doubt, it is
settled law that there are no fetters on the power of the appellate
Court to review, reappreciate and reconsider the evidence both on
facts and law upon which the order of acquittal is passed. But the
court has to be very cautious in interfering with an appeal unless
there are compelling and substantial grounds to interfere with the
order of acquittal. The appellate Court while passing an order has to
give clear reasoning for such a conclusion.

13. It is no doubt true that there cannot be any strait jacket formula as
to under what circumstances appellate Court can interfere with the
order of acquittal, but the same depends on facts and circumstancesPage 11
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of each case. In the case on hand, we have to examine the rationale
behind the conclusion of the High Court in convicting the accused
and the compelling reasons to deviate from the order of acquittal
passed by the Trial Court.
14. On a thorough analysis of the judgment impugned, it is evident
that the High Court has not recorded any reasons for partly setting
aside the judgment of the Trial Court which has acquitted all the
accused persons from the same set of facts before it. The High Court
which has set aside the acquittal order of the Trial Court has
observed that the Trial Court has based its reasoning on guess work.
We find it that even the High Court has committed the same mistake
and basing on the same facts and guess work has arrived at the
conclusion that the appellant is guilty.
15. It is specifically urged by the learned counsel for the appellant that
as per the medical evidence, the injuries sustained by the deceased
are possible only when the assaulter stands at a height above the
victim. In this process, the court has guessed that Mahavir Singh
(accused-appellant) and Jagannath (deceased) were of similar heightPage 12
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which is nobody’s case and no evidence is available on record to
come to a conclusion that the height of the two is same. The
evidence available on record in this regard is a statement of Dr. A.K.
Upadhyay (PW 12) that the deceased was of average Height. Now in
order to establish that the bullet traveled in a downward direction,
they have explained that the position of the gun usually kept in a
downward position resting on the chest. Now the logical fallacy is to
have assumed the height of the platform whose height has not been
recorded due to sloppy investigation by the Investigating Officers.
There exists a reasonable doubt because of the fact that the height of
the platform was not recorded and the same cannot be guessed at
this point of time. Further, the deposition of the Doctor is very clear
that the shooter might have been at a lower level. While some of the
witnesses have suggested that the deceased was on the ground
while others have pointed out to the fact that he was standing on the
platform. Therefore, from the same set of facts, the Trial Court as well
as the High Court have arrived at different conclusions, such an
exercise cannot be undertaken by the High Court in an Appeal unless
the conclusion drawn by the Trial Court cannot be sustained based
on the facts and circumstances and when two conclusions are
possible based on the evidence available on record, the appellatePage 13
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court should be all the more reluctant to interfere with the findings
recorded by the Trial Court.
16. It appears to us that the difference of opinion between the Courts
below in deciding whether or not the appellant has committed the
offence with which he is charged, mainly revolves around the
presence of alleged direct eyewitnesses at the spot, possibility of
appellant’s inflicting firearm injury to the deceased in view of the
positioning of the injury sustained by the deceased, the material
infirmity, if any, and contradiction in the ocular and medical evidence.
It is, however, clear that though, at the outset, the accused/appellant
absolutely rejected the allegation and pleaded not guilty by taking the
defence of alibi that, on the date of incident, he was irrigating his
field, but his claim has not been supported by any evidence.
17. Undoubtedly, Gambhir Singh (PW 7—brother of the deceased)
has accepted that certain criminal proceedings were pending
between the accused and his family members. He also admits that
one case had already been filed by the accused prior to the incident.
Admittedly, Shanti Devi (PW 8—wife of the deceased) also has
deposed that there was an altercation between her son Vijender andPage 14
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Dhullu, on which they killed her husband. Thus, the parties are
admittedly in hostile terms and the incident in question occurred in a
broad day light at the residence of the deceased by doing away his
precious life. The prosecution, in support of its version, has heavily
relied upon the statements of eyewitnesses Gambhir Singh (PW
7-complainant and also brother of the deceased), Shanti Devi (PW
8-wife of the deceased), Madho Singh (PW 9) and Bir Singh (PW
11-nephew of the deceased). The learned Trial Judge disbelieved the
presence of eyewitnesses on the spot in view of delayed recording of
their statements by the Investigating Officer (PW 13) and also they
remained unsuccessful in revealing exactly as to where the bullet had
struck the deceased. We also find that nowhere in the First
Information Report, the name or presence of eyewitness Shanti Devi
(PW 8) was mentioned as a witness to the incident.
18. The High Court has attached a lot of weight to the evidence of the
said Madho Singh (PW 9) as he is an independent witness. On
perusal of the record, it appears that the said person already had
deposed for the victim family on a number of previous occasions, that
too against the same accused. This being the fact, it is important to
analyze the jurisprudence on interested witness. It is a settled
principle that the evidence of interested witness needs to be
scrutinized with utmost care. It can only be relied upon if the evidence
has a ring of truth to it, is cogent, credible and trustworthy. Here we
may refer to chance witness also. It is to be seen that although the
evidence of a chance witness is acceptable in India, yet the chance
witness has to reasonably explain the presence at that particular
point more so when his deposition is being assailed as being tainted.
19. A contradicted testimony of an interested witness cannot be usually
treated as conclusive. The said Madho Singh (PW 9) has admitted
that he has been a witness in another case against the accused for
the deceased. Here it is to be seen that the said Madho Singh
(PW 9) has been acting as a pocket witness for the family.
Further, the credibility of this independent witness can be
challenged on the fact that the commotion was only heard by the
said Madho Singh (PW 9) whereas the rest of the members of the
locality did not come for help. As Madho Singh (PW 9) is a chance
witness as well as an interested witness herein, causes suspicion and
does not inspire confidence. This admission by Madho Singh (PW 9)
not only forces us to doubt the veracity of his own deposition but also
has created doubts on the version of Gambhir Singh (PW 7).
20. We have thoroughly examined the evidence of expert witnesses as
well as other ocular witnesses. The evidence of Dr. A.K. Upadhyay
(PW 12) reveals that when the deceased sustained bullet injury, he
might have been in a standing position and the bullet would have
entered from left side and exited from right side of the body. This fact,
however, corroborated with the evidences of PW 7 (Gambhir Singh)
and PW 8 (Shanti Devi), but the statements of PW 9 (Madho Singh)
and PW 11 (Bir Singh) do not support it. Similarly, there were
contradictions between the statements of Dr. Upadhyay (PW 12) and
that of the eyewitnesses as to the distance and height of the
assaulter while inflicting the grievous injury to the deceased and
whether the deceased was standing on the platform (Chabutara) or
came down from it while receiving the bullet injury. We find from the
statement of Dr. Upadhyay (PW 12) that he was not clear and definite
to say exactly from what position and distance the assaulter could
have fired the gun.
21. Going by the seizure memo (Ex.P/3) apparently one gun, 12 live
and 9 empty cartridges were recovered from the appellant. ThePage 17
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evidences of eyewitnesses support this fact and no question was put
to the I.O. after the recovery of the gun and cartridges, that whether
he himself shot from the seized gun to create evidence. The
prosecution’s story is somewhat strengthened by the ballistic expert’s
report (Ex. P/12) which affirms that the gun seized from the appellant
was in perfect order, the empty cartridges bore the same impression
on pin as seized from the accused and the live cartridges were
actually fired by the gun seized from the appellant. But nowhere it
was mentioned that the death of the victim occurred by the bullet
released from the seized gun. Merely the seizure of gun and
cartridges from the appellant, the ongoing enmity between the parties
on account of various criminal litigations and the altercation and
exchange of heated words between the rival groups on the morning
of the same day, cannot establish the guilt of accused beyond
reasonable doubt.
22. The position of law in cases where there is a contradiction between
medical evidence and ocular evidence can be crystallized to the
effect that though the ocular testimony of a witness has greater
evidentiary value vis-à-vis medical evidence, when medical evidence
makes the ocular testimony improbable, that becomes a relevantPage 18
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factor in the process of the evaluation of evidence. However, where
the medical evidence goes far that it completely rules out all
possibility of the ocular evidence being true, the ocular evidence may
be disbelieved [See : Abdul Sayeed v . State of M.P., (2010) 10
SCC 259]
23. In view of contradictory statements by the prosecution witnesses
coupled with the unmatched medical evidence, delay in recording of
statements of witnesses by the I.O., non-availability of proper site
plan and in the absence of authenticated ballistic expert report that
the bullet had been fired with the seized gun of the appellant, the Trial
Court had to decide the case against the prosecution and discharge
the appellant from the charges. The High Court, upon carrying the
exercise of reappreciation of evidence, formed the view that the
reasons for delay in recording the statements of witnesses have been
properly explained; that as soon as the bullet struck on the abdomen
of the deceased, he immediately fell down from the platform. It further
observed that though the name of Shanti Devi (PW 8) was not
mentioned in the FIR, there is positive evidence on record to
establish her presence at the time of incident along with other
eyewitnesses and this fact has been established by theirPage 19
19
corroborative statements and there is no reason to disbelieve their
statements. Here it is worthwhile to mention that both the Courts
below formed a common opinion that the prosecution has failed to
prove the charges under Sections 148 and 302/149 of IPC against
the co-accused and discharged them from those charges. The
disagreement between the Trial Court and the High Court is only in
respect of the charge under Section 302, IPC against the appellant.
24. It is the duty of the Apex Court to separate chaff from the husk and to
dredge the truth from the pandemonium of Statements. It is but
natural for human beings to state variant statements due to time gap
but if such statements go to defeat the core of the prosecution then
such contradictions are material and the Court has to be mindful of
such statements [See : Tahsildhar Singh v. State of UP, AIR 1959
SC 1012; Pudhu Raja v. State, (2012) 11 SCC 196; State of UP v.
Naresh, (2011) 9 SCC 698]. The case in hand is a fit case, wherein
there are material exaggerations and contradictions, which inevitably
raises doubt which is reasonable in normal circumstances and
keeping in view the substratum of the prosecution case, we cannot
infer beyond reasonable doubt that the appellant caused the death of
the deceased. Page 20
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25. Normally, when a culprit perpetrates a heinous crime of murder
and takes away the life of a human being, if appropriate punishment
is not awarded to that offender, the Court will be failing in its duty.
Such crime, when indulged by a criminal blatantly, is not committed
against an individual alone, but is committed against the society as
well to which the criminal and victim are a part. It needs no emphasis
from this Court that the punishment to be awarded for such a crime
must be relevant and it should conform to and be consistent with the
atrocity and brutality with which the crime has been carried out.
26. Here in the instant case, no doubt, an innocent man has lost his life
at the hands of another man, and looking at the way in which the
investigation was handled, we are sure to observe that it was carried
out in a lackluster manner. The approach of the Investigating Officer
in recording the statements of witnesses, collecting the evidence and
preparation of site map has remained unmindful. The Investigating
Officer, dealing with a murder case, is expected to be diligent, truthful
and fair in his approach and his performance should always be in
conformity with the police manual and a default or breach of duty mayPage 21
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prove fatal to the prosecution’s case. We may hasten to add that in
the present case the investigation was carried out with unconcerned
and uninspiring performance. There was no firm and sincere effort
with the needed zeal and spirit to bring home the guilt of the accused.
We feel that there are no compelling and substantial reasons for the
High Court to interfere with the order of acquittal when the
prosecution has miserably failed to establish the guilt of the accused.
Added to this, the accused has already undergone nine years’ of
imprisonment and we feel that it is a fit case inviting interference by
this Court.
27. Resultantly, the appeal is allowed and the judgment of conviction
and order of sentence passed by the High Court is set aside.
Consequently, the appellant shall be set at liberty forthwith if not
required in any other case.
……………………………..J.
(A.K. SIKRI)Page 22
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…………………………….J.
(N.V. RAMANA)
NEW DELHI,
NOVEMBER 09, 2016
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