DAVINDER SINGH versus STATE OF PUNJAB on 22 June 2023

1. The appellant stood charged and convicted for the offencepunishable under Sections 376, 452 and 506 of Indian Penal Code 1860,(hereinafter referred to as IPC) by the Additional Sessions Judge(Adhoc), Fast Track Court, Amritsar, which was confirmed by the HighCourt of Punjab & Haryana in Criminal Appeal No. S.1106 SB of 2003.Seeking to overturn the aforesaid decisions, the present appeal is filed.

BRIEF FACTS:

2. As per the prosecution version, the appellant came to theresidence of the prosecutrix and committed the offence punishable underSection 376 IPC, brandishing a knife. The brother of the victim namely[REDACTED] came home and upon seeing him, the appellant took to hisheels. On returning home, PW4, the father of the prosecutrix, filed acomplaint for quarrel alone as he felt that the dignity of his daughter,PW6 was at stake.

3. After the aforesaid occurrence dated 15.03.2000, the appellantalong with the few other co-accused persons went to the residence of theuncle of the prosecutrix wherein she was temporarily staying anticipatingtrouble, and exerted threats. Accordingly, a complaint was lodged on13.04.2000 in FIR No.60/2000 under Sections 376, 452, 506 IPC.

4. The learned Additional Sessions Judge (Adhoc), Fast TrackCourt, Amritsar examined ten prosecution witnesses. It is to be notedthat the only eye witness, who is the brother of the prosecutrix PargatSingh has not been examined on behalf of the prosecution.

5. The Trial Court and the High Court rendered conviction againstappellant under all the Sections, with the major punishment of seven yearsrigorous imprisonment for the offence punishable under Section 376 IPC.

SUBMISSIONS OF THE APPELLANT:

6. Learned counsel for the appellant submitted that there is norecovery of the weapon allegedly used. The non-examination of PargatSingh would make the case of prosecution doubtful. There was no externalinjury found on the prosecutrix. The inordinate delay in filing the complainthas not been taken note of. If PW4 was conscious about the reputationof his daughter being tarnished, he would not have given the complaintbelatedly. At best, it could be a case of a relationship turning sour and A

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Anot approved by the family. The High Court erred in recording that theappellant took co-accused persons to the residence of the uncle of theprosecutrix to commit the offence punishable under Section 376 IPC,even when it was not the case of the prosecution. The fact that theparties have compromised the matter in the year 2013 is also to be keptin mind. The High Court being the appellate forum has dealt with theBmatter in a cursory manner without properly analysing the evidence onrecord. Moreover, even the maternal uncle of the prosecutrix namely[REDACTED] has not been examined.

SUBMISSIONS OF THE RESPONDENT:

C7. Learned counsel appearing for the State submitted that thefindings being concurrent and in the absence of any perversity, there isno need for any interference. Subsequent arrangements between theparties will not have any bearing and, in any case, it is not permissibleunder law. Both the Courts have rightly relied upon the evidence ofPW4 and PW6. In the absence of any enmity or motive, the evidence ofDPW6 has been correctly found favourable.

DISCUSSION:

8. The prosecutrix PW6 did not allege that the offence punishableunder Section 376 IPC was committed at her uncle’s residence.Admittedly, there is delay of 28 days in giving the complaint. The reasonsEassigned cannot be accepted as it defies reason and logic. If the intentionof PW4 was to suppress the occurrence, there is no need to give thecomplaint subsequently. He did give a complaint which was not evenregistered. Strangely, the complaint was given by PW4 who was notpresent on both the occasions. Further, to commit the offence punishableFunder Section 376 IPC no sane person would take two accomplices,that too after committing a similar offence earlier. The best person todepose would have been the uncle of the prosecutrix Satnam Singh.There is no attempt to recover the knife from the appellant as it is aspecific case of the prosecution that he committed the offence bythreatening to harm the prosecutrix. The prosecution, for the reasonsGbest known to them, has not chosen to examine him as well. PW4 is notthe eye-witness. There is absolutely no reason as to why the son ofPW4, who is incidentally the brother of PW6, has not been examinedbeing the sole eye-witness. On the issue of non-examination of materialwitness, we wish to place reliance on the decision of this Court in TakhajiHHiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145, 200:

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“19. So is the case with the criticism levelled by the High Courton the prosecution case finding fault therewith for non-examinationof independent witnesses. It is true that if a material witness, whowould unfold the genesis of the incident or an essential part of theprosecution case, not convincingly brought to fore otherwise, orwhere there is a gap or infirmity in the prosecution case whichcould have been supplied or made good by examining a witnesswho though available is not examined, the prosecution case canbe termed as suffering from a deficiency and withholding of sucha material witness would oblige the court to draw an adverseinference against the prosecution by holding that if the witnesswould have been examined it would not have supported theprosecution case. On the other hand if already overwhelmingevidence is available and examination of other witnesses wouldonly be a repetition or duplication of the evidence already adduced,non-examination of such other witnesses may not be material. Insuch a case the court ought to scrutinise the worth of the evidenceadduced. The court of facts must ask itself — whether in thefacts and circumstances of the case, it was necessary to examinesuch other witness, and if so, whether such witness was availableto be examined and yet was being withheld from the court. If theanswer be positive then only a question of drawing an adverseinference may arise. If the witnesses already examined are reliableand the testimony coming from their mouth is unimpeachable thecourt can safely act upon it, uninfluenced by the factum of non-examination of other witnesses…”

9. In Rajesh Yadav v. State of Uttar Pradesh, (2022) 12 SCC

“Non-examination of witness

34. A mere non-examination of the witness per se will not vitiatethe case of the prosecution. It depends upon the quality and notthe quantity of the witnesses and its importance. If the court issatisfied with the explanation given by the prosecution along withthe adequacy of the materials sufficient enough to proceed withthe trial and convict the accused, there cannot be any prejudice.Similarly, if the court is of the view that the evidence is not screenedand could well be produced by the other side in support of itscase, no adverse inference can be drawn. Onus is on the part of AB

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990SUPREME COURT REPORTS

Athe party who alleges that a witness has not been produceddeliberately to prove it.”

10. The High Court has recorded a wrong factual finding that theoffence under Section 376 IPC was committed even in the uncle’sresidence of PW6 which is not even the case spoken by her. The caseBof the prosecution, as projected, does not conform to the degree ofprobability. There is no doubt that the evidence of the prosecutrix willhave to be kept at a higher pedestal but then, such a testimony will haveto satisfy the conscience of the Court. It has to be seen contextually inthe light of the other evidence available. It does appear that the appellantwanted to marry the prosecutrix which was stoutly opposed by her family.CWe are not willing to go into the subsequent compromise made betweenthe parties, which happened after the death of PW4. The submissionmade by the counsel for the appellant appears to be probable whenpitted against the version of the prosecution.

11. We wish to quote with profit the following paragraphs of theDdecision of this Court in the case of Rajesh Yadav (Supra), on theapproach of the court in appreciating the evidence before it, “12. Section 3 of the Evidence Act defines “evidence”, broadlydivided into oral and documentary. “Evidence” under the Act isthe means, factor or material, lending a degree of probabilityEthrough a logical inference to the existence of a fact. It is an“adjective law” highlighting and aiding substantive law. Thus, it isneither wholly procedural nor substantive, though trappings of bothcould be felt.

13. The definition of the word “proved” though gives an impressionFof a mere interpretation, in effect, is the heart and soul of theentire Act. This clause, consciously speaks of proving a fact byconsidering the “matters before it”. The importance is to the degreeof probability in proving a fact through the consideration of thematters before the court. What is required for a court to decipheris the existence of a fact and its proof by a degree of probability,Gthrough a logical influence.

14. Matters are necessary, concomitant material factors to provea fact. All evidence would be “matters” but not vice versa. Inother words, matters could be termed as a genus of which evidencewould be a species. Matters also add strength to the evidenceHgiving adequate ammunition in the Court’s sojourn in deciphering the truth. Thus, the definition of “matters” is exhaustive, andtherefore, much wider than that of “evidence”. However, there isa caveat, as the court is not supposed to consider a matter whichacquires the form of an evidence when it is barred in law. Mattersare required for a court to believe in the existence of a fact.

15. Matters do give more discretion and flexibility to the court indeciding the existence of a fact. They also include all theclassification of evidence such as circumstantial evidence,corroborative evidence, derivative evidence, direct evidence,documentary evidence, hearsay evidence, indirect evidence, oralevidence, original evidence, presumptive evidence, primaryevidence, real evidence, secondary evidence, substantive evidence,testimonial evidence, etc.

16. In addition, they supplement the evidence in proving theexistence of a fact by enhancing the degree of probability. As anexhaustive interpretation has to be given to the word “matter”,and for that purpose, the definition of the expression of the words“means and includes”, meant to be applied for evidence, has to beimported to that of a “matter” as well. Thus, a matter might includesuch of those which do not fall within the definition of Section 3,in the absence of any express bar.

17. What is important for the court is the conclusion on the basisof existence of a fact by analysing the matters before it on thedegree of probability. The entire enactment is meant to facilitatethe court to come to an appropriate conclusion in proving a fact.There are two methods by which the court is expected to come tosuch a decision. The court can come to a conclusion on theexistence of a fact by merely considering the matters before it, informing an opinion that it does exist. This belief of the court isbased upon the assessment of the matters before it. Alternatively,the court can consider the said existence as probable from theperspective of a prudent man who might act on the suppositionthat it exists. The question as to the choice of the options is bestleft to the court to decide. The said decision might impinge uponthe quality of the matters before it.

18. The word “prudent” has not been defined under the Act. Whenthe court wants to consider the second part of the definition clauseinstead of believing the existence of a fact by itself, it is expected A

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to take the role of a prudent man. Such a prudent man has to beunderstood from the point of view of a common man. Therefore,a Judge has to transform into a prudent man and assess theexistence of a fact after considering the matters through that lensinstead of a Judge. It is only after undertaking the said exercisecan he resume his role as a Judge to proceed further in the case.

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19. The aforesaid provision also indicates that the court is concernedwith the existence of a fact both in issue and relevant, as againsta whole testimony. Thus, the concentration is on the proof of afact for which a witness is required. Therefore, a court canappreciate and accept the testimony of a witness on a particularCissue while rejecting it on others since it focuses on an issue offact to be proved. However, we may hasten to add, the evidenceof a witness as whole is a matter for the court to decide on theprobability of proving a fact which is inclusive of the credibility ofthe witness. Whether an issue is concluded or not is also a court’sDdomain.”

12. If they feel no action was taken after the alleged occurrenceand the matter was compromised as projected by the prosecution, therewould have been other independent witnesses as well. The prosecutionhas not produced any such witness. The Courts below have not consideredEthe evidence available on record in the proper perspective. They gotcarried away by the statement made by PW6. The evidence would alsosuggest that PW4 was not willing to give his daughter in marriage to theappellant though he was desirous of marrying her. In fact, the FirstInformation Report itself speaks about the aforesaid fact.

F13. In view of the foregoing discussion, we have no hesitation inholding that the conviction and sentence rendered by the AdditionalSessions Judge (Adhoc), Fast Track Court, Amritsar in Sessions CaseNo. 41 of 2002 as confirmed in Criminal Appeal No. S.1106 SB of 2003of the High Court of Punjab & Haryana require to be set aside.Accordingly, they are set aside and the appeal stands allowed. TheGappellant is acquitted of all the charges. The bail bond executed standsdischarged.

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Ankit Gyan

(Assisted by : Aarsh Choudhary, LCRA)

Appeal allowed.