SHAHAJA @ SHAHAJAN ISMAIL MOHD. SHAIKH versus STATE OF MAHARASHTRA on 14 July 2022

196

SUPREME COURT REPORTS

[2022] 12 S.C.R.

ASHAHAJA @ SHAHAJAN ISMAIL MOHD. SHAIKH

v.

STATE OF MAHARASHTRA

(Criminal Appeal No. 739 of 2017)

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JULY 14, 2022

[SURYA KANT AND J. B. PARDIWALA, JJ.]

Penal Code, 1860 – s.302 – Murder – Evidence – Ocularevidence – Discovery of fact in consequence of an informationreceived from accused – Victim-deceased and appellant were workingCas labourers – Prosecution case that quarrel ensued between thevictim and the appellant on the night of 10.12.2006, which waswitnessed by PW-1 and PW-8 – Appellant assaulted victim with ahammer on his head – Victim died – Trial Court relied upon the oraltestimony of the PW-1,PW-8 and the evidence of discovery of weaponDi.e. hammer and convicted appellant – High Court concurred withthe 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 ofthe case, it is possible to believe their presence at the scene ofoccurrence or in such situations as would make it possible for themEto witness the facts deposed to by them and secondly, whether thereis anything inherently improbable or unreliable in their evidence –In respect of both these considerations, the circumstances eitherelicited from those witnesses themselves or established by otherevidence tending to improbabilise their presence or to discredit theFveracity of their statements, will have a bearing upon the valuewhich 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 thatthey are not true or reliable eye-witnesses – Both the Courts belowrightly believed the two eye witnesses i.e. PW-1 and PW-8 – As farGas discovery of weapon is concerned, in the absence of exact words,attributed to an accused person, as statement made by him beingdeposed by the Investigating Officer in his evidence, and alsowithout proving the contents of the panchnamas, the trial Courtwas not justified in placing reliance upon the circumstance ofHdiscovery of weapon – However, the conduct of the appellant herein 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 incriminal appeals – Discussed.

Dismissing the appeal, the Court

HELD: 1. The appreciation of ocular evidence is a hardtask. There is no fixed or straight-jacket formula for appreciationof the ocular evidence. The judicially evolved principles forappreciation of ocular evidence in a criminal case can beenumerated as under:

I. While appreciating the evidence of a witness, theapproach must be whether the evidence of the witness read as awhole appears to have a ring of truth. Once that impression isformed, it is undoubtedly necessary for the Court to scrutinizethe evidence more particularly keeping in view the deficiencies,drawbacks and infirmities pointed out in the evidence as a wholeand evaluate them to find out whether it is against the generaltenor of the evidence given by the witness and whether the earlierevaluation of the evidence is shaken as to render it unworthy ofbelief.

II. If the Court before whom the witness gives evidencehad the opportunity to form the opinion about the general tenorof evidence given by the witness, the appellate court which hadnot this benefit will have to attach due weight to the appreciationof evidence by the trial court and unless there are reasons weightyand formidable it would not be proper to reject the evidence onthe ground of minor variations or infirmities in the matter of trivialdetails.

III. When eye-witness is examined at length it is quitepossible for him to make some discrepancies. But courts shouldbear in mind that it is only when discrepancies in the evidence ofa witness are so incompatible with the credibility of his versionthat the court is justified in jettisoning his evidence.

IV. Minor discrepancies on trivial matters not touching thecore of the case, hyper technical approach by taking sentencestorn out of context here or there from the evidence, attaching A

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Aimportance to some technical error committed by the investigatingofficer not going to the root of the matter would not ordinarilypermit rejection of the evidence as a whole.

V. Too serious a view to be adopted on mere variationsfalling in the narration of an incident (either as between theBevidence of two witnesses or as between two statements of thesame witness) is an unrealistic approach for judicial scrutiny.

VI. By and large a witness cannot be expected to possess aphotographic memory and to recall the details of an incident. It isnot as if a video tape is replayed on the mental screen.

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VII. Ordinarily it so happens that a witness is overtaken byevents. The witness could not have anticipated the occurrencewhich so often has an element of surprise. The mental facultiestherefore cannot be expected to be attuned to absorb the details.

VIII. The powers of observation differ from person toDperson. What one may notice, another may not. An object ormovement might emboss its image on one person’s mind whereasit might go unnoticed on the part of another.

IX. By and large people cannot accurately recall aconversation and reproduce the very words used by them or heardEby 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 timeduration of an occurrence, usually, people make their estimatesby guess work on the spur of the moment at the time ofFinterrogation. And one cannot expect people to make very preciseor reliable estimates in such matters. Again, it depends on thetime-sense of individuals which varies from person to person.

XI. Ordinarily a witness cannot be expected to recallaccurately the sequence of events which take place in rapidGsuccession or in a short time span. A witness is liable to getconfused, or mixed up when interrogated later on.

XII. A witness, though wholly truthful, is liable to beoverawed by the court atmosphere and the piercing crossexamination by counsel and out of nervousness mix up facts, getHconfused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mindof the witness sometimes so operates on account of the fear oflooking foolish or being disbelieved though the witness is givinga truthful and honest account of the occurrence witnessed by him.

XIII. A former statement though seemingly inconsistentwith the evidence need not necessarily be sufficient to amount tocontradiction. Unless the former statement has the potency todiscredit the later statement, even if the later statement is atvariance with the former to some extent it would not be helpfulto 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 evidenceof the eyewitnesses, two principal considerations are whether, inthe circumstances of the case, it is possible to believe theirpresence at the scene of occurrence or in such situations as wouldmake it possible for them to witness the facts deposed to by themand secondly, whether there is anything inherently improbableor unreliable in their evidence. In respect of both theseconsiderations, the circumstances either elicited from thosewitnesses themselves or established by other evidence tendingto improbabilise their presence or to discredit the veracity oftheir statements, will have a bearing upon the value which a Courtwould attach to their evidence. Although in cases where the pleaof the accused is a mere denial, yet the evidence of theprosecution witnesses has to be examined on its own merits,where the accused raise a definite plea or puts forward a positivecase which is inconsistent with that of the prosecution, the natureof such plea or case and the probabilities in respect of it will alsohave to be taken into account while assessing the value of theprosecution evidence. [Para 28][213-E-G]

3. There is nothing palpable or glaring in the evidence ofthe two eye-witnesses on the basis of which we can take the viewthat they are not true or reliable eye-witnesses. Fewcontradictions in the form of omissions here or there is notsufficient to discard the entire evidence of the eye-witnesses.Thus, having regard to the aforesaid, we are of the view that both A

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Athe courts below rightly believed the two eye witnesses i.e. thePW-1 and PW-8 resply. [Paras 29 and 33][213-H; 214-A, G]DISCOVERY PANCHNAMA DRAWN UNDER SECTION27 OF THE EVIDENCE ACT:

4. This Court has noticed a serious infirmity in theBreasonings assigned by the trial court as affirmed by the HighCourt so far as the position of law as regards the discovery ofweapon of offence under Section 27 of the Act is concerned. If weoverlook or ignore the same then probably the trial courts maykeep committing the same mistake & in such circumstances, weCwould like to explain the correct position of law and how toappreciate the evidence of discovery in accordance with theprovisions of the Section 27 of the Act. [Para 34][215-A-B]

5. What emerges from the evidence of the PW-4 & PW-10resply is that the appellant stated before the panch witnesses toDthe effect that “I will show you the weapon concealed adjacentthe shoe shop at Parle”. This statement does not suggest thatthe appellant indicated anything about his involvement in theconcealment of the weapon. Mere discovery cannot be interpretedas sufficient to infer authorship of concealment by the personwho discovered the weapon. He could have derived knowledgeEof the existence of that weapon at the place through some othersource also. He might have even seen somebody concealing theweapon, and, therefore, it cannot be presumed or inferred thatbecause a person discovered the weapon, he was the person whohad concealed it, least it can be presumed that he used it.FTherefore, even if discovery by the appellant is accepted, whatemerges from the substantive evidence as regards the discoveryof weapon is that the appellant disclosed that he would show theweapon used in the commission of offence. [Para 45][219-B-E]

6. Thus, in the absence of exact words, attributed to anGaccused person, as statement made by him being deposed by theInvestigating Officer in his evidence, and also without provingthe contents of the panchnamas, the trial Court was not justified SHAHAJA @ SHAHAJAN ISMAIL MOHD. SHAIKH v. STATEOF MAHARASHTRA

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 ofdiscovery panchnama the conduct of the appellant herein wouldbe relevant under Section 8 of the Act. The evidence of discoverywould be admissible as conduct under Section 8 of the Act quiteapart from the admissibility of the disclosure statement underSection 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 SCC219 : [1975] 1 SCR 753; Arunachalam v P.S.R.Sadhanantham (1979) 2 SCC 297; Nain Singh v.Stateof U.P. (1991) 2 SCC 432 : [1991] 1 SCR 685; State ofU.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. Stateof Rajasthan (2009) 9 SCC 417 : [2009] 13 SCR 378;A. N. Venkatesh v. State of Karnataka (2005) 7 SCC714; State (NCT of Delhi) v. Navjot Sandhu (2005) 11SCC 600 : [2005] 2 Suppl. SCR 79 – relied on.

Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR1983 SC 753 : [1983] 3 SCR 280; Leela Ram v. Stateof Haryana AIR 1999 SC 3717 : [1999] 3 Suppl. SCR435; Tahsildar Singh v. State of UP AIR 1959 SC 1012: [1959] 2 Suppl. SCR 875; Mohmed Inayatullah v. TheState of Maharashtra AIR (1976) SC 483 : [1976] 1SCR 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. Stateof U.P. AIR (1981) SC 911 : [1981] 2 SCR 771 –referred to.

Case Law Reference

[1972] 2 SCR 765 [1975] 1 SCR 753

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.739 of 2017.

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From the Judgment and Order dated 10.07.2015 of the High Courtof Judicature at Bombay in Crl. Appeal No. 449 of 2014.

Ms. Richa Kapoor, Ms. Aishwarya Mishra, Kunal Anand, Advs.for the Appellant.

FRahul 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 convictaccused of the offence of murder punishable under Section 302 of theIndian Penal Code, 1860 (for short “IPC”) and is directed against thejudgment and order passed by the High Court of Judicature at Bombaydated 10.07.2015 in the Criminal Appeal No. 449 of 2014 by which theHigh Court dismissed the Appeal filed by convict accused and thereby G

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affirmed the judgment and order of conviction passed by the 6[th] Ad-hocAdditional Sessions Judge, Sewree, Mumbai dated 08.09.2008 in theSessions Case No. 256 of 2007.

CASE OF THE PROSECUTION :

2. The deceased viz. Mahankal Jaiswal and the appellant hereinwere working as labourers at various places in the Vile Parle area,Mumbai & were known to each other. The deceased along with theother labourers used to sleep underneath or on the bridge situated nearthe Vile Parle Railway Station. There is also one Hanuman Templesituated near the bridge of the Vile Parle Railway Station. The originalfirst informant Nandlal Ramnihor Mishra (PW-1) was the priest of theHanuman 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 appellantand the deceased on account of money. This quarrel took place near theticket window of the Vile Parle Railway Station. The quarrel betweenthe two was witnessed by the PW-1 Nandlal. At about 12:00 to 12:15A.M. while the deceased Mahankal, the PW-8 Udaysingh and otherswere sleeping on the bridge near the temple, the PW-1 Nandlal heard anoise “Dhappa”. No sooner he heard the noise than he woke up andtried to see what was happening by moving the curtain of his hut. ThePW-1 Nandlal saw the appellant assaulting the deceased with a hammeron his head. The assault on the deceased by the appellant herein wasalso witnessed by the PW-8 Udaysingh who was sleeping nearby thedeceased. After the assault the appellant walked away from the placeof the incident holding the hammer in his hand. The PW-1 Nandlal issaid to have asked the appellant while he was walking away whether hehad killed Mahankal (deceased). Thereupon, the appellant replied thathe had killed Mahankal. It appears that nothing happened thereafter forthe entire night. In the morning the police got into action and noticed thatMahankal was lying dead. The dead body of the Mahankal was sent forpost 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 beregistered as the FIR No. 91/06 for the offence punishable under Section302 of the IPC. Upon registration of the FIR the police started with theinvestigation. In the course of the investigation, statements of variouswitnesses were recorded. It appears that the discovery panchnama of A

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Athe weapon of the offence i.e. the hammer (Exh.23) was also drawn on16.12.2006 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:

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(i) C.L.W. at right frontal region 3 cm above, right eye 2.5 cm x2.5 cm bone deep reddish;

(ii) C.L.W. at right frontal region, lateral to injury No. (i) 4x2 cmbone deep reddish; C(iii) Incised like wound at right temporal parietal region, 3x1 cminto bone deep reddish.

5. The following internal injuries were noted by Dr. Shivaji VishnuKachare :

i.Injury under the scalp – hemorrhage are seen at right temporalDand parietal and on frontal region, reddish in colour;

ii. Scalp – compound fracture on right fronto temporal bone 2cms x 1 cm;

iii.Brain – extradural hemorrhage at right fronto temporal andparietal region – 9 cm x 8 cm reddish;E

iv.Subdural and subarchehnoid hemorrhage at right hemispherereddish in colour.

6. The weapon of offence i.e. the hammer was sent to the ForensicScience laboratory for chemical analysis. As per the chemical analysisFreport (Exh .9) the hammer was found stained with human blood withfew hairs stuck on it.

7. At the end of the investigation the investigating agency filedchargesheet against the appellant in the Court of the 22[nd] MetropolitanMagistrate, Andheri for the offence of murder who, in turn, committedGthe case to the Sessions Court for trial under the provisions of Section209 of the Code of Criminal Procedure, 1973 (for short “Cr.PC”).

8. The trial court framed charge (Exh.2) against the appellant forthe offence punishable under Section 302 of the IPC vide order dated06.08.2007.

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9. In the course of the trial, the prosecution examined, in all, tenwitnesses. The evidence of the following witnesses is relevant for thepurpose of deciding the present appeal.

(i) PW-1 Nandlal Ramnihor Mishra (Exh.12), the original firstinformant and eye witness;

(ii) PW-4 Amsu Hussain Sayyad (Exh. 21), the panch witness ofthe 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 officerwho performed the postmortem;

(v) PW-10 Maruti Dattatrya Raskar (Exh. 31), the investigatingofficer.

10. The trial court believed the oral testimony of the two eyewitnesses i.e. the PW-1 Nandlal and PW-8 Udaysingh resply. Relyingupon the oral testimony of both these two eye witnesses, the trial courtrecorded the finding of guilt against the appellant. The trial court alsorelied upon the evidence of discovery of weapon i.e. the hammer at theinstance of the appellant as one of the incriminating circumstances pointingtowards the guilt of the accused. The trial court accordingly passed thejudgment and order of conviction dated 08.09.2008 and sentenced theappellant to undergo life imprisonment with fine of Rs. 1,000/- and indefault to suffer further rigorous imprisonment of one month.

11. The appellant herein challenged the aforesaid judgment andorder of conviction passed by the trial court by filing the Criminal AppealNo. 449 of 2014 in the High Court of Judicature at Bombay. The HighCourt upon, reappreciation of the entire evidence on record, concurredwith the findings recorded by the trial court and dismissed the appealvide the judgment and order dated 10.07.2015.

12. In such circumstances referred to above, the appellant is herebefore this Court with the present appeal.

SUBMISSIONS ON BEHALF OF THE APPELLANT :

13. The learned counsel appearing for the appellant vehementlysubmitted that the trial court as well as the High Court committed aserious error in recording the finding that the appellant is guilty of theoffence of murder. The learned counsel would submit that both the courts A

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Abelow committed a serious error in believing the two so called eyewitnesses as reliable witnesses. It was vehemently submitted that boththe eye witnesses i.e. the PW-1 and PW-8 are unreliable witnesses. It issubmitted that having regard to the genesis of the occurrence, the placeof occurrence and the time of the occurrence the incident could nothave been witnessed by the two eye witnesses.B

14. The learned counsel further submitted as regards the unnaturalconduct of the PW-1 Nandlal who claims to have witnessed the assaultbut kept quiet for the whole night and thought fit to lodge the FIR at theAndheri Police Station on the next day in the morning & that too onlyafter the police got into action. It is submitted that the delay in informingCthe police, by itself, cast a doubt as to whether the PW-1 Nandlal hadactually witnessed the assault.

15. The learned counsel further submitted that the courts belowought not to have placed any reliance on the evidence of discovery ofweapon of offence at the instance of the appellant herein.D

16. In such circumstances referred to above, the learned counselappearing for the appellant prays that being merit in the appeal, the samemay be allowed and the impugned judgments passed by the trial court &the High Court may be set aside and the appellant may be acquitted ofthe charge.E

SUBMISSIONS ON BEHALF OF THE STATE :

17. Mr. Rahul Chitnis, the learned counsel appearing for the Stateof Maharashtra, on the other hand, has vehemently opposed this appealby submitting that no error, not to speak of any error of law, could beFsaid to have been committed by the courts below in holding the appellantherein guilty of the offence of murder. He would submit that this Courtin exercise of powers under Article 136 of the Constitution may notdisturb the concurring findings of fact recorded by the trial court and theHigh Court respectively. He would submit that both the courts belowhave thought fit to believe the oral testimony of the two eye witnessesGand even otherwise also there is no good reason to disbelieve the twoeye witnesses to the incident. He would submit that over and above theoral evidence of the two eye witnesses, there is an additional piece ofevidence pointing towards the guilty of the accused in the form of thediscovery of the weapon of offence (hammer) at the instance of theappellant. He would submit that the panchnama of the discovery of the H

weapon of offence drawn under the provisions of Section 27 of the Actis one additional circumstance going against the appellant.

18. In such circumstances referred to above, the learned counselfor the State prays that there being no merit in this appeal, the same maybe dismissed.

ANALYSIS :

19. Having heard the learned counsel appearing for the partiesand having gone through the materials on record, the only question thatfalls for our consideration is whether the High Court committed anyerror 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 Article136 of the Constitution of India is exercisable even in cases of concurrentfindings of fact and such powers are very wide but in criminal appealsthis Court does not interfere with the concurrent findings of fact save inexceptional circumstances. This view was expressed by this Court wayback in the year 1958 in the case of State of Madras v. A. VaidyanathaIyer, (1958) SCR 580. In this decision, this Court held that in Article 136the use of the words “Supreme Court, may in its discretion, grant specialleave to appeal from any judgment, decree, determination, sentence ororder in any cause or matter passed or made by any court or tribunal inthe territory of India” shows that in criminal matters distinction can bemade between a judgment of conviction or acquittal. This Court furtherobserved that this Court will not readily interfere with the findings offact given by the High Court and the court of first instance but if theHigh Court acts perversely or otherwise improperly, interference maybe made. In that decision, this Court had set aside a judgment of acquittalon facts as salient features of the case were not properly appreciatedor given due weight by the High Court and its approach to thequestion whether a sum of Rs 800 was an illegal gratification or aloan was such that the High Court had acted perversely or otherwiseimproperly. From this decision it is, therefore, clear that this Court in theexercise of its power under Article 136 is entitled to interfere with findingsof fact if the High Court acts perversely or otherwise improperly, that isto say, the judgment of the High Court was liable to be set aside whencertain salient features of the case were not properly appreciated orgiven due weight by the High Court. Again, in H.P. Admn. v. Om A

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APrakash, (1972) 1 SCC 249 : (1972) SCC (Cri) 88, this Court, whileconsidering its power under Article 136 to interfere with the findings offact 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 ofBfact, no distinction being made between judgments of acquittaland conviction, though in the case of acquittals it will not ordinarilyinterfere with the appreciation of evidence or on findings of factunless the High Court ‘acts perversely or otherwise improperly’.”

21. Again, in Balak Ram v. State of U.P., (1975) 3 SCC 219:C(1974) SCC (Cri) 837, this Court also held that the powers of the SupremeCourt under Article 136 of the Constitution are wide but in criminal appealsthis Court does not interfere with the concurrent findings of fact save inexceptional circumstances. In Arunachalam v. P.S.R. Sadhanantham,(1979) 2 SCC 297: (1979) SCC (Cri) 454, this Court, while agreeingwith the views expressed on the aforesaid mentioned decisions of thisDCourt, has thus stated: (SCC p. 300, para 4)

“4. The power is plenary in the sense that there are no words inArticle 136 itself qualifying that power. But, the very nature ofthe power has led the court to set limits to itself within which toexercise such power. It is now the well-established practice ofEthis Court to permit the invocation of the power under Article 136only in very exceptional circumstances, as when a question oflaw of general public importance arises or a decision shocks theconscience of the court. But, within the restrictions imposed byitself, this Court has the undoubted power to interfere even withFfindings of fact, making no distinction between judgments ofacquittal and conviction, if the High Court, in arriving at thosefindings, has acted ‘perversely or otherwise improperly’.”(emphasis supplied)

22. In Nain Singh v. State of U.P., (1991) 2 SCC 432 : (1991)GSCC (Cri) 421, in which all the aforesaid decisions as referred tohereinabove were considered and after considering the aforesaiddecisions on the question of exercise of power under Article 136 of theConstitution and after agreeing with the views expressed in the aforesaiddecisions, the Court finally laid down the principle that the evidenceadduced by the prosecution in that decision fell short of the test ofH

reliability and acceptability and, therefore, was highly unsafe to act uponit. 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 whenthis 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 underArticle 136 of the Constitution this Court does not normallyreappraise the evidence by itself and go into the question ofcredibility of the witnesses and the assessment of the evidenceby the High Court is accepted by the Supreme Court as finalunless, of course, the appreciation of evidence and finding isvitiated by any error of law of procedure or found contrary to theprinciples of natural justice, errors of record and misreading ofthe evidence, or where the conclusions of the High Court aremanifestly perverse and unsupportable from the evidence onrecord.”

23. From the aforesaid decisions of this Court on the exercise ofpower of the Supreme Court under Article 136 of the Constitution, thefollowing principles emerge:

(i) The powers of this Court under Article 136 of the Constitutionare very wide but in criminal appeals this Court does notinterfere with the concurrent findings of fact save inexceptional circumstances.

(ii) It is open to this Court to interfere with the findings of factrecorded by the High Court if the High Court has actedperversely or otherwise improperly.

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(iii) It is open to this Court to invoke the power under Article 136only in very exceptional circumstances as and when aquestion of law of general public importance arises or adecision shocks the conscience of the Court.

(iv) When the evidence adduced by the prosecution falls shortof the test of reliability and acceptability and as such it ishighly unsafe to act upon it.

(v) Where the appreciation of evidence and finding is vitiated byany error of law of procedure or found contrary to theprinciples of natural justice, errors of record and misreading A

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of the evidence, or where the conclusions of the High Courtare manifestly perverse and unsupportable from theevidence on record.

24. Keeping the aforesaid principles in mind, we shall proceed toscrutinize the materials on record.

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25. It appears from the evidence on record, more particularly theevidence of the PW-1 Nandlal Ramnihor Mishra (Exh. 12), that both,the deceased and appellant herein were known to him. The PW-1 Nandlalknew both as they all used to reside in the same locality i.e. nearby theHanuman temple situated at the Vile Parle railway station. The PW-1 inChis oral evidence has talked about the fight that first ensued at 10:30P.M. between the deceased and the appellant somewhere near the westticket window of Vile Parle Railway Station. The fight between the twowas on account of money. It appears that thereafter at about 12:00 inthe night while the deceased was sleeping, the appellant herein laid anassault on the head of the deceased with a hammer. The PW-1 NandlalDwitnessed the same on hearing the noise. After the assault was over, thePW-1 is also said to have confronted the appellant herein by asking himwhether he had killed the deceased. We do not find anything improbablein the examination-in-chief of Nandlal (PW-1) more particularlyconsidering a very scant & deficient cross-examination. We take noticeEof the fact that except a minor contradiction in the form of an omission,nothing substantial could be elicited from the cross examination of thePW-1 so as to render his entire evidence doubtful.

26. The PW-8 Udaysingh Ramsingh Thakur (Exh.29) is also oneof the eye witnesses to the incident. He also knew the deceased as wellFas the appellant as they all used to work as labourers in the locality ofVile Parle. So far as the evidence of the PW-8 Udaysingh is concernedthe defence has been able to bring on record a major contradiction in theform of an omission as the PW-8 in his police statement recorded underSection 161 of the Cr.PC had not stated anything about the appellantinflicting blows with a hammer on the head of the deceased. The PW-8Gin his cross-examination stated that he had no idea as to why the policedid not record in his police statement the factum of assault with thehammer. However, the PW-8 in his evidence has deposed that after theincident the appellant was confronted by the PW-1 Nandlal. Some partof the evidence of the PW-8 corroborates the oral testimony of the PW-1 Nandlal.H

27. The appreciation of ocular evidence is a hard task. There isno fixed or straight-jacket formula for appreciation of the ocular evidence.The judicially evolved principles for appreciation of ocular evidence in acriminal case can be enumerated as under:

I.While appreciating the evidence of a witness, the approachmust be whether the evidence of the witness read as awhole appears to have a ring of truth. Once that impressionis formed, it is undoubtedly necessary for the Court toscrutinize the evidence more particularly keeping in viewthe deficiencies, drawbacks and infirmities pointed out inthe evidence as a whole and evaluate them to find outwhether it is against the general tenor of the evidencegiven by the witness and whether the earlier evaluationof the evidence is shaken as to render it unworthy ofbelief.

II.If the Court before whom the witness gives evidencehad the opportunity to form the opinion about the generaltenor of evidence given by the witness, the appellate courtwhich had not this benefit will have to attach due weightto the appreciation of evidence by the trial court and unlessthere are reasons weighty and formidable it would not beproper to reject the evidence on the ground of minorvariations or infirmities in the matter of trivial details.

III.When eye-witness is examined at length it is quite possiblefor him to make some discrepancies. But courts shouldbear in mind that it is only when discrepancies in theevidence of a witness are so incompatible with thecredibility of his version that the court is justified injettisoning his evidence.

IV.Minor discrepancies on trivial matters not touching thecore of the case, hyper technical approach by takingsentences torn out of context here or there from theevidence, attaching importance to some technical errorcommitted by the investigating officer not going to theroot of the matter would not ordinarily permit rejection ofthe evidence as a whole.

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AV.Too serious a view to be adopted on mere variations fallingin the narration of an incident (either as between theevidence of two witnesses or as between two statementsof the same witness) is an unrealistic approach for judicialscrutiny.

VI.By and large a witness cannot be expected to possess aphotographic memory and to recall the details of anincident. It is not as if a video tape is replayed on themental screen.

B

VII.Ordinarily it so happens that a witness is overtaken byevents. The witness could not have anticipated theoccurrence which so often has an element of surprise.The mental faculties therefore cannot be expected to beattuned to absorb the details.

C

VIII.The powers of observation differ from person to person.What one may notice, another may not. An object ormovement might emboss its image on one person’s mindwhereas it might go unnoticed on the part of another.

D

IX.By and large people cannot accurately recall aconversation and reproduce the very words used by themor heard by them. They can only recall the main purportof the conversation. It is unrealistic to expect a witnessto be a human tape recorder.

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X.In regard to exact time of an incident, or the time durationof an occurrence, usually, people make their estimatesby guess work on the spur of the moment at the time ofinterrogation. And one cannot expect people to make veryprecise or reliable estimates in such matters. Again, itdepends on the time-sense of individuals which variesfrom person to person.

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XI.Ordinarily a witness cannot be expected to recallaccurately the sequence of events which take place inrapid succession or in a short time span. A witness isliable to get confused, or mixed up when interrogated lateron.

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XII.A witness, though wholly truthful, is liable to be overawedby the court atmosphere and the piercing crossexamination by counsel and out of nervousness mix upfacts, get confused regarding sequence of events, or fillup details from imagination on the spur of the moment.The sub-conscious mind of the witness sometimes sooperates on account of the fear of looking foolish or beingdisbelieved though the witness is giving a truthful andhonest account of the occurrence witnessed by him.

XIII.A former statement though seemingly inconsistent withthe evidence need not necessarily be sufficient to amountto contradiction. Unless the former statement has thepotency to discredit the later statement, even if the laterstatement is at variance with the former to some extent itwould not be helpful to contradict that witness.

[See Bharwada Bhoginbhai Hirjibhai v. State ofGujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753, LeelaRam v. State of Haryana, AIR 1999 SC 3717, andTahsildar Singh v. State of UP, AIR 1959 SC 1012]

28. To put it simply, in assessing the value of the evidence of theeye-witnesses, two principal considerations are whether, in thecircumstances of the case, it is possible to believe their presence at thescene of occurrence or in such situations as would make it possible forthem to witness the facts deposed to by them and secondly, whetherthere is anything inherently improbable or unreliable in their evidence. Inrespect of both these considerations, the circumstances either elicitedfrom those witnesses themselves or established by other evidence tendingto improbabilise their presence or to discredit the veracity of theirstatements, will have a bearing upon the value which a Court wouldattach to their evidence. Although in cases where the plea of the accusedis a mere denial, yet the evidence of the prosecution witnesses has to beexamined on its own merits, where the accused raise a definite plea orputs forward a positive case which is inconsistent with that of theprosecution, the nature of such plea or case and the probabilities in respectof it will also have to be taken into account while assessing the value ofthe prosecution evidence.

29. There is nothing palpable or glaring in the evidence of the twoeye-witnesses on the basis of which we can take the view that they are A

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Anot true or reliable eye-witnesses. Few contradictions in the form ofomissions here or there is not sufficient to discard the entire evidence ofthe eye-witnesses.

30. In the aforesaid context, we may refer to a decision of thisCourt in the case of State of U.P. v. Anil Singh, AIR 1988 SC 1998,Bwherein in para 15, it is observed thus :

“15. It is also our experience that invariably the witnessesadd embroidery to prosecution story, perhaps for the fear ofbeing disbelieved. But that is no ground to throw the caseoverboard, if true, in the main. If there is a ring of truth in theCmain, the case should not be rejected. It is the duty of thecourt to cull out the nuggets of truth from the evidence unlessthere is reason to believe that the inconsistencies or falsehoodare so glaring as utterly to destroy confidence in the witnessesIt is necessary to remember that a Judge does not presideover a criminal trial merely to see that no innocent man isDpunished. A Judge also presides to see that a guilty man doesnot escape. One is as important as the other Both are publicduties which the Judge has to perform.”

31. The medical evidence on record further corroborates the ocularversion of the eye witnesses. The PW-6 Dr. Shivaji Vishnu KachareE(Exh. 25) in his evidence has deposed that the cause of death is due tothe head injury. The expert witness has also deposed that all the injurieswere in the nature of Contused Lacerated Wound & could have beencaused by a weapon like hammer.

32. The chemical analysis report (Exh.10) of the forensic scienceFlaboratory indicates that there were stains of human blood on the hammermatching with the blood group of the deceased i.e. ‘A’ group.

33. Thus, having regard to the aforesaid, we are of the view thatboth the courts below rightly believed the two eye witnesses i.e. thePW-1 and PW-8 resply. We see no good reason to take a different viewGof their evidence than the one taken by the two courts below.

DISCOVERY PANCHNAMA DRAWN UNDER SECTION27 OF THE EVIDENCE ACT:

34. Having taken the view that there is no good reason for us todisbelieve the two eye witnesses referred to above, we could haveH

stopped and closed the matter. However, we have noticed somethingvery important so far as the law on Section 27 of the Act is concernedas discussed by the two courts below. To put it otherwise, we havenoticed a serious infirmity in the reasonings assigned by the trial court asaffirmed by the High Court so far as the position of law as regards thediscovery of weapon of offence under Section 27 of the Act is concerned.If we overlook or ignore the same then probably the trial courts maykeep committing the same mistake & in such circumstances, we wouldlike to explain the correct position of law and how to appreciate theevidence of discovery in accordance with the provisions of the Section27 of the Act.

35. The prosecution examined the PW-4 Amsu Hussain Sayyad(Exh. 21) as one of the panch witnesses to prove the discoverypanchnama (Exh. 23).

36. We must first look into the examination-in-chief of the PW-4in 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, heconcealed a weapon adjacent the shoe shop at parla. Accordinglyin my presence his statement recorded by the police. Policeobtained my signature on the memorandum-cum-statement of theaccused. The memorandum-cum-statement now shown to mebears my signature. It contents are true and correct. The saidmemorandum is exhibited at Exh. 22. Thereafter, I myself, anotherperson, two to three police officers and accused went in VileParle East, outside the railway station of Vile Parle East. Therewas a wooden bench near the shoe shop. The accused in ourpresence withdrew an iron hammer from the wooden bench andhanded over the same to the police. Police recorded thepanchnama of said hammer in my presence and took itspossession. The panchnama now shown to me is the same. Itbears 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 atthe instance of the defence as it is not relevant.

38. We may now look into the evidence of the PW-10, theinvestigating officer. In his examination-in-chief, he has deposed asregards the discovery as under:

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A“On 16[th] December, 2006 the accused made a disclosure statementin presence of panch witnesses that he was ready and willing topoint out the place where he had concealed the hammer in VileParle area. Accordingly, I drew the memorandum panchnama ofthe disclosure of statement of the accused in presence of panchwitnesses. The memorandum panchanama at Ex. 22 now shownBto me is the same. It bears my signature and signature of panchwitnesses. Its contents are true and correct. Thereafter, I myself,panch witnesses and accused on the basis of information givenby the accused went at the shop Jaibhawani footwear in VileParle on Vallabhai Patel road. Thereafter, accused went in openCplace between railway compound wall and wooden bench. Hepicked the hammer from the said open place and handed over tous. Accordingly, I seized the said hammer by preparation ofrecovery panchanama. The hammer was having a wooden handleand iron case. I saw blood stains hairs sticked to the said hammer.The recovery panchanama at Ex. 23 now shown to me bears myDsignature and signature of panch witnesses. Its contents are trueand correct.”

39. From the aforesaid it is evident that the learned publicprosecutor who conducted the prosecution before the trial court did nottake the pains to bring on record the substantive evidence of the aforesaidEtwo witnesses i.e. the PW-4 and PW-10 resply, the fact of the accusedhaving made a statement that he had concealed the hammer and he wasinclined to show that spot, even though it has been recorded in thepanchnama (Exh. 22) that the accused made such a statement. Thelearned public prosecutor does not appear to have realized that there Fshould be substantive evidence on record in this regard and that thepanchnama can be used only to corroborate the evidence of the panchand 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 admittedhis signature and, therefore, it was exhibited at Exhs.22 and 23

respectively. The examination-in-chief of the PW-4 does not show thatGhe was read over the panchnama before it was exhibited. This Courthas time and again impressed upon the necessity of reading over thepanchnama which can be used as a piece of corroborative evidence. Inspite of this, it is regrettable that the learned trial judge did not take thepains to see that the panchnama was read over to the panch before itHwas exhibited. A panchnama which can be used only to corroborate the panch has to be read over to the panch and only thereafter it can beexhibited. If the panch has omitted to state something which is found inthe panchnama, then after reading over the panchnama the panch has tobe asked whether that portion of the panchnama is correct or not andwhatever 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 tocorroborate the substantive evidence of the panch. If he replies in thenegative, then that part of the panchnama cannot be read in evidencefor want of substantive evidence on record. It is, therefore, necessarythat care is taken by the public prosecutor who conducts the trial thatsuch a procedure is followed while examining the panch at the trial. It isalso necessary that the learned trial judge also sees that the panchnamais read over the panch and thereafter the panchnama is exhibited afterfollowing the procedure as indicated above.

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40. In the aforesaid context, we may refer to and rely upon thedecision of this Court in the case of Murli and another v. State ofRajasthan reported in (2009) 9 SCC 417: (2010) 1 SCC (Cri) 12. Wegot the relevant observations:

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“34. The contents of the panchnama are not the substantiveevidence. The law is settled on that issue. What is substantiveevidence is what has been stated by the panchas or the personconcerned in the witness box.”

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41. One another serious infirmity which has surfaced is as regardsthe authorship of concealment by the person who is said to havediscovered the weapon.

42. The conditions necessary for the applicability of Section-27 of the Act are broadly as under:- F

(1) Discovery of fact in consequence of an informationreceived from accused;

(2) Discovery of such fact to be deposed to;

(3) The accused must be in police custody when heGgave informations and

(4) So much of information as relates distinctly to the factthereby discovered is admissible – Mohmed Inayatullahvs The State of Maharashtra: AIR (1976) SC 483:(1975) Cur LJ 668

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ATwo conditions for application –

(1) information must be such as has caused discovery ofthe fact; and

(2) information must relate distinctly to the fact discovered-Kirshnappa vs State Of Karnataka : AIR (1983) SC446 : (1983)Cr LJ 846

B

43. We may refer to and rely upon a Constitution Bench decisionof this Court in the case of State of Uttar Pradesh v. DeomanUpadhyaya reported in AIR (1960) SC 1125, wherein, the SupremeCourt in Paragraph-71 has explained the position of law as regards SectionC27 of the Act as under:

“71. The law has thus made a classification of accused personsinto two: (1) those two have the danger brought home to themby detention on a charge; and (2) those who are yet free. Inthe former category are also those persons who surrender toDthe custody by words or action. The protection given to thesetwo classes is different. In the case of persons belonging tothe first category the law has ruled that their statements arenot admissible, and in the case of the second category, onlythat portion, of the statement is admissible as is guaranteedEby the discovery of a relevant fact unknown before thestatement to the investigating authority. That statement mayeven be confessional in nature, as when the person in custodysays: “I pushed him down such and such mineshaft”, and thebody of the victim is found as result, and it can be proved thathis death was due to injuries received by a fall down theFmineshaft.”

D

44. The scope and ambit of Section 27 of the Act were illuminatinglystated in Phulukuri Kottaya v. Emperor, AIR (1947) PC 67, whichhave become locus classicus, in the following words:

“It is fallacious to treat the ‘fact discovered’ within the section asGequivalent to the object produced; the fact discovered embracesthe place from which the object is produced and the knowledgeof the accused as to this, and the information given must relatedistinctly to this fact. Information supplied by a person in custodythat ‘I will produce a knife concealed in the roof of my house’Hdoes not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knifeis concealed in the house of the informant to his knowledge, and ifthe knife is proved to have been used in the commission of theoffence, the fact discovered is very relevant. But if to the statementthe words be added ‘with which I stabbed ‘A” these words areinadmissible since they do not relate to the discovery of the knifein the house of the informant.”

45. What emerges from the evidence of the PW-4 & PW-10 resplyis 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 anythingabout his involvement in the concealment of the weapon. Mere discoverycannot be interpreted as sufficient to infer authorship of concealment bythe person who discovered the weapon. He could have derived knowledgeof the existence of that weapon at the place through some other sourcealso. He might have even seen somebody concealing the weapon, and,therefore, it cannot be presumed or inferred that because a persondiscovered the weapon, he was the person who had concealed it, least itcan be presumed that he used it. Therefore, even if discovery by theappellant is accepted, what emerges from the substantive evidence asregards the discovery of weapon is that the appellant disclosed that hewould 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 observedin paragraph 15 that, if the case is dependent on circumstantial evidence,different considerations would have prevailed because the balance ofevidence after excluding the testimony of the two eye-witnesses wasnot of the standard required in cases dependent wholly on circumstantialevidence (as is the case here). This Court observed that the evidence ofdiscovery of pistol at the instance of the appellant cannot, by itself, provethat he who pointed out the weapon wielded it in the offence. Thestatement accompanying the discovery was found to be vague to identifythe authorship of concealment and it was held that pointing out the weaponmay, at the best, prove the appellant’s knowledge as to where the weaponwas kept.

47. Thus, in the absence of exact words, attributed to an accusedperson, as statement made by him being deposed by the InvestigatingOfficer in his evidence, and also without proving the contents of the AB

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Apanchnamas, the trial Court was not justified in placing reliance upon thecircumstance of discovery of weapon.

48. Even while discarding the evidence in the form of discoverypanchnama the conduct of the appellant herein would be relevant underSection 8 of the Act. The evidence of discovery would be admissible asBconduct under Section 8 of the Act quite apart from the admissibility ofthe disclosure statement under Section 27, as this Court observed inA.N. Venkatesh v. State of Karnataka, (2005) 7 SCC 714,:

“By virtue of Section 8of the Evidence Act, the conduct of theaccused person is relevant, if such conduct influences or isCinfluenced by any fact in issue or relevant fact. The evidence ofthe circumstance, simpliciter, that the accused pointed out to thepolice officer, the place where the dead body of the kidnappedboy was found and on their pointing out the body was exhumed,would be admissible as conduct under Section 8irrespective ofthe fact whether the statement made by the accusedDcontemporaneously with or antecedent to such conduct falls withinthe purview of Section 27or not as held by this Court in PrakashChand Vs. State (Delhi Admn.) [(1979) 3 SC 90]. Even if wehold that the disclosure statement made by the accused appellants(Ex. P14 and P15) is not admissible under Section 27of the”Evidence Act, still it is relevant under Section 8.

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49. In the State (NCT of Delhi) v. Navjot Sandhu, (2005) 11SCC 600, the two provisions i.e. Section 8 and Section 27 of the Actwere elucidated in detail with reference to the case law on the subjectand apropos to Section 8 of the Act, wherein it was held:

F“Before proceeding further, we may advert to Section 8of theEvidence Act. Section 8insofar as it is relevant for our purposemakes the conduct of an accused person relevant, if such conductinfluences or is influenced by any fact in issue or relevant fact. Itcould be either previous or subsequent conduct. There are twoExplanations to the Section, which explains the ambit of the wordG‘conduct’. They are:

Explanation 1 : The word ‘conduct’ in this Section does notinclude statements, unless those statements accompany andexplain acts other than statements, but this explanation is not toaffect the relevancy of statements under any other Section of thisHAct.

Explanation 2 : When the conduct of any person is relevant, anystatement made to him or in his presence and hearing, whichaffects such conduct, is relevant.

The conduct, in order to be admissible, must be such that it hasclose nexus with a fact in issue or relevant fact. The Explanation1 makes it clear that the mere statements as distinguished fromacts do not constitute ‘conduct’ unless those statements“accompany and explain acts other than statements”. Suchstatements accompanying the acts are considered to be evidenceof res gestae. Two illustrations appended to Section 8deservespecial mention.

(f) The question is, whether A robbed B.

The facts that, after B was robbed, C said in A’s presence —thepolice are coming to look for the man who robbed B”, and thatimmediately afterwards A ran away, are relevant.

(i) A is accused of a crime.

The facts that, after the commission of the alleged crime, heabsconded, or was in possession of property or the proceeds ofproperty acquired by the crime, or attempted to conceal thingswhich were or might have been used in committing it, are relevant.

We have already noticed the distinction highlighted in PrakashChand’s case (supra) between the conduct of an accused whichis admissible under Section 8and the statement made to a policeofficer in the course of an investigation which is hit by Section162Cr.P.C. The evidence of the circumstance, simpliciter, thatthe accused pointed out to the police officer, the place wherestolen articles or weapons used in the commission of the offencewere hidden, would be admissible as ‘conduct’ under Section8irrespective of the fact whether the statement made by theaccused contemporaneously with or antecedent to such conduct,falls within the purview of Section 27, as pointed out in PrakashChand’s case. In Om Prakash case (supra) this Court held: Evenapart from the admissibility of the information under Section, theevidence of the Investigating Officer and the Panchas that theaccused had taken them to PW11 (from whom he purchased the A

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Aweapon) and pointed him out and as corroborated by PW11 himselfwould be admissible under Section 8of the Evidence Act as‘conduct’ of the accused”.

50. Further, in the aforesaid context, we would like to sound anote of caution. Although the conduct of an accused may be a relevantBfact under Section 8 of the Act, yet the same, by itself, cannot be aground to convict him or hold him guilty and that too, for a serious offencelike murder. Like any other piece of evidence, the conduct of an accusedis also one of the circumstances which the court may take intoconsideration along with the other evidence on record, direct or indirect.What we are trying to convey is that the conduct of the accused alone,Cthough may be relevant under Section 8 of the Act, cannot form thebasis of conviction.

51. In the ultimate analysis, we have reached to the conclusionthat there is no merit in the present appeal.

D52. The appeal accordingly fails and is hereby dismissed.

Ankit Gyan

Appeal dismissed.

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