Tuesday, 4 April 2017

Whether it is permissible for police to record statements of witnesses belatedly on ground that they were sitting in shock meeting?

 In our view, the High Court had rightly considered these
omissions as material omissions amounting to contradictions
covered by the Explanation to Section 162 Cr.P.C. Moreover, it
has also come in evidence that there was a delay of 15-16 days
from the date of the incident in recording the statements of
PW3 and PW9 and the same was sought to be unconvincingly
explained by reference to the fact that the family had to sit for
shock meetings for 12 to 13 days. Needless to say, we are not
impressed by this explanation and feel that the High Court
was right in entertaining doubt in this regard.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1624-1625 OF 2013
HARBEER SINGH 
Ve
SHEESHPAL & ORS. 
Citation: 2017 CRLJ 169 SC

1. These appeals, by special leave, are directed against the
judgment and order dated 25th November, 2011, passed by the
High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur,
in D.B. Criminal Appeal No.290/1995 and D.B. Criminal
Appeal No.375/1995, whereby the High Court has quashed
and set aside the conviction of the accused respondents.
Criminal Appeal Nos.1624-1625 of 2013 are filed by the son of
the deceased and Criminal Appeal Nos.217-218 of 2013 are
filed by the State of Rajasthan challenging the acquittal order
passed by the High Court.
2. The brief facts of the case as unfolded by the prosecution
are as follows: On 21.12.1993, at 7.55 P.M., Bhagwara Ram
(PW-8), the brother of the deceased Balbir Singh, gave a
written report at P.S. Kotwali Sikar, stating that on
21.12.1993 in the evening at about 6.00 P.M., when his
younger brother Balbir (deceased) was returning to his house,
two men were standing near the Dhaba of Shankar and he
started talking to them. In the meantime, Sheeshpal (son of
Khuba Ram) came from the side of Sikar driving his Jeep and
with an intention to kill, hit Balbir and dragged him upto the
Dhaba of Suresh as a result of which Balbir died on the spot.
The owner of the Dhaba – Suresh Kumar chased them on his
motorcycle. It was further stated that the act was committed
by Sheeshpal in furtherance of his old enmity with Balbir in
connivance with Bhanwarlal, Dhanvir, Mangal (sons of Khuba
Ram) and Bhanwarlal’s brother-in-law Nemichand and Shiv
Bhagwan of Village Gothura Tagalan. It is also mentioned in
the written report that at the time of the incident, Sheeshpal
was driving the jeep and Nemichand, Shiv Bhagwan, Rajendra
and Prakash were with him in the Jeep and it is not
mentioned that Bhanwarwal was present in the jeep or at the
place of occurrence. The names of Dhanvir and Mangal were
dropped later on.
3. The Police registered a case under Section 302 of the
Indian Penal Code and began investigation. Formal FIR was
registered, place of occurrence was inspected, site plan was
prepared, post-mortem of the dead body was done,
Panchnama of the dead body was prepared and the vehicle
used in the crime along with number plate of the vehicle and
broken parts was seized. Statements of the witnesses were
recorded and during investigation accused persons were taken
into custody. After completion of the investigation, accused
Bhanwar Lal was declared absconding. Charge sheet was filed
against the accused persons before the learned Magistrate and
the case was committed to the Sessions Court for trial. On
Bhanwar Lal’s presence, his case was also committed as above
and both the cases were amalgamated and trial commenced.
Charges under Sections 149, 302, 120B of the IPC were
framed against all the accused persons except Bhanwar Lal.
Accused Bhanwar Lal was charged under Sections 302, 120B
of IPC. All the accused persons pleaded ‘not guilty’ and hence
they were tried by the Court of Sessions. The Trial Court
convicted the accused persons and sentenced them to life
imprisonment under Section 302 read with Section 149 of the
IPC. They were also sentenced severally under various
sections.
4. Aggrieved by the judgment and order dated 17.06.1995,
passed by the Trial Court, the accused persons filed appeals
before the High Court of Judicature for Rajasthan, Jaipur
Bench, Jaipur. The High Court allowed the appeals, set aside
the judgment and order passed by the Trial Court and
acquitted all the accused persons. Hence, these appeals, by
special leave, are filed before this Court.
5. We have heard the learned counsel appearing for the
Appellant as also the learned counsel appearing for the
Respondents and perused the oral and documentary evidence
on record.
6. The Trial Court convicted the accused relying upon the
successful establishment of the following facts by the
prosecution:
(a) Death of the deceased due to unnatural reasons
vide the evidence of PW4 (medical jurist who conducted
the post-mortem of the deceased), Ext. P-12
(post-mortem report), Ext. P-15 (Panchnama), and the
evidence of PW8 (complainant);
(b) Hatching of criminal conspiracy to commit the
murder of the deceased by accused Bhanwar Lal along
with Sheespal, Nemi Chand, Shiv Bhagwan and Rajendra
Kumar vide the evidence of PW3 and PW9;Page 6
6
(c) Existence of enmity between accused persons and
the deceased;
(d) Formation of an unlawful assembly by the accused
Sheeshpal, Nemichand, Shiv Bhagwan, Rajendra Kumar
and Prakash having the common object of committing
the murder of the deceased vide the evidence of PW8,
PW1, PW5, PW6 and PW11;
(e) Use of force and violence in furtherance of the
common object by using vehicle RJ–23-C-0203 of
Sheeshpal and commission of the offence defined under
Section 300, fourthly, of IPC.
7. However, the High Court gave the benefit of doubt to the
Respondents and acquitted them on the ground that the
prosecution was not able to prove its case beyond all
reasonable doubt since the eye-witnesses were interested in
the complainant and hence unreliable, while most other
prosecution witnesses were chance witnesses. The evidence of
the eye-witnesses both as to the fact of the alleged conspiracy
and the murder of the deceased, did not inspire confidence;
there were inconsistencies and improvements in the deposition
of the prosecution witnesses made over their statements
recorded under Section 161 Cr.P.C. Further, there was
unexplained delay in recording the evidence of certain
prosecution witnesses as well as many important and basic
lapses in investigation that made the prosecution case
suspicious.
8. Before proceeding with an analysis of various contentions
raised by the parties or expressing opinion on the appreciation
and findings of fact and law recorded by the Courts below, we
wish to reiterate the scope of interference by this Court in a
criminal appeal against acquittal under Article 136 of the
Constitution of India.
9. In Himachal Pradesh Administration Vs. Shri Om
Prakash, (1972) 1 SCC 249, it was held by this Court:
“In appeals against acquittal by special leave
under Article 136, this Court has undoubted power
to interfere with the findings of fact, no distinction
being made between judgments of acquittal and
conviction, though in the case of acquittals it will
not ordinarily interfere with the appreciation of
evidence or on findings of fact unless the High
Court ‘acts perversely or otherwise improperly’.”
10. The above principle has been reiterated by this Court in a
number of judicial decisions and the position of law that
emerges from a comprehensive survey of these cases is that in
an appeal under Article 136 of the Constitution of India, this
Court will not interfere with the judgment of the High Court
unless the same is clearly unreasonable or perverse or
manifestly illegal or grossly unjust. The mere fact that another
view could also have been taken on the evidence on record is
not a ground for reversing an order of acquittal. [See State of
U.P. Vs. Harihar Bux Singh & Anr., (1975) 3 SCC 167; State
of Uttar Pradesh Vs. Ashok Kumar & Anr., (1979) 3 SCC 1;
State of U.P. Vs. Gopi & Ors., (1980) Supp. SCC 160; State
of Karnataka Vs. Amajappa & Ors., (2003) 9 SCC 468; State
of Uttar Pradesh Vs. Banne @ Baijnath & Ors., (2009) 4 SCC
271; State of U.P. Vs. Gurucharan & Ors., (2010) 3 SCC 721;
State of Haryana Vs. Shakuntla & Ors., (2012) 5 SCC 171
and Hamza Vs. Muhammadkutty @ Mani & Ors., (2013) 11
SCC 150].
11. It is a cardinal principle of criminal jurisprudence that
the guilt of the accused must be proved beyond all reasonable
doubt. The burden of proving its case beyond all reasonable
doubt lies on the prosecution and it never shifts. Another
golden thread which runs through the web of the
administration of justice in criminal cases is that if two views
are possible on the evidence adduced in the case, one pointing
to the guilt of the accused and the other to his innocence, the
view which is favourable to the accused should be adopted.
[Vide Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC
808; State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180;
Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC
415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC
124 and Golbar Hussain & Ors. Vs. State of Assam and
Anr., (2015) 11 SCC 242].
12. Keeping in mind the aforesaid position of law, we shall
examine the arguments advanced by the parties as also the
evidence and the materials on record and see whether in view
of the nature of offence alleged to have been committed by the
Respondents, the findings of fact by the High Court call for
interference in the facts and circumstances of the case.
13. It has been submitted by the learned counsel for the
Appellant that the High Court had erred in ignoring the
prosecution evidence which conclusively proved the guilt of the
accused persons who had conspired to kill the deceased in a
garb of accident. Further, the High Court had also erred in
reversing the conviction of the accused persons despite
presence of sufficient evidence which indicated involvement of
all the accused persons and a complete chain of incriminating
circumstances proved by the prosecution.
14. Per contra, the learned counsel for the Respondents has
primarily reiterated the reasons that found favour with the
High Court in recording an order of acquittal in favour of the
Respondents viz. failure of prosecution to prove beyond
reasonable doubt that the accused persons Bhanwarlal,
Sheeshpal, Nemichand and Shiv Bhagwan hatched criminal
conspiracy at the Dhani of Sheeshpal at around 7-8 p.m. on
19.12.1993 and that the prosecution case suffered from
contradictions, discrepancies and inconsistencies and, in
particular, that the testimony of eye witnesses did not inspire
confidence due to the reasons recorded by the High Court.
15. We have given careful consideration to the submissions
made by the parties and we are inclined to agree with the
observations of the High Court that PW3 and PW9 were not
witnesses to the alleged conspiracy between the accused
persons since not only the details of the conversation given by
these two prosecution witnesses were different but also their
presence at the alleged spot at the relevant time seems
unnatural in view of the physical condition of PW9 and the
distance of Sheeshpal’s Dhani from Sikar road. Besides, it
appears that there have been improvements in the statements
of PW3. The Explanation to Section 162 Cr.P.C. provides that
an omission to state a fact or circumstance in the statement
recorded by a police officer under Section 161 Cr.P.C., may
amount to contradiction if the same appears to be significant
and otherwise relevant having regard to the context in which
such omission occurs and whether any omission amounts to a
contradiction in the particular context shall be a question of
fact. Thus, while it is true that every improvement is not fatal
to the prosecution case, in cases where an improvement
creates a serious doubt about the truthfulness or credibility of
a witness, the defence may take advantage of the same. [See
Ashok Vishnu Davare Vs. State Of Maharashtra, (2004) 9
SCC 431; Radha Kumar Vs. State of Bihar (now
Jharkhand), (2005) 10 SCC 216; Sunil Kumar Sambhudayal
Gupta (Dr.) & Ors. Vs. State of Maharashtra, (2010) 13 SCC
657 and Baldev Singh Vs. State of Punjab, (2014) 12 SCC
473]. In our view, the High Court had rightly considered these
omissions as material omissions amounting to contradictions
covered by the Explanation to Section 162 Cr.P.C. Moreover, it
has also come in evidence that there was a delay of 15-16 days
from the date of the incident in recording the statements of
PW3 and PW9 and the same was sought to be unconvincingly
explained by reference to the fact that the family had to sit for
shock meetings for 12 to 13 days. Needless to say, we are not
impressed by this explanation and feel that the High Court
was right in entertaining doubt in this regard.
16. As regards the incident of murder of the deceased, the
prosecution has produced six eye-witnesses to the same. The
argument raised against the reliance upon the testimony of
these witnesses pertains to the delay in the recording of their
statements by the police under Section 161 of Cr.P.C. In the
present case, the date of occurrence was 21.12.1993 but the
statements of PW1 and PW5 were recorded after two days of
incident, i.e., on 23.12.1993. The evidence of PW6 was
recorded on 26.12.1993 while the evidence of PW11 was
recorded after 10 days of incident, i.e., on 31.12.1993.
Further, it is well-settled law that delay in recording the
statement of the witnesses does not necessarily discredit their
testimony. The Court may rely on such testimony if they are
cogent and credible and the delay is explained to the
satisfaction of the Court. [See Ganeshlal Vs. State of
Mahrashtra, (1992) 3 SCC 106; Mohd. Khalid Vs. State of
W.B., (2002) 7 SCC 334; Prithvi (Minor) Vs. Mam Raj & Ors.,
(2004) 13 SCC 279 and Sidhartha Vashisht @ Manu Sharma
vs. State (NCT of Delhi), (2010) 6 SCC 1].
17. However, Ganesh Bhavan Patel Vs. State Of
Maharashtra, (1978) 4 SCC 371, is an authority for the
proposition that delay in recording of statements of the
prosecution witnesses under Section 161 Cr.P.C., although
those witnesses were or could be available for examination
when the Investigating Officer visited the scene of occurrence
or soon thereafter, would cast a doubt upon the prosecution
case. [See also Balakrushna Swain Vs. State Of Orissa,
(1971) 3 SCC 192; Maruti Rama Naik Vs. State of
Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State
of Punjab, (2005) 3 SCC 68]. Thus, we see no reason to
interfere with the observations of the High Court on the point
of delay and its corresponding impact on the prosecution case.
18. Further, the High Court has also concluded that these
witnesses were interested witnesses and their testimony were
not corroborated by independent witnesses. We are fully in
agreement with the reasons recorded by the High Court in
coming to this conclusion.
19. In Darya Singh Vs. State of Punjab, AIR 1965 SC 328 =
1964 (7) SCR 397, this Court was of the opinion that a related
or interested witness may not be hostile to the assailant, but if
he is, then his evidence must be examined very carefully and
all the infirmities must be taken into account. This is what
this Court said:
“There can be no doubt that in a murder case when
evidence is given by near relatives of the victim and
the murder is alleged to have been committed by the
enemy of the family, criminal courts must examine
the evidence of the interested witnesses, like the
relatives of the victim, very carefully........But where
the witness is a close relation of the victim and is
shown to share the victim’s hostility to his
assailant, that naturally makes it necessary for the
criminal courts examine the evidence given by such
witness very carefully and scrutinise all the
infirmities in that evidence before deciding to act
upon it. In dealing with such evidence, Courts
naturally begin with the enquiry as to whether the
said witnesses were chance witnesses or whether
they were really present on the scene of the offence.
…..If the criminal Court is satisfied that the witness
who is related to the victim was not a
chance-witness, then his evidence has to be
examined from the point of view of probabilities and
the account given by him as to the assault has to be
carefully scrutinised.”
20. However, we do not wish to emphasise that the
corroboration by independent witnesses is an indispensable
rule in cases where the prosecution is primarily based on the
evidence of seemingly interested witnesses. It is well settled
that it is the quality of the evidence and not the quantity of the
evidence which is required to be judged by the Court to place
credence on the statement.
21. Further, in Raghubir Singh Vs. State of U.P., (1972) 3
SCC 79, it has been held that the prosecution is not bound to
produce all the witnesses said to have seen the occurrence.
Material witnesses considered necessary by the prosecution
for unfolding the prosecution story alone need be produced
without unnecessary and redundant multiplication of
witnesses. In this connection general reluctance of an average
villager to appear as a witness and get himself involved in
cases of rival village factions when spirits on both sides are
running high has to be borne in mind.
22. The High Court has further noted that there were chance
witnesses whose statements should not have been relied upon.
Learned counsel for the Respondents has specifically
submitted that PW5 and PW6 are chance witnesses whose
presence at the place of occurrence was not natural.
23. The defining attributes of a ‘chance witness’ were
explained by Mahajan, J., in the case of Puran Vs. The State
of Punjab, AIR 1953 SC 459. It was held that such witnesses
have the habit of appearing suddenly on the scene when
something is happening and then disappearing after noticing
the occurrence about which they are called later on to give
evidence.
24. In Mousam Singha Roy and Ors. Vs. State of W.B.,
(2003) 12 SCC 377, this Court discarded the evidence of
chance witnesses while observing that certain glaring
contradictions/omissions in the evidence of PW2 and PW3 and
the absence of their names in the FIR has been very lightly
discarded by the Courts below. Similarly, Shankarlal Vs.
State of Rajastahan, (2004) 10 SCC 632, and Jarnail Singh
& Ors. Vs. State of Punjab, (2009) 9 SCC 719, are authorities
for the proposition that deposition of a chance witness, whose
presence at the place of incident remains doubtful, ought to be
discarded. Therefore, for the reasons recorded by the High
Court we hold that PW5 and PW6 were chance witnesses and
their statements have been rightly discarded.
25. In the light of the above and other reasons recorded by
the High Court, we hold that the evidence of the eye witnesses
is not truthful, reliable and trustworthy and hence cannot
form the basis of conviction. Their presence at the scene of
occurrence at the time of the incident is highly unnatural as
also their ability to individually and correctly identify each of
the accused from a considerable distance, especially when it
was dark at the alleged place of occurrence, is itself suspect.
26. Besides these, the prosecution has also been unable to
convincingly connect the jeep of the accused Sheeshpal with
the incident beyond reasonable doubt. Further, owing to other
lapses in investigation, as recorded by the High Court, we are
convinced that the prosecution has been unable to prove its
case beyond all reasonable doubt. The view taken by the High
Court in the facts and circumstances of the case appears to be
a reasonably plausible one.
27. Thus, in the light of the above discussion, we are of the
view that the present appeals are devoid of merits, and we find
no ground to interfere with the judgment passed by the High
Court. The appeals are, accordingly, dismissed.
….....….……………………J
(Pinaki Chandra Ghose)
….....…..…………………..J
(Amitava Roy)
New Delhi;

October 20, 2016. 
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