How to appreciate evidence if there is variation in the narration of incident by two witnesses or between two statements of the same witness?

 In the cross-examination, this witness has stated that he

stated before the police that Ananda was in a sitting position and

accused Nos. 2 and 3 had caught him but it is not there in the

statement. Learned counsel Shri Ghanekar argued that it shows that

this evidence is in the nature of improvement and, therefore, cannot be considered. The analysis of the statement under Section 161 of Cr.P.C. of this witness reveals that this witness has stated that in the auto rickshaw accused Nos. 2 and 3 and two more persons were sitting and the deceased Ananda was sleeping in the auto rickshaw in injured condition. This clearly shows that this witness has stated about the presence of accused Nos. 2 and 3 and two more persons and about presence of the deceased in the injured condition in the auto rickshaw.

It is true that whatever PW 3 has stated in the evidence does not appear in verbatim in the statement before the police. Mere variation between the statement under Section 161 of Cr.P.C. and deposition before the Court in narration of the incident would not amount to contradiction.

It has been held in the case of Rammi alias Rameshwar vs. State of

Madhya Pradesh reported in 1999 Cri.L.J. 4561 thus :-

24. When eye-witness is examined at length it is

quite possible for him to make some discrepancies.

No true witness can possibly escape from making

some discrepant details. Perhaps an untrue

witness who is well tutored can successfully make

his testimony totally non-discrepant. But Courts

should bear in mind that it is only when

discrepancies in the evidence of a witness are so

incompatible with the credibility of his version that

the Court is justified in jettisoning his evidence.

But too serious a view to be adopted on mere

variations falling in the narration of an incident

(either as between the evidence of two witnesses

or as between two statements of the same witness)

is an unrealistic approach for judicial scrutiny.  {Para 41}

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 268 OF 2014

 Shyamsundar Vithal Pawle Vs The State of Maharashtra 

CORAM : S. V. Gangapurwala &

M.G. Sewlikar, JJ.

PRONOUNCED ON : 11th September, 2020.

JUDGMENT : ( PER M. G. SEWLIKAR, J.)

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Whether joint disclosures by two accused are admissible in evidence?

 It was contended by the counsel for the accused No.3 that the

evidence regarding discovery of the dead body of Raman cannot be

used against accused No.3. Inasmuch as, when accused No.3 gave

his statement and recorded in the form of Memorandum under

Section 27 of the Evidence Act, the Police already knew about the

spot where the dead body was thrown as it was disclosed by

accused No.2. It was contended that the statement made by

accused No.2 can be used only against accused No.2. This

argument has been negatived by the Trial Court after analyzing the

decisions which were brought to its notice, as can be discerned

from para 46 to para 53 of the judgment. The Trial Court found that

in the present case the accused Nos.2 and 3 made disclosure (about

the spot where dead body of Raman was thrown by them) one after

another in quick succession and that their statement came to be

recorded separately. The only thing that had happened was a joint

discovery made at the instance of both the accused Nos.2 and 3, on

proceeding to the spot along with the police. Section 27 of the

Evidence Act is an exception to Section 25 of the Act. Section 25

mandates that no confession to a Police Officer while in police

custody shall be proved as against a person accused of any offence.

Section 27, however, provides that any fact deposed to and

discovered in consequence of information received from a person

accused of any offence, in the custody of a Police Officer, so much

of such information, whether it amounts to a confession or not, as

relates distinctly to the fact thereby discovered, may be proved. The

fact where the dead body of deceased Raman was disposed, was

disclosed by both the accused Nos.2 and 3 to the Investigating

Officer in the presence of SK Idris (PW 2) one after another on 12th

May 2003 at 3.05 hrs and 3.25 hrs. respectively. The discovery was

made only after accused Nos.2 and 3 were taken together by the

police to the spot in the neighbouring State (Madhya Pradesh),

where the recovery Panchnama was recorded bearing Exh.76A. In

other words, the disclosure of the relevant fact by accused No.3 to

the Investigating Officer preceeded the discovery of dead body from

the disclosed spot at the instance of both the accused Nos. 2 and 3.

It was not a case of recording of statement of accused No.3 after

discovery nor a joint statement of accused Nos.2 and 3, but

disclosure made by them separately in quick succession to the

Investigating Officer, preceding the discovery of the fact so stated.

The fact disclosed by them, therefore, and the discovery made at

their instance, was admissible against both the accused in terms of

Section 27 of the Evidence Act.

20. In the case of State (NCT of Delhi) Vs. Navjot Sandhu,20 this

Court has held that a joint disclosure or simultaneous disclosures,

per se, are not inadmissible under Section 27. A person accused

need not necessarily be a single person, but it could be a plurality

of the accused. The Court held that a joint or simultaneous

disclosure is a myth, because two or more accused persons would

not have uttered informatory words in chorus. When two persons

in custody are interrogated separately and simultaneously and

both of them may furnish similar information leading to the

discovery of fact which was reduced into writing, such disclosure

by two or more persons in police custody do not go out of the

purview of Section 27 altogether. What is relevant is that

information given by one after the other without any break, almost

simultaneously, as in the present case and such information is

followed up by pointing out the material things by both of them

then there is no good reason to eschew such evidence from the

regime of Section 27. Whether that information is credible is a

matter of evaluation of evidence. The Courts below have accepted

the prosecution version in this behalf, being credible. Suffice it to

say that the disclosure made by Accused No. 3 about the relevant

fact, per se, is not inadmissible.

[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 467/2010

Kishore Bhadke Vs. State of Maharashtra 

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Whether joint disclosures by accused is admissible in evidence as per S 27 of evidence Act?

Learned counsel has tried to assail the prosecution case on one more ground by relying on the case of Abdul Hafeez v. State of A.P. : MANU/SC/0091/1982 : (1983) SCC 143 : (MANU/SC/0091/1982 : AIR 1983 SC 307) and has challenged the prosecution case about recovery of dead body at the instance of appellants by haranguing that it was a joint disclosure which is not admissible.

69. There appears no force in the aforesaid arguments.

70. In State (NCT of Delhi) v. Navjot Sandhu : MANU/SC/0465/2005 : (2005) 11 SCC 600 : (AIR 2005 SC 3820) the Hon'ble Supreme Court has laid down the law as under:

"Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs. 10 lacs from the truck in which they were found at Srinagar is in issue. Learned senior counsel Mr. Shanti Bhushan and Mr. Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the Ken of Section 27, whereas it is the contention of Mr. Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the informants/accused. Some of the High Courts have taken the view that the wording "a person" excludes the applicability of the Section to more than one person. But, that is too narrow a view to be taken. Joint disclosures to be more accurate, simultaneous disclosures, perse, are not inadmissible under Section 27. 'A person accused' need not necessarily be a single person, but it could be plurality of accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27."

71. In paragraph 146 of the aforesaid judgment, the Apex Court has discussed the case of Mohd. Abdul Hafeez v. State of A.P.; MANU/SC/0091/1982 : (1983) 1 SCC 143 : (AIR 1983 SC 367)(supra) cited by learned counsel for the appellants and has held that:

"there is nothing in this judgment which suggests that simultaneous disclosures by more than one accused do not at all enter into the arena of Section 27, as a proposition of law."

72. Accordingly we do not find any illegality in the admissibility of joint disclosure statement by the appellants in this case specially in view of the fact that the dead body along with other incriminating articles and the 'aari' used as weapon of murder have been recovered by the police after such disclosure.

73. The Apex Court in the case of A. N. Venkatesh and another v. State of Karnataka; MANU/SC/0468/2005 : 2005 SCC (Cri) 1938 : (AIR 2005 SC 3809) has held that even if the disclosure statement is held to be not admissible under Section 27 due to some reason, still it is relevant under Section 8 of the Evidence Act. The evidence of the circumstances, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found is admissible under Section 8 irrespective of the fact whether the statement made by the accused falls within the purview of Section 27 or not. Even if, the disclosure statement is held to be not admissible under Section 27 of Evidence Act, still it is relevant under Section 8 of Evidence Act.

IN THE HIGH COURT OF ALLAHABAD

Criminal (Capital) Appeal No. 962 of 2007

Decided On: 22.01.2016

Vikash Sharma Vs.  State of Uttar Pradesh

Coram:B.K. Narayana and Vijay Lakshmi, JJ.

Citation: 2016 CRLJ(NOC)328 KAR

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