SHAHAJA @ SHAHAJAN ISMAIL MOHD. SHAIKH versus STATE OF MAHARASHTRA
[2022] 12 S.C.R. 196, Supreme Court of India, 2022
Outcome: Dismissed (Dismissed)
Segment: Facts
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SHAHAJA @ SHAHAJAN ISMAIL MOHD. SHAIKH
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 739 of 2017)
JULY 14, 2022
[SURYA KANT AND J. B. PARDIWALA, JJ.]
Penal Code, 1860 – s.302 – Murder – Evidence – Ocular
evidence – Discovery of fact in consequence of an information
received from accused – Victim-deceased and appellant were working
as labourers – Prosecution case that quarrel ensued between the
victim and the appellant on the night of 10.12.2006, which was
witnessed by PW-1 and PW-8 – Appellant assaulted victim with a
hammer on his head – Victim died – Trial Court relied upon the oral
testimony of the PW-1,PW-8 and the evidence of discovery of weapon
i.e. hammer and convicted appellant – High Court concurred with
the findings of the trial Court and dismissed the appeal – On appeal,
held: In assessing the value of the evidence of the eyewitnesses,
two principal considerations are whether, in the circumstances of
the case, it is possible to believe their presence at the scene of
occurrence or in such situations as would make it possible for them
to witness the facts deposed to by them and secondly, whether there
is anything inherently improbable or unreliable in their evidence –
In respect of both these considerations, the circumstances either
elicited from those witnesses themselves or established by other
evidence tending to improbabilise their presence or to discredit the
veracity of their statements, will have a
bearing upon the value
which a Court would attach to their evidence – In the instant case,
there is nothing palpable or glaring in the evidence of the two eye-
witnesses on the basis of which the Court can take the view that
they are not true or reliable eye-witnesses – Both the Courts below
rightly believed the two eye witnesses i.e. PW-1 and PW-8 – As far
as discovery of weapon is concerned, in the absence of exact words,
attributed to an accused person, as statement made by him being
deposed by the Investigating Officer in his evidence, and also
without proving the contents of the panchnamas, the trial Court
was not justified in placing reliance upon the circumstance of
discovery of weapon – However, the conduct of the appellant herein
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would be relevant u/s. 8 of the Evidence Act – Evidence Act, 1872 –
ss. 8 and 27.
Constitution of India – Exercise of power under Art.136 in
criminal appeals – Discussed.
Dismissing the appeal, the Court
HELD: 1. The appreciation of ocular evidence is a hard
task. There is no fixed or straight-jacket formula for appreciation
of the ocular evidence. The judicially evolved principles for
appreciation of ocular evidence in a criminal case can be
enumerated as under:
I. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness read as a
whole appears to have a ring of truth. Once that impression is
formed, it is undoubtedly necessary for the Court to scrutinize
the evidence more particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the evidence as a whole
and evaluate them to find out whether it is against the general
tenor of the evidence given by the witness and whether the earlier
evaluation of the evidence is shaken as to render it unworthy of
belief.
II. If the Court before whom the witness gives evidence
had the opportunity to form the opinion about the general tenor
of evidence given by the witness, the appellate court which had
not this benefit will have to attach due weight to the appreciation
of evidence by the trial court and unless there are reasons weighty
and formidable it would not be proper to reject the evidence on
the ground of minor variations or infirmities in
the matter of trivial
details.
III. When eye-witness is examined at length it is quite
possible for him to make some discrepancies. 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.
IV. Minor discrepancies on trivial matters not touching the
core of the case, hyper technical approach by taking sentences
torn out of context here or there from the evidence, attaching
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importance to some technical error committed by the investigating
officer not going to the root of the matter would not ordinarily
permit rejection of the evidence as a whole.
V. 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.
VI. By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident. It is
not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by
events. The witness could not have anticipated the occurrence
which so often has an element of surprise. The mental faculties
therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to
person. What one may notice, another may not. An object or
movement might emboss its image on one person’s mind whereas
it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a
conversation and reproduce the very words used by them or heard
by them. They can only recall the main purport of the conversation.
It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their
estimates
by guess work on the spur of the moment at the time of
interrogation. And one cannot expect people to make very precise
or reliable estimates in such matters. Again, it depends on the
time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in rapid
succession or in a short time span. A witness is liable to get
confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing cross
examination by counsel and out of nervousness mix up facts, get
confused regarding sequence of events, or fill up details from
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imagination on the spur of the moment. The subconscious mind
of the witness sometimes so operates on account of the fear of
looking foolish or being disbelieved though the witness is giving
a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent
with the evidence need not necessarily be sufficient to amount to
contradiction. Unless the former statement has the potency to
discredit the later statement, even if the later statement is at
variance with the former to some extent it would not be helpful
to contradict that witness. [Para 27][211-A-H; 212-A-H; 213-A-
C]
2. To put it simply, in assessing the value of the evidence
of the eyewitnesses, two principal considerations are whether, in
the circumstances of the case, it is possible to believe their
presence at the scene of occurrence or in such situations as would
make it possible for them to witness the facts deposed to by them
and secondly, whether there is anything inherently improbable
or unreliable in their evidence. In respect of both these
considerations, the circumstances either elicited from those
witnesses themselves or established by other evidence tending
to improbabilise their presence or to discredit the veracity of
their statements, will have a bearing upon the value which a Court
would attach to their evidence. Although in cases where the plea
of the accused is a mere denial, yet the evidence of the
prosecution witnesses has
to be examined on its own merits,
where the accused raise a definite plea or puts forward a positive
case which is inconsistent with that of the prosecution, the nature
of such plea or case and the probabilities in respect of it will also
have to be taken into account while assessing the value of the
prosecution evidence. [Para 28][213-E-G]
3. There is nothing palpable or glaring in the evidence of
the two eye-witnesses on the basis of which we can take the view
that they are not true or reliable eye-witnesses. Few
contradictions in the form of omissions here or there is not
sufficient to discard the entire evidence of the eye-witnesses.
Thus, having regard to the aforesaid, we are of the view that both
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the courts below rightly believed the two eye witnesses i.e. the
PW-1 and PW-8 resply. [Paras 29 and 33][213-H; 214-A, G]
DISCOVERY PANCHNAMA DRAWN UNDER SECTION
27 OF THE EVIDENCE ACT:
4. This Court has noticed a serious infirmity in the
reasonings assigned by the trial court as affirmed by the High
Court so far as the position of law as regards the discovery of
weapon of offence under Section 27 of the Act is concerned. If we
overlook or ignore the same then probably the trial courts may
keep committing the same mistake & in such circumstances, we
would like to explain the correct position of law and how to
appreciate the evidence of discovery in accordance with the
provisions of the Section 27 of the Act. [Para 34][215-A-B]
5. What emerges from the evidence of the PW-4 & PW-10
resply is that the appellant stated before the panch witnesses to
the effect that “I will show you the weapon concealed adjacent
the shoe shop at Parle”. This statement does not suggest that
the appellant indicated anything about his involvement in the
concealment of the weapon. Mere discovery cannot be interpreted
as sufficient to infer authorship of concealment by the person
who discovered the weapon. He could have derived knowledge
of the existence of that weapon at the place through some other
source also. He might have even seen somebody concealing the
weapon, and, therefore, it cannot be presumed or inferred that
because a person
discovered the weapon, he was the person who
had concealed it, least it can be presumed that he used it.
Therefore, even if discovery by the appellant is accepted, what
emerges from the substantive evidence as regards the discovery
of weapon is that the appellant disclosed that he would show the
weapon used in the commission of offence. [Para 45][219-B-E]
6. Thus, in the absence of exact words, attributed to an
accused person, as statement made by him being deposed by the
Investigating Officer in his evidence, and also without proving
the contents of the panchnamas, the trial Court was not justified
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in placing reliance upon the circumstance of discovery of weapon.
[Para 47]2[219-H; 220-A]
7. Even while discarding the evidence in the form of
discovery panchnama the conduct of the appellant herein would
be relevant under Section 8 of the Act. The evidence of discovery
would be admissible as conduct under Section 8 of the Act quite
apart from the admissibility of the disclosure statement under
Section 27. [Para 48][220-B]
State of Uttar Pradesh v. Deoman Upadhyaya AIR
(1960) SC 1125 : [1961] 1 SCR 14 – followed.
H.P. Admn. v. Om Prakash (1972) 1 SCC 249 : [1972]
2 SCR 765; Balak Ram v. State of U.P. (1975) 3 SCC
219 : [1975] 1 SCR 753; Arunachalam v P.S.R.
Sadhanantham (1979) 2 SCC 297; Nain Singh v.State
of U.P. (1991) 2 SCC 432 : [1991] 1 SCR 685; State of
U.P. v. Babul Nath (1994) 6 SCC 29 : [1994] 2 Suppl.
SCR 598; State of U.P. v. Anil Singh AIR 1988 SC 1998
: [1988] 2 Suppl. SCR 611; Murli and Another v. State
of Rajasthan (2009) 9 SCC 417 : [2009] 13 SCR 378;
A. N. Venkatesh v. State of Karnataka (2005) 7 SCC
714; State (NCT of Delhi) v. Navjot Sandhu (2005) 11
SCC 600 : [2005] 2 Suppl. SCR 79 – relied on.
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR
1983 SC 753 : [1983] 3 SCR 280; Leela Ram v. State
of Haryana AIR 1999 SC 3717 : [1999] 3 Suppl. SCR
435; Tahsildar Singh v. State of UP AIR 1959 SC 1012
: [1959] 2 Suppl. SCR 875; Mohmed Inayatullah v. The
State of Maharashtra AIR (1976) SC 483 : [1976] 1
SCR 715; Kirshnappa v. State of
Karnataka AIR (1983)
SC 446 : [1983] 2 SCR 552; Phulukuri Kottaya v.
Emperor AIR (1947) PC 67; Dudh Nath Pandey v. State
of U.P. AIR (1981) SC 911 : [1981] 2 SCR 771 –
referred to.
Case Law Reference
[1972] 2 SCR 765 
relied on
Para 20
[1975] 1 SCR 753
relied on
Para 21
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(1979) 2 SCC 297
relied on
Para 21
[1991] 1 SCR 685
relied on
Para 22
[1994] 2 Suppl. SCR 598
relied on
Para 22
[1983] 3 SCR 280
referred to
Para 27
[1999] 3 Suppl. SCR 435
referred to
Para 27
[1959] 2 Suppl. SCR 875
referred to
Para 27
[1988] 2 Suppl. SCR 611
referred to
Para 30
[2009] 13 SCR 378
referred to
Para 40
[1976] 1 SCR 715 
referred to
Para 42
[1983] 2 SCR 552
referred to
Para 42
[1961] 1 SCR 14
followed
Para 43
[1981] 2 SCR 771
referred to
Para 46
(2005) 7 SCC 714
relied on
Para 48
[2005] 2 Suppl. SCR 79
relied on
Para 49
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
739 of 2017.
From the Judgment and Order dated 10.07.2015 of the High Court
of Judicature at Bombay in Crl. Appeal No. 449 of 2014.
Ms. Richa Kapoor, Ms. Aishwarya Mishra, Kunal Anand, Advs.
for the Appellant.
Rahul Chitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph,
Ms. Shwetal Shepal, Advs. for the Respondent.
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
1. This appeal, by special leave, is at the instance of a convict
accused of the offence of murder punishable under Section 302 of the
Indian Penal Code, 1860 (for short “IPC”) and is directed against the
judgment and order passed by the High Court of Judicature at Bombay
dated 10.07.2015 in the Criminal Appeal No. 449 of 2014 by which the
High Court dismissed the Appeal filed by convict accused and thereby
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affirmed the judgment and order of conviction passed by the 6th Ad-hoc
Additional Sessions Judge, Sewree, Mumbai dated 08.09.2008 in the
Sessions Case No. 256 of 2007.
CASE OF THE PROSECUTION :
2. The deceased viz. Mahankal Jaiswal and the appellant herein
were working as labourers at various places in the Vile Parle area,
Mumbai & were known to each other. The deceased along with the
other labourers used to sleep underneath or on the bridge situated near
the Vile Parle Railway Station. There is also one Hanuman Temple
situated near the bridge of the Vile Parle Railway Station. The original
first informant Nandlal Ramnihor Mishra (PW-1) was the priest of the
Hanuman Temple. Nandlal used to reside in a hut nearby the Temple.
On 10.12.2006 at 10:30 P.M. a quarrel ensued between the appellant
and the deceased on account of money. This quarrel took place near the
ticket window of the Vile Parle Railway Station. The quarrel between
the two was witnessed by the PW-1 Nandlal. At about 12:00 to 12:15
A.M. while the deceased Mahankal, the PW-8 Udaysingh and others
were sleeping on the bridge near the temple, the PW-1 Nandlal heard a
noise “Dhappa”. No sooner he heard the noise than he woke up and
tried to see what was happening by moving the curtain of his hut. The
PW-1 Nandlal saw the appellant assaulting the deceased with a hammer
on his head. The assault on the deceased by the appellant herein was
also witnessed by the PW-8 Udaysingh who was sleeping nearby the
deceased. After the assault the appellant walked away from the place
of the incident holding the hammer in his hand. The PW-1 Nandlal is
said to have asked the appellant while he was walking away whether he
had killed Mahankal (deceased). Thereupon, the appellant replied that
he had killed Mahankal. It appears that nothing happened thereafter for
the entire night. In the morning the police got into action and noticed that
Mahankal was lying dead. The dead body of the Mahankal was sent for
post mortem.
3. The PW-1 Nandlal lodged the First Information Report (Exh.
13) at the Andheri Police Station on 11.12.2006 which came to be
registered as the FIR No. 91/06 for the offence punishable under Section
302 of the IPC. Upon registration of the FIR the police started with the
investigation. In the course of the investigation, statements of various
witnesses were recorded. It appears that the discovery panchnama of
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the weapon of the offence i.e. the hammer (Exh.23) was also drawn on
16.12.2006 under the provisions of Section 27 of the Evidence Act, 1872
(hereinafter referred to, “the Act”).
4. The post mortem of the dead body conducted by PW-6 Dr.
Shivaji Vishnu Kachare revealed the following external injuries:
(i)
C.L.W. at right frontal region 3 cm above, right eye 2.5 cm x
2.5 cm bone deep reddish;
(ii) C.L.W. at right frontal region, lateral to injury No. (i) 4x2 cm
bone deep reddish;
(iii) Incised like wound at right temporal parietal region, 3x1 cm
into bone deep reddish.
5. The following internal injuries were noted by Dr. Shivaji Vishnu
Kachare :
i.
Injury under the scalp – hemorrhage are seen at right temporal
and parietal and on frontal region, reddish in colour;
 ii. Scalp – compound fracture on right fronto temporal bone 2
cms x 1 cm;
iii.
Brain – extradural hemorrhage at right fronto temporal and
parietal region – 9 cm x 8 cm reddish;
iv.
Subdural and subarchehnoid hemorrhage at right hemisphere
reddish in colour.
6. The weapon of offence i.e. the hammer was sent to the Forensic
Science laboratory for chemical analysis. As per the chemical analysis
report (Exh .9) the hammer was found stained with human blood with
few hairs stuck on it.
7. At the end of the investigation the investigating agency filed
chargesheet against the appellant in the Court of the 22nd Metropolitan
Magistrate, Andheri for the offence of
murder who, in turn, committed
the case to the Sessions Court for trial under the provisions of Section
209 of the Code of Criminal Procedure, 1973 (for short “Cr.PC”).
8. The trial court framed charge (Exh.2) against the appellant for
the offence punishable under Section 302 of the IPC vide order dated
06.08.2007.
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9. In the course of the trial, the prosecution examined, in all, ten
witnesses. The evidence of the following witnesses is relevant for the
purpose of deciding the present appeal.
(i) PW-1 Nandlal Ramnihor Mishra (Exh.12), the original first
informant and eye witness;
(ii) PW-4 Amsu Hussain Sayyad (Exh. 21), the panch witness of
the discovery panchnama of the weapon of offence;
(iii) PW-8 Udaysingh Ramsingh Thakur (Exh. 29), the eye witness.
(iv) PW-6 Dr. Shivaji Vishnu Kachare (Exh. 25), medical officer
who performed the postmortem;
(v) PW-10 Maruti Dattatrya Raskar (Exh. 31), the investigating
officer.
10. The trial court believed the oral testimony of the two eye
witnesses i.e. the PW-1 Nandlal and PW-8 Udaysingh resply. Relying
upon the oral testimony of both these two eye witnesses, the trial court
recorded the finding of guilt against the appellant. The trial court also
relied upon the evidence of discovery of weapon i.e. the hammer at the
instance of the appellant as one of the incriminating circumstances pointing
towards the guilt of the accused. The trial court accordingly passed the
judgment and order of conviction dated 08.09.2008 and sentenced the
appellant to undergo life imprisonment with fine of Rs. 1,000/- and in
default to suffer further rigorous imprisonment of one month.
11. The appellant herein challenged the aforesaid judgment and
order of conviction passed by the trial court by filing the Criminal Appeal
No. 449 of 2014 in the High
Court of Judicature at Bombay. The High
Court upon, reappreciation of the entire evidence on record, concurred
with the findings recorded by the trial court and dismissed the appeal
vide the judgment and order dated 10.07.2015.
12. In such circumstances referred to above, the appellant is here
before this Court with the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT :
13. The learned counsel appearing for the appellant vehemently
submitted that the trial court as well as the High Court committed a
serious error in recording the finding that the appellant is guilty of the
offence of murder. The learned counsel would submit that both the courts
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below committed a serious error in believing the two so called eye
witnesses as reliable witnesses. It was vehemently submitted that both
the eye witnesses i.e. the PW-1 and PW-8 are unreliable witnesses. It is
submitted that having regard to the genesis of the occurrence, the place
of occurrence and the time of the occurrence the incident could not
have been witnessed by the two eye witnesses.
14. The learned counsel further submitted as regards the unnatural
conduct of the PW-1 Nandlal who claims to have witnessed the assault
but kept quiet for the whole night and thought fit to lodge the FIR at the
Andheri Police Station on the next day in the morning & that too only
after the police got into action. It is submitted that the delay in informing
the police, by itself, cast a doubt as to whether the PW-1 Nandlal had
actually witnessed the assault.
15. The learned counsel further submitted that the courts below
ought not to have placed any reliance on the evidence of discovery of
weapon of offence at the instance of the appellant herein.
16. In such circumstances referred to above, the learned counsel
appearing for the appellant prays that being merit in the appeal, the same
may be allowed and the impugned judgments passed by the trial court &
the High Court may be set aside and the appellant may be acquitted of
the charge.
SUBMISSIONS ON BEHALF OF THE STATE :
17. Mr. Rahul Chitnis, the learned counsel appearing for
the State
of Maharashtra, on the other hand, has vehemently opposed this appeal
by submitting that no error, not to speak of any error of law, could be
said to have been committed by the courts below in holding the appellant
herein guilty of the offence of murder. He would submit that this Court
in exercise of powers under Article 136 of the Constitution may not
disturb the concurring findings of fact recorded by the trial court and the
High Court respectively. He would submit that both the courts below
have thought fit to believe the oral testimony of the two eye witnesses
and even otherwise also there is no good reason to disbelieve the two
eye witnesses to the incident. He would submit that over and above the
oral evidence of the two eye witnesses, there is an additional piece of
evidence pointing towards the guilty of the accused in the form of the
discovery of the weapon of offence (hammer) at the instance of the
appellant. He would submit that the panchnama of the discovery of the
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weapon of offence drawn under the provisions of Section 27 of the Act
is one additional circumstance going against the appellant.
18. In such circumstances referred to above, the learned counsel
for the State prays that there being no merit in this appeal, the same may
be dismissed.
ANALYSIS :
19. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only question that
falls for our consideration is whether the High Court committed any
error in passing the impugned judgment and order?
SCOPE AND WIDTH OF APPEAL :
20. It is now well settled that the power of this Court under Article
136 of the Constitution of India is exercisable even in cases of concurrent
findings of fact and such powers are very wide but in criminal appeals
this Court does not interfere with the concurrent findings of fact save in
exceptional circumstances. This view was expressed by this Court way
back in the year 1958 in the case of State of Madras v. A. Vaidyanatha
Iyer, (1958) SCR 580. In this decision, this Court held that in Article 136
the use of the words “Supreme Court, may in its discretion, grant special
leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in
the territory of India” shows that in criminal matters distinction can be
made between a judgment of conviction or acquittal. This Court further
observed that this Court will not
readily interfere with the findings of
fact given by the High Court and the court of first instance but if the
High Court acts perversely or otherwise improperly, interference may
be made. In that decision, this Court had set aside a judgment of acquittal
on facts as salient features of the case were not properly appreciated
or given due weight by the High Court and its approach to the
question whether a sum of Rs 800 was an illegal gratification or a
loan was such that the High Court had acted perversely or otherwise
improperly. From this decision it is, therefore, clear that this Court in the
exercise of its power under Article 136 is entitled to interfere with findings
of fact if the High Court acts perversely or otherwise improperly, that is
to say, the judgment of the High Court was liable to be set aside when
certain salient features of the case were not properly appreciated or
given due weight by the High Court. Again, in H.P. Admn. v. Om
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Prakash, (1972) 1 SCC 249 : (1972) SCC (Cri) 88, this Court, while
considering its power under Article 136 to interfere with the findings of
fact observed as follows: (SCC p. 256, para 4)
“4. 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’.”
21.  Again, in Balak Ram v. State of U.P., (1975) 3 SCC 219:
(1974) SCC (Cri) 837, this Court also held that the powers of the Supreme
Court under Article 136 of the Constitution are wide but in criminal appeals
this Court does not interfere with the concurrent findings of fact save in
exceptional circumstances. In Arunachalam v. P.S.R. Sadhanantham,
(1979) 2 SCC 297: (1979) SCC (Cri) 454, this Court, while agreeing
with the views expressed on the aforesaid mentioned decisions of this
Court, has thus stated: (SCC p. 300, para 4)
“4. The power is plenary in the sense that there are no words in
Article 136 itself qualifying that power. But, the very nature of
the power has led the court to set limits to itself within which to
exercise such power. It is now the well-established practice of
this Court to permit the invocation of the power
under Article 136
only in very exceptional circumstances, as when a question of
law of general public importance arises or a decision shocks the
conscience of the court. But, within the restrictions imposed by
itself, this Court has the undoubted power to interfere even with
findings of fact, making no distinction between judgments of
acquittal and conviction, if the High Court, in arriving at those
findings, has acted ‘perversely or otherwise improperly’.”
(emphasis supplied)
22. In Nain Singh v. State of U.P., (1991) 2 SCC 432 : (1991)
SCC (Cri) 421, in which all the aforesaid decisions as referred to
hereinabove were considered and after considering the aforesaid
decisions on the question of exercise of power under Article 136 of the
Constitution and after agreeing with the views expressed in the aforesaid
decisions, the Court finally laid down the principle that the evidence
adduced by the prosecution in that decision fell short of the test of
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reliability and acceptability and, therefore, was highly unsafe to act upon
it. In State of U.P. v. Babul Nath, (1994) 6 SCC 29 : 1994 SCC (Cri)
1585, this Court, while considering the scope of Article 136 as to when
this Court is entitled to upset the findings of fact, observed as follows:
(SCC p. 33, para 5)
“5. At the very outset we may mention that in an appeal under
Article 136 of the Constitution this Court does not normally
reappraise the evidence by itself and go into the question of
credibility of the witnesses and the assessment of the evidence
by the High Court is accepted by the Supreme Court as final
unless, of course, the appreciation of evidence and finding is
vitiated by any error of law of procedure or found contrary to the
principles of natural justice, errors of record and misreading of
the evidence, or where the conclusions of the High Court are
manifestly perverse and unsupportable from the evidence on
record.”
23. From the aforesaid decisions of this Court on the exercise of
power of the Supreme Court under Article 136 of the Constitution, the
following principles emerge:
(i) The powers of this Court under Article 136 of the Constitution
are very wide but in criminal appeals this Court does not
interfere with the concurrent findings of fact save in
exceptional circumstances.
(ii) It is open to this Court to interfere with the findings of fact
recorded by the High Court if the High Court has acted
perversely or otherwise improperly.
(iii) It is open to this Court to invoke the power under Article 136
only in very exceptional circumstances as and when a
question of law of general public importance arises or a
decision shocks the conscience of the Court.
(iv) When the evidence adduced by the prosecution falls short
of the test of reliability and acceptability and as such it is
highly unsafe to act upon it.
(v) Where the appreciation of evidence and finding is vitiated by
any error of law of procedure or found contrary to the
principles of natural justice, errors of record and misreading
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of the evidence, or where the conclusions of the High Court
are manifestly perverse and unsupportable from the
evidence on record.
24. Keeping the aforesaid principles in mind, we shall proceed to
scrutinize the materials on record.
25. It appears from the evidence on record, more particularly the
evidence of the PW-1 Nandlal Ramnihor Mishra (Exh. 12), that both,
the deceased and appellant herein were known to him. The PW-1 Nandlal
knew both as they all used to reside in the same locality i.e. nearby the
Hanuman temple situated at the Vile Parle railway station. The PW-1 in
his oral evidence has talked about the fight that first ensued at 10:30
P.M. between the deceased and the appellant somewhere near the west
ticket window of Vile Parle Railway Station. The fight between the two
was on account of money. It appears that thereafter at about 12:00 in
the night while the deceased was sleeping, the appellant herein laid an
assault on the head of the deceased with a hammer. The PW-1 Nandlal
witnessed the same on hearing the noise. After the assault was over, the
PW-1 is also said to have confronted the appellant herein by asking him
whether he had killed the deceased. We do not find anything improbable
in the examination-in-chief of Nandlal (PW-1) more particularly
considering a very scant & deficient cross-examination. We take notice
of the fact that except a minor contradiction in the form of an omission,
nothing
substantial could be elicited from the cross examination of the
PW-1 so as to render his entire evidence doubtful.
26. The PW-8 Udaysingh Ramsingh Thakur (Exh.29) is also one
of the eye witnesses to the incident. He also knew the deceased as well
as the appellant as they all used to work as labourers in the locality of
Vile Parle. So far as the evidence of the PW-8 Udaysingh is concerned
the defence has been able to bring on record a major contradiction in the
form of an omission as the PW-8 in his police statement recorded under
Section 161 of the Cr.PC had not stated anything about the appellant
inflicting blows with a hammer on the head of the deceased. The PW-8
in his cross-examination stated that he had no idea as to why the police
did not record in his police statement the factum of assault with the
hammer. However, the PW-8 in his evidence has deposed that after the
incident the appellant was confronted by the PW-1 Nandlal. Some part
of the evidence of the PW-8 corroborates the oral testimony of the PW-
1 Nandlal.
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27. The appreciation of ocular evidence is a hard task. There is
no fixed or straight-jacket formula for appreciation of the ocular evidence.
The judicially evolved principles for appreciation of ocular evidence in a
criminal case can be enumerated as under:
I.
While appreciating the evidence of a witness, the approach
must be whether the evidence of the witness read as a
whole appears to have a ring of truth. Once that impression
is formed, it is undoubtedly necessary for the Court to
scrutinize the evidence more particularly keeping in view
the deficiencies, drawbacks and infirmities pointed out in
the evidence as a whole and evaluate them to find out
whether it is against the general tenor of the evidence
given by the witness and whether the earlier evaluation
of the evidence is shaken as to render it unworthy of
belief.
II.
If the Court before whom the witness gives evidence
had the opportunity to form the opinion about the general
tenor of evidence given by the witness, the appellate court
which had not this benefit will have to attach due weight
to the appreciation of evidence by the trial court and unless
there are reasons weighty and formidable it would not be
proper to reject the evidence on the ground of minor
variations or infirmities in the matter of trivial details.
III.
When eye-witness is examined at length it is quite possible
for him to make some discrepancies. 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.
IV.
Minor discrepancies on trivial matters not touching the
core of the case, hyper technical approach by taking
sentences torn out of context here or there from the
evidence, attaching importance to some technical error
committed by the investigating officer not going to the
root of the matter would not ordinarily permit rejection of
the evidence as a whole.
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V.
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.
VI.
By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an
incident. It is not as if a video tape is replayed on the
mental screen.
VII.
Ordinarily it so happens that a witness is overtaken by
events. The witness could not have anticipated the
occurrence which so often has an element of surprise.
The mental faculties therefore cannot be expected to be
attuned to absorb the details.
VIII.
The powers of observation differ from person to person.
What one may notice, another may not. An object or
movement might emboss its image on one person’s mind
whereas it might go unnoticed on the part of another.
IX.
By and large people cannot accurately recall a
conversation and reproduce the very words used by them
or heard by them. They can only recall the main purport
of the conversation. It is unrealistic to expect a witness
to be a human tape recorder.
X.
In regard to exact time of an incident, or the time duration
of an occurrence, usually, people make their estimates
by guess work on the spur of the moment at the time of
interrogation. And one cannot expect people to make very
precise or reliable estimates in such matters. Again, it
depends on the time-sense of individuals which varies
from person to person.
XI.
Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in
rapid succession or in a short time span. A witness is
liable to get confused, or mixed up when interrogated later
on.
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XII.
A witness, though wholly truthful, is liable to be overawed
by the court atmosphere and the piercing cross
examination by counsel and out of nervousness mix up
facts, get confused regarding sequence of events, or fill
up details from imagination on the spur of the moment.
The sub-conscious mind of the witness sometimes so
operates on account of the fear of looking foolish or being
disbelieved though the witness is giving a truthful and
honest account of the occurrence witnessed by him.
XIII.
A former statement though seemingly inconsistent with
the evidence need not necessarily be sufficient to amount
to contradiction. Unless the former statement has the
potency to discredit the later statement, even if the later
statement is at variance with the former to some extent it
would not be helpful to contradict that witness.
[See Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753, Leela
Ram v. State of Haryana, AIR 1999 SC 3717, and
Tahsildar Singh v. State of UP, AIR 1959 SC 1012]
28. To put it simply, in assessing the value of the evidence of the
eye-witnesses, two principal considerations are whether, in the
circumstances of the case, it is possible to believe their presence at the
scene of occurrence or in such situations as would make it possible for
them to witness the facts deposed to by them and secondly, whether
there is anything inherently improbable or unreliable in their evidence. In
respect of both these
considerations, the circumstances either elicited
from those witnesses themselves or established by other evidence tending
to improbabilise their presence or to discredit the veracity of their
statements, will have a bearing upon the value which a Court would
attach to their evidence. Although in cases where the plea of the accused
is a mere denial, yet the evidence of the prosecution witnesses has to be
examined on its own merits, where the accused raise a definite plea or
puts forward a positive case which is inconsistent with that of the
prosecution, the nature of such plea or case and the probabilities in respect
of it will also have to be taken into account while assessing the value of
the prosecution evidence.
29. There is nothing palpable or glaring in the evidence of the two
eye-witnesses on the basis of which we can take the view that they are
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not true or reliable eye-witnesses. Few contradictions in the form of
omissions here or there is not sufficient to discard the entire evidence of
the eye-witnesses.
30. In the aforesaid context, we may refer to a decision of this
Court in the case of State of U.P. v. Anil Singh, AIR 1988 SC 1998,
wherein in para 15, it is observed thus :
“15. It is also our experience that invariably the witnesses
add embroidery to prosecution story, perhaps for the fear of
being disbelieved. But that is no ground to throw the case
overboard, if true, in the main. If there is a ring of truth in the
main, the case should not be rejected. It is the duty of the
court to cull out the nuggets of truth from the evidence unless
there is reason to believe that the inconsistencies or falsehood
are so glaring as utterly to destroy confidence in the witnesses
It is necessary to remember that a Judge does not preside
over a criminal trial merely to see that no innocent man is
punished. A Judge also presides to see that a guilty man does
not escape. One is as important as the other Both are public
duties which the Judge has to perform.”
31. The medical evidence on record further corroborates the ocular
version of the eye witnesses. The PW-6 Dr. Shivaji Vishnu Kachare
(Exh. 25) in his evidence has deposed that the cause of death is due to
the head injury. The expert witness has also deposed that all the injuries
were in the nature of Contused
Lacerated Wound & could have been
caused by a weapon like hammer.
32. The chemical analysis report (Exh.10) of the forensic science
laboratory indicates that there were stains of human blood on the hammer
matching with the blood group of the deceased i.e. ‘A’ group.
33. Thus, having regard to the aforesaid, we are of the view that
both the courts below rightly believed the two eye witnesses i.e. the
PW-1 and PW-8 resply. We see no good reason to take a different view
of their evidence than the one taken by the two courts below.
DISCOVERY PANCHNAMA DRAWN UNDER SECTION
27 OF THE EVIDENCE ACT:
34. Having taken the view that there is no good reason for us to
disbelieve the two eye witnesses referred to above, we could have
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stopped and closed the matter. However, we have noticed something
very important so far as the law on Section 27 of the Act is concerned
as discussed by the two courts below. To put it otherwise, we have
noticed a serious infirmity in the reasonings assigned by the trial court as
affirmed by the High Court so far as the position of law as regards the
discovery of weapon of offence under Section 27 of the Act is concerned.
If we overlook or ignore the same then probably the trial courts may
keep committing the same mistake & in such circumstances, we would
like to explain the correct position of law and how to appreciate the
evidence of discovery in accordance with the provisions of the Section
27 of the Act.
35. The prosecution examined the PW-4 Amsu Hussain Sayyad
(Exh. 21) as one of the panch witnesses to prove the discovery
panchnama (Exh. 23).
36. We must first look into the examination-in-chief of the PW-4
in this regard. The PW-4 in his examination-in-chief stated as under:
“The police officers told me that I have to act as a panch witness.
In my presence the person who is police custody narrated that, he
concealed a weapon adjacent the shoe shop at parla. Accordingly
in my presence his statement recorded by the police. Police
obtained my signature on the memorandum-cum-statement of the
accused. The memorandum-cum-statement now shown to me
bears my signature. It contents are true and correct. The said
memorandum is exhibited at Exh. 22. Thereafter,
I myself, another
person, two to three police officers and accused went in Vile
Parle East, outside the railway station of Vile Parle East. There
was a wooden bench near the shoe shop. The accused in our
presence withdrew an iron hammer from the wooden bench and
handed over the same to the police. Police recorded the
panchnama of said hammer in my presence and took its
possession. The panchnama now shown to me is the same. It
bears my signature. It contents are true and correct. It is at Exh.
23.”
37.  We may not refer to the cross examination of the PW-4 at
the instance of the defence as it is not relevant.
38. We may now look into the evidence of the PW-10, the
investigating officer. In his examination-in-chief, he has deposed as
regards the discovery as under:
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“On 16th December, 2006 the accused made a disclosure statement
in presence of panch witnesses that he was ready and willing to
point out the place where he had concealed the hammer in Vile
Parle area. Accordingly, I drew the memorandum panchnama of
the disclosure of statement of the accused in presence of panch
witnesses. The memorandum panchanama at Ex. 22 now shown
to me is the same. It bears my signature and signature of panch
witnesses. Its contents are true and correct. Thereafter, I myself,
panch witnesses and accused on the basis of information given
by the accused went at the shop Jaibhawani footwear in Vile
Parle on Vallabhai Patel road. Thereafter, accused went in open
place between railway compound wall and wooden bench. He
picked the hammer from the said open place and handed over to
us. Accordingly, I seized the said hammer by preparation of
recovery panchanama. The hammer was having a wooden handle
and iron case. I saw blood stains hairs sticked to the said hammer.
The recovery panchanama at Ex. 23 now shown to me bears my
signature and signature of panch witnesses. Its contents are true
and correct.”
39. From the aforesaid it is evident that the learned public
prosecutor who conducted the prosecution before the trial court did not
take the pains to bring on record the substantive evidence of the aforesaid
two witnesses i.e. the PW-4 and PW-10 resply, the fact of the accused
having made a statement
that he had concealed the hammer and he was
inclined to show that spot, even though it has been recorded in the
panchnama (Exh. 22) that the accused made such a statement. The
learned public prosecutor does not appear to have realized that there
should be substantive evidence on record in this regard and that the
panchnama can be used only to corroborate the evidence of the panch
and not as a substantive piece of evidence. It appears that the panchnamas
(Exh.22 and 23 resply) were shown to the panch (PW-4) and he admitted
his signature and, therefore, it was exhibited at Exhs.22 and 23
respectively. The examination-in-chief of the PW-4 does not show that
he was read over the panchnama before it was exhibited. This Court
has time and again impressed upon the necessity of reading over the
panchnama which can be used as a piece of corroborative evidence. In
spite of this, it is regrettable that the learned trial judge did not take the
pains to see that the panchnama was read over to the panch before it
was exhibited. A panchnama which can be used only to corroborate the
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panch has to be read over to the panch and only thereafter it can be
exhibited. If the panch has omitted to state something which is found in
the panchnama, then after reading over the panchnama the panch has to
be asked whether that portion of the panchnama is correct or not and
whatever reply he gives has to be recorded. If he replies in the affirmative,
then only that portion of the panchnama can be read into evidence to
corroborate the substantive evidence of the panch. If he replies in the
negative, then that part of the panchnama cannot be read in evidence
for want of substantive evidence on record. It is, therefore, necessary
that care is taken by the public prosecutor who conducts the trial that
such a procedure is followed while examining the panch at the trial. It is
also necessary that the learned trial judge also sees that the panchnama
is read over the panch and thereafter the panchnama is exhibited after
following the procedure as indicated above.
40. In the aforesaid context, we may refer to and rely upon the
decision of this Court in the case of Murli and another v. State of
Rajasthan reported in (2009) 9 SCC 417: (2010) 1 SCC (Cri) 12. We
got the relevant observations:
“34. The contents of the panchnama are not the substantive
evidence. The law is settled on that issue. What is substantive
evidence is what has been stated by the panchas or the person
concerned in the witness box.”
41. One another serious infirmity which has surfaced is as
regards
the authorship of concealment by the person who is said to have
discovered the weapon.
42. The conditions necessary for the applicability of Section-
27 of the Act are broadly as under:-
(1)
Discovery of fact in consequence of an information
received from accused;
(2)
Discovery of such fact to be deposed to;
(3)
The  accused  must  be  in  police  custody  when  he
gave informations and
(4)
So much of information as relates distinctly to the fact
thereby discovered is admissible – Mohmed Inayatullah
vs The State of Maharashtra: AIR (1976) SC 483:
(1975) Cur LJ 668
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Two conditions for application –
(1)
information must be such as has caused discovery of
the fact; and
(2)
information must relate distinctly to the fact discovered
-Kirshnappa vs State Of Karnataka : AIR (1983) SC
446 : (1983)Cr LJ 846
43. We may refer to and rely upon a Constitution Bench decision
of this Court in the case of State of Uttar Pradesh v. Deoman
Upadhyaya reported in AIR (1960) SC 1125, wherein, the Supreme
Court in Paragraph-71 has explained the position of law as regards Section
27 of the Act as under:
“71. The law has thus made a classification of accused persons
into two: (1) those two have the danger brought home to them
by detention on a charge; and (2) those who are yet free. In
the former category are also those persons who surrender to
the custody by words or action. The protection given to these
two classes is different. In the case of persons belonging to
the first category the law has ruled that their statements are
not admissible, and in the case of the second category, only
that portion, of the statement is admissible as is guaranteed
by the discovery of a relevant fact unknown before the
statement to the investigating authority. That statement may
even be confessional in nature, as when the person in custody
says: “I pushed him down such and such mineshaft”, and the
body of the victim is found as result, and it can be proved that
his death was due to injuries received by a fall down the
mineshaft.”
44. The scope and ambit of Section 27 of the Act were illuminatingly
stated in Phulukuri Kottaya v. Emperor, AIR (1947) PC 67, which
have become locus classicus, in the following words:
“It is fallacious to treat the ‘fact discovered’ within the section as
equivalent to the object produced; the fact discovered embraces
the place from which the object is produced and the knowledge
of the accused as to this, and the information given must relate
distinctly to this fact. Information supplied by a person in custody
that ‘I will produce a knife concealed in the roof of my house’
does not lead to the discovery of a knife; knives were discovered
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many years ago. It leads to the discovery of the fact that a knife
is concealed in the house of the informant to his knowledge, and if
the knife is proved to have been used in the commission of the
offence, the fact discovered is very relevant. But if to the statement
the words be added ‘with which I stabbed ‘A” these words are
inadmissible since they do not relate to the discovery of the knife
in the house of the informant.”
45. What emerges from the evidence of the PW-4 & PW-10 resply
is that the appellant stated before the panch witnesses to the effect that
“I will show you the weapon concealed adjacent the shoe shop at Parle”.
This statement does not suggest that the appellant indicated anything
about his involvement in the concealment of the weapon. Mere discovery
cannot be interpreted as sufficient to infer authorship of concealment by
the person who discovered the weapon. He could have derived knowledge
of the existence of that weapon at the place through some other source
also. He might have even seen somebody concealing the weapon, and,
therefore, it cannot be presumed or inferred that because a person
discovered the weapon, he was the person who had concealed it, least it
can be presumed that he used it. Therefore, even if discovery by the
appellant is accepted, what emerges from the substantive evidence as
regards the discovery of weapon is that the appellant disclosed that he
would show the weapon used in the commission of offence.
46. In Dudh
Nath Pandey v. State of U. P., AIR (1981) SC 911,
this Court took into consideration a very similar fact situation and observed
in paragraph 15 that, if the case is dependent on circumstantial evidence,
different considerations would have prevailed because the balance of
evidence after excluding the testimony of the two eye-witnesses was
not of the standard required in cases dependent wholly on circumstantial
evidence (as is the case here). This Court observed that the evidence of
discovery of pistol at the instance of the appellant cannot, by itself, prove
that he who pointed out the weapon wielded it in the offence. The
statement accompanying the discovery was found to be vague to identify
the authorship of concealment and it was held that pointing out the weapon
may, at the best, prove the appellant’s knowledge as to where the weapon
was kept.
47. Thus, in the absence of exact words, attributed to an accused
person, as statement made by him being deposed by the Investigating
Officer in his evidence, and also without proving the contents of the
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panchnamas, the trial Court was not justified in placing reliance upon the
circumstance of discovery of weapon.
48. Even while discarding the evidence in the form of discovery
panchnama the conduct of the appellant herein would be relevant under
Section 8 of the Act. The evidence of discovery would be admissible as
conduct under Section 8 of the Act quite apart from the admissibility of
the disclosure statement under Section 27, as this Court observed in
A.N. Venkatesh v. State of Karnataka, (2005) 7 SCC 714,:
“By virtue of Section 8 of the Evidence Act, the conduct of the
accused person is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact. The evidence of
the circumstance, simpliciter, that the accused pointed out to the
police officer, the place where the dead body of the kidnapped
boy was found and on their pointing out the body was exhumed,
would be admissible as conduct under Section 8 irrespective of
the fact whether the statement made by the accused
contemporaneously with or antecedent to such conduct falls within
the purview of Section 27 or not as held by this Court in Prakash
Chand Vs. State (Delhi Admn.) [(1979) 3 SC 90]. Even if we
hold that the disclosure statement made by the accused appellants
(Ex. P14 and P15) is not admissible under Section 27 of the
Evidence Act, still it is relevant under Section 8.”
49. In the State (NCT of Delhi) v. Navjot Sandhu, (2005)
11
SCC 600, the two provisions i.e. Section 8 and Section 27 of the Act
were elucidated in detail with reference to the case law on the subject
and apropos to Section 8 of the Act, wherein it was held:
“Before proceeding further, we may advert to Section 8 of the
Evidence Act. Section 8 insofar as it is relevant for our purpose
makes the conduct of an accused person relevant, if such conduct
influences or is influenced by any fact in issue or relevant fact. It
could be either previous or subsequent conduct. There are two
Explanations to the Section, which explains the ambit of the word
‘conduct’. They are:
Explanation 1 : The word ‘conduct’ in this Section does not
include statements, unless those statements accompany and
explain acts other than statements, but this explanation is not to
affect the relevancy of statements under any other Section of this
Act.
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Explanation 2 : When the conduct of any person is relevant, any
statement made to him or in his presence and hearing, which
affects such conduct, is relevant.
The conduct, in order to be admissible, must be such that it has
close nexus with a fact in issue or relevant fact. The Explanation
1 makes it clear that the mere statements as distinguished from
acts do not constitute ‘conduct’ unless those statements
“accompany and explain acts other than statements”. Such
statements accompanying the acts are considered to be evidence
of res gestae. Two illustrations appended to Section 8 deserve
special mention.
(f) The question is, whether A robbed B.
The facts that, after B was robbed, C said in A’s presence —the
police are coming to look for the man who robbed B”, and that
immediately afterwards A ran away, are relevant.
*
*
*
(i) A is accused of a crime.
The facts that, after the commission of the alleged crime, he
absconded, or was in possession of property or the proceeds of
property acquired by the crime, or attempted to conceal things
which were or might have been used in committing it, are relevant.
We have already noticed the distinction highlighted in Prakash
Chand’s case (supra) between the conduct of an accused which
is admissible under Section 8 and the statement made to a police
officer in the course of an investigation which is hit by Section
162 Cr.P.C. The evidence of the circumstance, simpliciter, that
the accused pointed out to the police
officer, the place where
stolen articles or weapons used in the commission of the offence
were hidden, would be admissible as ‘conduct’ under Section
8 irrespective of the fact whether the statement made by the
accused contemporaneously with or antecedent to such conduct,
falls within the purview of Section 27, as pointed out in Prakash
Chand’s case. In Om Prakash case (supra) this Court held: Even
apart from the admissibility of the information under Section, the
evidence of the Investigating Officer and the Panchas that the
accused had taken them to PW11 (from whom he purchased the
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SUPREME COURT REPORTS
[2022] 12 S.C.R.
weapon) and pointed him out and as corroborated by PW11 himself
would be admissible under Section 8 of the Evidence Act as
‘conduct’ of the accused”.
50. Further, in the aforesaid context, we would like to sound a
note of caution. Although the conduct of an accused may be a relevant
fact under Section 8 of the Act, yet the same, by itself, cannot be a
ground to convict him or hold him guilty and that too, for a serious offence
like murder. Like any other piece of evidence, the conduct of an accused
is also one of the circumstances which the court may take into
consideration along with the other evidence on record, direct or indirect.
What we are trying to convey is that the conduct of the accused alone,
though may be relevant under Section 8 of the Act, cannot form the
basis of conviction.
51. In the ultimate analysis, we have reached to the conclusion
that there is no merit in the present appeal.
52. The appeal accordingly fails and is hereby dismissed.
Ankit Gyan
Appeal dismissed.