Leading judgment on chance witness

Before the High Court, it was urged that PWs. 1 and 2 were related to the deceased, and PW-3 was a chance witness and no credence should be put on their evidence. The High Court did not accept the plea and finding the analysis of evidence by the trial Court to be in order, upheld the conviction and sentence.

8. Coming to the plea of the accused that PW-3 was 'chance witness' who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. In a murder trial by describing the independent witnesses as 'chance witnesses' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence. Therefore, there is no substance in the plea that PW-3's evidence which is clear and cogent is to be discarded.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1456 of 2004 

Decided On: 08.12.2004

Thangaiya  Vs. State of Tamil Nadu

Hon'ble Judges/Coram:

Dr. Arijit Pasayat and S.H. Kapadia, JJ.

Citation: (2005) 9 SCC 650

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When court should convert conviction from S 302 of IPC to S 304 of IPC?

We have gone through these two judgments. It is true
that the culpable homicide is defined in Section 299 of IPC. The

culpable homicide is a genus, whereas murder is it's species. All
murders are the culpable homicides, but all culpable homicides are
not murders. Defence can be successful in taking out the case from
the sweep of Section 300 of IPC in two contingencies. One is, if they
make out any exception given in Section 300 of IPC and, secondly, if
they make out a case of non-fulfillment of ingredients of clause firstly
to clause fourthly of Section 300 of IPC.
15] In those two contingencies, the culpable homicides will
not be murder and the accused is required to be dealt with as per
the punishment prescribed in Section 304 of IPC. In the judgments
referred above, there are certain guidelines as to how to appreciate
the evidence. There is emphasis on single blow of knife, no
argument or altercation immediately before the assault in between
the deceased and the appellant, the time of incident being night
time and absence of any motive. In the case of direct evidence, the
motive as a circumstance is not so important as in the case of
circumstantial evidence. So, in case of a case based on direct
evidence, there can be prosecution evidence on the point of motive
or it may not be there. If, however, such evidence is adduced, then
the duty of the Court is to assess the evidence. 

This would make us believe that it is

difficult to hold that there was any premeditation or pre-planning on
the part of the appellant to kill the deceased which would in turn
necessitate examining thoroughly the presence of intention or
knowledge as contemplated by Section 300 of IPC.

17] It is true that there are four injuries to the deceased. One
is abrasion on forehead that may be due to fall and there are stab
wounds on the chest and abdomen. The eye witnesses PW-4 Rafiq
and PW-7 Anushka have categorically stated about only one blow of
knife. It is very well true that the appellant has not given repeated
blows of knife on the deceased. It has also come in the evidence
that appellant ran away after the assault. The location of the injuries
on the body suggests that it was near a vital part of the body.
However, which part of the body, the assault would ultimately affect
would depend upon various factors i.e. the height of deceased and
the appellant, the distance in between them at the time of assault,
weapon used, the force applied and finally the intention of the
assailant. If the assault is from the very close distance, there is

likelihood of injuring the upper part of the body. Probably, if the
assault might have been on the abdomen or lower part of the body,
the result could have been different. Even though, the appellant had
brought knife along with him, we do not find that he intended to
cause death of deceased Shailesh. We are taking this view for the
reason that there is only single blow, that there is no argument or
altercation immediately earlier to the assault, that there are no
repeated blows even though opportunity was available and that
there is absence of evidence of expert suggesting that the injuries
were sufficient in the ordinary course of nature to cause death. 3rd
clause of Section 300 requires that the bodily injury intended to be
inflicted must be sufficient in the ordinary course of nature to cause
death and that means, it must be established by evidence. PW-10
Dr. Nilesh has been examined by the prosecution to prove the nature
of weapon used and it's connection with the stab injury. But, PW-10
does not say anything in this regard and his opinion vide Exh.66 is
also silent on this aspect of the matter. Merely because postmortem
is admitted (Exh.63) by defence, it does not relieve the prosecution
to prove the ingredients of Section 300 of IPC.
18] These facts create a doubt, in our opinion, about intention
of the appellant to inflict such injury as to cause the death of

Shailesh or the appellant having intention to deal such an injury as is
sufficient to cause death or the appellant having knowledge that in
all probability the injury caused by him would result in death of the
deceased. We infer that the appellant had intention to cause some
injury which possibly may not have caused the death and that it is
this element of uncertainty which takes the case out of the ambit of
Section 300 of IPC.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.361 OF 2016

 Suresh s/o Sadhuji Ghogre, Vs  The State of Maharashtra,

C ORAM : S.B. SHUKRE & S.M. MODAK, JJ.

PRONOUNCED ON : 11 th JANUARY, 2019.

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Guidelines of supreme court for conduct of criminal trial

In our view, in a murder trial it is sordid and repulsive matter that without informing the police station officer-in-charge, the matters are proceeded by the Court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. From the facts stated above, it appears that accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Addl. Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the duty of the Sessions Judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on part of any witness to remain present, it is the duty of the Court to take appropriate action including issuance of bailable/non-bailable warrants as the case may be. It should be well understood that prosecution cannot be frustrated by such methods and victims of the crime cannot be left in lurch.

Supreme Court of India

Shailendra Kumar vs State Of Bihar And Others on 28 November, 2001

Bench: M.B. Shah, B.N. Agrawal, Arijit Pasayat

           CASE NO.:
Appeal (crl.) 1218  of  2001

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