IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 46 of 2004. Date of Decision:1.4.2011. _______________________________________________ Shayam Chand ….Appellant. Versus. State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? Yes. For the appellant :Mr. Anoop Chitkara, Advocate. For Respondent. :Mr.P.K.Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Dy. Advocate General. Dev Darshan Sud, J.(Oral). This is one of those unfortunate cases where I find that this Court is left with no option but to remand the case to the learned Sessions Judge at Kullu for re-trial. On reading the judgment of the learned Court what I find is that the evidence in defence which consisted of two witnesses DW1 Hem Raj and DW2 Kehar Singh has not been touched at all and the documents Ext.P-25 (sale deed), Ext.DW1/1 to DW1/15 (copies of rapat dated 9.4.2002), DW1/16 to DW1/22 (copies of rapat dated 10.4.2002), DW1/23 (copy of rapat dated 20.2.2002), DW1/24, DW1/25, DW1/26 ( copy of mutation No.2714), DW1/27, DW1/28 and Exts.DW2/A to DW2/B have also not Whether reporters of the Local papers are allowed to see the judgment.yes. 2 been referred to at all. These documents according to the learned counsel were vital to the defence of the appellant herein to establish that he had been framed in the case and that after having performed all acts of making entries with respect to mutation, there was nothing left for him to do as it was only the Tehsildar who had sanctioned the mutation and in these circumstances, there was no occasion to the appellant to have made a demand for illegal gratification. Learned counsel for the petitioner has urged in detail that the evidence of the witnesses, namely, PW1 Satish Kumar complainant, PW9 Davinder Singh, Tehsildar has, in fact, been contradicted by the defence evidence having created a very serious doubt with respect to the occurrence. He submits that the oral documentary evidence of the witnesses when considered in conjunction with these contradictions cast a very serious doubt as to whether the incident had occurred at all and that the defence adopted by the petitioner herein that he was framed, has been established. From the judgment, I do not find any discussion on this important aspect. The rules for appreciation of evidence are by now well settled. The trial Courts need not be reminded of the manner in which evidence of the witnesses is to be appreciated. In C.Magesh and others Vs. State of Karnataka (2010) 5 SCC 645, the Supreme Court had an opportunity to deal with this aspect as to how the evidence is to be appreciated/relied upon. The Court held: “45 It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasize, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh V. State of U.P. (2008) 16 SCC 686 has held: (SCC p. 704, para 14) 3 “14.’21…The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy;….. the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation..” 46. In a criminal trial, evidence of the eyewitness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “ no man is guilty until proven so”, hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses”. (P. 655) In Sanjiv Kumar V. State of Punjab (2010) 3 SCC (Cri) 330, the Court affirms: “23. It has been observed that defence witnesses are often untruthful, but that is not to say that in all cases defence witnesses must be held to be untruthful, merely because they support the case of the accused. The right given to the appellant to explain the incriminating circumstances appearing against him serves a purpose, and cannot be ignored outright. In every case the court has to see whether the defence set up by the accused is probable, having regard to the totality of the facts and circumstances of the case. If the defence appears to be probable, the court may accept such defence. This is primarily a matter of appreciation of evidence on record and no straitjacket formula can be enunciated in this regard.” (P 337) Similarly in State of Haryana Vs. Ram Singh, 2002 SCC (Cri) 350 , the Court holds: “19……………….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 4 issued of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution...................................” (P. 362). In State of U.P. V. Babu Ram, AIR 2000 SC 1735, the court laid the guide lines for dealing with the evidence: “23 Depositions of witnesses, whether they are examined on the prosecution side or defence side or as Court witnesses are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a Court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses”. (P. 1740) I need not multiply precedent further but reiterate and follow the principle of appreciation of evidence as laid down by the Supreme Court in Dudh Nath Pandey V. State of U.P. AIR 1981 SC 911, holding: “19.…………………Defence witnesses are entitled to equal treatment with those of the prosecution. And Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses……………………..” (P.916) This principle was based on the fundamental of criminal jurisprudence as considered by the Supreme Court in Aher Raja Khima Vs. State of Saurashtra, AIR 1956 SC 217, holding: “9 Now it may be possible to take two views of this statement but there are two important factors in every criminal trial that weigh heavily in favour of an accused person: one is that the accused is entitled to the benefit of every reasonable doubt and the other, an off-shoot of the same principle, that when an 5 accused person offers a reasonable explanation of his conduct, then, even though he cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicate that they are false…………..” ( P. 221) I find no such exercise having been undertaken by the learned trial Court. The other option would be for me to convert this Court into a trial Court and to re-appreciate the entire evidence. I cannot help but place my displeasure on the record in the manner in which the learned trial judge has proceeded with the matter. It may be sentiment or morality which impelled him to discard the evidence but it could not be law which mandated that the learned Court should have at least made an attempt to look into the veracity /authenticity of the evidence. A terse one line observation that the evidence does not touch upon the merits of the case or that it does not advance the case of the defence, is no way to appreciate evidence in law. Before parting with the case, I cannot but express my regret in the manner in which the learned trial Court has dealt with the case. A remand after more than nine years is only prolonging the agony of the appellant as also adding a burden on the State. But the circumstances are so compelling that it leaves no option with me but to undertake this exercise. Needless to add that a fair trial encompasses within its ambit a consideration of the defence set up by the appellant. I may also add that the necessity was further strengthened by the fact that in his answer to questions under Section 313 Cr.P.C. the appellant in reply to question No.36 had in detail submitted his defence and documentary as well as oral evidence had been produced on the record in support of this contention. Since the Presiding Officer is no 6 longer in service, I refrain to add anything so far as his manner of conducting the case is concerned. The appeal is allowed. The judgment of the learned trial Court is set aside. A direction is issued to the learned Sessions Judge that he should proceed with the case afresh on the material on record and to dispose of the case as expeditiously as possible and in any event not later than 30th November, 2011. Parties are directed to appear before the learned Court on 30th May, 2011. Records be sent back. (Dev Darshan Sud), Judge. April 1, 2011(R)