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A DIGEST ON CRIMINAL TRAILK.V.S.S.PRABHAKAR RAO advocate, Rajahmundry
INTRUDCTION ;- Depending on the gravity of the offences and the
punishment prescribed there for, criminal trial under the Code of Criminal
Procedure, 1973 (Cr.P.C for short) has been classified into two viz., Magisterial
trial and Sessions trial. The first schedule to the Cr.P.C. is divided into two parts
namely, Part I and Part II. Column I of the first part of the first schedule
enumerates the list of offences punishable under the Indian Penal Code and
Column 6 thereof indicates the court by which those offences are triable. Those
courts are either the Magistrate’s courts or the courts of Session. The second part
of the first schedule deals with offences punishable under other laws. In the
absence of any specific provision under such other laws regarding investigation,
inquiry or trial, the procedure prescribed under the Cr.P.C. for the same shall be
applicable by virtue of Sec.4 (2) of Cr.P.C. If under the special law the offence is
punishable with imprisonment for life or imprisonment for more than 7 years, then
by virtue of the second part of the I schedule to Cr.P.C. the offence shall be triable
by a Court of Session.
Abatement of appeal - Death of accused' = Sec 394-(1) Every appeal under Sec
377 or 378 shall finally abate on the death of accused
Sec 394-(2) Provided that when the appeal against conviction of death
sentence or imprisonment and appellant has dies during the pendancy of appeal
any near relatives with in 30 days of the death of appellant , apply to leave to
continue to appellate court.
A short question that arises for our consideration in this appeal is whether the
husband of the deceased appellant is entitled to continue the appeal and, if so,
whether leave to continue the appeal could have been granted by the Registrar of
this Court. ….. we are of the opinion that: (a) where the appeal is against a
conviction and sentence of death or of imprisonment, and the appellant dies
during the pendency of the appeal, any of his near relatives may, within thirty
days of the death of the appellant, apply to the Appellate Court for leave to
continue the appeal; and if leave is granted, the appeal shall not abate ( Jugal
kishore khetawat V State of West Bengal 2011 AIR SC 1358 = 2011 (11) SCC
502, = 2011 CRL.LJ 2170 = 2011 SCC (CrL) (3) 387 and Khedu Mohton and others
vs. State of Bihar 1971 CrLJ 20 : 1971 AIR (SC) 66 : 1971(1) SCR 839 : 1970(2) SCC 450 :
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1971 Mad LW (Cri)153 : 1970 Pat LJR 715 : 1971(1) An LT 288 and Bondada Gajapathi
Rao Vs. State of A.P ) 1964(2) CrLJ 598 : 1964 AIR (SC) 1645 : 1964 (7) SCR 251
ACCOMPLICE - Evidence of An Accomplice – - Held that the deposition of an
accomplice in a crime who has not been made an accused/put to trial, can be
relied upon, however, the evidence is required to be considered with care and
caution - An accomplice who has not been put on trial is a competent witness as
he deposes in the court after taking oath and there is no prohibition in any law not
to act upon his deposition without corroboration. Prithipal Singh Etc. Appellants v.
State of Punjab & Anr. Etc. Respondents) (2011 STPL(LL) 8640 SC = JT 2011 (12)
SC 584 = 2011(12) SCALE 411 = (2012) 1 SCC 10 = 2012 AIR(SCW) 594
Accomplice - A mute spectator of crime - A person witnessing crime but not
passing on the information to Police cannot be termed as accomplice even though
testimony of such person should be treated with caution. What the law requires is
that there should be such corroboration of the material part of the story
connecting the accused with the crime as will satisfy reasonable minds that the
man can be regarded as a truthful witness.( Vomireddy Satyanarayana Reddy Vs,
State of Hyderabad , 1956 AIR (SC) 379 : 1956 CrLJ 777 : 1956 SCR 247 : 1956 All
LJ 389
ACCOMPLICE= evidence of an accomplice – not put on trial: 1) An accomplice is a competent witness and conviction can lawfully rests upon his uncorroborated testimony, yet the court is entitled to presume and may indeed, be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless the evidence is corroborated in material particulars, which means that there has to be some independent witness tending to incriminate the particular accused in the commission of the crime. ( Rameshswar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54; and Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637).2) The Supreme Court examined the issue while taking into consideration the provisions of Section 133 read with Section 114 Illustration(b) of the Evidence Act and held that the provision of Section 114 Illustration (b) embodies a rule of prudence cautioning the court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. The legislature in its wisdom used the word ‘may’ and not ‘must’ and, therefore, the court does not have a right to interpret the word ‘may’ contained therein as ‘must’. The court has to appreciate the evidence with caution and take a view as to the credibility of the evidence tendered by an accomplice. In case evidence of an accomplice is
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found credible and cogent, the court can record the conviction based thereon even if uncorroborated. The Court further explained that the word “corroboration” means not mere evidence tending to confirm other evidence. Firstly, it is not necessary that there should be an independent corroboration of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the accomplice, should in itself be sufficient to sustain conviction. All that is required is that, there must be some additional evidence rendering it probable that the case of the accomplice is true and it is reasonably safe to act upon it. Secondly, the evidence on record must reasonably connect or tend to connect the case with the crime by confirming in some material particular the testimony of an accomplice. Thirdly, the circumstances involved in the case must be such as to make it safe to dispense with the necessity of corroboration, though, such evidence may be merely circumstantial evidence to show connection of the case with the crime In K. Hasim v. State of Tamil Nadu, AIR 2005 SC 128. (See also: Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420).3) The issue was again considered by this Court in Chandran alias Manichan alias Maniyan & Ors. v. State of Kerala, ( AIR 2011 SC 1594 =2011 5 SCC 161,) wherein the Court had an occasion to appreciate the evidence of a person who had not been put on trial, but could have been tried jointly with accused and found his evidence reliable in view of the law laid down by this Court in Laxmipat Choraria & Ors. v. State of Maharashtra, AIR 1968 SC 938.
ACCUSED IS OF UNSOUND MIND- Supposing an accused person who is of unsound
mind is committed to the court of Session, it is an illegal committal because it is
for the committal Magistrate himself toconduct an enquiry under Sec. 328 Cr.P.C.
In a case of wrong committal the SessionsJudge does not have the power to set
aside the committal and send it back to the committal court. He can only refer the
matter to the High Court by invoking the power under Sec. 395 (2) Cr.P.C.The
ordinary presumption about a witness is that every witness testifying on
oathbefore a court of law is a truthful witness unless he is shown to be unreliable
oruntruthful on any particular aspect. Witnesses solemnly deposing on oath in the
witnessbox during a trial upon a grave charge of murder must be presumed to act
with a fullsense of responsibility of the consequence of what they state ( State of
Punjab v.Hari Singh- AIR 1984 SC 1168)
ACCUSED NAMED FIRST TIME IN THE COURT:
The Supreme Court considered the issue at length and held that in case the
witness does not involve a particular accused in a crime at the time of recording
his statement under Section 161 Cr.P.C., and names he first time in his deposition
in the court, the accused becomes entitled to benefit of doubt. ( Rudrappa
Ramappa Jainpur & Ors. v. State of Karnataka, AIR 2004 SC 4148 A similar view
has been re-iterated in Staterepresented by Inspector of Police, Tamil Nadu v.
Sait alias Krishnakumar, (2008) 15 SCC 440.
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Accused Named in first time in Court =In case the witness does not involve a
particular accused in a crime at the time of recording his statement under
Section 161 Cr.P.C., and names him first time in his deposition in the
court, the accused becomes entitled to benefit of doubt. Prithipal Singh Etc.
Appellants v. State of Punjab & Anr. Etc. Respondents) (2011 STPL(LL) 8640 SC =
JT 2011 (12) SC 584 = 2011(12) SCALE 411 = (2012) 1 SCC 10 = 2012 AIR(SCW)
594
Abscondence of accused - Does not lead to an inference of culpability in the
commission of crime - However, abscondence, as a circumstance, if duly proved,
could be utilized to fortify the conclusion of guilt arrived at on the basis of other
cogent and reliable evidence. (Arun Dharma Chavhan Vs State of Maharashtra)
2002(1) Criminal Court Cases 162 (Bom.)
Accused can be convicted on the sole testimony of a witness provided he
is found wholly reliable. (Ramesh & Ors. Vs State of U.P.) 2005(2) Criminal Court
Cases 156 (Allahabad)
- Accused cannot be convicted for failure to explain as to why he is falsely
implicated. (Alim Ullah Vs State of U.P.) 2003(3) Criminal Court Cases 407
(Allahabad)
Accused sold gold chain after few hours of occurrence - Gold chain recovered
only after 4 days at the instance of accused, who had no explanation to offer as to
how he came in possession of the gold chain belonging to the deceased -
Presumption arises that accused was the culprit who removed the gold chain from
the person of the deceased. (Gilbert Pereira Vs State of Karnataka) AIR 2004 SC
4454 ( Note :- same was Cited in Defence; below kindly see ) Sec 114 of
Evidence Act Presumption of committing offence
Acquaintance or friendship - Evidence of eye witness cannot be discarded for
the reason of acquaintance or friendship with the deceased if it is proved by other
satisfactory evidence that the witness was very much present at the time of
incident. (Ram Kishan & Ors. Vs State of Uttar Pradesh) AIR 2004 SC 4676
Additional evidence - The necessity for additional evidence arises when Court
feels that some evidence which ought to have been before it is not there or that
some evidence has been left out or erroneously brought in - In all cases it cannot
be laid down as a rule of universal application that the Court has to first find out
whether the evidence already on record is sufficient. (Zahira Habibulla H.Sheikh &
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Anr. Vs State of Gujarat & Ors.) 2004(4) SCC 158-2004(3) Criminal Court Cases
195 (S.C.) Crl. Appeal No 446-449 /2004 date 12-4-2004( Best bakery case)
Adverse inference on accused ;- When a document being in possession of a
public functionary, who is under a statutory obligation to produce the same before
the court of law, fails and/or neglects to produce the same, an adverse inference
may be drawn against him. The Special Judge was enjoined with a duty to draw an
adverse inference. He did not consider the question from the point of view of
statutory requirements, but took into consideration irrelevant factors. State
Inspector of Police, Visakhapatnam Vs Surya Sankaram Kurri (2006(5)Suppl.SCR229 ,
2006(7 )SCC172)
Adverse inference on accused;- No person can be compelled to give sample
of blood for analysis against his or her will and no adverse inference can be
drawn for such refusal. Courts is India cannot order blood group test as a matter
of course. Unlike the English law* in India there is no special statute governing
this. Neither the Criminal Procedure Code nor the Evidence Act empowers the
court-; to direct such a test, Goutam Kundu vs. State of West Bengal, (1993) 3 SCC
418 1993 AIR 2295, 1993 SCR (3) 917 Kamti Devi v Poshi Ram AIR 2003 SC 2226
Adverse inference can drawn on accused :-It was held that the refusal to paternity
(DNA) test would bar a party from challenging the paternity of the child it was also
stated that an adverse inference can be drawn if a party refuses to undergo a
DNA test. This seems to be a preferable interpretation and strikes a balance
where although the court does not have the power to direct the giving of sample,
it may draw an adverse inference if it is not given. (Dwarika Prasad Satpatty v.
Bidyut Parva Dixit ) 2000Cri LJ 1: AIR 1999 SC 3348 and K. Salvaraj v P.
Jayakumari (2000 Cri LJ 1 :AIR 1999 SC 3348
Adverse inference on accused - refusal participate in identification parade or refusal to give finger or foot prints - Adverse inference can be drawn against the accused.
( Mulkh Raj Sikka Vs Delhi Administration )1974 CrLJ 1171 : 1974 AIR (SC) 1723 : 1974 CAR 226 : 1975 (3) SCC 2
Affidavit - Tendered in evidence - Witness not brought in Court for cross
examination - The only inference is that prosecution had something to hide.
(Rambir Vs State of Haryana) 2004(4) Criminal Court Cases 396 (P&H)
Age - Ascertainment - Radiological examination - Margin of error is two years
on either side - However, in case radiological examination is in respect of multiple
joints, margin of error could be reduced to six months on either side. (Lal Bahadur
Vs The State) 2004(4) Criminal Court Cases 372 (Delhi)
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Alibi ;- The plea of alibi. The word 'alibi', a Latin expression means and implies in
common acceptation 'elsewhere': It is a defence based on the physical
impossibility of participation of a crime by an accused in placing the latter in a
location other than the scene of crime at the relevant time, shortly put the
presence of the accused elsewhere when an offence was committed. The
Supreme Court in Dudh Nath Pandey v. State of U.P [1981 AIR AC 911, 1981
SCR (2) 771=1981 SCC (2) 166 =1981 SCALE (1)285 )has the following to state in
regard to the plea of alibi:
Alibi :-The plea of alibi postulates the physical impossibility of the presence of
the accused at the scene of offence by reason of his presence at other place. The
plea can therefore succeed only if it is shown that the accused was so far away at
the relevant time that he could not be present at the place where the crime was
committed..( Munshi Prasad And Ors. vs State Of Bihar ( AIR 2001 SC 3031,
2001 (2) ALD Cri 882 =2002(1)ALT(Cri)157, 2001CriLJ4708, JT2001(8)SC406,
2001(7)SCALE114, (2002)1SCC351
Alibi - A distance of 15/20 minutes' walk from the place of occurrence cannot be
said to be “presence elsewhere” to establish a plea of alibi. (Arun Das Vs State of
West Bengal) 2004(3) Criminal Court Cases 566 (Calcutta)
Alibi - Even when plea of alibi is raised, burden of proof is on prosecution.
(Narendra Singh & Anr. Vs State of M.P.) 2004 AIR 3249, 2004(3 )SCR1148,
2004(10 )SCC699 , 2004(4 )SCALE543 , 2004(1 )Suppl.JT29 Appeal (Crl) No 298.1997
date 12-4-2004
Appeal - Accused who has not preferred an appeal or even if his SLP is dismissed
- If relief granted to remaining accused and case of accused who has not appealed
stands on the same footing, he should not be denied the benefit which is
extended to the other accused. (Gurucharan Kumar & Anr. Vs State of Rajasthan)
AIR2003 SC 992 ( Crl Appeal No 1988 / 1996 Dated 8-1-2003 )
Appeal against acquittal – (A) An order of acquittal cannot be interfered with
when findings are not perverse and a reasonably possible view has been taken
which is fortified with evidence, in the absence of error of law or miscarriage of
justice. (State of Kerala Vs Arun Valenchery) 2002(1) Criminal Court Cases 355
(Kerala)
(B) If a view taken by the Court recording verdict of acquittal is
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reasonable, Supreme Court would not substitute its own view and reverse the
verdict of acquittal into conviction - Criminal jurisprudence no doubt requires a
high standard of proof for imposing punishment on an accused, but it is equally
important that on hypothetical grounds and surmises prosecution evidence of a
sterling character should not be brushed aside and disbelieved to give undue
benefit of doubt to the accused. (State of Uttar Pradesh Vs Ram Sewak & Ors.)
AIR 2003 SC 2141 = 2003(10 ALT (Crl) 370= 2003 CRL. L.J 4226
(C ) Power of the High Court while hearing appeal against acquittal is as
wide as an appeal against conviction. (Dhruvendra Singh & Ors. Vs State of
Rajasthan) 2002(2) Criminal Court Cases 307 (Raj.)
Appeal against conviction – (A) Committal of accused to prison - Not proper
without recording reasons - It is duty of trial Court to enlarge accused on bail on
appropriate conditions during pendency of appeal or to pass order for continuance
of his detention in judicial custody for reason to be recorded in writing - His
continued detention even after completion of sentence of imprisonment for three
years, in absence of order either for enlargement on bail or for committing him to
prison during pendency of appeal, held, illegal. (State Vs Gurappa alias Gurava)
2002(3) Criminal Court Cases 706 (Karnataka)
(B) Counsel of appellant absent - Appellate Court pronounced judgment
after hearing arguments from the public prosecutor - Held, if the appellate Court
did not think it proper to issue notice to the appellant to appear and argue, at
least, appellate Court could have requested some senior counsel from the local
Bar to address the Court as amicus curiae - Order amounts to an illegality and the
same set aside. (Pichharu Satnami Vs State of Orissa) 2002(2) Criminal Court
Cases 5 (Ori.)
(C ) In a concurring judgment of conviction, Apex Court is not to scrutinise
evidence again unless there has been total miscarriage of justice. (Jai Narain Vs
State of U.P.) 96 (2003) CLT 75 SC, JT 2002 (8) SC 513 2003(1) Apex Court Judgments
90 (S.C.)
Approver:- ( Sec 306 Cr. P.C). The Question that arose for consideration
was whether an approver could be forced to give evidence. The petitioner and
others were accused in connection with several explosions that killed many
people in Delhi. Of the several accused the petitioner and another, in the
course of the investigation turned in favour of the prosecution and therefore
the prosecution made them approvers and they were granted pardon by the
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lower court. Subsequently they retracted from their earlier statements and
refused to give evidence. It was held by the Supreme Court that, once he
turned an approver and a pardon is granted to him he ceases to be an
accused and he turns a witness for the prosecution. Therefore, S 306 of the
Criminal Procedure Code requires him to make a full and true disclosure of the
entire circumstances in his knowledge. Therefore he is legally bound to make
the disclosure even if it is incriminatory. Therefore, the argument under 20(3)
cannot be sustained.( State of Delhi Administration v. Jagjit Singh, AIR 1989
SC 598, 1989 CriLJ 986,)
Absence of Counsel for accused in Trail. Constitution of India Art.
21, Art. 22(1) : Criminal P.C. (2 of 1974) S. 303 - CRIMINAL CASE - Absence of
Counsel - Criminal case - Absence of Counsel - Right of accused to have a
Counsel - Held that a criminal case should not be decided against the accused in
the absence of a counsel - If a criminal case whether trial or appeal/revision is
decided against the accused in the absence of a counsel, there will be violation of
Article 21 of the Constitution - In the absence of a counsel, for whatever reasons,
the case should not be decided forthwith against the accused but in such a
situation the Court should appoint a counsel who is practicing on the criminal side
as amicus curiae and decide the case after fixing another dated and hearing him.
(Paras 8, 12 and 22)
Sukur Ali v. State of Assam , 2011 STPL(LL) 1952 SC = 2011(2) SCALE
730 = JT 2011 (2) SC 527 = 2011 AIR(SCW) 1352 = (2011) 2 SCC(Cri) 481
Appreciation of evidence – 1 ) Bullet injuries - Clothes of witnesses who took
deceased to hospital not stained with blood - No case that deceased had profuse
bleeding and even if there was bleeding, the blood may not have splashed to
stain the clothes of witnesses when deceased himself was wearing clothes -
Presence of witnesses at the place of occurrence on this count cannot be doubted.
(Hem Raj Vs Raja Ram & Ors.) AIR 2004 SC 1489 = 2004 (9) SCC 18=2004(4)
Criminal Court Cases 298 (S.C.) Appeal ( Crl ) No 656/ 1997 dated 22-1-2004
2. PW1 a close relative left the dead body in hospital and went to lodged FI -
As many other relatives had come to the hospital as such leaving dead body of a
close relative and going to lodge FI is not improbable. (Hem Raj Vs Raja Ram &
Ors.) 2004 SCAIR 1489, , 2004( 9 )SCC 18, 2004( 1 )SCALE637
Arduous and lengthy cross examination of a witness - Contradictions -
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When a witness is subjected to lengthy arduous cross examination over a lengthy
period of time there is always a possibility of the witnesses committing mistakes
which can be termed a as omissions, improvements and contradictions therefore
those infirmities will have to be appreciated in the back ground of ground realities
which makes the witness confused because of the filibustering tactics of the cross
examining Counsel. (Jai Sree Yadav Vs State of U.P.) 2004(4) Criminal Court Cases
28 (S.C.) Appeal (Crl ) No 1072/ 2003, dated 12-8-2004
Arrest by magistrate: Sec 44 When any offence is committed in the
presence of a
magistrate, whether Executive or Judicial, within his local jurisdiction, he
may himself arrestor order any person to arrest the offender, and may
thereupon, subject to the provisionsherein contained as to bail, commit
the offender to custody (D.K. Basu v. State of W.B.) (1997) 1 SCC 416 (1997 AIR
SCW 233)
Benefit granted in another appeal to one of the other co-accused - Held,
same benefit shall be extended to earlier co-accused also albeit dismissal of his
appeal on an antecedent date. (Akhil Ali Jehangir Ali Sayyed Vs State of
Maharashtra) JT 2002 (2) SC 158, 2002(3) Criminal Court Cases 414 (SC)
Benefit Of Doubt:- The criminal jurisprudence, no doubt, requires a high
standard of proof for imposing punishment to an accused. But it is equally
important that on hypothetical grounds and surmises prosecution evidence of a
sterling nature should not be brushed aside and disbelieved to give undue benefit
of doubt to the accused. (Vide State of U.P. v.Ram Sevak and others-2003 (1)
Crimes 461 (SC). CASE NO.: Appeal (crl.) 530 of 1991
The law should not be stretched morbidly to embrace every hunch
hesitancy and degree of doubt. Our jurisprudentialenthusiasm for presumed
innocence must be moderated by the pragmatic need to makecriminal justice
potent and realistic – (Shivaji v. State of Maharashtra – AIR1973 SC 2622). 1974
SCR (1) 489
Doubts must be actual and substantial as to the guilt of the accused
person arising from the evidence or from the lack of it, as opposed to mere
vagueapprehensions. A reasonable doubt in not an imaginary trivial or a merely
possible doubt; but a fair doubt based upon reasons and common sense.
Uninformed legitimization of trivialities would make a mockery of administration
of criminal justice. AIR 1988 SC 2154 – State of U.P. v. Krishna Gopal.
1988( 2 )Suppl.SCR 391, 1988( 4 )SCC 302, 1988( 2 )SCALE632 , 1988( 3 )JT 544
9. The criminal law has a purpose to serve. Its object is to suppress
criminalenterprise and punish the guilty. In this process it must however be
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ensured that reasonable doubts alone are given to the accused. (State of Kerala v.
Narayanan Bhaskaran – 1991 Crl.L.J.238
Benefit of doubt – 1) Prosecution is not required to meet any and every
hypothesis put forward by the accused - A reasonable doubt is not an imaginary,
trivial or merely possible doubt, but a fair doubt based upon reason and common
sense - It must grow out of the evidence in the case - Doubts would be called
reasonable if they are free from a zest for abstract speculation. (State of Punjab
Vs Karnail Singh) AIR 2003 SC 3609, 2003 (2) ALT Cri 273, 2003 CriLJ 3892
2) To constitute reasonable doubt, it must be free from an over emotional
response - Doubts must be actual and substantial doubts as to the guilt of the
accused persons arising from the evidence, or from the lack of it, as opposed to
mere vague apprehensions - A reasonable doubt is not an imaginary, trivial or a
merely possible doubt; but a fair doubt based upon reason and common sense - It
must grow out of the evidence in the case. (Krishnan & Anr. Vs State Rep. By
Inspector of Police) AIR 2003 SC 2978= 2003 (2) ALD ( Crl) 458= 2003 Crl.L J
3705 = ( Sec 506 (1) IPC 302 )
Beyond reasonable doubt –Holding that the requirement in criminal cases for
the prosecution to prove the case beyond doubt does not imply that the case
should be proved beyond a shadow of doubt, the Supreme Court in a recent
decision [Iqbal Moosa Patel v. State of Gujarat] 2011 CRL.L.J1142 2011 (2) SCC
198 ( CRIMINAL APPEAL NOS.1231-1232 OF 2009 dated 12-1-2011) quoted Lord
Denning to state that "Justice cannot be made sterile on the plea that it is better
to let a hundred guilty escape than punish an innocent. Letting the guilty escape
is not doing justice according to law". The Court also quoted its earlier decision to
the effect that "One wonders whether in the meticulous hypersensitivity to
eliminate a rare innocent from being punished, many guilty persons must be
allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish"
The That brings us to the question whether the appellants could be given the
benefit of doubt having regard to the nature of the evidence adduced by the
prosecution against them. We do not think that the appellants have made out a
case for grant of any such benefit. It is true that the prosecution is required to
establish its case beyond a reasonable doubt, but that does not mean that the
degree of proof must be beyond a shadow of doubt. The principle as to
what degree of proof is required is stated by Lord Denning in his inimitable style
in Miller v. Minister of Pensions (1947) 2 ALL ER 272Court inter
alia observed as under
That degree is well settled. It need not reach certainty, but it must carry a high
degree of probability Proof beyond reasonable doubt does not mean proof beyond
a shadow of a doubt. The law would fail to protect the community if it permitted
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fanciful possibilities to deflect the course of justice. If the evidence is so strong
against a man as to leave only a remote possibility in his favour which can be
dismissed with sentence ‘of course, it is possible but not in the least probable,’
the case is proved beyond reasonable doubt
It is true that under our existing jurisprudence in a criminal matter, we have to
proceed with presumption of innocence, but at the same time, that presumption
is to be judged on the basis of conceptions of a reasonable prudent man
Smelling doubts for the sake of giving benefit of doubt is not the law of the
land.” Reference may also be made to the decision of this Court in Sucha
Singh & Anr. v. State of Punjab AIR 2003 SC 3617, 2003 (2) ALD Cri 506
(2003) 7 SCC 643 ( Note same is cited below minor discrepancies
Prabhakar Advocate)
Where this Court has reiterated the principle in the following words
Exaggerated devotion to the rule of benefit of doubt must not nurture
fanciful doubts or lingering suspicion and thereby destroy social defence
Justice cannot be made sterile on the plea that it is better to let a hundred
guilty escape than punish an innocent Letting the guilty escape is not
doing justice according to law. (See Gurbachan Singh v. Satpal Singh AIR
1990 SC 209) Prosecution is not required to meet any and every
hypothesis put forward by the accused. A reasonable doubt is not an
imaginary, trivial or merely possible doubt, but a fair doubt based upon
reason and common sense, it must grow out of the evidence in the case. If
a case is proved perfectly, it is argued that it is artificial,if a case has some
flaws inevitable because human beings are prone to err it is argued that it
is too imperfect. One wonders whether in the meticulous hypersensitivity
to eliminate a rare innocent from being punished many guilty persons
must be allowed to escape. Proof beyond reasonable doubt is a guideline,
not a fetish
Doubts must be actual and substantial doubt as to the guilt of the accused
persons arising from the evidence, or from the lack of it, as opposed to mere
vague apprehensions - A reasonable doubt is not an imaginary, trivial or a merely
possible doubt; but a fair doubt based upon reason and common sense - It must
grow out of the evidence in the case. (State of Madhya Pradesh Vs Dharkole @
Govind Singh & Ors.) 2005 AIR SC 44 , 2004(5 )Suppl.SCR780 , ,
2004(9 )SCALE149 , 2004(9 )JT501 2005(1) Criminal Court Cases 796 (S.C.)
Appeal (Crl ) No 238-239/2004 dated 29-10-2004
(Note See Also in Eye witness found
Boy of 16 years not disclosing for three days about his having seen the
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occurrence - Witness was a young lad and accused a hardened criminal - Witness
was threatened by accused - Held, silence of boy not telling others for some time
is not suspicious and unnatural. (State of Uttar Pradesh Vs Devendra Singh)
2004(3) Criminal Court Cases 123 (S.C.)
BURDEN OF PROOF UNDER SECTION 106:- Evidence Act :-=The Court held that
if fact is especially in the knowledge of any person, then burden of proving that
fact is upon him. It is impossible for prosecution to prove certain facts particularly
within the knowledge of accused. Section 106 is not intended to relieve the
prosecution of its burden to prove the guilt of the accused beyond reasonable
doubt. But the Section would apply to cases where the prosecution has succeeded
in proving facts from which a reasonable inference can be drawn regarding the
existence of certain other facts, unless the accused by virtue of his special
knowledge regarding such facts, failed to offer any explanation which might drive
the Court to draw a different inference.Section 106 of the Evidence Act is
designed to meet certain exceptional cases, in which, it would be impossible for
the prosecution to establish certain facts which are particularly within the
knowledge of the accused. ( State of West Bengal v. Mir Mohammad Omar & Ors.
etc.,) AIR 2000 SC 2988 (See also: Shambhu Nath Mehra v. The State of
Ajmer, AIR 1956 SC 404; Sucha Singh v. State of Punjab, AIR 2001 SC 1436;
and Sahadevan @ Sagadevan v. State rep. by Inspector of Police, Chennai, AIR
2003 SC 215)
Case and a counter case or two cases with regard to the same
occurrence - Both cases to be tried together. (Alok Kumar Singh Vs State of Bihar
& Ors.) 2004(3) Criminal Court Cases 521 (Patna)
Case and a counter case or two cases with regard to the same occurrence
- One case triable by Court of Sessions and the other triable by Magistrate - Held,
both the cases can be committed to the Court of Sessions to be tried together.
(Alok Kumar Singh Vs State of Bihar & Ors.) 2004(3) Criminal Court Cases 521
(Patna)
Case property – 1) Alienation before conclusion of trial - With the advanced
technology, it is not necessary that original of the property inevitably has to be
preserved for the purpose of evidence in the changed context of times - The
techniques of photography and photo coping are far advanced and fully
developed - Movable property of any nature can be a subject matter of
photography and taking necessary photographs of all the features of the property
clearly is not an impossible task in photography and photo copying.
(K.W.Ganapathy Vs State of Karnataka) 2003(1) Criminal Court Cases 350
Page 13
(Karnataka)
2) Case property shifted to new bags but no explanation - FIR number
and other particulars written on bags at the time of recovery of case property -
But on the case property produced in Court no particulars found - Case property
shifted to new bags - Prosecution failing to prove how old bags were damaged
and the case property was shifted to new bags - Object of keeping the case
property in safe custody is to ensure identification of the property recovered -
Accused is entitled to benefit of doubt - Accused acquitted. (Narcotic Drugs and
Psychotropic Substances Act, 1985, Ss.52, 52-A, 57 and 15). (Channa Ram @
Maiya Vs State of Haryana) 2003(1) Criminal Court Cases 279 (P&H)
3) Link evidence that the same is not tampered with - Whenever case
property is produced in Court for identification by witnesses, Court records its
observations as to the condition of the property, seal impressions and that the
same are intact or not - When there are neither observations of Court nor material
witnesses state as to what seal, if any, was affixed to case property and whether
the case property and seal impressions were intact or not, the benefit goes to the
accused - Conviction cannot be sustained. (Sandeep Kumar Vs State of H.P.)
2003(2) Criminal Court Cases 62 (H.P.)
4) Recovery of stolen car - Car financed and owner intended to sell it
to discharge its debt - Car has no evidentiary value as it is only required for the
purpose of passing final orders - To ensure the recovery of its value, it is suffice
only to furnish security to recover the value in the event of final order passed
against him - Petitioner is allowed to sell the car in his own way subject to
furnishing security. (K.W.Ganapathy Vs State of Karnataka) 2003(1) Criminal
Court Cases 350 (Karnataka)
5) Weight of case property produced in Court did not tally with the
case property recovered from accused - In the absence of proper explanation a
doubt arises about the case of the prosecution - Accused acquitted giving benefit
of doubt. (Narcotic Drugs and Psychotropic Substances Act, 1985, Ss.52, 55-A and
15). (Kaaraka Singh Vs State of Haryana) 2003(1) Criminal Court Cases 182 (P&H)
Cellular phone - Print out of calls - Calls made by some person in Dubai - Held, it is a
very tenuous piece of evidence to attribute knowledge of the detenu of activities of
smuggling of counterfeit currency notes their claim would be insignificant and it
would be absurd to introduce such evidences in front of the court of law. Call
records are admissible in the court of law and they are considered to be authentic.
Page 14
This was held in State(N.C.T. of Delhi) v Navjot Sandhu AIR 2005 SC 3820; AIR SCW
4148 , where the court opined that the call records relating to cellular phones are
admissible and reliable. But, this admissibility is subjected to its relevance to the
case, and any evidence which would not help parties substantiating. There arise
certain circumstances when a person is not able to represent himself physically in
front of the court, and it would be interesting to know that it is not mandatory for a
person to present himself physically in front of the court, he can a witness, accused,
victim or anyone whose presence becomes a mandate to decide a case. In such a
situation, he can represent himself in front of the court through “Video
Conferencing”. This can be gathered from the verdict pronounced by the Supreme
Court in State of Maharashtra v Praful B. Desai AIR 2003 SC 2053; 2003 AIR SCW
1885 , where it is opined by the court that actual physical presence is not a must,
and presence of the pleader would be sufficient. In other words, a person would be
able to present himself through “video conferencing” in presence of his pleader,
and the same can be considered as evidence. It was also stated by the court that
the evidence can also be recorded through “video conferencing”, and the same
would be authentic. Tape recording—Admissibility—Evidentiary value—
Pre-con- ditions for. Hazara Singh v. State of U.P., 1969 CrLJ 1428 : 1969
AIR (SC) 951 : 1969 (2) SCC 22 : 1969 Mad LJ (Cri) 721
Chance witness – 1) An independent witness who had no motive to depose
against accused cannot be condemned to be chance witness. (State of Andhra
Pradesh Vs K.Srinivasulu Reddy & Anr.) 2004(1) Criminal Court Cases 646 (S.C.)
Appeal (Crl ) 897 /1997 dt 18-12-2003
2) As such his evidence disbelieved - Witness was resident of the
same village as the accused and deceased - Failure to mention the presence of
this witness at the place of occurrence by another witness in his police statement
is an irrelevant circumstance for disbelieving the witness - He was a natural
witness - Nothing worthwhile could be extracted in his cross examination - He
tried to intervene and save the deceased who went to the house of the deceased
to inform his family members about the incident - Held, witness is a natural,
truthful and creditable witness. (State of Haryana Vs Mange Ram & Ors.) 2003(1)
Apex Court Judgments 135 (S.C.) : 2003(1) Criminal Court Cases 372 (S.C.) Appeal
(Crl ) No 538 / 1994 Dated 11-12-2002
3) If murder is committed in a dwelling house, the inmates of the
house are natural witnesses - If murder is committed in a street, only passersby
will be witnesses - Their evidence cannot be brushed aside or viewed with
suspicion on the ground that they are mere 'chance witnesses'. (Sachchey Lal
Page 15
Tiwari Vs State of Uttar Pradesh) 2004 AIR SC 5039, 2004(5 )Suppl.SCR107 ,
2004(11 )SCC410 , 2004(8 )SCALE539 , 2004(8 )JT534 6 Oct 2004 – CASE NO.: Appeal (crl.)
270 of 2001
4) No suggestion to the witness that he had any animosity towards
any of the accused - In a murder trial by describing independent witnesses as
chance witnesses it cannot be implied thereby that their evidence is suspicious
and their presence at the scene doubtful. (Chanakya Dhibar (Dead) Vs State of
West Bengal & Ors.) 2003(6 )Suppl.SCR1181, 2004(12 )SCC398 ,
2003(10 )SCALE883 , 2003(10 )JT209 19 Dec 2003 – CASE NO.: Appeal (crl.) 728 of
1997
Charge sheet – CONSIDERATION FOR - Charge-sheet alleging commission of
offence under the Act - Court cannot discharge unless it considers all relevant
provisions of the Act.
The charge-sheet constitute prima facie evidence constituting the offence for
proceeding further in the matter. Necessarily, therefore, the Court has to look into
the relevant law and the allegations made in the charge-sheet and then consider
whether any offence has been committed to frame charges for trial before
discharging the accused.
State of Jammu and Kashmir Vs Romesh Chnader ndothers , 1997 CrLJ 2976 :
1976 AIR (SC) 2401 : 1997 SCC (Cr) 44 : 1997 Cr LR (SC) 435 : 1996 (4) Crimes
270 : 1997(1) Rec Cr R 407
Charge sheet – Default in filing charge sheet - Grant of bail - Failure of
prosecution to file charge-sheet within prescribed time under Section 167(2)
Cr.P.C. - Right to be released on bail - Cannot be indefeasible right to exercise at
any time.
If an accused person fails to exercise his right to be released on bail for the
failure of the prosecution to file the charge-sheet within the maximum time
allowed by law, he cannot contend that he had an indefeasible right to exercise it
at any time notwithstanding the fact that in the meantime the charge-sheet is
filed. But on the other hand if he exercises the right within the time allowed by
law and is released on bail under such circumstances, he cannot be re-arrested on
the mere filing of the charge-sheet.
Dr. Bipin Shantilal panchal Vs State of Gujarat , 1996 CrLJ 1652 : 1996 AIR(SC)
2897 : 1996 SCC (Cr) 200 : 1996(1) Crimes 9 (SC) : 1996(3) CCR 103
Page 16
Charge sheet – limitation for filing - Computation of - It is to be counted from
the next day of arrest - Criminal Procedure Code, 1974 - Section 167(2),
Investigating officer is enjoined to produce the accused before the Magistrate
having jurisdiction within 24 hours from the date of arrest. Consequently
limitation of one year would begin to run and be counted from next date of the
arrest.
C.B.I Vs Nazir Ahmed Sheik ( 1996 CrLJ 1876 : 1996 AIR (SC) 2980 : 1996 SCC
(Cr) 314
Charge – framing of – What should be considered – Whether documents
made available by accused during investigation can be considered – Yes –
Non-consideration of such documents in spite of order of High Court –
Order framing charge liable to be set-aside.
State of Madhya Pradesh Vs Mohan lal soni , 2000 Cri.L.J. 3504 (S.C.): 2000 (3)
Crimes 105 : 2000 (3) Cur Cri R 86 : 2000 SCC (Cri) 1110 : 2000 (29) All Cri R
2123 : 2000 (3) Rec Cri R 452 : AIR 2000 SC 2583
Charge must be proved beyond reasonable doubt - Court cannot infer any
part of the prosecution story and it must be established as a matter of fact or
there should be complete chain of events based on irresistible evidence leading to
or indicating towards the accused as the person who committed the crime.
(Municipal Corporation, Amritsar Vs Kuldip Singh) 2003(3) Criminal Court Cases
308 (P&H)
Child witness - 10 years old at the time of incident and 12 years of age at the
time of recording his deposition - Trial Court should maintain a record regarding
preliminary questions put to the child witness in order to determine the
competency of the witness - Non maintenance of such record is not of much
consequence since not only the trial Court was satisfied about the competency of
the witness, but the evidence of the witness itself shows that child witness was a
competent witness. (Nandeshwar Vs State of Maharashtra) 2002(1) Criminal Court
Cases 441 (Bom.)
Child witness - A person should not be convicted on the basis of any
uncorroborated statement of a child witness - Prudence requires that some
corroborations are required in order to pass a conviction order on the basis of the
statement of a child witness. (Khokan Patra & Anr. Vs State) 2002(3) Criminal
Court Cases 626 (Calcutta)
Page 17
Child witness - Evidence of a child witness requires corroboration in some
material particulars implicating the accused - Father stated that he saw his child
crying over the dead body of the deceased - Held, there can be no cause for
doubt that child is a reliable witness. (Prakash Vs State) 2003(1) Criminal Court
Cases 37 (Karnataka)
Child witness - Evidence of the child witness should be considered with
caution as there is chance of tutoring the child witness but conviction can be
based on the testimony of a child witness if the Court finds his evidence
trustworthy. (Md.Asgar & Anr. Vs State of Bihar) 2003(3) Criminal Court Cases 111
(Patna)
Child witness - Evidentiary value - Conviction can be based on the basis of
testimony of a child witness - His testimony can be relied on even in the absence
of oath, if he understood nature of the questions and gave rational answers
thereof - While assessing evidence of a child witness Court should bear in mind
that the witness must be reliable and his or her demeanour must be like any other
competent witness and there is no likelihood of being tutored - Corroboration for
conviction is not necessary in every case but as a rule of prudence Court always
finds it desirable to have the corroboration to such evidence from other
dependable evidence - Court before recording statement of a child witness has to
satisfy itself that the witness is capable to depose - Testimony of a child witness
cannot be rejected simply on ground of his tender age - Evidence of a child
witness must be evaluated more carefully and with greater circumspection
because a child is susceptible to be swayed by what others tell him. (Evidence
Act, 1872, S.118). (Dalbir Singh Vs The State of Haryana) 2003(2) Criminal Court
Cases 91 (P&H)
Child witness - Father murdered wife in order to marry another woman -
Occurrence witnessed by son aged 10 years - Child witness deposed that on
fateful evening accused twisted neck of deceased, caused injuries to her by
beating which resulted in her death and deceased was clandestinely buried at
night in forest and next day morning accused took him and left their village -
Version of child witness supported by medical evidence - Trial Court being
satisfied with the competency of the witness convicted the accused - Conviction
upheld. (Nandeshwar Vs State of Maharashtra) 2002(1) Criminal Court Cases 441
(Bom.)
Child witness of 10 years age who was himself seriously injured - Witness
Page 18
described the incidence in clear and cogent manner - No evidence that he gave
tutored version - Conviction validly based on sole evidence of child. (State of
Himachal Pradesh Vs Prem Chand) 2003(1) Apex Court Judgments 309 (S.C.) :
2003(1) Criminal Court Cases 680 (S.C.) Appeal (Crl ) No 290/ 1995 dated 16-12-
2002
Circumstantial Evidence or Indirect Evidence- There is no difference
between circumstantial evidence and indirect evidence. Circumstantial
Evidence attempts to prove the facts in issue by providing other facts and
affords an instance as to its existence. It is that which relates to a series of
other facts than the fact in issue but by experience have been found so
associated with the fact in issue in relation of cause and effect that it leads to
a satisfactory conclusion. In Hanumant v. State Of Madhya Pradesh (AIR 1995
SC 343), The Hon’ble Supreme Court Observed, “In dealing with
circumstantial evidence there is always the danger that suspicion may take
the place of legal proof. It is well to remember that in cases where the
evidence is of a circumstantial nature the circumstances from which the
conclusion of guilt is to be drawn should in the first instance, be fully
established and all the facts so established should be consistent only with the
hypothesis of the guilt of the accused. In other words there can be a chain of
evidence so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it must be such
as to show that within all human probability the act must have been done by
the accused.”
In the case of Ashok Kumar v. State Of Madhya Pradesh (AIR 1989 SC 1890)
the Hon’bleSupreme Court held-
(1) The circumstances from which an inference of guilt is sought to be drawn
must be cogently and firmly established.
(2) Those circumstances should be of a definite tendency unerringly
pointing towards the guilt of accused.
(3) The circumstances, taken cumulatively should from a chain so complete
that there is no escape from the conclusion that within all human probability
the crime was committed by the accused and none else
Circumstantial evidence – Ingredients to rest conviction
Page 19
When a case rests upon circumstantial evidence such evidence must satisfy the following tests: -
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
Padala Veera Reddy Vs . State of Andrha Pradesh 1990 CrLJ 605 : 1990 AIR (SC) 79 : 1991 SCC (Cr) 407 : 1990 CAR 36 : 1990 CrLR (SC)
Circumstantial Evidence – Failure to explain incriminating circumstances –
Presence ofaccused at scene of crime proved in the dead of night – Onus stood
shifted to defence to explain what could havebrought them to spot in the dead of
night – Evidence Act, 1872 – Ss. 101 to 103 – Proof – Presumptions –Presumption
of innocence – When dispelled. State of Uttar Pradesh Vs Mohd. Iqram and Anr)
((2011) 8 SCC 800)
- Circumstantial evidence - Acquittal by High Court on ground of
incomplete chain of circumstances viz, recovery of blood stained earth and knife
not sent to serologist as such recoveries could not be believed and no
independent witness from neighbour joined but witness called from another place
who was family friend for 20 years and lastly deceased suffered 30 injuries but
strangely no one from neighbouring house was attracted. (State of U.P. Vs Arun
Kumar Gupta) 2003 AIR 801, , 2003( 2 )SCC 202, 2003( 1 )SCALE76 , 2003( 1 )JT
49
- Circumstantial evidence - All links in the chain must be proved. (Narendra
Singh & Anr. Vs State of M.P.) 2004 AIR SC 3249, 2004(3 )SCR1148,
2004(10 )SCC699 , 2004(4 )SCALE543 , 2004(1 )Suppl.JT29
Circumstantial evidence - Alone and by itself can form basis of conviction
provided there is no snap in the chain of events - Chain of events must be
complete in such a way so as to point to the guilt of the accused person and to
Page 20
none others - Standard of proof has thus to be at a much higher degree lest an
innocent person gets the blame there for. (Gurpreet Singh Vs State of Haryana)
2002 AIR SC 3217, 2002( 2 )Suppl.SCR 337, 2002( 8 )SCC 18,
2002( 6 )SCALE363 , 2002( 7 )JT 58
Circumstantial evidence - Benefit of doubt - Circumstances consistent
either with innocence or guilt - Accused is entitled to the benefit of doubt. (Ved
Prakash & Anr. Vs State of Rajasthan) 2003(3) Criminal Court Cases 429
(Rajasthan)
Circumstantial evidence - Circumstances from which an inference of guilt is
sought to be drawn must be cogently and firmly established; those circumstances
should be of a definite tendency unerringly pointing towards the guilt of the
accused; circumstances taken cumulatively, should form a chain so complete that
there is no escape from the conclusion that within all human probability the crime
was committed by the accused and none else; and circumstantial evidence in
order to sustain conviction must be complete and incapable of explanation on any
other hypothesis than that of the guilt of the accused and such evidence should
not only be consistent with the guilt of the accused but should be inconsistent
with his innocence. (Prithviraj Vs State of Rajasthan) 2004(3) Criminal Court Cases
111 (Rajasthan)
Circumstantial evidence - Circumstances from which conclusion of guilt is
to be drawn, should be fully established and facts so established should be
consistent only with the hypothesis of the guilt of accused - There must not be
any reasonable ground for conclusion consistent with their innocence - Chain of
circumstances should be complete in such manner as to show that in all human
probability the act must have been done by the accused. (Amar Mishra Vs State of
Bihar) 2005(1) Criminal Court Cases 866 (Patna)
Circumstantial evidence - Conviction can be based on circumstantial
evidence if - (1) The circumstances from which the conclusion of guilt is to be
drawn should be fully established - the circumstances concerned must or should
and not may be established; (2) the facts so established should be consistent only
with the hypothesis of the guilt of accused and they should not be explainable on
any other hypothesis except that the accused is guilty; (3) the circumstances
should be of a conlcusive nature and tendency; (4) they should exclude every
possible hypothesis except the one to be proved and (5) there msut be a chain of
evidence so complete as not to leave any reasoanble ground for the conclusion
consitent with the innocence of the accused and msut show that in all human
Page 21
probability the act must have been done by the accused. (State of U.P. Vs Satish)
2005 AIR SC 1000, 2005(2 )SCR1132, 2005(3 )SCC114 , 2005(2 )SCALE33 ,
2005(2 )JT153 (Note See Also lost seen Theory cited the decession
Prabhakar advocate )
Circumstantial evidence - Conviction for murder of wife and daughter -
Valuables alleged to be stolen recovered from office of accused - Wife and
daughter usually remaining sick - Intention of accused to get rid of them and to
remarry - Wife writing in diary that after her death which she apprehended her
property should go to her daughter - One month prior to occurrence accused
withdrawing entire money from wife's account - Blood stained hammer recovered
from almirah of accused and hammer containing blood of same group as that of
daughter - Accused calling neighbours only to establish his ignorance about
incident - Presence of accused in house established and plea of alibi not
established - Circumstances against accused not explained - Conviction upheld.
(Ashok Raghuvanshi Vs State of Rajasthan) 2003(1) Criminal Court Cases 692
(Rajasthan)
Circumstantial evidence - Court can record conviction on circumstantial
evidence but it must satisfy itself that the circumstances from which an inference
of guilt could be drawn have been established by unimpeachable evidence led by
the prosecution and that all the circumstances put together are not only of a
conclusive nature but complete the chain so fully as to unerringly point only to the
guilt of the accused and are not capable of any explanation which is not
consistent with the hypothesis of the guilt of the accused. (Gurdev Singh Vs State
of H.P.) 2005(1) Criminal Court Cases 701 (H.P.)
Circumstantial evidence - Doubtful recoveries - Presumption u/s 114(a)
Evidence Act can be drawn only if the factum of recovery is proved beyond
reasonable doubt - However when recoveries are doubtful, presumption as to the
guilt of accused cannot be drawn. (Babudas Vs State of M.P.) 2003( 9 )SCC 86,
2003( 4 )SCALE389 , 2003( 4 )JT 2892003(1))
Circumstantial evidence - Each and every incriminating circumstance must
be clearly, established by reliable and clinching evidence and the circumstances
so proved must form a chain of events from which the only irresistible conclusion
about the guilt of the accused can be safely drawn and no other hypothesis
against the guilt is possible. (Sudama Pandey & Ors. Vs State of Bihar) 2002(1)
Criminal Court Cases 384 (S.C.)
Circumstantial evidence - Fact of demand of dowry and torture not
Page 22
disclosed to Investigating Officer - This fact disclosed in complaint for the first
time which was filed after 11 months of alleged occurrence - Held, it is not
possible to place reliance upon such evidence to prove this circumstance. (Sashi
Jena & Ors. Vs Khadal Swain & Anr.) 2004 AIR SC 1492, 2004(2 )SCR260 ,
2004(4 )SCC236 , 2004(2 )SCALE348 , 2004(2 )JT339.)
Circumstantial evidence - Facts and circumstances must be fully established
beyond any reasonable doubt and such circumstances must be consistent and
unerringly point to the guilt of the accused and the chain of circumstances must
be established by the prosecution. (Golakonda Venkateswara Rao Vs State of
Andhra Pradesh) AIR 2003 SC 2846, 2003 (2) ALD Cri 452
- Circumstantial evidence –Appreciation of - Conviction for murder - Accused
alleged to have committed murder of wife and son who disappeared without trace
- No evidence to connect accused with the crime except ascendance and recovery
of blood stained clothes from dry cleaner - The stains not proved to be containing
human blood - Mere existence of motive not sufficient - No evidence to prove
screening of evidence by causing disappearance of dead body - The
circumstances not sufficient for conviction.
63 Raghava Prapanna Tripati and others Vs State of U.P , 19 (1) CrLJ 70 : 1963
AIR (SC) 74 : 1963 (3) SCR 239
Circumstantial evidence – appreciation of - Evidence must exclude every
hypothesis of innocence of accused - Conviction is not permissible where
two views are possible.
In order to base the conviction of an accused on circumstantial evidence the
court must be certain that the circumstantial evidence is of such a character as is
consistent only with the guilt of the accused. If, however, the circumstantial
evidence admits of any other rational explanation, in such an event an element of
doubt would creep in and the accused must necessarily have the benefit thereof.
The circumstances relied upon should be of a conclusive character and should
exclude every hypothesis other than that of the guilt of the accused. In other
words, there must be a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of the accused.
The circumstances must show that within all reasonable probability the impugned
act must have been done by the accused. If two inferences are possible from the
circumstantial evidence, one pointing to the guilt of the accused, and the other,
also plausible, that the commission of the crime was the act of someone else, the
circumstantial evidence would not warrant the conviction of the accused. In case
the circumstantial evidence relied upon by the High Court for maintaining the
Page 23
conviction of the accused for an offence entailing capital punishment does not
satisfy the above requirement, an interference would be called for by this Court.
Khashaba Maruti shalke Vs. The State of Maharastra 1973 CrLJ 1607 : 1973 AIR
(SC) 2474 : 1973(2) SCC 449 : 1974 (1) SCR 266 : 1973 CrLR (SC) 546
Consistent with the hypothesis of guilt of accused excluding every
hypothesis of his innocence.
In dealing with circumstantial evidence the rules specially applicable to such
evidence must be borne in mind. In such cases there is always the danger that
conjecture or suspicion may take the place of legal proof.
In cases where the evidence is of a circumstantial nature, the circumstances
from which the conclusion of guilt is to be drawn should in the first instance be
fully established, and all the facts so established should be consistent only with
the hypothesis of the guilt of the accused. Again, the circumstances should be of
a conclusive nature and tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words, there must be a
chain of evidence so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it must be such as to
show that within all human probability the act must have been done by the
accused.( Hanumant Govind Nargundker Vs. State of Madhya Pradesh ) 1952 AIR
(SC) 343 : 1953 CrLJ 129 : 1952 SCR 1091
Circumstantial evidence – Appreciation - While appreciating circumstantial
evidence court should record conviction if the links in chain are complete - If
evidence relied upon reasonably capable of two inferences, one in favour of
accused must be accepted - Law permits rejection of evidence on reasonable
doubt not otherwise.
While appreciating circumstantial evidence the Court must adopt a very cautious
approach and should record a conviction only if all the links in the chain are
complete pointing to the guilt of the accused and every hypothesis of innocence is
capable of being negatived on evidence. Great care must be taken in evaluating
circumstantial evidence and if the evidence relied on is reasonably capable of two
inferences, the one in favour of the accused must be accepted. The circumstance
relied upon must be found to have been fully established and the cumulative
effect of all the facts so established must be consistent only with the hypothesis
of guilt. But this is not to say that the prosecution must meet any and every
hypothesis put forward by the accused however far-fetched and fanciful it might
be. Nor does it mean that prosecution evidence must be rejected on the slightest
doubt because the law permits rejection if the doubt is reasonable and not
otherwise. ( State of U.P Vs Ashok Kumar Srivastav )1992 CrLJ 1104 : 1992 AIR
Page 24
(SC) 840 : 1992 SCC (Cr) 241 : 1992 CAR 101 : 1992 Cr LR (SC) 144 : 1992(1)
Crimes 576 : 1992(1) CCR 602
Circumstantial evidence – Benefit of doubt - Principle of grant of benefit -
Distinction between basic facts and inference of facts - Grant of benefit of doubt
on basic facts is not permissible.
Circumstantial evidence can be reasonably made the basis of an accused
persons's conviction if it is of such a character that it is wholly inconsistent with
the innocence of the accused and is consistent only with his guilt. If the
circumstances proved in the case are consistent either with the innocence of the
accused or with his guilt, then the accused is entitled to the benefit of doubt.
There is no doubt or dispute about this position. But in applying this principle, it is
necessary to distinguish between facts which may be called primary or basic on
the one hand and inference of facts to be drawn from them on the other. In regard
to the proof of basic or primary facts, the Court has to judge the evidence in the
ordinary way, and in the appreciation of evidence in respect of the proof of these
basic or primary facts there is no scope for the application of the doctrine of
benefit of doubt. The Court considers the evidence and decides whether that
evidence proves a particular fact or not. When it is held that a certain fact is
proved, the question arises whether that fact leads to the inference of guilt of the
accused person or not, and in dealing with this aspect of the problem, the
doctrine of benefit of doubt would apply and an inference of guilt can be drawn
only if the proved fact is wholly inconsistent with the innocence of the accused
and is consistent only with his guilt ( M.G. Agrawal Vs State of Maharashtra
1963(1) CrLJ 235 : 1963 AIR (SC) 200 : 1963(2) SCR 405 : 64 Bom LR 773
Circumstantial evidence – Contradiction - The chain of events not completely
establishing the guilt of accused - The motive for murder not categorically
established as witness contradicting about the same in cross examination -
Reliance could not have been placed on the testimony of such witness - Accused
entitled to acquittal ( .Shripada Sriram Kulakarni Vs State of Maharsra ), 1980 CrLJ
1292 : 1981 AIR (SC) 34 : 1980 CrLR (SC) 561 : 1980 CAR 347 : 1981 SCC (Cr) 5
Circumstantial evidence – Dead body Identification - Identification of - No
evidence to identify dead body allegedly taken out by the accused who was a
doctor - Possibility of the deceased being already death when brought to the
doctor - Circumstance cannot be relied.
Page 25
The prosecution has produced evidence only to the effect that a dead body was
taken out of the dispensary of Dr. Harendra Narain Singh by Ram Nath Singh and
other accused persons and the same was carried on the ekka to village Dibbi. The
prosecution witnesses have merely deposed that they had seen a dead body
being placed on the ekka and taken to village Dibbi. None of the prosecution
witnesses has, however, deposed that he had seen the face of the dead body or
identified the same. In the absence of such evidence it would not be reasonable to
assume that the dead body which was taken out from the dispensary and placed
on the ekka was that of the deceased Jagia Devi. In the absence of identification
of dead body by the witnesses, it is not legitimate to hold that the dead body
which was taken out from the dispensary of Dr. Harendra Narain Singh was that of
Jagia Devi. There is another vital defect in the prosecution case. The prosecution
failed to produce any evidence that the deceased Jagia Devi was taken to the
hospital for treatment by Ram Nath Singh and other accused persons while she
was alive and that she was admitted to the dispensary of Dr. Harendra Narain
Singh for treatment, at a time when she was alive. In the absence of any such
evidence there are various possibilities and probabilities, one of them being that
the deceased may have been brought to the dispensary for medical assistance
after she was found to be strangulated by some one. ( Harendra Narian singh etc
vs. State of Bihar) , 1991 CrLJ 2666 : 1991 AIR (SC) 1842 : 1991 SCC (Cr) 905 :
1991 CAR 266 : 1991 CrLR (SC) 581 : 1991(3) Crimes 297
Circumstantial evidence – Corpus delicti - Non recovery of dead body of
victim - The fact of homicidal death can be established by circumstantial evidence
of clinching and definite character.
Discovery of the dead body of the victim bearing physical evidence of violence,
has never been considered as the only mode of proving the corpus delicti in
murder. Indeed, very many cases are of such a nature where the discovery of the
dead body is impossible. A blind adherence to this old "body" doctrine would open
the door wide for many heinous murderer to escape with impunity simply because
they were cunning and clever enough to destroy the body of their victim.
Where the dead body of the victim in a murder case is not found, other cogent
and satisfactory proof of homicidal death of the victim must be adduced by the
prosecution. Such proof may be by the direct ocular account of an eye-witness, or
by circumstantial evidence, or by both. Both where the fact of corpus delicti, i.e.,
`homicidal death is sought to be established by circumstantial evidence alone' the
circumstances must be of a clinching and definitive character unerringly leading
to the inference that the victim concerned has met a homicidal death.
Page 26
This principle of caution cannot be pushed too far as requiring absolute proof.
Perfect proof is seldom to be had in this imperfect world and absolute certainty is
a myth. That is why under Section 3, Evidence Act a fact is said to be "proved", if
the court considering the matters before it, considers its existence so probable
that a prudent man ought, under the circumstances of the particular case, to act
upon the supposition that it exists. The corpus delicti or the fact of homicidal
death, therefore, can be proved by telling and inculpating circumstances which
definitely lead to the conclusion that within all human probability, the victim has
been murdered by the accused concerned.( Ramand and others Vs . State of
Himachal Pradesh 1981 CrLJ 298 : 1981 AIR (SC) 738 : 1981 SCC (Cr) 197 : 1981
CAR 75
Circumstantial evidence – Death by drowning - No direct evidence that
accused carried the drunk deceased and threw him in the tank - Testimony of
chance witness not reliable - Conviction set aside. ( Jaganadh Vs. State of
Maharastra ) 1979 CrLJ 925 : 1979 AIR (SC) 1145 : 1979 SCC (Cr) 728 : 1979 CrLR
(SC) 26 : 1980 CAR 366
Circumstantial evidence – Death by poisoning - Reasoning that accused
could have come in possession of Potassium Cyanide - Inference that accused
must have administered the poison without any proof of death by poisoning - A
hypothetical inference cannot be drawn in a case of circumstantial evidence.
The entire reasoning proceeds on the footing that the accused could have come
into possession of Potassium Cyanide, therefore, the inference is that the accused
must have administered the same. In the absence of medical evidence
establishing that the death caused was only due to Potassium Cyanide, such a
hypothetical inference cannot be drawn, particularly so in a case of the
circumstancial evidence. It is well-settled that in cases of circumstantial evidence,
every circumstance has to be established by clinching evidence and not by mere
conjectures.
Ramesh Kumar Vs. State of Punjab : 1994 AIR (SC) 945 : 1994 Cr. L.J 1120=1994
SCC (Cr) 300 : 1994 (2) BLJ 320
)
- Circumstantial evidence - In a case of circumstantial evidence, the chain of
circumstances must be complete and in case there is any missing link therein, the
same cannot form the basis of conviction. (Anjlus Dungdung Vs State of
Jharkhand) 2005(1) Criminal Court Cases 246 (S.C.) Appeal (crl.) 360 of 2004
Page 27
Circumstantial evidence - It must be established that (1) the
circumstances from which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned must or should and not may be
established; (2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should not be
explainable on any other hypotheses except that the accused is guilty; (3) the
circumstances should be of a conclusive nature and tendency; (4) they should
exclude every possible hypothesis except the one to be proved; and (5) there
must be a chain of evidence so compete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused and must show
that in all human probability the act must have been done by the accused. (State
of Madhya Pradesh Vs Sanjay Rai) 2004 AIR SC 2174, 2004(3 )SCR560 ,
2004(10 )SCC570 , 2004(4 )SCALE63 , 2004(4 )JT73 2004(3)
Circumstantial evidence - It should be so overwhelming as to exclude the
hypothesis of the innocence of the accused. (Rajkumar Vs State of M.P.) 2004 AIR
SC 4408, , 2004(12 )SCC77 , 2004(7 )SCALE652 , 2004(7 )JT612
Circumstantial evidence - Law as to - Analysed. (Alamgir Vs State (NCT,
Delhi) 2003 AIR SC 282, 2002( 4 )Suppl.SCR 88, 2003( 1 )SCC 21,
2002( 8 )SCALE373 , 2002( 9 )JT 347
Circumstantial evidence - Married lady alongwith her daughter burnt to
death and hanged - Medical report ruling out death by suicide and ascribing death
to suffocation because of burns held to be ante mortem - Evidence of PW3
inspiring full confidence and also corroborated - Theory of suicide only imaginary -
Four circumstances as enumerated leading to guilt of accused - Missing links
supplied by blunt and outright denial of every thing - Conviction upheld.
(Sadhuram & Anr. Vs State of Rajasthan) 2002(1) Criminal Court Cases 390 (Raj.)
Circumstantial evidence - Motive - If the circumstances relied upon by the
prosecution are proved beyond doubt, then the absence of motive would not
hamper a conviction. (Sahadevan @ Sagadevan Vs State) 2003 AIR 215, , 2003(
1 )SCC 534, 2002( 8 )SCALE311 , 2002( 9 )JT 366
Circumstantial evidence - Motive - In a case based on circumstantial
evidence absence of motive creates reasonable doubt. (Pawan Kumar Vs State of
Chhattisgarh) 2003(3) Criminal Court Cases 71 (Chhattisgarh)
Page 28
- Circumstantial evidence - Nature of the recovered articles, the manner of
their acquisition by the owner, the nature of the evidence about their
identification, the manner in which the articles were dealt with by accused, the
place and the circumstances of their recovery and the length of the intervening
period and the ability or otherwise of the accused to explain the recovery are
some of the circumstances. (Kalpana Mazumdar Vs State of Orissa) 2002 AIR
2826, 2002( 1 )Suppl.SCR 299, 2002( 6 )SCC 536, 2002( 5 )SCALE375
Circumstantial evidence - No complete chain of circumstances found -
Missing links filled by manipulated materials - Prosecution suppressing and
withholding most vital materials - Courts below overlooked serious pitfalls -
Concurrent verdict liable to be set aside - Appeal allowed. (Ashish Batham Vs
State of Madhya Pradesh) 2003(1) Apex Court Judgments 330 (S.C.) : 2003(1)
Criminal Court Cases 568 (S.C.) Appeal (crl.) 148 of 2002 Appeal (crl.) 148 of 2002
-Circumstantial evidence - One circumstance cannot be culled out of the
rest to give it a different meaning. (Gade Lakshmi Mangraju alias Ramesh Vs State
of Andhra Pradesh) AIR 2001 SC 2677.
Circumstantial evidence - Prosecution failing to adduce satisfactory
evidence on motive aspect - It would not be sufficient to throw out prosecution
case as unreliable. (State of Karnataka Vs M.N.Ramdas) 2002 AIR SC 3109,
2002( 2 )Suppl.SCR 112, 2002( 7 )SCC 639, 2002( 6 )SCALE214 , 2002( 6 )JT 621 2002(3)
Circumstantial evidence - Prosecution has to prove all the links in the
chain of circumstances which would have to show that in all probability it is only
the accused who could have committed the crime. (Subimal Sarkar Vs Sachindra
Nath Mondal & Ors.) 2003 AIR SC 1108, , 2003( 2 )SCC 566, 2003( 1 )SCALE62 ,
2003( 1 )JT 722003(2)
- Circumstantial evidence - Prosecution must establish each circumstance
firmly by cogent evidence and all these circumstances, taken together, should
form a chain pointing towards the guilt of the accused and the cumulative effect
of the circumstances must lead to no other inference but the guilt of the accused.
(Mahesh Kumar Vs State of Rajasthan) 2004(4) Criminal Court Cases 193
(Rajasthan)
Circumstantial evidence - Should be of such conclusive nature as to
exclude every other possibility except the accused being guilty of the charged
offence. (State of Rajasthan Vs Khuma) 2004 AIR 4677, 2004(4 )Suppl.SCR219 ,
Page 29
2006(11 )SCC64 , 2004(7 )SCALE669
- Circumstantial evidence - Some of the links in the chain of circumstances
not established by prosecution either in accordance with law or beyond
reasonable doubt - It casts serious doubts as to the correctness of the prosecution
case - Order of conviction set aside. (Kantilal @ K.L.Gordhandas Soni Vs State of
Gujarat) 2003 AIR SC 684 , , 2002(10 )SCC39 , 2002(9 )SCALE232 ,
- Circumstantial evidence - The circumstance should be fully established
and all the facts so established should be consistent with the only hypothesis of
the guilt of the accused - There must be a complete chain of events as not to
leave any reasonable ground for a conclusion consistent with the innocence of the
accused - Circumstantial evidence must be such that it cannot be explained on
any other reasonable hypothesis except the guilt of the accused. (Rohit Naik Vs
State of Orissa) 2002(2) Criminal Court Cases 705 (Orissa)
- Circumstantial evidence - There should be chain of circumstances
showing complicity of accused with the crime and the chain should be complete.
(Sashi Jena & Ors. Vs Khadal Swain & Anr.) 2004 AIR SC 1492, 2004(2 )SCR260 ,
2004(4 )SCC236 ,
Circumstantial evidence - To record conviction in a case based on circumstantial
evidence Court must satisfy itself that circumstances from which an inference of
guilt could be drawn have been established by unimpeachable evidence led by
the prosecution and that all the circumstances put together are not only of a
conclusive nature but also complete the chain so fully as to unerringly point only
to the guilt of the accused and are not capable of any explanation which is not
consistent with the hypothesis of the guilt of the accused. (Jeevan & Anr. Vs State
of Chhattisgarh) 2004(4) Criminal Court Cases 771 (Chhattisgarh)
- Circumstantial evidence - Weapon recovered not found connected with crime -
Important link stood missing - Benefit of doubt must go to accused. (Man Preet
Singh & Anr. Vs State) 2004(1) Criminal Court Cases 42 (Delhi)
- Circumstantial evidence - When a case rests squarely on circumstantial
evidence, the inference of guilt can be justified only when all the incriminating
facts and circumstances are found to be incompatible with the innocence of the
accused for the guilt of any other persons - Circumstances from which an
inference as to the guilt of the accused is drawn have to be proved beyond
Page 30
reasonable doubt and have to be shown to be closely connected with the principal
fact sought to be inferred from those circumstances. (State of Haryana Vs Jagbir
Singh & Anr.) 2003 AIR SC377, 2003(4 )Suppl.SCR165 , 2003(11 )SCC261 ,
2003(8 )SCALE221 ,
Circumstantial evidence - When a case rests upon circumstantial evidence, such
evidence must satisfy the tests viz (1) the circumstances from which an inference
of guilt is sought to be drawn, must be cogently and firmly established; (2) those
circumstances should be of a definite tendency unerringly pointing towards guilt
of the accused; (3) the circumstances, taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that within all human
probability the crime was committed by the accused and none else; and (4) the
circumstantial evidence in order to sustain conviction must be complete and
incapable of explanation of any other hypothesis than that of guilt of the accused
and such evidence should not only be consistent with the guilt of the accused but
should be inconsistent with his innocence. (Usman Mian & Ors. Vs State of Bihar) ,
AIR (1987) SC 350
Circumstantial evidence - When a case rests upon circumstantial evidence, such
evidence must satisfy the tests viz (1) the circumstances from which an inference
of guilt is sought to be drawn, must been cogently and firmly established; (2)
those circumstances should be of a definite tendency unerringly pointing towards
guilt of the accused; (3) the circumstances, taken cumulatively should form a
chain so complete that there is no escape from the conclusion that within all
human probability the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete
and incapable of explanation of any other hypothesis then that of the guilt of the
accused and such evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence. (State of Haryana Vs Jagbir
Singh & Anr.) 2003 AIR SC 4377, 2003(4 )Suppl.SCR165 , 2003(11 )SCC261 ,
2003(8 )SCALE221 , 2003(2 )Suppl.JT39
Circumstantial evidence - When case rests upon circumstantial evidence, such
evidence must satisfy the tests - (1) the circumstances from which an inference of
guilt is sought to be drawn, must be cogently and firmly established; (2) those
circumstances should be of a definite tendency unerringly pointing towards guilt
of the accused; (3) the circumstances, taken cumulatively should form a chain so
complete that there is no escape from the conclusion that within all human
probability the crime was committed by the accused and none else; and (4) the
Page 31
circumstantial evidence in order to sustain conviction must be complete and
incapable of explanation of any other hypothesis than that of the guilt of the
accused and such evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence. (State of Rajasthan Vs
Rajaram)) AIR 2003 SC 3601, 2003 CriLJ 3901,
Circumstantial evidence - Where a case rests squarely on circumstantial evidence,
the inference of guilt can be justified only when all the incriminating facts and
circumstances are found to be incompatible with the innocence of the accused or
the guilt of any other person. (Vilas Pandurang Patil Vs State of Maharashtra) 2004
AIR SC3562,
Civil case - Pendency of civil case does not affect the criminal proceedings.
(Chinnamma Vs Thomas) 2002(1) Criminal Court Cases 399 (Kerala)
Civil case also maintainable - Held, criminal proceedings cannot be thwarted
merely because a civil case is also maintainable. (Akhileshwar Narayan Singh Vs
State of Jharkhand) 2002(2) Criminal Court Cases 537 (Jharkhand)
- Civil Court decree - Complaint on same facts which were adjudicated
upon and attained finality in a civil suit between the parties - Same matter cannot
be allowed to be adjudicated upon all over again in the criminal proceedings.
(Manohar Lal Vs Ram Chander) 2003(3) Criminal Court Cases 87 (P&H)
- Civil suit pending on same set of facts and circumstances - Criminal
proceedings cannot be stayed - There is no applicability of doctrine of “Res
Judicata” in criminal trials. (Shridhar Vinayak Modgi Vs Ravindra Khanderao Hajare
& Anr.) 2004(1) Criminal Court Cases 403 (Bombay)
Close related witness - Evidence of such a witness cannot be discarded merely
for the reason that witness is close related witness. (State of Punjab Vs Karnail
Singh) AIR 2003 SC 3609, 2003 (2) ALT Cri 273, 2003 CriLJ 3892 Same was Cited
Earlier discussion in Benefit of doubt and Minor discrepancies’ in below
( Prabhakar Advocate)
Cognizance by Sessions judge - whether Sessions Court can add new person to
array of accused in case pending before it at stage prior to collecting any
evidence - Sessions Court not powerless to deal with such situations to prevent
miscarriage of justice - it is open to Session Court to send report to High Court
Page 32
detailing situation so that High Court can in its inherent power or revisional
powers direct committing Magistrate to rectify committal order by issuing process
to such left out accused but said procedure need be restored to only for rectifying
or correcting such grave cognizance by sessions judge after committal :- The
Sessions Judge can take cognizance of the offence only against those accused
persons who are committed to him by the Magistrate concerned. If he has to add
a new accused person whose complicity discernible from the prosecution records,
then the Sessions Judge will have to address the High Court for correction of the
committal order or will have to wait until the stage for exercise of his power under
Sec. 319 Cr.P.C. is reached ( Ranjit Song Vs State of Punjab ( AIR1998 SC 3148,
1998(2)ALD(Cri)649, 1998(2)ALT(Cri)282, 1998CriLJ4618, (1998)7SCC149,)
Complaint - Amendment - There is no provision in Criminal Procedure Code for
allowing amendment of complaint to change name of accused and substitute one
accused with another and alleging that the substituted accused had committed
the alleged offence. (Behram S.Doctor Vs State of Maharashtra) 2003(3) Criminal
Court Cases 638 (Bombay)
CONFESSION :- The Magistrate to record any confession or statement made to
him could be exercised only in the course of investigation under Chapter XII of the
Code. The section is intended to take care of confessional as well as non-
confessional statements. Confession could be made only by one who is either an
accused or suspected to be an accused of a crime. Sub-sections (2), (3) and (4)
are intended to cover confessions alone, de hors non-confessional statements
whereas sub-section (5) is intended to cover such statements. so far as
statements (other than confession) are concerned they cannot be recorded by a
Magistrate unless the person (who makes such statement) was produced or
sponsored by investigating officer. But the Bench has distinguished that aspect
from the confession recording for which the following observations have been
specifically made:
There can be no doubt that a confession of the accused can be recorded by a
Magistrate. An accused is a definite person against whom there would be an
accusation and the
Magistrate can ascertain whether he is in fact an accused person. Such a
confession can be used against the maker thereof. If it is a confessional
statement, the
prosecution has to rely on it against the accused. A three Judge Bench of this
Court in Jogendra Nahak and ors. vs. State of Orissa and ors. AIR1999SC2565 {2000
Page 33
(1) SCC 272} has held that so far as statements Mahabir Singh Vs State of Haryana 2001
7 SCC 148 and State of UP V Singhara Singh and Ors AIR 1964 SC 358
Confession – FIR WITH POLICE - Admissibility - First information amounting to
confessional statement is not receivable in evidence. If the first information report
is given by the accused to a police officer and amounts to a confessional
statement, proof of the confession is prohibited by Section 25. The confession
includes not only the admission of the offence but all other admissions of
incriminating facts related to the offence contained in the confessional statement.
No part of the confessional statement is receivable in evidence except to the
extent that the ban of Section 25 is lifted by Section 27.( Aghnee Nagesia Vs.
State of Bihar ) , 1966 CrLJ 100: 1966 AIR (SC) 119 : 1966 (1) SCR 134 : :
Confession – Form of - Identity of Magistrate must require to explain to accuse
=Recording in utter disregard of the statutory provisions of sub-section (2) of
Section 164 Cr.P.C. - Held, that High Court was not at all justified in entertaining
the confession in evidence - It can not be made basis of conviction - Accused
acquitted.
From the confessional statement the Magistrate first disclosed his identity
and told him that he was not bound to make any confession and if he did so, it
might be used as evidence against him. After administering the above caution the
Magistrate recorded the confession and then made the memorandum required
under sub-section (4) of Section 164, Cr.P.C. In our considered view, the
confession so recorded is in utter disregard of the statutory provisions of sub-
section (2) of Section 164, Cr.P.C. Under the above sub-section the Magistrate is
first required to explain to the accused that he was not bound to make a
confession and that if he did so, it might be used against him. Though this
requirement has been complied with in the instant case, the other requirement
which obligates the Magistrate to put questions to the accused to satisfy himself
that the confession was voluntary so as to enable him to give the requisite
certificate under sub-section (4), has not been fulfilled for, the learned Magistrate
did not ask any question whatsoever to ascertain whether the appellant was
making the confession voluntarily. In view of such flagrant omission to comply
with the mandatory requirement of Section 164 (2), Cr.P.C. we must hold that the
High Court was not at all justified in entertaining the confession as a piece of
evidence, much less, a reliable one. Once the confession is left out of
consideration - as it has got to be - the only other piece of evidence to connect
the appellant with the alleged offences are the recoveries allegedly made
pursuant to his statement. Even if we proceed on the assumption that the
evidence led by the prosecution in this behalf is reliable, still, considering its
Page 34
nature, we are unable to hold that it can made the sole basis for conviction even
for the offence under Section 404, I.P.C.( Preetam Vs. State of Madhya Pradesh ) ,
1996 CrLJ 4458 : 1997 AIR (SC) 445 : 1996 SCC (Cr) 1343 : 1996 (3) CCR 104
Confession – Place of Recording - Effect of - Confession recorded in jail contrary
to the rules framed by State Government - No exceptional reasons rendering it
not possible to record confession in Court - Reliance on confession, not proper.
The standing orders issued by the Government of Uttar Pradesh which are
printed as Appendix 19 at page 566 of Manual of Government Orders Uttar
Pradesh (1954 Edition) that confessions may ordinarily be recorded in open Court
and during court hours unless for exceptional reasons it is not feasible to do so.
This is a very important provision which emphasises that the Magistrate in
recording confession is exercising part of his judicial function in the manner
prescribed by law. One of these instructions also stated that the Magistrate should
enquire the reason why the accused is making the confession knowing that it may
be used against him. The Magistrate has appended the usual certificate that she
was satisfied that the accused made the confession voluntarily. Quite clearly the
Magistrate is an inexperienced officer. (Ram Chandra and others Vs. State of
U.P ) 1957 AIR (SC) 381 : 1957 CrLJ 559
Confession – Police custody - Artificial manipulation created by police to hand
over custody - No attempt made for recording of confession by Magistrate -
Statement is not admissible as extra judicial confession.
The court has to look into the surrounding circumstances and to find
whether the extra judicial confession is not inspired by any improper or collateral
consideration or circumvention of the law suggesting that it may not be true one.
For this purpose the court must scrutinise all the relevant facts such as the person
to whom the confession is made, the time and place of making it the
circumstances in which it was made and finally the actual words used by the
accused. Extra-judicial confession if found to be voluntary, can be relied upon by
the court alongwith other evidence on record. Therefore, even the extra-judicial
confession will also have to be proved like any other fact. The value of the
evidence as to the confession depends upon the veracity of the witness to whom
it is made and the circumstances in which it came to be made and the actual
words used by the accused. Sometimes it may not be possible to the witness to
reproduce the actual words in which the confession was made. For that reason
the law insists on recording the statement by a Judicial Magistrate after
administering all necessary warnings to the accused that it would be used as
evidence against him. ( Kishore Chand V. State of Himachal Pradesh ), 1990 CrLJ
Page 35
2289 : 1990 AIR (SC) 2140 : 1991 SCC (Cr) 172 : 1990 CAR 348 : 1990 CrLR (SC)
608 : 1990(3) Crimes 341
Confession – Pre recorded confession- Confessional statement appeared to
have been pre-recorded and in violation of Rule 15 of the 1987 Rules - Absence of
corroboration - Finding of Designated Court that alleged confessions devoid of
voluntariness and truthfulness cannot be made basis of convicting any of the
accused - No evidence to show that accused committed any terrorist act -
Acquittal confirmed.(State of Rajashtan Vs. Mahendra Singh and others ) 1995
CrLJ 3640 : 1995 AIR (SC) 2326
Confession – Recording of - Investigation by Magistrate - The power to record
the confession must be exercised in the manner laid down in the statute -
Magistrate recording statement can only give oral evidence to prove that the
procedure laid down was followed and not that confession has been made.( State
of U.P Vs. Singhara Singh and others ), 1964(1) CrLJ 263(2) : 1964 AIR (SC) 358 :
1964(4) SCR 485 :
Confession – Reliability - Retracted judicial confession and some other evidence
in corroboration - Accused confessed about a conspiracy to commit the murder of
the deceased, but did not at all confess that he was a party to the murder -
Confession can not be relied.( Sahabad Pulla Redy and others Vs. State of A.P)
1997 CrLJ 3753 : 1997 AIR (SC) 3087 : 1997 Cr LR (SC) 602 : 1997 (3) Crimes
240 : 1997 (8) SCC 495 :
Confession – confession of Co -Accused - Conviction without corroboration -
Permissibility. a case against an accused person, the court cannot start with the
confession of co-accused person; it must begin with other evidence adduced by
the prosecution and after it has formed its opinion with regard to the quality and
effect of the said evidence, then it is permissible to turn to the confession in order
to receive assurance to the conclusion of guilt which the judicial mind is about to
reach on the said other evidence. In criminal trials, there is no scope for applying
the principle of moral conviction or grave suspicion. In criminal cases where the
other evidence adduced against an accused person is wholly unsatisfactory and
the prosecution seeks to rely on the confession of a co-accused person, the
presumption of innocence which is the basis of criminal jurisprudence assists the
accused person and compels the Court to render the verdict that the charge is not
proved against him, and so, he is entitled to the benefit of doubt. (Hairicheran vs.
State of Bihar ), 1964(2) CrLJ 344 : 1964 AIR (SC) 1184 : 1964 (6) SCR 623 :
Conflict between oral testimony and medical evidence - Can be of varied
Page 36
dimensions and shapes - Factors to be taken into consideration in judging
reliability of occular testimony - Analysed. (Thaman Kumar Vs State of Union
Territory of Chandigarh) 2003 AIR SC 3975,
Continuing offence - Continuing offence is one which is susceptible of
continuance and is distinguishable from the one which is committed once and for
all, that it is one of those offences which arises out of the failure to obey or
comply with a rule or its requirement and which involves a penalty, liability
continues till compliance, that on every occasion such disobedience or non
compliance occurs, there is the offence committed. (Y.Abraham Ajith & Ors. Vs
Inspector of Police, Chennai & Anr.) 2004(4) Criminal Court Cases 466 (S.C.)
Appeal (crl.) 904 of 2004( Quash of Sec 498-A IP.C )
Contradictory evidence in examination-in-chief and cross-examination -
No reliance can be placed on evidence of such a witness. (Madari @ Dhiraj & Ors.
Vs State of Chhattisgarh) 2004(1) Criminal Court Cases 487 (Chhattisgarh)
Consolidation of cases - - Clubbing and consolidation of the cases not permissible.
The complaint presents a different picture altogether. The prosecution case as set
out in the complaint is at complete variance with that in the police challan. In our
judgment, it is not permissible for the Court under Section 223 of the Code to club
and consolidate the case on a police challan and the case on a complaint where
the prosecution versions in the police challan case and the complaint case are
materially different, contradictory and mutually exclusive.( Harjinder Singh V.
State of Punjab ) 1986 CrLJ 831 : 1985 AIR (SC) 404 : 1986 CAR 26 : 1985 CrLR
(SC) 66 : 1985 SCC (Cr) 93 :
Conviction can be based on sole evidence of a witness if he is found
trustworthy. (Munna & Ors. Vs State of Madhya Pradesh) 2003(1) Criminal Court
Cases 274 (M.P.)
- Conviction can be based on the testimony of sole witness provided it is
wholly reliable. (Kare @ Moti Vs State of U.P.) 2003(3) Criminal Court Cases 101
(Allahabad)
Conviction on basis of testimony of sole witness - Can be based even if other eye
witnesses turned hostile if testimony of such sole witness is found to be reliable.
(Chittar Lal Vs State of Rajasthan) AIR 2003 SC 3590, 2003 (2) ALD Cri 274,
Page 37
Compounding of offence – Non compoundable cases - Cross cases
between parties compromised - In the special circumstances direction given to
the Trial Judge to compound the offence.
This offence is not compoundable under law. The parties, however, want to treat it
a special case, in view of the peculiar circumstances of the case. It is said and
indeed not disputed that one of the accused is a lawyer practising in the lower
court. There was a counter case arising out of the same transaction. It is said that
that case has already been compromised. We gave our anxious consideration to
the case and also the plea put forward for seeking permission to compound the
offence. After examining the nature of the case and the circumstances under
which the offence was committed, it may be proper that the trial court shall
permit them to compound the offence( Mahesh Cnahd and state of State of
Rajasthan , 1989 CrLJ 121 : 1988 AIR (SC) 2111 : 1991 SCC (Cr) 159 : 1991 CrLR
(SC) 191 : 1989 CrLR (SC) 630 : 1988 (1) Rec CrR 498
CORPUS DELICTI – Recovery of :. The Supreme Court held that in a trial for
murder, it is neither an absolute necessity nor an essential ingredient to establish
corpus delicti. The fact of the death of the deceased must be established like any
other fact. Corpus delicti in some cases may not be possible to be traced or
recovered. There are a number of possibilities where a dead body could be
disposed of without any trace, therefore, if the recovery of the dead body is to be
held to be mandatory to convict an accused, in many a case, the accused would
manage to see that the dead body is destroyed to such an extent which would
afford the accused complete immunity from being held guilty or from being
punished. What is, therefore, required in law to base a conviction for an offence of
murder is that there should be reliable and plausible evidence that the offence of
murder like any other factum of death was committed and it must be proved by
direct or circumstantial evidence albeit the dead body may not be traced. . (Mani
Kumar Thapa v. State of Sikkim, AIR 2002 SC 2920, (See also: Ram Chandra &
Anr. v. State of Uttar Pradesh, AIR 1957 SC 381; Ashok Laxman Sohoni & Anr. v.
The State of Maharashtra, AIR 1977 SC 1319; and Rama Nand & Ors. v. The State
of Himachal Pradesh, AIR 1981 SC 738)
Therefore, in a murder case, it is not necessary that the dead body of the
victim should be found and identified, i.e. conviction for offence of murder does
not necessarily depend upon corpus delicti being found. The corpus delicti in a
murder case has two components - death as result, and criminal agency of
Page 38
another as the means. Where there is a direct proof of one, the other may be
established by circumstantial evidence.
CRIME SCENE MAP = The map had been prepared by the Sub-Inspector. It is no
doubt true that in the absence of the witnesses who gave the information the
remark of the Sub-Inspector would be hearsay; but in the present case we are not
concerned with the Sub-Inspector's site sketch but with the plan prepared by a
draftsman who derived information from the eye-witnesses about the places 1
and 2 and his evidence read with the map he prepared means that he measured
the distance between the two places and made a note of it on the map.
It is not unusual to have a plan drawn up by a draftsman and this is not done to
evade the provisions of Section 162 of the Criminal Procedure Code. ( Santa
Singh v The State of Punjab AIR 1956 SC 526, 1956 CriLJ 930 )
CRIME SCENE MAP =Investigating officer who made a map in a criminal case
ought not to pat anything more than what he had seen himself. where if was held
that any information derived from witnesses during police investigation, and
recorded in the index to a map must be proved by the witnesses concerned and
not by the investigating officer, and that if such information is sought to be
proved by the evidence of the investigating officer, it would manifestly offend
against s. 162 of the Code of Criminal Procedure.
Tori Singh vs The State Of Uttar Pradesh ( 1962 AIR 399, 1962 SCR (3) 589
Criminal appeal by special leave to Supreme Court - Governing principles
are: (1) No interference with concurrent finding of fact based on pure appreciation
of evidence even if it were to take a different view on the evidence; (2) No
reappraisement or review of the evidence, unless the assessment of the High
Court is vitiated by an error of law or procedure or is based on error of record,
misreading of evidence or is inconsistent with the evidence; (3) Own view cannot
be substituted with that of the High Court; (4) That the Court would interfere
where the High Court has arrived at a finding of fact in disregard of a judicial
process, principles of natural justice or a fair hearing or has acted in violation of a
mandatory provision of law or procedure resulting in serious prejudice or injustice
to the accused; (5) the Court might also interfere where on the proved facts
wrong inferences of law have been drawn or where the conclusions of the High
Court are manifestly perverse and based on no evidence. (State of Orissa Vs
Dibakar Naik & Ors.) 2002 AIR SC 2148
Cross cases - Each case to be decided on the basis of evidence which is placed
Page 39
on record in that particular case without being influenced in any manner by
evidence or the arguments urged in cross case - However, judgment must be
pronounced by the same Judge. (Dilip & Anr. Vs State of Maharashtra) 2004(1)
Criminal Court Cases 810 (Bombay)
Currency notes - Identification - Recovered currency notes having special
features as to existence of chits on the bundles bearing the seal of the firm and
signatures of PW 16 - Held, currency notes duly identified. (Lal Singh & Ors. Vs
State of Uttar Pradesh) 2004(1) Criminal Court Cases 606 (S.C. Appeal (Crl ) 631/
2001 Dated 4-11-2003, Note Citaiton Not found other journals . But it found in
Manupatra ( Prabhakar Advocate )
Custodial death - Compensation - Recovery from Officers concerned - Depends
on the fact whether the alleged misdeeds by the officer concerned is committed
in the course of the discharge of his lawful duties, beyond or in excess of the
same which has to be determined in a proper enquiry. (State of Maharashtra Vs
Christian Community Welfare Council of India & Anr.) AIR 2004 SC 7, 2004 (1) ALD
Cri 11, 2004 CriLJ 14
GUIDELINES FOR ARREST
. K.V.S.SPRABHAKAR RAO ADVOCATE
1. An entry shall be required to be made in the diary as to who was
informed of the arrest. These protections from power must be held to flow from
Articles 21 and 22 (1) and enforced strictly. It shall be the duty of the Magistrate,
before whom the Arrested person is produced, to satisfy himself that these
requirements have been complied with.( Reiterating again for this topic, If knows
kindly ignore this , Prabhakar Advocate ) .
( Joginder Kumar vs State of U.P. and Others *1994 Cr.L.J. 1981 / (1994) 4SCC 260
AIR 1994 SC 1349 )
.. Every third day, the detainee should be medically examined and
such medical reports should be entered in the Station House Diary;
.. The Officer in charge of the concerned police Station should provide paper and
pen to the detainee if so demanded for writing complaint and the Officer in charge
of the concerned police Station should open the complaint is found in the
complaint box, the officer in charge of the police Station should' produce such
complaining detainee to the Magistrate immediately along with his complaint and
the concerned Magistrate would pass appropriate orders in the light of the
complaint made for medical examination, treatment, aid or assistance, as the
case may warrant;
Page 40
FEMALE ARREST
(vii) No female person shall be detained or Arrested without the PRESENCE of
lady constable and in no case, after sun-set and before sun-rise;
(Christian Community Welfare Council of India and another vs
Government of Maharastra & another* 1995 Cr.L.J. 4223 Bombay))
Hand cuffing
The Supreme Court on handcuffing of prisoners issued the following,
directions:
We declare, direct and lay down as a rule that handcuffs or other fetters shall not
be forced on a prisoner - convicted or under trial - while lodged in a jail anywhere
in the country or while transporting or in transit from one jail to another or from
jail to Court and back. The police and the jail authorities, on their own shall have
no authority to direct the handcuffing of any inmate of a jail in the country or
during transport from one jail to another or from jail to Court and back… Any
violation of any of the directions issued by us by any rank of police in the country
or member of the jail establishment shall be summarily punishable under the
contempt of Courts Act apart from other penal consequences under law.
(In re: M.P. Dwivedi and others (1996 Cr.L.J. 1670 )
…The Arrestee may be permitted to meet his lawyer during interrogation, though
not throughout the interrogation…. render him liable to be punished for contempt
of court and the proceedings for contempt of court may be instituted in any, High
Court of the country, having territorial jurisdiction over the matter. "The courts
have the obligation to satisfy the
social aspirations of the citizens because the courts and the law are for the people
and expected to respond to their aspirations. A court of law cannot
close its consciousness and aliveness to stark realities. Mere punishment of the
offender cannot give much solace to the family of the victim civil action for
damages is a long drawn and a cumbersome judicial process. Monetary
compensation for redressal by the court finding the infringement of the
indefeasible right to life of the citizen is, therefore, useful and at time perhaps the
only effective remedy to apply balm to the wounds of the family members of the
deceased victim, who may have been the breadwinner of the family.
(D.K. Basu vs State of W.B.)1997) 1 SCC 426) See also Sec 498-A IPC
Page 41
COGNISANCE AND ARREST.:- A poor lady was taken by railway employee to a
railway guest house (Yatri Niwas) and was raped. Holding the Union of India
vicariously liable, this Court held that for an act of Railway Authorities, a direction
can be issued to the authorities to pay compensation to the victim and,
accordingly, compensation was awarded.( Chairman, Railway Board v. Chandrima
Das, (2002) SCC 465) Public Interest Litigation Under Sec 375 IPC Guidlens in
rapes case
… The detention in POLICE custody is generally disfavoured by law. ..
There cannot be any detention in the POLICE custody after the expiry of first
fifteen days even in a case where some more offences either serious or otherwise
committed by him in the same transaction come to light at a later stage.( C.B.I.
vs Anupam J. Kulkarni ) 1992 AIR SC 1768, (1992) 3SCC 141 )
..Magistrate can intervene only when POLICE officer decides not to
investigate. .. The meaning of the expression II reason to suspect" has to be
governed and dictated by the facts and, circumstances of each case and at that
stage the question of adequate proof of facts alleged in the first information
report does not arise. (State of Haryana and Others vs Bhajan Lal and Others. AIR
1993 SC 1348, 1993 CriLJ 1042
Death of two witnesses during trial - Their legal heirs cannot be relevant
witnesses in the case. (Laveti Kamala Vs State of A.P.) 2002(2) Criminal Court
Cases 96 (A.P.)
Death suicidal or homicidal - Opinion of doctor in post mortem report that
death was suicidal in nature - Opinion appeared to be perverse as doctor
exceeded his jurisdiction - It is not within the competence of doctor to opine as to
the nature of the death whether it is suicidal or not - No importance could be
given to such opinion. (Khokan Patra & Anr. Vs State) 2002(3) Criminal Court
Cases 626 (Calcutta)
Defect in investigation - Does not corrode the evidentiary value of the eye
witnesses. (Surendra Paswan Vs State of Jharkhand) 2004 SC AIR 742
Defective investigation - Acquittal solely on account of defect - Not sustainable
- In case of defective investigation Court has to be circumspect in evaluating the
evidence. (Ram Bali Vs State of Uttar Pradesh) 2004 AIR 2329, 2004(1 )Suppl.SCR195 ,
2004(10 )SCC598 , 2004(4 )SCALE611 ,
Page 42
Relied the judgment reported in 1)Pattipati Venkaiah v. State of A.P., AIR
(1985) SC 1715, 2) Nihal Singh v. State of Punjab, AIR (1965) SC 26, relied on.
Defective investigation - Court has to be circumspect in evaluating the evidence -
Accused cannot be acquitted solely on account of the defect. (Dhanaj Singh @
Shera & Ors. Vs State of Punjab) 2004 AIR SC 1920, 2004(2 )SCR938 ,
2004(3 )SCC654 , 2004(3 )SCALE93 , 2004(3 )JT380
RELIED ON
Karan Singh v. State of M.P., 1995 AIR SC 2472, 1995( 5 )SCC 518,
1995( 4 )SCALE752 , 1995( 6 )JT 437
Paras Yadav v. State of Bihar, 1999 AIR SC 644, 1999( 1 )SCR 55, 1999( 2 )SCC 126,
1999( 1 )SCALE26 , 1999( 1 )JT 25
Ram Bihari Yadav v. State of Bihar, 1998 AIR SC1850, [1998] 4 SCC 517,
Even if the investigation is defective that pales into insignificance when ocular
testimony is found credible and cogent. [943-C]
Amar Singh v. Balwinder Singh 2003 AIR SC 1164, [2003] 2 SCC 518
Defective investigation - If ocular evidence is truthful and inspires confidence,
lapse in investigation if properly explained cannot cast doubts - In the instant
case conviction upheld despite lapse of non lifting of blood stained earth.
(Malhu Yadav Vs State of Bihar) 2002 AIR 2137, 2002( 3 )SCR 676, 2002( 5 )SCC
724, 2002( 4 )SCALE285 ,
Defective investigation - Not a ground to acquit the accused - The only
requirement in a defective investigation is that Court should be extra cautious in
evaluating evidence - Any deficiency or irregularity in investigation need not
necessarily lead to rejection of the case of prosecution when it is otherwise
proved. (Visveswaran Vs State Rep. By S.D.M.) 2003 AIR SC 2471
Defective investigation - Solely not a ground for acquittal - To do so would
tantamount to playing into the hands of Investigating Officer. (Zahira Habibulla
H.Sheikh & Anr. Vs State of Gujarat & Ors.) 2004 AIR SC 3114, 2004(3 )SCR1050,
2004(4 )SCC158 , 2004(4 )
Defective investigation by itself cannot be made a ground for acquitting the
accused. (Allarakha K.Mansuri Vs State of Gujarat) 2002 SC AIR 1051,
2002( 1 )SCR1011, 2002( 3 )SCC 57
Defence - Once rejected then presumption under S.114 Evidence Act can also be
Page 43
drawn. (Gilbert Pereira Vs State of Karnataka) 2004 AIR SC 4454, ( Note Same was
discussed earlier in Abscondance of accused . Presumption of culprit established)
Defence side getting affidavits of prosecution witnesses in advance -
Held, practice adopted by the defence side in getting the affidavits of prosecution
witnesses in advance is to be deprecated - It amounts to an attempt aimed at
dissuading the witnesses from speaking truth before the court - Trial Judge as well
as High Court rightly rejected the defence contention. (Rachapalli Abbulu & Ors.
Vs State of A.P.) 2002 AIR SC1805, , 2002( 4 )SCC 208,
-Defence witness - Evidence of defence witnesses not to be looked at with
suspicion merely because they are defence witnesses - They are entitled to be
judged with the same yardstick which is applied for judging the prosecution
witnesses - Minor inconsistencies cannot be highlighted to jettison the evidence of
otherwise truthful witnesses. (Shri Wilson Fernandes Vs Shri Nitin Pandurang &
Anr.) 2004(4) Criminal Court Cases 433 (Bombay)
- Defence witnesses - Accused cannot claim a right to examine any number of
defence witnesses - If Court is satisfied that a witness is cited for the purpose of
vexation or delay or for defeating the ends of justice then Court is entitled to
refuse to issue process after recording reasons. (Dharamarajan Vs State) 2002(3)
Criminal Court Cases 266 (Kerala)
- Defence witnesses - Credibility and trustworthiness ought also to be attributed
to the defence witnesses at par with that of the prosecution. (State of Haryana Vs
Ram Singh) AIR 2002 SC 620, 2002 (1) ALT Cri 123
- Deficiency in investigation - Court can act on evidence brought before it and
acquit the accused. (State of Haryana Vs Jagbir Singh & Anr.) 2003 AIR SC 4377
2004(1) Criminal Court Cases 296 (S.C.)
Deficiency in investigation - Not a ground to discard the prosecution version which
is authentic, credible and cogent. (State of Madhya Pradesh Vs Mansingh & Ors.)
2003(2 )Suppl.SCR460 , 2003(10 )SCC414 , 2003(6 )SCALE429 , 2003(1 )Suppl.JT252 Criminal
Appeal No. 825 of 1996.Dated 13-8-2003
- Delay in sending dead body for post mortem - Dead body sent for post
mortem at 11-12 in the night and reached hospital next day morning at 9.30 a.m.
- Jeep broke down on the way at a distance of 13-14 kms. - Jeep repaired in the
morning and then dead body taken for post mortem - Explanation given in regard
Page 44
to delay in delivery of dead bodies for post mortem cannot be rejected. (Jai Sree
Yadav Vs State of U.P.) 2004(4) Criminal Court Cases 28 (S.C.) Appeal (crl.) 1072
of 2003
- Delay of 2 days in questioning eye witnesses by I.O. - No proper explanation
given - This is a serious mistake on the part of the prosecution - Held, High Court
rightly disbelieved these witnesses. (Vijaybhai Bhanabhai Patel Vs Navnitbhai
Nathubhai Patel & Ors.) 2004 AIR SC 4607, , 2004(10 )SCC583 , 2004(3 )SCALE704 , 2004(4
)JT80
- Delayed examination of witnesses - Unless I.O. is specifically asked as to
why there was delay in examiantion of witnesses, defence cannot gain any
advantage therefrom - If explanation offered for the delayed examination is
plausible and acceptable then no adverse inference can be drawn - If explanation
offered is found implausible then Court can consider it to be one of the factors to
affect credibility of the witness who were examined belatedly - It has no effect on
the credibility of prosecution's evidence tendered by other witnesses. (State of
U.P. Vs Satish) 2005 AIR 1000, 2005(2 )SCR1132, 2005(3 )SCC114 , 2005(2 )SCALE33 ,
2005(2 )JT153
D.N. A. DNA Test of rapeaccused Necessity Sec 53-A –. After
incorporation of Sec 53-A in Cr.P.C. from 23-6-2006it has become necessary for
prosecution to go in for DNA test in such cases , facilitating prosecution to prove
its case against accused - Prior to 2006 even with out afore said specific provision
in Cr.P.C prosecution could still have resorted to this procedure of getting DNA
test or analysis done and matching of sermon of accused with that found on
undergarments of prosecutrix, to make it a foolproof case. Krishna Kumar Malik
Vs State of Haryana ,( AIR 2011 SC 2877, SCC 2011 (7) 130 . SCC (Crl) 2011 61
It was held that the refusal to paternity (DNA) test would bar a party from
challenging the paternity of the child it was also stated that an adverse inference
can be drawn if a party refuses to undergo a DNA test. This seems to be a
preferable interpretation and strikes a balance where although the court does not
have the power to direct the giving of sample, it may draw an adverse inference if
it is not given. (Dwarika Prasad Satpatty v. Bidyut Parva Dixit ) 2000Cri LJ 1: AIR
1999 SC 3348 and K. Salvaraj vP. Jayakumari (2000 Cri LJ 1:AIR 1999 SC 3348)
- Departmental witness - Uncorroborated testimony of the officials of the
department concerned does not inspire confidence. (Bhanwar Lal Vs State of
Page 45
Rajasthan) 2002(3) Criminal Court Cases 433 (Rajasthan)
- Directions issued for compliance - (i) All criminal courts shall ensure that
appearance of the accused in all cases before them is completed as expeditiously
as possible after commencement of proceedings; (ii) Once appearance is
completely, parties shall immediate be heard and appropriate orders on charge
shall be passed - Charge/particulars of offence shall be read over and explained
expeditiously after appearance; (iii) There after the case shall be listed for trial
day-to-day and summons shall be issued to the witnesses; (iv) If for any reasons
such posting for trial cannot be given within one year the case shall be adjourned
to a date (however distant) on which day a posting for day-to-day trial on a
specified date/dates can be made; (v) There shall be no unnecessary formal
posting of the case to any date; (vi) The presence of the accused/complainant
shall not be ordinarily insisted on days when his presence is not required for the
progress of the case - On all such dates the complainant/accused shall be
permitted to be represented by his counsel even without an application; (vii) If
there is no such presence/representation by counsel, appropriate consequence
can certainly follow-again in the judicious discretion of the court; (viii) Specific
direction shall be made in advance (while adjourning the case) by the court to the
complainant/accused through their counsel if their personal presence is necessary
on the next date of posting; (ix) The above directions shall not in any way affect
the discretion of the court to direct personal appearance of the accused generally
(or on any specific date of posting) for any particular purpose; (x) No application
under Sections 205/317 Cr.P.C. shall ever be rejected unless there are specific
and compelling reasons; (xi) As far as possible in summons issued to witnesses
specific time for appearance shall be mentioned - Hereafter witnesses will at least
be told in such summons whether they are expected to be present in the forenoon
(10.30 a.m.) or afternoon (1 p.m.) session; (xii) Cases posted for recording plea or
Section 313 questioning of the accused shall not be adjourned for the reason that
the co-accused are not present - Such work in respect of the available accused
shall be completed and the case adjourned for such work in respect of the non-
available accused without insisting on the personal appearance of the available
accused on such days; (xiii) When the court commences its work for the day all
accused who want to surrender before court shall be permitted to do so, and their
applications for bail shall, unless it be impossible for any reason, be disposed of
by the court on the same day before the court rises for the day; (xiv) The Chief
Judicial Magistrates/Sessions Judges shall ensure that these directions are
complied with by the sub-ordinate courts and shall specifically advert to this
aspect in the course of their inspections of subordinate courts. (Alice George Vs
Deputy Superintendent of Police) 2003(2) Criminal Court Cases 111 (Kerala)
Page 46
- Discrepancies - Minor discrepancies cannot be termed as contradictions unless
it affects the credibility of the evidence tendered by a witness. (Shashidhar
Purandhar Hegde & Anr. Vs State of Karnataka) 2004 AIR SC 5075,
2004(5 )Suppl.SCR536 , 2004(12 )SCC492 , 2004(8 )SCALE843 , 2004(9 )JT177
- Discrepancy between Medical and Ocular evidence regarding number of injuries
suffered by deceased - Medical report that there were 3 injuries but according to
eye witnesses five injuries were inflicted - Two injuries might have escaped notice
of Autopsy surgeon - Prosecution case not rejected as prosecution otherwise
established its case. (Yunis @ Kariya Vs State of Madhya Pradesh) 2003 AIR SC 539,
, 2003( 1 )SCC 425, 2002( 9 )SCALE245
Note See Joint Liability discussed below Scope of Sec 149 / 34 IPC
- Distance - Statement of the witness with respect to distance cannot be
considered as exact or precise - It is always based on general impression and due
allowance must be given keeping in view the intelligence, power of observation
and retentive memory of the witness. (Jeeva @ Khema Vs State of Rajasthan)
2005(1) Criminal Court Cases 90 (Rajasthan)
Discharge U/s 239 CrPC : Section 227 of the Code of Criminal Procedure, 1973
provides that if upon consideration of the record of the case and the documents
submitted therewith, the Judge considers that there is no sufficient ground for
proceeding against the accused, he shall discharge the accused for which he is
required to record his reasons for so doing. No reasons are required to be
recorded when the charges are framed against the accused persons. Omwati and
Anr Vs. State 2001 AIR 1507, 2001( 2 )SCR 482, 2001( 4 )SCC 333,
2001( 2 )SCALE505 , 2001( 3 )JT 585
At the stage of passing the order in terms of Section 227 of the Code, the
Court has merely to peruse the evidence in order to find out whether or not there
is a sufficient ground for proceeding against the accused. If upon consideration,
the court is satisfied that a prima facie case is made out against the accused, the
Judge must proceed to frame charge in terms of Section 228 of the Code. Only in
a case where it is shown that the evidence which the prosecution proposes to
adduce to prove the guilt of the accused, even if fully accepted before it is
challenged in cross-examination or rebutted by defense evidence cannot show
that the accused committed the crime, then and then alone the court can
discharge the accused. The court is not required to enter into meticulous
consideration of evidence and material placed before it at this stage Kami Bhadra
Shah and Anr. v. State of West Bengal, AIR 2000 SC 522, 2000 (1) ALD Cri 421
[2000] 1 SCC 722, referred to.
Page 47
Stree Atyachar Virodhi Parishad v. Dilip Nethuma Chordia [1989] 1 SCC 716;
State of Bihar v. Ramesh Singh, AIR (1977) SC 2018; Supdt. & Remembrancer
of Legal Affairs, West Bengal v. Anil Kumar Bhunja, AIR (1980) SC 52 and
Satish Mehra v. Delhi Administration, [1996] 9 SCC 766, referred .
Doli incapax—Offence by child —Presumption that the child has not reached the age of discretion—The presumption is rebuttable by evidence.
When a teenager, tensed by his elders or provoked by the stone-hit on the head of his father, avenges with dangerous sticks or swords, copying his brothers, we cannot altogether ignore his impaired understanding, his tender age and blinding environs and motivations causatory of his crime.
At common law in England, as noticed by Archbold in Criminal Pleading, Evidence and Practice, a child under 14 years is presumed not to have reached the age of discretion and to be doli incapax; but this presumption may be rebutted by strong and pregnant evidence of a mischievous discretion..... for the capacity to commit crime, do evil and contract guilt, is not so much measured by years and days as by the strength of the delinquent's understanding and judgment.
Adult intent, automatically attributed to infant means, is itself an adult error. It is every day experience that little boy as a class have less responsible appreciation of dangers to themselves or others by injurious acts and so it is that the new penology in many countries immunises crimes committed by children of and below ten years of age and those between the ages of 10 and 14 are `in a twilight zone in which they are morally responsible not as a class, but as individuals when they know their act to be wrong'. The Indian Penal Code, which needs updating in many portions, extends total immunity upto the age of seven (Section 82) and partial absolution upto the age of twelve (Section 83).
No evidence as to whether he was under twelve, as conditioned by Section 83, I.P.C. is adduced; no attention to feeble understanding or youthful frolic is addressed. And we are past the judicial decks where factual questions like this can be investigated. The prima facie inference of intent to endanger the life of the deceased with a sharp weapon stands unrebutted. Indeed, robust realism easily imputes doli capax to a twelver who cuts on the neck of another with a sword; for, if he does not know this to be wrong or likely to rip open a vital part he must be very abnormal and in greater need of judicial intervention for normalisation. The conviction under Section 326, I.P.C. therefore, must be reluctantly sustained. When such is the law, we cannot innovate to attenuate, submit to spasmodic sentiment, or ride an unregulated benevolence.( Hiralal Mallick Vs State of Bihar ) 1977 CrLJ 1921 : 1977 AIR (SC) 2236 : 1977 SCC (Cr) 538 :
Double Jeopardy – Simultaneous proceedings under sec 138-A138-A Negotiable
Instruments Act and Sec 420 I.P.C420 I.P.C ↔↔↔ judgment in G. Sagar Suri & Anr. v. State
of U.P. & Ors., 2000 (1) ALD Cri 362= 2000 AIR 754, 2000( 1 )SCR 417, 2000( 2 )SCC 636,
2000( 1 )SCALE271 , 2000( 1 )JT 360 wherein during the pendency of the proceedings
under Section 138 N.I. Act, prosecution under Sections 406/420 IPC had been
launched. This Court quashed the criminal proceedings under Sections 406/420
Page 48
IPC, observing that it would amount to abuse of process of law. In fact, the issue
as to whether the ingredients of both the offences were same, had neither been
raised nor decided. Therefore, the ratio of that judgment does not
haveapplication on the facts of this case. Same remained the position so far as
the judgment in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao & Anr.,
(2011) 2 SCC 703,( Full Text Judgment High Court of Andhra Pradesh SET ASIDE
REPORTED in 2005 (2) ALD Cri 840, I (2007) BC 446, 2006 CriLJ 1 ) is concerned. It
has been held therein that once the conviction under Section 138 of N.I. Act has
been recorded, the question of trying a same person under Section 420 IPC or any
other provision of IPC or any other statute is not permissible being hit by Article
20(2) of the Constitution and Section 300(1) Cr.P.C.
Admittedly, the appellant had been tried earlier for the offences punishable under
the provisions of Section 138 N.I. Act and the case is sub judice before the High
Court. In the instant case, he is involved under Sections 406/420 read with
Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mens rea i.e.
fraudulent or dishonest intention at the time of issuance of cheque is not required
to be proved. However, in the case under IPC involved herein, the issue of mens
rea may be relevant. The offence punishable under Section 420 IPC is a serious
one as the sentence of 7 years can be imposed. In the case under N.I. Act, there is
a legal presumption that the cheque had been issued for discharging the
antecedent liability and that presumption can be rebutted only by the person who
draws the cheque. Such a requirement is not there in the offences under IPC. In
the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally
enforceable liability. There cannot be such a requirement in the offences under
IPC. The case under N.I. Act can only be initiated by filing a complaint. However,
in a case under the IPC such a condition is not necessary.
Recent Judgment in Supreme Court in
Sangeetaben Mahendrabhai Patel Vs. State of Gujarat
Double Jeopardy - Dishonor of Cheque
2012 STPL(Web) 245 SC ( Yet to be reported in Other journals)kvssprabhakr
advocate)
Criminal Appeal No. 645 of 2012
High Court has dismissed the application filed by the present appellant under
Section 482 of Criminal Procedure Code, 1973 (hereinafter referred as `Cr.P.C.’)
for quashing the I.CR No. 18 of 2004 and Criminal Case No. 5 of 2004 pending
Page 49
before the Chief Judicial Magistrate, Patan, on the plea of double jeopardy for the
reason that the appellant has already been tried and dealt with under the
provisions of Section 138 of Negotiable Instruments Act, 1881 (hereinafter
referred as `N.I. Act’) for the same offence. ….. Admittedly, the appellant had
been tried earlier for the offences punishable under the provisions of Section 138
N.I. Act and the case is sub judice before the High Court. In the instant case, he is
involved under Sections 406/420 read with Section 114 IPC. In the prosecution
under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at
the time of issuance of cheque is not required to be proved. However, in the case
under IPC involved herein, the issue of mens rea may be relevant. The offence
punishable under Section 420 IPC is a serious one as the sentence of 7 years can
be imposed ….. There may be some overlapping of facts in both the cases but
ingredients of offences are entirely different. Thus, the subsequent case is not
barred by any of the aforesaid statutory provisions. The appeal is devoid of any
merit and accordingly dismissed.
- Doctrine of Autrefois acquit - Accused arrested while in possession of arms and
ammunition in notified area and was prosecuted under TADA - He separately
prosecuted for offence of kidnapping for ransom being the master mind - Acquittal
of that offence by Competent Court - Doctrine of Autrefois acquit attracted and
Designated Court was wrong to proceed on the allegations in that case. (Mukhtiar
Ahmed Anshari Vs State (N.C.T. of Delhi)) 2005 AIR SC 2804, 2005(3 )SCR797 ,
2005(5 )SCC258 , 2005(4 )SCALE269 , 2005(4 )JT503
Dying declaration—Admissibility—Necessity of strict scrutiny and closest circumspection by Court before acting upon the dying declaration—The Court must be satisfied about the fit state of mind of the deceased making declaration before relying on the same—Omission of Magistrate recording declaration to put direct question about mental condition of injured may render it unsafe to be relied.The dying declaration is undoubtedly admissible under Section 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring prompting or a product of his imagination. The Court must be satisfied the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration.The person who recorded the dying declaration to question the deceased regarding his state of mind to make the statement was considered to be a very serious one and in our opinion in the instant case the omission of the Judicial Magistrate who knew the law well throws a good deal of doubt on the fact whether the deceased was really in a fit state of mind to make a statement. The Sessions Judge has rightly pointed out that even though the deceased might have been conscious in the strict
Page 50
sense of the term, there must be reliable evidence to show, in view of his intense suffering and serious injuries, that he was in a fit state of mind to make a statement regarding the occurrence. Having regard, therefore, to the surrounding circumstances mentioned above, which have not been fully considered by the High Court, we find it extremely unsafe to place any reliance on Ext, P-2 particularly in view of the conduct of the deceased in not making any disclosure regarding the occurrence on the three previous occasions when he had a full and complete opportunity to name his assailants.( K.Ramachandra Reddy and another V, The Public Prosecutor) (1976 CrLJ 1548 : 1976 AIR (SC) 1994 : 1976 CrLR (SC) 286 : 1976(3) SCC 618 : 1976 (2) APLJ 39
DYING DECLARATION By The Victim ; Dying declaration by victim was
emphasised by the Supreme Court in where it was held by the court that just
because the dying declaration was not recorded by a magistrate cannot be a
ground to disbelieve the entire prosecution case. It was further held by the court
that “when a statement of an injured is recorded, in the event of her death, the
same may also be treated to be a First Information Report.” Section 32 (1) of the
Indian Evidence Act states that a state made by a person explaining the cause of
his death should be considered as relevant and important in the cases where his
death comes into questions. In such circumstances, dying declaration made by
the victim would become important so as to arrive at a correct decision. It should
not be necessarily made in front of a magistrate. Balbir Singh v State of Punjab :
AIR 2009 SC 3221,= 2006 AIR SCW 4950)
Dying declaration—FIR—The deceased after making statement to police
succumbed to his injuries and died—The contents of FIR can be treated as dying
declaration.( Mannu Raja and another V. The state of Madya Pradesh) 1976 Cr.L.J
1718 : 1976 AIR (SC) 2199 : 1976 SCC (Cr) 376 : 1976 CrLR (SC) 54 : 1976 Jab LJ
599
Dying declaration—recording by police officer—The mental fitness of deceased not
questioned from the officer during his cross-examination—The statement is
admissible.
A statement, written or oral, made by a person who is dead as to the cause of his
death or as to any of the circumstances of the transaction which resulted in his
death, in cases in which the cause of that person's death comes into question,
becomes admissible under Section 32 of the Evidence Act. Such statement made
by the deceased is commonly termed as dying declaration. There is no requirement
of law that such a statement must necessarily be made to a Magistrate. What
evidentiary value or weight has to be attached to such statement, must necessarily
depend on the facts and circumstances of each particular case. In a proper case, it
may be permissible to convict a person only on the basis of a dying declaration in
the light of the facts and circumstances of the case. In the instant case, the dying
Page 51
declaration has been properly proved. It is significant to note that in the course of
cross-examination of the witness proving the dying declaration, no questions were
put as to the state of health of the deceased and no suggestion was made that the
deceased was not in a fit state of health to make any such statement. The doctor's
evidence also clearly indicates that it was possible for the deceased to make the
statement attributed to her in the dying declaration in which her thumb impression
had also been affixed.( Ramawati Devi. Vs. State of Bihar )( 1983 CrLJ 221 : 1983
AIR (SC) 164 :
Dying declaration—appreciation of —Material diversions relating to commission of
crime cannot be ignored by the Court.
The High Court has sidelined such a noticeable discrepancy looming large as
between the two different statements made by the same person. When the sphere
of scrutiny of dying declaration is a restricted area, the Court cannot afford to
sideline such a material divergence relating to the very occasion of the crime.
Either the context spoken to one was wrong or that in the other was wrong. Both
could be reconciled with each other only with much strain as it relates to the
opportunity for the culprit to commit the offence. Adopting such a strain to the
detriment of the accused in a criminal case is not a feasible course.( Dandu
Lakshmi Reddy V. State of A.P ,)( 1999 CrLJ 4287 : 1999 AIR (SC) 3255 : 1999 SCC
(Cr) 1176 )
Dying declaration— improvement in subsequent dying declaration does not affect
the validity of earlier dying declaration.( Sreema Murhy V. State of A.P )1998 CrLJ
4063 : 1998 AIR (SC) 3040 : 1998 SCC (Cr) 1432 :
Dying declaration—improvements —Two dying declarations—First recorded by
police immediately after deceased regained consciousness after attack, second
recorded by Magistrate—Names of all accused stated in second dying declaration—
Dying declarations corroborated by eye-witnesses—Treating second dying
declaration as improvement over first one High Court acquitted the accused
persons—Order of acquittal passed by High Court set aside and conviction and
sentence passed by Sessions Court restored.( Pratapaneni Ravi kumar alias Ravi
and another V. State of A.P )1997 CrLJ 3505 : 1997 AIR (SC) 2810 : 1997 SCC (Cr)
1198 : 1997(2) Crimes 32 : 1997 (35) All Cr C 254 : 1997 (3) CCR 5
DYING DECLARATION ;-The principle on which dying declaration is admitted in
evidence indicated in legalmaxim "nemo moriturus proesumitur mentiri” a man
will not meet his maker with a liein his mouth.Supreme Court has laid down in
several judgments the principles dyingdeclaration, which could be summed up as
under as indicated in (Smt. Paniben v. Stateof Gujarat (AIR 1992 SC 1817):
Page 52
(i) There is neither rule of law nor of prudence that dying declaration
cannot be acted upon without corroboration. [See Munnu Raja & Anr. v.
The State of Madhya Pradesh(1976) 2 SCR 764)
(ii) ](ii) If the Court is satisfied that the dying declaration is true and
voluntary it can base conviction on it, without corroboration. [See State
of Uttar Pradesh v. Ram Sagar Yadavand Ors. (AIR 1985 SC 416) and
Ramavati Devi v. State of Bihar (AIR 1983 SC 164)](iii) The Court has to
scrutinize the dying declaration carefully and must ensure that the
declaration is not the result of tutoring, prompting or imagination. The
deceased had an opportunity to observe and identify the assailants and
was in a fit state to make the declaration. [See K. Ramachandra Reddy
and Anr. v. The Public Prosecutor (AIR 1976 SC1994)](iv) Where dying
declaration is suspicious, it should not be acted upon
without corroborative evidence. [See Rasheed Beg v. State of Madhya
Pradesh (1974 (4) SCC264)](v) Where the deceased was unconscious
and could never make any dying declaration the evidence with regard
to it is to be rejected. [See Kaka Singh v State of M.P. (AIR 1982SC
1021)](vi) A dying declaration which suffers from infirmity cannot form
the basis of conviction. [See Ram Manorath and Ors. v. State of U.P.
(1981 (2) SCC 654)(vii) Merely because a dying declaration does
contain the details as to the occurrence, it is not to be rejected. [See
State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR1981 SC
617)](viii) Equally, merely because it is a brief statement, it is not to be
discarded. On thecontrary, the shortness of the statement itself
guarantees truth. [See Surajdeo Oza andOrs. v. State of Bihar (AIR
1979 SC 1505).(ix) Normally the Court in order to satisfy whether
deceased was in a fit mental condition to make the dying declaration
look up to the medical opinion. But where the eye-witness said that the
deceased was in a fit and conscious state to make the dying
declaration, the medical opinion cannot prevail. [See Nanahau Ram
and Anr. v. State of Madhya Pradesh (AIR 1988 SC 912)].(x) Where the
prosecution version differs from the version as given in the
dyingdeclaration, the said declaration cannot be acted upon. [See State
of U.P. v. MadanMohan and Ors. (AIR 1989 SC 1519)].(xi) Where there
are more than one statement in the nature of dying declaration, one
first in point of time must be preferred. Of course, if the plurality of
dying declaration could be held to be trustworthy and reliable, it has to
be accepted. [See MohanlalGangaram Gehani v.State of Maharashtra
(AIR 1982 SC 839)]."
Page 53
Disposal of property—Power of Magistrate —Articles seized by police not produced before the Magistrate—Question of release of property has to be decided in the facts and circumstances of the case—If released it may prejudice the case, it should be rejected.
The fact that the court has power to dispose of property seized by the police but not yet produced before the court does not mean that the Special Judge must always release such property to the person from whom the property has been recovered, especially when the stage of the case is in suspicion, the investigation is not over and charge-sheet has not yet been laid. The court has to be circumspect in such a situation before releasing the property. While we reverse the decision of the courts below that the Special Judge had no power to release the seized property, we should not be taken to mean that whenever the claimant asks for the property back, he should be given back the said property. That has to be decided on its own merits in each case and the discretion of the court has to be exercised after due consideration of the interests of justice including the prospective necessity of the production of these seized will, in any manner, affect or prejudice the course of justice at the time of the trial, it will be a wise discretion to reject the claim for return. Ram Prakash Sharam V. State of Haryana ) 1978 CrLJ 1120 : 1978 AIR (SC) 1282 : 1978 SCC (Cr) 309 :
Disposal of property—Right of owner —Entrustment of case property to Receiver which was not traceable—Rightful claimant/owner of the case property who already had a decree of civil court declaring his ownership, seeking possession—Receiver denying that it had possession of case property—It was duty of Magistrate to enquire into the matter to trace the property or to compensate the owner.
When the rightful claimant applied to the Court for possession of the buses the Court could not simply shrug its shoulders and direct him to go to a Civil Court because both the Official Receivers disclaimed that they were in possession of the buses. In such a situation it was the duty of the Court to probe into the matter, make a full enquiry, and trace the whereabouts of the buses. If the buses could not be delivered to the owner for any reason the Court should direct the culpable party to pay the value of the vehicles to the appellant. It is elementary that no one shall be prejudiced for the act of the Court `actus curiae neminem gravabit' (the act of the Court harms no one).Inter Continental Agencies Pvt Ltd V Amin Chand and another, 1980 CrLJ 689 : 1980 AIR (SC) 951 : 1980 SCC (Cr) 544 : 1980 CrLR (SC) 175 : 1980 CAR 188 : 1980 All CrR 275 : 1980 Sim LC 277
- Earliest version of two child witnesses suppressed by prosecution - That
makes the entire prosecution case vulnerable and doubtful. (Orsu Venkat Rao Vs
State of Andhra Pradesh) AIR 2004 SC 4961, 2004 (2) ALD Cri 1029
- Every person is innocent till proved guilty and further Court presumes a human
being to behave normally and this presumption continues till such time some
concrete material, like antecedents of an individual, is brought on record to show
that he shall not behave in normal fashion. (Naginder Singh Rana Vs State of
Punjab) 2004(4) Criminal Court Cases 295 (P&H)
Page 54
- Evidence - If two views are possible, one which is favourable to the accused has
to be accepted. (State of Haryana Vs Inder Singh) JT 2002 (2) SC 169, (2002) 9 SCC
537 2002(2) Criminal Court Cases 464 (S.C.) Sec 304-B and Sec 498-A IP.C
- Evidence - Minor discrepancies - Should be ignored - When a rustic or
illiterate witness faces an astute lawyer, there is bound to be imbalance and
therefore minor discrepancies have to be ignored - Some discrepancy is bound to
be there and the same should not weigh with the Court so long it does not
materially affect the prosecution case. (Krishna Mochi Vs State of Bihar) 2002 AIR
1965, 2002( 3 )SCR 1, 2002( 6 )SCC 81, 2002( 3 )SCALE602 , 2002( 4 )JT 186.) Note See
also Material Discrepancies same was cited (Prabhakar advocate)
- Evidence - Ocular evidence not in consonance with medical evidence - If
evidence of eye witnesses is of unimpeachable character and is reliable and
credible, even if it is not in consonance with medical evidence and is at slight
variation, then the same should not be ignored as medical evidence is just an
opinion of an expert and the Court is the best expert. (Ram Kishun & Ors. Vs State
of U.P.) 2002(2) Criminal Court Cases 101 (All.)
- Evidence - Unless a piece of evidence is tendered in evidence by any witness,
the same cannot be taken into consideration. (Munnalal Vs State of Rajasthan)
2004(3) Criminal Court Cases 686 (Rajasthan)
- Evidence by affidavit - Evidence of a formal character - Can be given by way of
affidavit - If any party to the lis wishes to examine or cross-examine the deponent
he can move application u/s 296 (2) Cr.P.C. and when such an application is made
it is the duty of the Court to call such person to the Court for the purpose of being
examined. (State of Punjab Vs Naib Din) 2001 AIR SC3955, 2001( 3 )Suppl.SCR 396,
2001( 8 )SCC 578, 2001( 6 )SCALE532 , 2001( 8 )JT 189
- Evidence of a witness cannot be rejected on the ground that he did not reacted
in a particular manner - Human behaviour varies from person to person and
different people behave and react differently in different situations. (State of Uttar
Pradesh Vs Devendra Singh) 2004(3) Criminal Court Cases 123 (S.C.)
- Evidence of a witness who has got a criminal background - To be viewed with
caution - If such an evidence gets sufficient corroboration from evidence of other
witnesses, there is nothing wrong in accepting such evidence. (State of Uttar
Pradesh Vs Farid Khan & Ors.) 2005(1) Criminal Court Cases 220 (S.C.) Appeal
(crl.) 1863-64 of 1996
Page 55
- Evidence of eye witnesses corroborated by medical evidence proved prosecution
case - Trial Court recording acquittal relying on circumstances or aspects not
based upon legal evidence - Held, High Court was justified in convicting accused
by reversing acquittal. (Allarakha K.Mansuri Vs State of Gujarat) 2002 AIR SC 1051,
2002( 1 )SCR1011, 2002( 3 )SCC 57, 2002( 2 )SCALE131 , 2002( 2 )JT 63)
- Evidence of injured persons and eye witnesses to the occurrence not consistent
with each other on material particulars such as the manner of appearance of the
accused persons at the scene, their chasing and surrounding the informant party
before the assault, and the utterings of the accused persons hurling abusive
words and threatening to kill the informant party - Not safe to rely upon their
evidence. (Pramod Kumar Khadamsingh Vs State of Orissa) 2002(3) Criminal
Court Cases 244 (Orissa)
- Evidence of victim clear and cogent - In the absence of any material to show
as to why he would falsely implicate the accused, his evidence is to be relied
upon. (Mathai Vs State of Kerala 2005 AIR SC710 , 2005(1 )SCR450 , 2005(3 )SCC260 ,
2005(1 )SCALE293 , 2005(2 )JT365
- Exactly identical deposition of two witnesses - It is one of the grounds for
doubting the credibility of the witness. (Shri Wilson Fernandes Vs Shri Nitin
Pandurang & Anr.) 2004(4) Criminal Court Cases 433 (Bombay)
Expert Witness- An ‘expert’ is not a ‘witness’ of fact. His evidence is really
of an advisory character. The duty of an ‘expert witness’ is to furnish the
judge with the necessary scientific criteria for testing the accuracy of the
conclusion so as to enable the judge to form his independent judgment by the
application of this criteria to the facts proved by the evidence of the case. The
scientific opinion evidence, if intelligible, convincing and tested becomes a
factor and along with the other evidence of the case. The credibility of such a
witness depends on the reasons stated in support of his conclusions and the
data furnished which form the basis of his conclusions (State Of Himanchal
Pradesh v. Jai Lal (AIR 1999 SC 3318)
Extra-judicial confession, if true and voluntary can be relied upon by the court
to convict the accused for the commission of the crime alleged. Despite inherent
weakness of extra judicial confession as an item of evidence, it cannot be ignored
when shown that such confession was made before a person who has no reason
to state falsely and to whom it is made in the circumstances which tend to
support the statement. [Gura Singh v. State of Rajasthan)(2001 AIR SC 330,
Page 56
2000( 5 )Suppl.SCR 408, 2001( 2 )SCC 205, 2000( 8 )SCALE147 ,
2000( 3 )Suppl.JT 528
Extra-Judicial Confession- An unambiguous extra-judicial confession possesses
high probative value force as it emanates from the person who committed the
crime and is admissible in evidence pro- vided it is free from suspicion and
suggestion of its falsi- ty. But in the process of the proof of the alleged confession
the court has to be satisfied that it is a voluntary one and does not appear to be
the result of inducement, threat or promise envisaged under s. 24 of the Evidence
Act or was brought about in suspicious circumstances to circum- vent ss, 25 and
26 of the Evidence Act. For this purpose the court must scrutinise all the relevant
facts such as the person to whom the confession is made, the time and place of
making it, the circumstances in which it was made and final- ly the actual words
used by the accused. Section 25 of the Evidence Act provides that no confession
made to a police officer shall be proved as against a person accused of any
offence. Section 26 provides that no confession made by any person while he is
under custody of the police officer, unless it be made in the immediate presence
of a magistrate, shall be proved as against such person.( Kishore Chand v. State
of H.P.) 1990 AIR SC 2140 1990 SCR Supl. (1) 105=1991 SCC (1) 286 JT 1990 (3)
662=1990 SCALE (2)369 ( Refe= Piara Singh v. State of Punjab, AIR (1977) SC 2274
Extra-judicial confession= Extra Judicial Confession is admissible if it inspired
confidence and made voluntarily. The High Court's reasoning that the accused has
made a confession statement before a stranger is totally perverse State of Andhra
Pradesh: Vs Kanda Gopaludu (2005 AIR 3616, 2005(3 )Suppl.SCR643 ,
2005(13 )SCC116 , 2005(7 )SCALE677 , 2006(2 )JT412
Extra-judicial confession - Extra-judicial confession is a weak evidence by itself
and it has to be examined by the court with greater care and caution; that it
should be made voluntarily and should be truthful; that it should inspire
confidence; that an extra-judicial confession attains greater credibility and
evidentiary value if it is supported by a chain of cogent circumstances and is
further corroborated by other prosecution evidence; that for an extra- judicial
confession to be the basis of conviction, it should not suffer from any material
discrepancies and inherent improbabilities; and that such statement essentially
has to be proved like any other fact and in accordance with law.( Sahadevan &
Another v. State of Tamil Nadu, 2012 AIR SCW 3206 referring to the rulings in Sk.
Yusuf v. State of W.B. (2011) 11 SCC 754 and Pancho v. State of Haryana, (2011)
10 SCC 165 : AIR 2012 SC 523:))
Page 57
- Eye witness - Corroboration - Not required in every case - It is however required
when evidence of eye witness though ex facie acceptable but is not of such a
character upon which implicit reliance can be placed. (Jeeva @ Khema Vs State of
Rajasthan) 2005(1) Criminal Court Cases 90 (Rajasthan)
- Eye witness - Discrepancies in evidence - No true witness can possibly escape
from making some discrepant details - A tutored witness can only successfully
make his testimony totally non discrepant. (Bhanwari & Ors. Vs State of
Rajasthan) 2002(2) Criminal Court Cases 114 (Raj.)
- Eye witness - Evidence of sole eye witness found to be clear trust worthy and
unassailed during cross-examination - No evidence that he is enemically disposed
of towards the accused - Sufficient to base an order of conviction. (Kanista Barik
Vs State of Orissa) 2002(2) Criminal Court Cases 148 (Ori.)
- Eye witness - Non disclosure of occurrence to any person in the village - Not a
ground to discard his evidence if his testimony is otherwise found to be credible.
(Ramia Gaudo & Anr. Vs State) 2002(2) Criminal Court Cases 402 (Orissa)
- Eye witness - Reaction - Court should not expect a set reaction from an eye
witness on seeing an incident like murder - Different type of reaction is expected
from different type of persons - Unless the reaction demonstrated by an eye
witness is so improbable or so unconscionable from any human being pitted in
such situation, it is unfair to his reactions as unnatural. (Ramdev, Dharamraj &
Rampal Vs The State of Rajasthan) 2003(3) Criminal Court Cases 347 (Rajasthan)
- Eye witness - Son of deceased - Simply because an eye witness happens to be
the son of the deceased, his evidence cannot be discarded if his testimony is
otherwise acceptable. (Jeeva @ Khema Vs State of Rajasthan) 2005(1) Criminal
Court Cases 90 (Rajasthan)
- Eye witness - 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,
circumstances either elicited from those witnesses themselves or established by
other evidence tending to improbablise 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. (Jeeva @ Khema Vs State of Rajasthan) 2005(1) Criminal Court
Page 58
Cases 90 (Rajasthan)
- Eye witness partly reliable - Court to rely on his testimony has to look for
corroboration in material particulars. (Amrita @ Amritlal Vs State of M.P.) , ,
2004(12 )SCC224 , 2004(2 )SCALE343 , 2004(2 )JT295 2004(3) Criminal Court
Cases 511 (S.C.) Appeal (crl.) 987 of 2003
- Eye witnesses - Evidence of eye witnesses not corroborated by medical evidence
and their evidence did not inspire confidence so as to be wholly reliable -
Conviction on such evidence cannot be sustained. (Sheo Prasad Tiwari & Ors. Vs
State of Uttar Pradesh) 2004(2) Criminal Court Cases 743 (Allahabad)
- Eye witnesses - Some of the eye witnesses examined and some not examined -
Does not make prosecution version suspect and the position is not changed when
the witnesses examined are relatives. (Surinder Singh Vs State of U.P.) AIR 2003
SC 3811, 2003 CriLJ 4446
- Eye witnesses - When FIR is doubtful then eye witnesses whose names are
mentioned in FIR cannot be relied upon. (Gabbu & Ors. Vs State of M.P.) 2004
CriLJ 2001 =2004(1) Criminal Court Cases 335 (M.P.)
- Eye witnesses account when found credible and trustworthy, medical opinion
pointing to alternative possibilities is not accepted as conclusive. (State of
Madhya Pradesh Vs Dharkole @ Govind Singh & Ors.) 2005 AIR 44 ,
2004(5 )Suppl.SCR780 , , 2004(9 )SCALE149 , 2004(9 )JT501 2005(1) Criminal
Court Cases 796 (S.C.)( Discussed in earlier in benefit of doubt Prabhakar
Advocate)
- Eye witnesses examined by investigating officer after 14 days of occurrence -
Their evidence cannot be relied on to base conviction. (Shiv Yadav @ Sheo Raut &
Ors. Vs State of Bihar) 2005(1) Criminal Court Cases 06(Patna)
- Failure to examine all witnesses who witnessed the occurrence - If witnesses
examined by prosecution are found to be truthful and reliable then there cannot
be outright rejection of prosecution case. (Birendra Rai & Ors. Vs State of Bihar)
2005 (1) ALD Cri 333 2005(1) Criminal Court Cases 725 (S.C.)
False Defence - Existence of other material against accused - Plea of false
defence can be taken into consideration to bring home the guilt of accused.(
Page 59
Mohana Lal pangasa Vs. State of U.P ( 1974 CrLJ 800 : 1974 AIR (SC) 1144 :
1974(4) SCC 607 : 1974 Cr LR (SC) 415)
FIRST INFOR MATION REPORT: FIR is not an encyclopedia. It is only to set
the law in motion. It need not elaborate but should contain necessary
allegations to constitute cognizable offences.
(a). Evidentiary Value:
Section 154, Cr.P.C – Use of FIR - FIR is not a substantial piece of evidence
- It can only be used for corroborating or contradicting its maker – It
cannot be used to corroborate or contradict other witnesses –Baldev Sings
vs. State of Punjab – (1990) 4 SCC 692
State ofGujarat vs. Anirudhsing – (1997) 6 SCC 514.
Section 154, Cr.P.C. – FIR – Evidentiary value – Corroboration of its maker
is
permissible – But the first information report cannot be used as
substantive evidence orcorroborating a statement of third party – State of
M.P. vs. Surbhan – AIR 1996 SC 3345
- False defence plea - It is an additional link in the chain of circumstances.
(Araque Lutifi @ Dazy Vs State of Orissa) 2003(1) Criminal Court Cases 508
(Orissa)
- False defence plea - Not enough to bring home accusations - However, it
provides additional link to substantiate prosecution's accusations. (Usman Mian &
Ors. Vs State of Bihar 2005 AIR 1288, 2004(5 )Suppl.SCR21 , 2004(10 )SCC786 ,
2004(8 )SCALE456 , 2004(9 )JT235 –
False implication - In the case of a single accused story of false implication is not
known to criminal law - It is not possible that victim would give go-bye to real
culprit and falsely implicate another person. (Surjeet Vs State of Haryana) 2005(2)
Criminal Court Cases 277 (P&H)
- Fire shots - Deceased wearing a sweater, ganji and carrying a chadar - Plea
that blackening of skin around wound not possible - Held, blackening of skin was
found only on the margin of the wounds, that is on the skin around the wound -
When firing takes place from a close range, blackening of margin of wounds
appears to be only normal. (Birendra Rai & Ors. Vs State of Bihar) 2005(1) 2005
(1) ALD Cri 333 Criminal Court Cases 725 (S.C.)
Page 60
- Fire shots - Plea that appellants standing on a higher level and deceased
standing on road at lower level - In normal course wound would show a downward
trajectory but report disclosed otherwise - Held, after receiving first injury on the
chin deceased fell down - Other injuries were suffered when he was lying on the
ground - Not much significance is to be attached to the fact that some wounds
showed an upward trajectory - A bullet may possibly be deflected if it hits a hard
surface. (Birendra Rai & Ors. Vs State of Bihar) 2005 (1) ALD Cri 333 2005(1)
Criminal Court Cases 725 (S.C.)
Framing of charge—Alteration of charge at appellate court —Permissibility—
Amendment of charge in appeal is permissible—Remand of case to give
opportunity to accused to recall witnesses and to adduce any evidence—No
prejudice caused to accused by amendment of charge. ( Kantilal Chandulal Mehta
Vs. State of Maharashtra and another) 1970 CrLJ 510 : 1970 AIR (SC) 359: 1970(2)
SCR 742 : 1969(3) SCC 166 : 1970 MLJ 610 : 73 Bom LR 36
- Firing a gun - Distance - Inconsistency - Medical evidence that gun shot was fired
from a distance of about 3-4 ft. and according to PW-1 distance was about 20-25
ft. - Held, where direct evidence of the eyewitness is that the accused committed
the murder by firing a gun, some inconsistency relating to distance based on
medical opinion offered, is of no significance whatsoever. (Janak Singh & Anr. Vs
State of Uttar Pradesh) 2004 AIR 2495, 2004(1 )Suppl.SCR378 , 2004(11 )SCC385 ,
2004(4 )SCALE670
- Fundamental right or civil right cannot be curtailed only if a criminal case is
pending. (Naginder Singh Rana Vs State of Punjab) 2004(4) Criminal Court Cases
295 (P&H)
- Grievous injury on person of accused - Not explained - Conviction set aside.
(Khursid & Ors. Vs State of Haryana) 2004(3) Criminal Court Cases 610 (S.C.)
- Gun not sent for forensic testGun not sent for forensic test - Accused cannot be acquitted solely on this
ground. (Ram Bali Vs State of Uttar Pradesh) 2004(1) Apex Court Judgments 590
(S.C.) Appeal (crl.) 204 of 2003
- Hostile Witness- Sec 154 Evidence Act The witness who makes statements
adverse to the party calling and examining him and who may with the permission
Page 61
of the court, be cross examined by that party This is not a very good -definition
of a hostile witness and the Indian Evidence Act is most careful in Section 154
not to restrict the right of ‘cross-examination’ even by committing itself to the
word ‘hostile’. that merely because the Court gave permission to the Public
Prosecutor to cross- examine his own witness describing him as hostile
witness does not completely efface his evidence Supreme Court in Bhagwan
Singh v. State of Haryana [AIR 1976 SC 202]. The evidence remains
admissible in the trial and there is no legal bar to base conviction upon the
testimony of such witness. In State of U.P. v, Ramesh Prasad Misra AIR 1996
SC 2766 the Supreme Court held that the evidence of a hostile witness would
not be totally rejected if spoken in favour of the prosecution or accused, but it
can be subjected to close scrutiny and that portion of the evidence which is
consistent with the case of the prosecution or defense may be accepted. In
Balu Sonba Shinde v. State of Maharashtra 2002 AIR SC 3137,
2002( 2 )Suppl.SCR 135, 2002( 7 )SCC 543, 2002( 6 )SCALE281 ,
2002( 6 )JT 611 2003 SCC (Crl.) 112 the Supreme Court held that the
declaration of a witness to be hostile does not ipso facto reject the evidence.
- I.O. - Failure or omission or negligence - When direct testimony of the eye-
witnesses corroborated by medical evidence fully establishes the prosecution
version failure or omission or negligence on part of the IO cannot affect credibility
of the prosecution version. (Dhanaj Singh @ Shera & Ors. Vs State of Punjab) 2004
AIR SC 1920, 2004(2 )SCR938 , 2004(3 )SCC654 , 2004(3 )SCALE93 , 2004(3 )JT380)
- I.O. - Non examination - After going through the evidence of witnesses and other
material on record, held, no prejudice has been caused to the defence by non
examination of I.O. (Birendra Rai & Ors. Vs State of Bihar) 2005 (1) ALD Cri 333
2005(1) Criminal Court Cases 725 (S.C.)
- Identification - Identification parade not held - Identification of the accused for
the first time in Court is valueless. (State of Punjab Vs Sudama) 2004(1) Criminal
Court Cases 453 (P&H)
- Identification - In the light of fire - Accused known to members of the prosecution
party - Identification of accused cannot be doubted. (Shankar Mahto & Anr. Vs
State of Bihar) 2002(3) Criminal Court Cases 550 (S.C.) AIR 2002 SC 2857, 2002
(2) ALD Cri 388
Page 62
Identification – Identification of accused at night / darkness – Source of night –
Identification of accused – There were minimum three torches flashed
simultaneously on persons who were scaling down walland were being chased by
witnesses – Failure of electricity supply does not become fatal – Witnesses
identifiedrespondents being persons who were scaling down wall and had been
apprehended upon an immediate chase –Held, High Court erred in recording
finding that identification was doubtful. State of Uttar Pradesh Vs Mohd. Iqram
and Anr) ((2011) 8 SCC 800)
- Identification - Murder and dacoity at night time - Accused known to PWs -
Identification is possible in gas light when accused are already known to PWs -
Omission to indicate location of gas light in site plan is not fatal when FIR is
lodged without unreasonable delay. (Indian Penal Code, 1860, Ss.395, 302). (State
of U.P. Vs Babu & Ors.) 2003 AIR 3408, 2004 (1) ALD Cri 15, 2003 CriLJ 4982 ,
- identification - Murder and dacoity at night time - Accused known to PWs - When
accused are known, identification is possible from the manner of speech, manner
of walking and gesticulating and special features of a person like the physical
attributes. (State of U.P. Vs Babu & Ors.) 2003 AIR 3408, 2004 (1) ALD Cri 15,
2003 CriLJ 4982 ,
- Identification - Murder at mid night - Accused already known to PW who also
suffered injuries - Held, P.W. had abundant opportunity to identify even if there
was no light. (Chittarmal Vs State of Rajasthan) 2003 AIR 796 , 2003(1 )SCR49 ,
2003(2 )SCC266 , 2003(1 )SCALE55 , 2003(1 )JT91.
- Identification - Offence at mid night - No electricity in village - Accused persons
set house on fire - Held, it was possible for eye witness to identify the accused.
(Krishna Mochi & Ors. Vs State of Bihar) 2002 AIR SC 1965, 2002( 3 )SCR 1,
2002( 6 )SCC 81, 2002( 3 )SCALE602 , 2002( 4 )JT 186
- Identification - Showing photographs - During the course of investigation, if
witness gives identifying features of the assailants, the same can be confirmed by
the Investigating Officer by showing the photographs of the suspect - More than
one photographs, if available, should be shown - If suspect is available for
identification or for video identification, photographs shall never be shown to the
witness in advance. (D.Gopalakrishnan Vs Sadanand Naik & Ors.) 2004 AIR 4965,
2004(5 )Suppl.SCR520 , 2005(1 )SCC85 , 2004(8 )SCALE840 , 2004(9 ) ..
Page 63
- Identification - Threat at the point of revolver and demand of ransom -
Identification parade held in police station building - Possibility of identifying
without seeing the appellant before identification parade, not ruled out -
Prosecution had failed to establish that the appellant was one of those persons
who gave threats and demanded ransom - Conviction of appellant set aside.
(Anthony @ Tony William Rosario Vs State of Maharashtra) 2004(1) Criminal Court
Cases 344 (Bombay)
- Identification - Victim had sufficient opportunity to see accused before
commission of crime - Evidence of identification of accused in absence of test
identification parade cannot be rejected. (Ramesh @ Tillu Vs State) 2004(2)
Criminal Court Cases 600 (Delhi)
- Identification by tattoo marks - Body recovered from the river - Tattoo marks
may disappear if pigment used is vermilion or ultra-marine and if it has not
penetrated deep into the skin. (Shankar Mahto & Anr. Vs State of Bihar) AIR 2002
SC 2857, 2002 (2) ALD Cri 388
- Identification by torch light - Dark night - Accused running - It is very difficult to
identify a person who is running and showing only his back. (Reddi Appalnaidu &
Ors. Vs State of A.P.) 2002(1) Criminal Court Cases 589 (A.P.)
- Identification by voice - Possible only if person is known very well and he alone
speaks - When all the accused were talking with each other simultaneously it is
not possible to identify all of them however one or two persons can still be
identified - Identification by voice is a very weak piece of evidence and it is not
safe to convict the accused on that score. (Reddi Appalnaidu & Ors. Vs State of
A.P.) 2002(1) Criminal Court Cases 589 (A.P.)
- Identification of a stranger by victim - Possible only if victim get sufficient time
and opportunity of seeing the culprit and thereafter impressing his features,
identification marks, in his memory so as to allow him to collect it at the time of
test identification parade - It is not possible when incident takes place suddenly,
in a surprising way and victims were frightened as it is difficult to maintain a
balance and become alert to grasp the features of the culprit as surprizedness in
which the victim has been caught, coupled with frightedness are the factors which
go against capacity of such witness identifying said person, after gap of even
couple of days. (Rajeshkumar Babulal Sharma Vs State of Maharashtra) 2002(1)
Criminal Court Cases 610 (Bom.)
Page 64
- Identification of accused and recovered articles - Not proved - Conviction set
aside. (Pappu & Anr. Vs The State of Rajasthan) 2003(2) Criminal Court Cases 44
(Rajasthan)
- Identification parade - Law as to - (i) Identification tests do not constitute
substantive evidence - They can only be used as corroborative of the statement in
court - (ii) The main object of holding an identification parade during the
investigation stage, is to test the memory of the witnesses based upon first
impression and also to enable the prosecution to decide whether all or any of
them could be cited as eye witnesses of the crime - (iii) In order to eliminate the
possibility of the accused being shown to the witnesses prior to the test
identification parade and it is desirable that a test identification parade should be
conducted as soon as after the arrest of the accused - (iv) Appreciation of such
evidence would depend upon the strength and trustworthiness of witnesses.
(Vinod Kumar & Ors. Vs State of Rajasthan) 2004(1) Criminal Court Cases 254
(Rajasthan)
- Identification parade - When accused was specifically named in the FIR then it
was not necessary to hold test identification parade. (Bir Chand Vs State of
Haryana) 2003(3) Criminal Court Cases 131 (P&H)
- Identity of accused in crime - Accused disputing he is not involved in the
alleged incident and no article was found from him then such endorsement be
taken on the photograph. (Sunderbhai Ambalal Desai Vs State of Gujarat) AIR
2003 SC 638, 2003 (1) ALD Cri 8, 2003(1) Apex Court Judgments 273 (S.C.) :
2003(1) Criminal Court Cases 689 (S.C.)
- Identity of deceased - Skeletal remains recovered from well after two months
of murder - Identity of deceased tested by super-imposition of skeletal remains of
deceased with reference to photograph of deceased - Post mortem report opined
that age of deceased was between 15-16 years - Forensic expert also opined that
skull belonged to a human being of female aged 15 or 16 years - Identity of
deceased stood established. (Golakonda Venkateswara Rao Vs State of Andhra
Pradesh) AIR 2003 SC 2846, 2003 (2) ALD Cri 452, 2003(2) Apex Court Judgments
153 (S.C.) Note : Cited in Circumstantial Evidence Prabhakar Advocate )
- Identity of vehicle - There may not be any necessity of producing the vehicle
before the Court - Seizure report may be sufficient. (Sunderbhai Ambalal Desai Vs
State of Gujarat) AIR 2003 SC 638, 2003 (1) ALD Cri 8, Cited in Identify of accused
in Crime ( Prabhakar Advocate)
Page 65
- If a person undertakes to do a particular act, Court should presume that he shall
do so unless there be reasons available from which it could be gathered that he
shall not abide by the undertaking given by him. (Naginder Singh Rana Vs State of
Punjab) 2004(4) Criminal Court Cases 295 (P&H)
- If offender is ill it is duty of Police Officer to take him to hospital and to make
efforts for saving his life instead of engaging in technicalities. (Babasaheb
Dadasaheb Koli Vs State of Maharashtra) 2004(2) Criminal Court Cases 57
(Bombay)
- If on same evidence two views are reasonably possible, the one in favour of the
accused must be preferred. (State of U.P. Vs Gambhir Singh & Ors.) 2005 AIR SC
2439, , 2005(11 )SCC271 , 2005(1) Apex Court Judgments 677 (S.C.)
- If testimony of a witness is not reliable an accused can not be convicted simply
because there was no ground for his false implication. (Lalla alias Raj Kumar Singh
Vs State of U.P.) 2004(2) Criminal Court Cases 626 (Allahabad)
- If two views are possible on the evidence adduced in the case, one pointing to
the guilt of the accused and the other to his innocence, the view which is
favourable to the accused should be adopted. (Shashidhar Purandhar Hegde &
Anr. Vs State of Karnataka) 2004 AIR SC 5075, 2004(5 )Suppl.SCR536 , 2004(12 )SCC492 ,
2004(8 )SCALE843 , 2004(9 )JT177
- If two views are reasonably possible, one supporting acquittal and other
indicating conviction then appellate Court should prefer the former one. (State of
Kerala Vs Ramachandran) 2002(3) Criminal Court Cases 534 (Kerala)
- If two views are reasonably possible on the basis of evidence on record, the view which favours the accused must be preferred. (Ram Swaroop & Ors. Vs State of Rajasthan) 2005 CriLJ 1066, 2004(3) Criminal Court Cases 359 (S.C.)
- In case of direct evidence, lack of motive is no ground to cast suspicion on oral
testimony of the witness. (Mohinder Singh & Anr. Vs State of Punjab) 2005(1)
Criminal Court Cases 393 (P&H)
- In fardbeyan only six persons named - In evidence names of three more persons
added - Witnesses also did not say with respect to other three persons -
Conviction of three added persons cannot be held to be legal. (Mojai Sharma &
Ors. Vs State of Bihar) 2005(1) Criminal Court Cases 263(Patna)
Page 66
- Inconsistencies - Of minor nature - Can be regarded as natural - Giving more
details while deposing before Court cannot be regarded as improvements.
(Karbasappa & Ors. Vs State Through Narona Police Station) 2004(4) Criminal
Court Cases 332 (Karnataka)
- Independent witness - Family feud - In a family feud it is rarely an
independent witness would come forward to give evidence. (Balram Singh & Anr.
Vs State of Punjab) 2003 AIR 2213, , 2003(11 )SCC286 , 2003(4 )SCALE561 ,
- Independent witness - Given up being won over - Trial Court finding no justified
reason to give up such witness - No other independent witness joined though
recovery effected at a busy thoroughfare - The findings recorded by the trial Court
are possible findings and do not suffer from any perversity. (State of Punjab Vs
Jagjit Singh) 2002(3) Criminal Court Cases 595 (P&H)
- Independent witness - Joined at the time of search but not examined as a
witness - It is a serious infirmity. (State of Punjab Vs Nikku Singh) 2004(1) Criminal
Court Cases 48 (P&H)
- Independent witness - One independent witness joined but he not examined and
no reason assigned as to why he was not examined - The only presumption is
that if he had been produced, he would not have supported the prosecution
version. (Hukmi Vs State of Haryana) 2004(2) Criminal Court Cases 512 (P&H)
- Independent witnesses - Non joining of - Conviction u/s 326/324/34 IPC -
Occurrence took place in a cattle fair where there was a large crowd but none of
the independent witnesses associated - Conviction set aside. (Mohan Vs State of
Punjab) 2003(2) Criminal Court Cases 640 (P&H)
- Independent witnesses - Raid by Drug Inspector - Independent witnesses not
joined - Two doctors from his own department joined - They cannot be said to be
independent witnesses - Conviction under Drugs and Cosmetics Act set aside.
(Mukhtiar Singh Vs State) 2003(3) Criminal Court Cases 220 (P&H)
- Inimical witnesses - If witnesses are true and reliable their testimony cannot
be thrown out on the threshold by branding them as inimical witnesses - A duty is
cast upon the Court to examine the testimony of inimical witnesses with due
caution and diligence. (Rama Shish Rai Vs Jagdish Singh) AIR 2005 SC 335, 2005 (1)
ALD Cri 61,
Page 67
- Injured witness - Evidence of injured witnesses have greater evidentiary value
and unless compelling reasons exist, their statements are not to be discarded
lightly. (State of Madhya Pradesh Vs Mansingh & Ors.) 2003(2 )Suppl.SCR460 ,
2003(10 )SCC414 , 2003(6 )SCALE429 , 2003(1 )Suppl.JT252
- Injured witness - Merely because a witness is injured intrinsic value of his
evidence is not enhanced by this fact alone. (Jagatpal & Ors. Vs State of U.P.)
2005(1) Criminal Court Cases 24(Allahabad)
- Injured witness - Testimony of an injured witness has its own relevance and
efficacy - The fact that the witnesses sustained injuries at the time and place of
occurrence lends support to their testimony that the witnesses were present
during the occurrence. (State of U.P. Vs Kishan Chand & Ors.) 2004 AIRSC 4671,
2004(3 )Suppl.SCR640 , 2004(7 )SCC629 , 2004(7 )SCALE75 , 2004(6 )JT535.
- Injuries by Bhala - Incised wound and piercing wound - Bhala will cause piercing
and punctured wound only when it is used as Bhala - Bhala can also cause incised
wound when the assault is by the side portion of the Bhala and it is used in a
slanting fashion - Wounds on the person of victim found by doctor to be incised
wound - Evidence of prosecution witnesses that Bhala was used as a Bhala is used
and there is nothing to show that Bhala was used in a different manner - Finding
of incised wound casts a doubt over the prosecution story. (Parmanand Singh &
Ors. Vs State of Bihar) 2005(1) Criminal Court Cases 749 (Patna)
- Injuries on person of accused - Failure to explain - Injuries suffered few
abrasions and minor lacerated wounds - Held, prosecution case cannot be
disbelieved merely by its failure to explain minor injuries suffered by accused.
(Mangu Khan & Ors. Vs State of Rajasthan) 2005 AIR 1912, 2005(2 )SCR368 , ,
2005(2 )SCALE365 , 2005(2 )JT575
- Injuries on person of accused - Non explanation - Does not vitiate the trial, if the
prosecution evidence against the accused is so strong on the basis of which alone
the conviction can be recorded. (State of U.P. Vs Kishan Chand & Ors.) 2004 AIR
SC 4671, 2004(3 )Suppl.SCR640 , 2004(7 )SCC629 , 2004(7 )SCALE75 ,
2004(6 )JT535. 2004(4) Criminal Court Cases 337 (S.C.)
- Injuries on person of accused - Non explanation - Effect - Non-explanation of
injuries by the prosecution will not affect prosecution case where injuries
sustained by the accused are minor and superficial or where the evidence is so
Page 68
clear and cogent, so independent and disinterested, so probable, consistent and
creditworthy, that it outweighs the effect of the omission on the part of
prosecution to explain the injuries. (Shriram Vs State of Madhya Pradesh) 2004
AIR SC 491 , 2003(6 )Suppl.SCR129 , 2004(9 )SCC292 , 2003(10 )SCALE312 ,
2003(9 )JT293 .,2004(1) Criminal Court Cases 619 (S.C.)
- - Injuries on person of accused - Omission to explain - Will not affect prosecution
case where injuries sustained by the accused are minor and superficial or where
the evidence is so clear and cogent, so independent and disinterested, so
probable, consistent and creditworthy, that it outweighs the effect of the omission
on the part of prosecution to explain the injuries. (Sucha Singh & Anr. Vs State of
Punjab) AIR 2003 SC 3617, 2003 (2) ALD Cri 506
- Injuries on person of accused persons - Non explanation - Not a ground to
discard the prosecution version - That per se cannot be a ground to totally discard
the prosecution version - This is a factor which has to be weighed along with other
materials to see whether the prosecution version is reliable, cogent and
trustworthy - When the case of the prosecution is supported by an eye witness
who is found to be truthful, as well, mere non-explanation of the injuries on the
accused persons cannot be a foundation for discarding the prosecution version.
(Chacko @ Aniyan Kunju & Ors. Vs State of Kerala) 2004 AIR SC2688,
2004(1 )SCR900 , 2004(12 )SCC269 , 2004(1 )SCALE625 , 2004(1 )JT358
- Interested or partisan witness - Evidence of a witness cannot be discarded
merely on the ground that he is either partisan or interested or both, if otherwise
the same is found to be credible. (Ashok Kumar Pandey Vs State of Delhi) 2002
AIR 1468, , 2002( 4 )SCC 76, 2002( 2 )SCALE647 , 2002( 3 )JT 103
- Interested witness - A witness can be called interested only when he derives
some benefit from the result of litigation; in the decree in a civil case, or in seeing
an accused punished - A witness who is a natural one and is the only possible eye
witness in the circumstances of a case cannot be said to be interested. (Jeeva @
Khema Vs State of Rajasthan) 2005(1) Criminal Court Cases 90(Rajasthan)
- Interested witness - Court has to sift the evidence to find truth after excluding
the exaggerations and embellishments. (Raghunathan Vs State of Kerala) 2002(1)
Criminal Court Cases 493 (Kerala)
- Interested witness - Evidence of an interested witness by itself not to be rejected
Page 69
- Test of creditworthiness or acceptability is the guiding factor - The evidence
must inspire confidence and in the event of unshaken creditability, there is no
justifiable reason to reject the same. (Alamgir Vs State (NCT, Delhi) 2003 AIR
282, 2002( 4 )Suppl.SCR 88, 2003( 1 )SCC 21, 2002( 8 )SCALE373 , 2002( 9 )JT
347 ...
- Interested witness - Testimony of cousin and of friend of deceased - Not to be
discarded outrightly but to be scrutinised carefully. (Anwar Hussain Vs The State
of Rajasthan) 2003(1) Criminal Court Cases 599 (Rajasthan)
- Interested witness - When a incident happens in a dwelling house or nearby the
most natural witnesses would be the inmates of that house - Merely on surmises
Court should not castigate a prosecution for not examining other persons of the
locality as prosecution witnesses as prosecution can be expected to examine only
those who have witnessed the events and not those who have not seen it though
the neighbourhood may be replete with other residents also. (Sucha Singh & Anr.
Vs State of Punjab) AIR 2003 SC 3617, 2003 (2) ALD Cri 506 ( Note ;- See also
Person injured accused earlier discussed )
- Interested witnesses - All disclosures, discoveries and even arrests made in
presence of three specific persons - These atleast create a doubt or suspicion -
Held, when there is such a doubt, the benefit must and ought to be transposed to
the accused persons. (State of Haryana Vs Ram Singh) AIR 2002 SC 620, 2002 (1)
ALT Cri 123 2002(1) Criminal Court Cases 571 (S.C.)
- Interested witnesses - Not a suspect witness - However, his evidence has to be
considered with proper scrutiny. (State of Haryana Vs Ram Singh) AIR 2002 SC
620, 2002 (1) ALT Cri 123 2002(1) Criminal Court Cases 571 (S.C.)
- Interested witnesses - Testimony of all material prosecution witnesses interested
in the prosecution case requires close scrutiny and when there are many
infirmities, contradictions, appearing in the evidence of the prosecution witnesses,
it is extremely hazardous to convict the accused in the absence of corroboration
in all material particulars. (Debi Prasad Panda Vs State of Orissa) 2003(1) Criminal
Court Cases 409 (Orissa)
- Interested witnesses - Their testimony not to be discredited simply because they
are related to the informant - It is the circumstance of the case which would
render their testimony untrustworthy. (Shiv Kumar Yadav & Ors. Vs State of Bihar)
2004(1) Criminal Court Cases 21 (Patna)
Page 70
- Investigation by police official who was the complainant - Investigation
can be assailed only if it is biased. (S.Jeevanantham Vs State through Inspector of
Police, TN) 2004 (1) ALD Cri 1015, 2004 CriLJ 3834
- Investigation by same police official who lodged complaint - In absence of
independent corroboration, conviction cannot be recorded in such a case.
(Mukhtiar Ahmed Anshari Vs State (N.C.T. of Delhi) 2005 AIR 2804, 2005(3 )SCR797 ,
2005(5 )SCC258 , 2005(4 )SCALE269 , 2005(4 )JT503
- Investigation lapses - Ballistic expert not examined to elicit the fact that
empty cartridges recovered and pellets recovered from the body of victim were
fired from a particular sten gun - Bloodstained earth and shirt of accused not sent
for chemical analysis and the reports obtained - Held, these lapses do not affect
the veracity of the most natural eye witnesses who have given a consistent
version and who came forward with this version at the earliest opportunity.
(Gyasuddin Khan @ Md.Gyasuddin Khan Vs State of Bihar) 2004 AIR 210 , 2003(5 ),
2004 CriLJ 395 , Suppl.SCR367 , 2003(12 )SCC516 , 2003(9 )SCALE401 , 2003(9 )JT1
Joint liability of members of unlawful assembly
Scope and applicability Sec 149 IPC (i) When the charge is under section 149, the presence of the accused as part of
unlawful assembly is sufficient for conviction even if no overt act is imputed to him;
Yunis alias Kariya v. State of Madhya Pradesh, AIR 2003 SC 539.
(ii) Conviction by taking recourse to section 149 cannot be made out unless five
specified objects enumerated in section 141 are not proved; Ramashish v. State of
Bihar, 1999 (6) JT 560: 1999 (2) JCC (SC) 471.
(iii) Even if no overt act is imputed to a particular person, when the charge is under
section 149, the presence of the accused as part of unlawful assembly is sufficient for
conviction; Yunis alias Kariya v. State of Madhya Pradesh, AIR 2003 SC 539.
Joint liability of members of unlawful assembly
(i) It is well settled that once a membership of an unlawful assembly is established, it
is not incumbent on the prosecution to establish whether any specific overt act has
been assigned to any accused. Mere membership of the unlawful assembly is
sufficient; State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom).
(ii) Every member of an unlawful assembly is vicariously liable for the acts done by
others either in the prosecution of the common object of the unlawful assembly or
Page 71
such which the members of the unlawful assembly knew were likely to be committed;
State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom).
Section 34. Acts done by several persons in furtherance of common intention
134. Acts done by several persons in furtherance of common intention.- When a
criminal act is done by several persons in furtherance of the common intention of all,
each of such persons is liable for that act in the same manner as if it were done by
him alone.
COMMENTS
Common intention
(i) The burden lies on prosecution to prove that actual participation of more than one
person for commission of criminal act was done in furtherance of common intention at
a prior concert; State of Orissa v. Arjun Das, AIR 1999 SC 3229: 1999 (8) SCC 154:
1999 (6) JT 14: 1999 (4) Crimes 78 (SC).
(ii) Where the evidence did not establish that particular accused has dealt blow the
liability would devolve on others also who were involved with common intention and
as such conviction not sustainable; State v. T.K. Sadashivaiah Din Kodimallappa, 1999
(1) CCR 152 (Kant).
(iii) When the accused rushed with sword drawn itself showed that he shared the
common intention hence liable for conviction under section 300, read with section 34;
Abdulla Kunhi v. State of Kerala, AIR 1991 SC 452. 1991 CriLJ 525 a
(iv) The contention that the appellant was physically not in a position because of the
sixty per cent. disability due to polio on his lower limbs, to hold the hand of the
deceased cannot be accepted. The fact that the accused held the hand of one of the
deceased to facilitate assailants to assault deceased, is said to have shared common
intention of committing murder of deceased; Major Singh v. State of Punjab, AIR 2003
SC 342.
Distinction between ’common intention’ and ‘common object’
A clear distinction is made out between common intention and common object is that
common intention denotes action in concert and necessarily postulates the existence
of a pre-arranged plan implying a prior meeting of the minds, while common object
does not necessarily require proof of prior meeting of minds or pre-concert. Though
there is a substantial difference between the two sections namely 34 and 149, they
Page 72
also to some extent overlap and it is a question to be determined on the facts of each
case; Chittarmal v. State of Rajasthan, AIR 2003 SC 796.
Difference in operation of section 34 and section 149
(i) Both sections 149 and 34 deal with a combination of persons who become liable to
be punished as sharers in the commission of offences. The non-applicability of section
is, therefore, no bar in convicting the accused under substantive section read with
section 34 if the evidence discloses commission of an offence in furtherance of the
common intention of them all; Nethala Pothuraju v. State of Andhra Pradesh, (1991) Cr
LJ 3133 (SC). 1991 AIR SC 2214, 1991 SCR Supl. (1) 4
(ii) In order to convict a person vicariously liable under section 34 or section 149 it is
not necessary to prove that each and everyone of them had indulged in overts acts;
Ram Blias Singh v. State of Bihar, (1989) Cr LJ 1782: AIR 1989 SC 1593.
Hearsay evidence - Hearsay evidence is not acceptable as legal evidence in view
of the implied prohibition under Sec. 60 of the Evidence Act. Ram Chandra v. State of
Haryana – (1981 AIR 1036, 1981 SCR (3) 12)
Ingredients
(i) When an offence is sought to be proved only on circumstantial evidence, the
allegations of common intention under section 34 normally cannot be established in
absence of meeting of mind, the overt act of the accused, by their conduct, by using
the weapons by their utterance of words; Santosh Desai v. State of Goa, (1997) 2
Crimes 666 (Bom).
(ii) In order to bring a case under section 34 it is not necessary that there must be a
prior conspiracy or pre-meditation, the common intention can be formed in the course
of occurrence; Hari Om v. State of Uttar Pradesh, 1993 CriLJ 1383 (1993) 1 Crimes
294 (SC).
(iii) Mere surrender by appellant along with accused before police does not show
meeting of minds as to bring the case within ambit of Section 34; Rangaswami v.
State of Tamil Nadu, (1989) Cr LJ 875: AIR 1989 SC 1137.
(iv) It has been held that the requirement of statute is sharing the common intention
upon being present at the place of occurrence. Mere distancing from the scene cannot
absolve the accused; Lallan Bhai v. State of Bihar, AIR 2003 SC 333.
Page 73
Judge’s power to put questions or order production: The judge may, in order to discover
or to obtain proper proof of relevant facts, ask any question he pleases, in any
form, at any time, of any witness, or of the parties, about any fact relevant or
irrelevant; and may order the production of any document or thing; and neither
the parties nor their agents shall be entitled to make any objection to any such
question or order, nor, without the leave of the court, to cross examine any
witness upon any answer given in reply to any such question. (Ram Chander v.
State of Haryana,)1981 AIR 1036, 1981 SCR (3) 12 see Also 1981 SCC (Cri.) 683,
Vincent v. State of Kerala
Local Inspection – Section-310. (1) Any judge or Magistrate may, at any stage of
any inquiry, trial or other proceeding, after new notice to the parties, visit and
inspect any place in
which an offence is alleged to have been committed, or any other place which it is
in his
opinion necessary to view for the purpose of properly appreciating the evidence
given at
such inquiry or trial, and shall without unnecessary delay record a memorandum
of any
relevant facts observed at such inspection.( State of Himachal Pradesh v. Mast Ram )
[2004] 8 SCC 660 2004 AIR 5056, 2004(4 )Suppl.SCR269 , 2004(8 )SCC660 ,
2004(7 )SCALE637 , 2004(7 )JT617
Judicial proceedings— Sec 40 Evidence recorded in one criminal case cannot be
used in the cross case even with the consent of accused..( Mitthulal and another V.
The State of Madhya Pradesh (1975 CrLJ 236 : AIR 1975 (SC) 149 : 1974 CrLR (SC)
702 : 1975(3) SCC 529 : )
- Judicial order - Use of cyclostyled form - Held, every judicial act
contemplates a judicial performance and it cannot be achieved by mechanical
process by utilising a cyclostyled form - Magistrate has to apply his mind and has
to write the judicial order himself or has to be got typewritten under his
supervision - If order is typewritten the same should be at his dictation - Order
overall should show the application of judicial mind and a judicial performance.
(Prakash B.Paranjape Vs K.G.Patil) 2003(3) Criminal Court Cases 651 (Bombay)
- Katar blow inflicted on thigh of deceased - FIR not stating that first blow was
attempted on chest - Omission not sufficient to raise doubt about evidence of
person making FIR. (Anwar Hussain Vs The State of Rajasthan) 2003(1) Criminal
Court Cases 599 (Rajasthan)
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- Laches on part of prosecution - Simply for this reason a criminal case cannot end
in acquittal. (Union of India Vs Md.Abdul Hassan, Tax Assistant) 2003(3) Criminal
Court Cases 301 (Gauhati)
Last Seen Together
1) The theory of ‘last seen together’ is one where two persons are ‘seen
together’ alive and after an interval of time, one of them is found alive and
the other dead. If the period between the two is short, presumption as to the
person alive being the author of death of the other can be drawn. Time gap
should be such as to rule out possibility of somebody else committing the
crime. Last seen together principle is one of the latest principles which is
taken into consideration in establishing the guilt of the accused. In the
absence of eye-witnesses and tangible evidence, it is the last resort of the
prosecution in a murder case – the person last seen with the victim is
presumed to be the murderer, thus, shifting the onus onto the accused to
prove otherwise or come up with an alibi( Yuvaraj Ambar Mohite vs State of
Maharashtra (, 2006(7 )Suppl.SCR677 , 2006(12 )SCC512 ,
2006(10 )SCALE369 )
2) The circumstance of ‘last seen together ‘does not by itself and
necessarily lead to the inference that it was the accused who committed the
crime? There must be something more establishing connectivity between the
accused and the crime! There may be cases where on account of close
proximity of place and time between the event of the accused having been
‘last seen’ with the deceased and the factum of death a rational mind may be
persuaded to reach an irresistible conclusion that either the accused should
explain how and in what circumstances the victim suffered the death or
should own the liability for the homicide. Mohibur Rahman and anr. v. State of
Assam AIR 2002 SC 3064, 2002 (2) ALT Cri 318
3) Deceased was taken away from the convent by the appellant
under a false pretext and she was last seen alive only in his
company. On the information furnished by the appellant, the jewels
of the deceased which were sold by the appellant, were seized. The
Court had convicted the accused for the offence of murder basing on the last
seen together principle but gave the benefit of doubt to the accused for the
Page 75
offence under S. 376 as there was no other incriminating evidence to prove
the offence of rape. Joseph s/o Kooveli Poulo v. State of Kerala, 2000 AIR
1608, 2000( 3 )SCR 729, 2000( 5 )SCC 197, 2000( 4 )SCALE92 , 2000( 6 )JT
195
4) In the absence of any other links in the chain of circumstantial
evidence, it was not possible to convict the appellant solely on the basis of
the “last-seen” evidence. Jaswant Gir v. Punjab (2005) 12 SCC 438
5) The deceased couple arrived in Goa from Mumbai for their honeymoon
and stayed in a hotel. the couple went for sight-seeing at Ozran, Vagator with
P.W.13-Vincent, who was the car driver. He had also taken them for the sight-
seeing trip a day earlier as well. However, in the light of the factors that
evidence regarding the recovery of the incriminating materials from the
accused persons has been discarded; that there has been sufficient time gap
between the instances when the accused persons were last seen together
with the deceased persons; and in the absence of any other corroborative
piece of evidence to complete the chain of circumstances to fasten the guilt
on the accused couple, the Apex Court was of the opinion that the accused
have been rightly given the benefit of doubt by the courts below ( State of
Goa v. Sanjay Thakran ) , 2007(3 )SCR507 , 2007(3 )SCC755 , ,
2007(5 )JT146
6) A1, A2 and the deceased were last seen together going on a scooter by PW
9. Later the deceased was found dead. In pursuance of A1’s confession, knives
were recovered from the house of A-3 apart from seizing the Bajaj scooter from
the house of A-1 and A-3. Pursuant to the confession of A-2, shirt and gold chain
were recovered. There was also evidence that the accused had purchased the two
knives used for the offence. The trial Court found the evidence of PW-9 to be
cogent and credible and applying the principles of last seen found A-1 and A-2
guilty. The High Court acquitted the accused but the Supreme Court restored the
judgment of the Trial Court as there was additional evidence besides the
evidence of last seen together. Ravindra Reddy v. Shaik Masthan and
ors=2008 (11) SCR 873=2008 (11) SCALE 128=2009 (3) SCC(Cr) 767 Padala
Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79)
Eradu And Ors. vs State Of Hyderabad ( : AIR 1956 SC 316, 1956 CriLJ 559 )
7) The Sessions Court relying primarily on the evidence of P W.2 (P W.1
having turned hostile) and P W.3 the Doctor and the recovery of the murder
Page 76
weapon, a knife, at the instance of the appellant, and the fact that the
deceased and the appellant had been last seen together in the van, convicted
the appellant. The conviction was affirmed by the High Court. But, the Apex
Court held that the Lower Courts conviction could not be sustained as ‘the
medical evidence far from supporting the prosecution story destroys its very
substratum.’
2011 (1) SCC(Cr) 1084=2009 (17) SCC 537
8) It was held that where there is a long time-gap between “last seen
together” and the crime, and there is the possibility of other persons
intervening, it is hazardous to rely on the theory of “last seen together
Bodhraj v. Jammu & Kashmir AIR 2002 SC 3164, 2002 (2) ALT Cri 268, 2002
CriLJ 46642003 S.C.C. (Crim) 20:
9) Even if time gap is less and there is no possibility of others intervening,
it is safer to look for corroboration Ram Reddy Rajesh Khanna Reddy v.
Andhra Pradesh, 2006 AIR 1656, 2006(3 )SCR348 , 2006(10 )SCC172 ,
2006(3 )SCALE452 , 2006(4 )JT16 followed in Sirima Narasimha Rao
v.Andhra Pradesh, ELIED ON Pattipati Venkaiah vs State Of Andhra Pradesh :
AIR 1985 SC 1715, 1985 CriLJ 2012
10) By the adoption of the last seen together, there has been the tendency
of the Courts, especially the Apex Court has been going perhaps towards
“…..adjusting the balance of justice and ensuring that there will be no
‘excessive solicitude’ reflected in the attitude that a thousand guilty men may
go but one innocent martyr shall not suffer is a false dilemma(Krishnaiyer,
V.R. Shivaji Sahebrao Bobade & Anr v. State of Maharashtraon ( 1973 AIR
2622, 1974 SCR (1) 489)
11) The latest tendency of the Court thus, is to take the aid of Sections
106 of the Indian Evidence Act, in addition to the ‘last seen together’ principle
to hold an accused person guilty whenever there is no evidence available
See Prithipal Singh & Ors v. State of Punjab 2012 (1) SCC 10. = 2012
AIR(SCW) 594
- Last seen theory - Comes into play where the time gap between the point of
time when the accused and deceased were seen last alive and when the
deceased is found dead is so small that possibility of any person other than the
Page 77
accused being the author of crime become impossible. (State of U.P. Vs Satish)
2005 AIR 1000, 2005(2 )SCR1132, 2005(3 )SCC114 , 2005(2 )SCALE33 , 2005(2 )JT153
( Note same was cited in Circumstantial evidence Prabhakar
Advocate )
- Last seen together - A person who is last found in the company of another, if
later found missing, then the person with whom he was last found has to explain
the circumstances in which they parted company. (Sahadevan @ Sagadevan Vs
State) 2003 AIR 215, , 2003( 1 )SCC 534, 2002( 8 )SCALE311 , 2002( 9 )JT 366
- Last seen together - Last seen circumstance is a very weak type of evidence - It
should be corroborated by some other independent material evidence. (Pawan @
Ratan Mandal Vs State of Chhattisgarh) 2003(3) Criminal Court Cases 460
(Chhattisgarh)
- Last seen together - Prosecution has to prove that the time gap between the last
seen and murder is so proximate and so close that there is no possibility of
drawing any inference of innocence of the accused persons and there was no
possibility of meeting of anyone else with the deceased in between. (Pawan @
Ratan Mandal Vs State of Chhattisgarh) 2003(3) Criminal Court Cases 460
(Chhattisgarh)
- Link evidence - Affidavit not bearing seal of Court which had attested it -
Affidavit is inadmissible in evidence and cannot be read into evidence - Accused
acquitted. (Gurmail Singh Vs State of Punjab) 2003(3) Criminal Court Cases 43
(P&H)
- Link evidence - Proof by way of affidavit - Verification of affidavit found to be
defective - Affidavit not admissible in evidence - There being no link evidence,
accused is entitled to benefit of doubt. (Santokh Singh @ Sokha Vs The State of
Punjab) 2003(1) Criminal Court Cases 563 (P&H)
- Link evidence - Recovery of charas - Affidavit of two police officials who took
sample to chemical examiner tendered in evidence but these officials not
produced for cross examination - Affidavits not put to accused during his
statement u/s 313 Cr.P.C. - Report of Chemical Examiner cannot be acted upon as
possibility cannot be ruled out that after the seizure and before the analysis the
sample was not tampered with - Accused acquitted. (Kapil Dev Vs State of Punjab)
2004(3) Criminal Court Cases 125 (P&H)
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- Link evidence - Witness who tested the illicit liquor and re-sealed the same not
examined - No doubt his report was tendered in evidence but report was required
to be proved by examining him in the Court - Accused acquitted. (State of Punjab
Vs Nikku Singh) 2004(1) Criminal Court Cases 48 (P&H)
- Loss of Court file - Reconstructing the records - It is justifiable not to go into
merits of the case only when reconstruction of file is impossible or the
reconstructed file is scant and incomplete lacking in material documents of which
no extracts are to be found in the judgment of the trial Court. (Kunwar Bahadur
Singh Vs Sheo Baran Singh) 2003 AIR 2066, 2000( 5 )Suppl.SCR 171,
2001( 9 )SCC 149, 2001( 7 )SCALE1
May have been” and “Must be” - When there is absence of evidence to cover the
distance between “May have been” and “Must be” it is not safe to sustain the
conviction. (Prithvi Raj Vs State of Rajasthan) 2004 Cr.LJ. 2190 (Rajasthan)
- Material discrepancies - Material discrepancies are those which are not
normal, and not expected of a normal person - Courts have to label the category
to which a discrepancy may be categorized - While normal discrepancies do not
corrode the credibility of a party's case, material discrepancies do so. (Krishna
Mochi & Ors. Vs State of Bihar) 2002 AIR 1965, 2002( 3 )SCR 1, 2002( 6 )SCC 81,
2002( 3 )SCALE602 , 2002( 4 )JT 186 Note Same discussed above in Evidecne Minor
Discripences
- Material discrepancies - Quantity of sample purchased 700 gms. whereas in
complaint this quantity mentioned as 900 gms. - PW1 stated that sample was
made homogeneous on a piece of paper whereas in cross examination this
witness stated that sample was made homogeneous on a piece of newspaper -
These are not material discrepancies as with passage of time, memory of
witnesses is likely to fade regarding the minute details of what had happened in
their presence. (Suraj Pal Vs State of Haryana) 2004(1) Criminal Court Cases 433
(P&H)
- Medical evidence and ocular evidence - Doctor said that injuries appeared
to be on one side of the body and the witnesses said that attacks were from
different sides - It is too trifle an aspect - It is only when the medical evidence
totally improbabilises the ocular evidence, that the Court starts suspecting the
veracity of the evidence and not otherwise. (Surinder Singh Vs State of U.P.) AIR
2003 SC 3811, 2003 CriLJ 4446,
- Medical evidence and ocular evidence - Minor variations - Do not take away the
primacy of the latter unless medical evidence in its term goes so far as to
completely rule out all possibilities whatsoever of injuries taking place in the
Page 79
manner stated by the eyewitnesses the testimony of eyewitness cannot be
thrown out. (Kamaljit Singh Vs State of Punjab) 2004 AIR 69 , 2004 (1) ALD Cri 83,
2004 CriLJ 28. 2003(4 )Suppl.SCR785 , 2003(12 )SCC155 , 2003(8 )SCALE683 ,
2003(8 )JT95 ...
- Medical evidence and ocular evidence - When there is inconsistency
between the ocular testimony and medical evidence, then the ocular evidence
should not be discarded unless it is found that the medical evidence totally
improbabilises the ocular evidence. (State of Karnataka Vs Papanaika & Ors.)
2004 AIR SC 4967, 2005(1) Criminal Court Cases 629 (S.C.)
- Medical evidence and ocular evidence - Where the eyewitnesses' account is
found credible and trustworthy, medical opinion pointing to alternative
possibilities is not accepted as conclusive. (Ramakant Rai Vs Madan Rai & Ors.)
AIR 2004 SC 77, 2004 (1) ALD Cri 75, 2004 CriLJ 36 2004(3) Criminal Court Cases
690 (S.C.) 2003(4 )Suppl.SCR17 , 2003(12 )SCC395 , 2003(8 )SCALE243 ,
2003(2 )Suppl.JT34
- Medical evidence and ocular version - When there is a minor contradiction
between ocular version and medical evidence, the ocular version will prevail but
when medical evidence is totally contradictory to the ocular version, the ocular
version is to be discarded. (Naresh Vs State of Haryana) 2005(2) Criminal Court
Cases 726 (P&H)
Medical Jurisprudence / Evidence – Post–mortem examination / report
Admissibility and probative value of, distinguished and explained – In present
case, though post–mortem report had been proved by doctor who prepared it, he
made no mention of sexual assault on deceased in his chief examination, and nor
was this issue put to him in cross-examination – Nor was it put to accused under
S. 313 CrPC – Held, in such circumstances those part of post-mortem report
indicating assault and rape prior to murder of deceased, could not be relied upon
– Penal Code, 1860 – Ss. 376 and 302 – Rape – Medical evidence – Criminal
Procedure Code, 1973, 313. ( State of Uttar Pradesh Vs Mohd. Iqram and Anr)
((2011) 8 SCC 800)
- Medical jurisprudence - Fracture of cornue of hyoid bone - Hyoid bone can be
fractured only if it is pressed with great force or hit by hard substance with great
force - Hyoid bone is not a bone which can be easily fractured. (State of Karnataka
Vs K.Gopalakrishna) 2005 AIR 1014, , 2005(9 )SCC291 , 2005(1 )SCALE643 ,
- Medical jurisprudence - Death by strangulation - Features available in case of
Page 80
death by strangulation are not always available in a case where body is burnt
after killing. (State of Karnataka Vs K.Gopalakrishna) 2005 AIR 1014, ,
2005(9 )SCC291 , 2005(1 )SCALE643 ,
- Minor contradictions - When an incident is watched by number of persons,
everyone has his own way of narration - Too much cannot be made out of minor
contradictions. (Ganga Paswan & Anr. Vs State of Bihar) 2003(1) Apex Court
Judgments 593 (S.C.)
- Minor discrepancies - Minor, trivial and inconsequential discrepancies do not
affect the basic credibility of the witness and they do not come in the way of
Court in accepting that evidence. (State of Karnataka Vs Daya @ Dayananda)
2003(3) Criminal Court Cases 555 (Karnataka)
- Minor discrepancies - While appreciating the evidence of a witness, the approach
of Court should be whether the evidence of the witness read as a whole appears
to have a ring of truth and if such an impression is formed, then minor
discrepancies on trivial matters not touching the core of the case would not entail
the rejection of the evidence. (Ian Roylance Stillman Vs State of H.P.) 2002(3)
Criminal Court Cases 417 (H.P)
- Minor omissions - Evidence recorded years after occurrence - Minor omissions
are natural - There cannot be exact and precise reproduction in any mathematical
manner - What needs to be seen is whether the version presented in the court
was substantially similar to what was stated during investigation - It is only when
exaggerations fundamentally change the nature of the case, the court has to
consider whether the witness was telling the truth or not. (Sunil Kumar Vs The
State Govt. of NCT of Delhi) 2004 AIR 552 2004 CriLJ 819,
2003(4 )Suppl.SCR767 , 2003(11 )SCC367 , 2003(8 )SCALE633 ,
2003(2 )Suppl.JT42
- Motive - Becomes insignificant when there is direct evidence - However, when
prosecution comes with a motive against the culprit, it is required to be tested on
the anvil of probabilities. (Ram Jatan Vs State of U.P.) 2004(4) Criminal Court
Cases 403 (Allahabad)
- Motive - By itself is not sufficient to base conviction. (Subimal Sarkar Vs
Sachindra Nath Mondal & Ors.) 2003 AIR 1108, , 2003( 2 )SCC 566,
2003( 1 )SCALE62 , 2003( 1 )JT 72
Page 81
- Motive - Failure of prosecution to prove motive, is of no consequence where
direct evidence has been led. (Randhir Singh Vs State of J&K) 2004(3) Criminal
Court Cases 700 (J&K)
- Motive - If incident as projected by prosecution is accepted then presence or
absence of motive or strength of motive by itself will not make prosecution case
weak. (Balram Singh & Anr. Vs State of Punjab) 2003 AIR 2213, ,
2003(11 )SCC286 , 2003(4 )SCALE561 , 2003(4 )JT569
Motive – Proof of – Generally difficult – Reiterated, motive for doing a criminal act
isgenerally a difficult area for prosecution to prove since one cannot normally see
into mind of another – Motive is emotion which impels a man to do a particular act
–instant case, where two persons were killed and one sustained injuries due to
firearms, even in absence of specific evidence as to motive case of prosecution
cannot be thrown out on this ground – Penal Code, 1860, Ss. 302/34 and 307/34.
(State of Rajasthan Vs Arjun Singh and Ors ) 2011) 9 SCC 115 )
- Motive - Murder - Disappointment and failure in love - Not a cause for murder
unless it is substantiated by credible evidence that the affair had broken beyond
redemption. (Ashish Batham Vs State of Madhya Pradesh) 2002 AIR 3206, 2002( 2
)Suppl.SCR 146, 2002( 7 )SCC 317, 2002( 6 )SCALE289 , 2002( 6 )JT 593
- Motive - Plays an important role in direct as well as circumstantial evidence -
However, in a case based on circumstantial evidence, motive assumes much
importance. (Prithviraj Vs State of Rajasthan) 2004(3) Criminal Court Cases 111
(Rajasthan)
- Motive - Possibility of some ire or ill will or even ill-feeling between accused and
deceased - It can be a motive for the offence. (Karbasappa & Ors. Vs State
Through Narona Police Station) 2004(4) Criminal Court Cases 332 (Karnataka)
- Motive - Presence of motive is only circumstance against accused and by itself is
not sufficient for conviction - Motive is a psychological phenomenon and the mere
fact that the prosecution failed to translate that mental disposition of the accused
into evidence does not mean that no such mental condition existed in the mind of
the accused. (Jinnappa Pareesh Hulakund Vs State of Karnataka) 2002(1) Criminal
Court Cases 95 (Kant.)
- Motive - Weakness or absence of motive - Not material when prosecution relies
on testimony of eye witnesses. (Ram Rattan Vs State of U.P.) 2002(2) Criminal
Page 82
Court Cases 391 (All.)
- Motive - When evidence of eye witnesses is found trustworthy and acceptable
then absence of proof of motive becomes immaterial. (Rajesh @ Khanna Vs State
of Maharashtra) 2004(3) Criminal Court Cases 156 (Bombay)
- Motive - When prosecution evidence is so strong and positive then motive
becomes inconsequential. (Rama Shish Rai Vs Jagdish Singh) AIR 2005 SC 335,
2005 (1) ALD Cri 61,
- Motive - Where occular evidence is trustworthy and reliable and finds
corroboration from medical evidence, finding of guilt can safely be recorded even
if motive for the commission of crime has not been proved. (Thaman Kumar Vs
State of Union Territory of Chandigarh) 2003 AIR 3975, 2003(3 )SCR1190,
2003(6 )SCC380 , 2003(4 )SCALE531 , 2003(4 )JT478
- Multiple offence - Some requiring special procedure - Where a transaction of
crime involves multiple offences some of which require special procedure,
prosecution has to be by special procedure. (S.G.Mallikarjun & Ors. Vs Smt.Asha)
2004(4) Criminal Court Cases 167 (Karnataka)
- Murder - Injuries sustained by accused - Non explanation - Court can draw
inference (1) That the prosecution has suppressed the genesis and the origin of
the occurrence and has thus not presented the true version; (2) that the
witnesses who had denied the presence of the injuries on the person of the
accused are lying on a most material point and therefore their evidence is
unreliable; (3) that in case there is a defense version which explains the injuries
on the person of the accused it is rendered probable so as to throw doubt on the
prosecution case. (Indian Penal Code, 1860, Ss.302, 97 to 99). (Rajesh Kumar Vs
State of Haryana) 2004(1) Criminal Court Cases 384 (P&H)
- Murder - Motive - Question of motive is of no consequence, if the evidence
against the accused persons is clear and cogent, but the absence of proof of
motive would put the Court on its guard to examine the evidence bearing on the
guilt of the accused persons with care before its acceptance. (Debi Prasad Panda
Vs State of Orissa) 2003(1) Criminal Court Cases 409 (Orissa)
- Murder of father - Son not touching the body of his father - Held, different people
react differently to a given situation and from the fact that this witness did not
chose to fall on the body of his father or carry his dead body from where it was
Page 83
lying, by itself cannot be a ground to reject his evidence. (Jai Sree Yadav Vs State
of U.P.) 2004 AIR SC 4443, , 2005(9 )SCC788 , 2004(6 )SCALE587 ,
2004(6 )JT519
- Names of eye witnesses not appearing in First Information Report - That by itself
not a ground to doubt their evidence - There is no requirement of mentioning the
names of all witnesses in the first information report. (State of Madhya Pradesh Vs
Dharkole @ Govind Singh & Ors.) 2005(1) Criminal Court Cases 796 (S.C.) Note
Cited earlier
- Near relation witness - Would not depose falsely against innocent persons so
as to allow the real culprit to escape unpunished, rather the witness would always
try to secure conviction of the real culprit and there is no reason as to why he
should depose falsely. (State of Punjab Vs Hardan Singh & Ors.) AIR 2003 SC 4343,
2003 CriLJ 5048,)
- Non appealing accused - Conviction of any accused not possible - Benefit of
acquittal also goes to non-appealing accused. (Suresh Chaudhary etc. Vs State of
Bihar) 2003 AIR SC 1981, , 2003( 4 )SCC 128, 2003( 2 )SCALE648 , 2003( 3 )JT
239)
- Non disclosure of names of assailants to doctor - Is of no consequence.
(Bhargavan & Ors. Vs State of Kerala) 2004 AIR SC 1058,
2003(5 )Suppl.SCR535 , 2004(12 )SCC414 , 2003(9 )SCALE627 ,
- Non examination of certain witnesses - Per se does not corrode vitality of
prosecution version, particularly when the witnesses examined have withstood
incisive cross-examination and pointed to the accused as the perpetrators of the
crime. (State of Madhya Pradesh Vs Dharkole @ Govind Singh & Ors.) 2005 AIR SC
44 , 2004(5 )Suppl.SCR780 , , 2004(9 )SCALE149 , 2004(9 )JT501 ( Note Same
was cited in Beyond reasonable doubt Prabhakar Advocate )
- Non examination of I.O. - Rest of evidence does not get totally destroyed -
Prosecution can still be sustained on its own credibility. (State of Karnataka Vs
Jagadisha) 2003(2) Criminal Court Cases 125 (Karnataka)
- Non examination of independent witnesses who had gathered at the scene of
offence when victim was assaulted - That by itself is not sufficient to discard the
testimony of related witnesses if their testimony is found to be trustworthy and
acceptable. (Rajesh @ Khanna Vs State of Maharashtra) 2004(3) Criminal Court
Page 84
Cases 156 (Bombay)
- Non explanation of injuries on the person of accused - No such specific questions
put to eye witnesses about the injuries sustained by accused in the same incident
- Accused suffered superficial injuries which are not required necessarily to be
explained by witnesses especially when on the spot more than 15 persons were
present and witnesses themselves were also assaulted - Burden was on the
accused to prove that they received injuries in the same incident - Accused did
not lodge any report at the police station nor complained to authorities - Held, non
explanation of injuries on person of accused not fatal to prosecution case.
(Babukhan & Anr. Vs State of M.P.) 2005(2) Criminal Court Cases 228 (M.P.)
- Non explanation of injuries on the person of accused - Where prosecution
evidence is clear, cogent and credit worthy, mere fact that injuries are not
explained by the prosecution cannot by itself be a sole basis to reject such
evidence. (Ram Avtar & Ors. Vs The State of U.P.)2003(1) Apex Court Judgments
274 (S.C.) , 2002(4 )Suppl.SCR247 , 2002(10 )SCC52 , 2002(8 )SCALE503 ,
2002(9 )JT615
- Non explanation of injuries sustained by accused in a murder case - Court can
draw the inferences viz. (i) (i) that the prosecution has suppressed the genesis
and the origin of the occurrence and has thus not presented the true version; (ii)
that the witnesses who have denied the presence of the injuries on the person of
the accused are lying on a most material point and, therefore, their evidence is
unreliable; (iii) that in case there is defence version which explains the injuries on
the person of the accused, it is rendered probable so as to throw doubt on the
prosecution case.(Debi Prasad Panda Vs State of Orissa) 2003(1) Criminal Court
Cases 409 (Orissa)
- Non production of case property during trial - It cannot be said that what was
seized from the accused was sent to the Chemical Examiner. (Madan Vs The State
of Rajasthan) 2002(2) Criminal Court Cases 28 (Raj.)
- Non recovery of weapon of offence during investigation - Assault with
knife - Eye witnesses described the knife and knife not recovered during
investigation - Not a factor to discard evidence of eye witnesses - Wounds noticed
by doctor throw considerable light in this aspect - Doctor's opinion about weapon,
though theoretical, cannot be totally wiped out. (Anwarul Haq Vs The State of
Uttar Pradesh) 2005 AIR 2382, 2005(3 )SCR917 , , 2005(4 )SCALE442 , 2005(5 )JT9 2005(1)
Apex Court Judgments 654 (S.C.) : 2005(2) Criminal Court Cases 752 (S.C.)
Page 85
- Normal discrepancies & Material discrepancies - Normal discrepancies are
those which are due to normal errors of observation, normal errors of memory
due to lapse of time, due to mental disposition such as shock and horror at the
time of occurrence and those are always there, however, honest and truthful a
witness may be - Material discrepancies are those which are not normal, and not
expected of a normal person - Courts have to label the category to which a
discrepancy may be categorized - Normal discrepancies do not corrode the
creditibility of a party's case, material discrepancies do so. (State of Punjab Vs
Karnail Singh) AIR 2003 SC 3609, 2003 (2) ALT Cri 273, 2003 CriLJ 3892 ( Note
same cited in Close related witness earlier (Prabhakar Advocate )
- Normal discrepancies and Material discrepancies - Normal discrepancies in
evidence are those which are due to normal errors of observation, normal errors
of memory due to lapse of time, due to mental disposition such as shock and
horror at the time of occurrence and those are always there however honest and
truthful a witness may be - Material discrepancies are those which are not normal,
and not expected of a normal person - While normal discrepancies do not corrode
the credibility of party's case, material discrepancies do so. (Sucha Singh & Anr.
Vs State of Punjab) AIR 2003 SC 3617, 2003 (2) ALD Cri 506) Note cited above
beyond reasonable doubt)
- Not examining other persons of the locality as prosecution witnesses - If
Court has discerned from evidence or even from the investigation records that
some other independent person has witnessed any event connecting the incident
in question then there is justification for making adverse comments against non
examination of such person as prosecution witness - Otherwise, merely on
surmises the Court should not castigate a prosecution for not examining other
persons of the locality as prosecution witnesses - Prosecution can be expected to
examine only those who have witnessed the events and not those who have not
seen it though the neighborhood may be replete with other residents also. (Hari
Ram Vs State of U.P.) 2004(2)ALD(Cri)607, JT2004(6)SC331, 2004(6)SCALE499,
(2004)8SCC146
- Number of injuries - Not always determinative of the offence - It depends on
the weapon used, place where injuries were inflicted and the nature of the
injuries. (Adu Ram Vs Mukna & Ors.) 2004 AIR SC 5064, 2004(5 )Suppl.SCR314 , ,
2004(8 )SCALE591 , 2004(8 )JT545
- Number of injuries is not always a safe criterion for determining who was the
Page 86
aggressor. (Shriram Vs State of Madhya Pradesh) 2004 AIR SC 491 ,
2003(6 )Suppl.SCR129 , 2004(9 )SCC292 , 2003(10 )SCALE312 , .
- Observations against person not party to the proceedings - Court should
not make observation in judgments, unless the person in respect of whom
comments and criticisms are made is party to the proceedings and further is
granted an opportunity of having his say in the matter, unmindful of the serious
repercussions they may entail on such persons - Apart from that, when there is no
relevance to the subject matter of adjudication, it is certainly not desirable for the
Courts to make any comments or observations reflecting on the bonafides or
credibility of any person or their actions. (Tessta Setalvad & Anr. Vs State of
Gujarat & Ors.) 2004 AIR SC 491 , 2003(6 )Suppl.SCR129 , 2004(9 )SCC292 ,
2003(10 )SCALE312 , 2003(9 )JT293 ...
- Occurrence took place in moonlight - Witnesses standing at a respectable
distance for fear of being assaulted - It is doubtful whether they were in a position
to observe each and every detail of the alleged occurrence, that too in the
moonlight. (Harjinder Singh @ Bhola Vs State of Punjab) 2004 AIR 3962, ,
2004(11 )SCC253 , 2004(6 )SCALE289 , 2004(6 )JT23
- Ocular evidence and medical evidence - Acceptable ocular evidence cannot be
dislodged on hypothetical bases for which no proper grounds were laid. (Mangu
Khan & Ors. Vs State of Rajasthan) 2005 AIR 1912, 2005(2 )SCR368 , ,
2005(2 )SCALE365 ...
- Ocular evidence and medical evidence - Ocular evidence has to be given
importance over medical evidence - Where medical evidence totally improbablies
the ocular version that can be taken to be a factor to effect credibility of
prosecution version. (State of Rajasthan Vs Bhanwar Singh) 2004 AIR SC 4660,
2004(4 )Suppl.SCR409 , , 2004(7 )SCALE676
- Ocular testimony - If reliable cannot be discarded even when there is no
sufficient corroboration by medical evidence. (Ashok Kumar & Ors. Vs State rep.
by Inspector of Police) 2005(1) Criminal Court Cases 458 (Madras)
- Omissions - Every omission is not a contradiction - Minor details which are not
indicated in the first information report and later on elaborated in court do not
justify a criticism that the case originally presented has been abandoned to be
substituted by another one. (Sunil Kumar Vs The State Govt. of NCT of Delhi) 2004
AIR 552 , 2004 CriLJ 819, 2003(4 )Suppl.SCR767 , 2003(11 )SCC367 ,
2003(8 )SCALE633
- Order passed on concession of Advocate without authority or competence -
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Recall of order - Court does not become functus officio - No need to approach
higher forum for annulment of the order - Court can recall or vary the order for
ends of justice. (Hemanta Kumar Kar Vs Srimanta Kumar Kar) 2002(3) Criminal
Court Cases 268 (Orissa)
- Original record brought by witness at the time of his examination-in-chief and on
that day no cross examination took place - Original record not brought when
witness was cross examined - Documents exhibited have to be taken as true
copies in absence of request for producing original record once again. (Surjit
Singh & Ors. Vs State of Punjab) 2005(1) Criminal Court Cases 729 (P&H)
Participation in the Criminal Act
(i) To apply section 34, apart from the fact that there should be two or more accused,
two factors must be established: (i) common intention, and (ii) participation of
accused in the commission of an offence. If common intention is proved but no overt
act is attributed to the individual accused, section 34 will be attracted as essentially it
involves vicarious liability but if participation of the accused in the crime is proved and
common intention is absent, section 34 cannot be invoked; Jai Bhagwan v. State of
Haryana, AIR 1999 SC 1083. 1999 (1) ALD Cri 484
(ii) It requires a pre-arranged plan and pre-supposes prior concert therefore there
must be prior meeting of mind. It can also be developed at the spur of moment but
there must be pre-arrangement or premeditated concert: Ramashish Yadav v. State of
Bihar, AIR 1999 SC 3830, 1999 (2) ALD Cri 704 1999 (8) SCC 555: 1999(6) JT 560:
1999 (2) JCC (SC) 471.
(iii) If some act is done by the accused person in furtherance of common intention of
his co-accused, he is equally liable like his co-accused; State of Punjab v. Fauja Singh,
(1997) 3 Crimes 170 (P&H).
(iv) In the instant case, there was a long standing enmity between two rival factions in
a village, and proceedings under the Criminal Procedure Code were pending against
members of both factions. On the day fixed for a hearing in the Magistrate’s Court in a
neighbouring town, members of both factions left their village armed with sticks and
lathis. While one faction was waiting on the roadside for a bus, the other faction
arrived and a fight ensued in which severe injuries were caused on both sides, as a
result of which one man died. The members of the opposite faction were charged and
convicted under sections 302/34 I.P.C. It was held that the mere presence of a person
armed with a deadly weapon at the spot of a crime does not necessarily make him a
participator in a joint crime in every case, because for the purpose of section 34 only
such presence makes a man a participant in a joint crime as is established to be with
Page 88
the intention of lending weight to the commission of a joint crime; Jamun v. State of
Punjab, AIR 1957 SC 469.
- Part of evidence of a witness when not accepted - Does not mean that
entire evidence of that witness should be scored through or disbelieved. (Kali
Charan Basra Vs State of Orissa) 2003(2) Criminal Court Cases 413 (Orissa)
- Part of statement when found to be correct - If two parts are severable and they
can be looked into and appreciated by Court then it will not be appropriate to
reject or disbelieve the entire testimony of a witness. (Tehal Singh Vs The State of
Punjab) 2003(2) Criminal Court Cases 406 (P&H)
- Part of testimony of PW found to be trustworthy and part of his testimony
whereby he sought to make an improvement by naming the other accused
persons found to be not true - Part of evidence of PW believed to convict the
witness. (Chittarmal Vs State of Rajasthan) 2003 AIR SC 796 , 2003(1 )SCR49 ,
2003(2 )SCC266 , 2003(1 )SCALE55 , 2003(1 )JT91.
- Partisan or interested witness - Evidence of such a witness cannot be discarded
on the ground that it is the evidence of a partisan or interested witness - All that
is required is to analyse evidence of such a witness with due caution and
particularly in the light of medical evidence available on record. (Gopal & Ors. Vs
State of Madhya Pradesh) 2003(2) Criminal Court Cases 266 (M.P.)
- Pendency of civil suit between parties is not a ground for quashing of criminal
proceedings alleging forgery of documents and cheating etc. (Bimal Kanti Ghosh
Dastidar Vs Sri Sukhen Roy & Anr.) 2004(2) Criminal Court Cases 359 (Calcutta)
- Physically challenged person since birth - As of necessity improvise their own
methods of doing things very much in the same manner as a normal person does.
(Gilbert Pereira Vs State of Karnataka) 2005(1) Criminal Court Cases 470 (S.C.)
Discussed in earlier
- Place of occurrence - Fire shots - Pellets not found at the place of occurrence -
Held, in the absence of such evidence one has to rely upon the ocular evidence
which if found reliable, may be acted upon. (Birendra Rai & Ors. Vs State of Bihar)
2005(1) Criminal Court Cases 725 (S.C.)
- Place of occurrence - IO not examined - No suggestion put to witnesses that
occurrence did not take place at the alleged place of occurrence - Attention of
Page 89
witnesses also not drawn to any material point to show that witnesses have
deposed falsely in the Court - Held, there is no substance in the submission of
accused that place of occurrence is not proved. (Mojai Sharma & Ors. Vs State of
Bihar) 2005(1) Criminal Court Cases 263(Patna)
- Place of occurrence - Mentioning of Door No.58 in death intimation and accident
register is of no use when there is substantive evidence of occurrence taking
place at Door No.55. (Ramesh & Ors. Vs State) 2004(2) Criminal Court Cases 405
(Madras)
- Place of occurrence - No conviction can be made if prosecution fails to prove the
place of occurrence by unimpeachable evidence. (Bande Lal Sah & Anr. Vs State
of Bihar) 2003(1) Criminal Court Cases 589 (Patna)
- Plea of alibi - Failure of defence to prove - Does not make the accused liable for
conviction unless prosecution is able to prove that he is guilty of the crime as
alleged beyond reasonable doubt. (Raghunathan Vs State of Kerala) 2002(1)
Criminal Court Cases 493 (Kerala)
- Plea of alibi - Plea that accused was at his service place - Duty Certificate
marked for 'identification' but was never exhibited - On the other hand all the eye
witnesses claimed to have seen the accused actively participating in the
occurrence - Defence thus produced meagre and unsatisfactory evidence in
support of plea of alibi and can be termed to be tainted. (Padarath Dhanuk & Ors.
Vs Upendra Dhanuk & Anr.) 2004(4) Criminal Court Cases 326 (Patna)
- Plea of alibi - Should be established by the person who is pleading it - Strict proof
of alibi is necessary and plea of alibi should be proved with absolute certainty
completely excluding the possibility of the accused at the time and place of
occurrence. (Raghunathan Vs State of Kerala) 2002(1) Criminal Court Cases 493
(Kerala)
- Plea of false implication - Burden to prove is upon accused and accused should
discharge the burden with cogent and reasonable evidence and establish a case
based on probabilities may not be beyond shadow of any reasonable doubt like
the prosecution. (Mohan Singh Vs State of Punjab) 2005(2) Criminal Court Cases
623 (P&H)
- Plea taken in defence - Not established - On the weakness of defence, case of
prosecution is not proved - Prosecution has to prove its case beyond reasonable
Page 90
doubt. (Major Singh & Ors. Vs State of Punjab) 2004(2) Criminal Court Cases 776
(P&H)
- Police Officer cannot be compelled to disclose name of informant. (Babasaheb
Dadasaheb Koli Vs State of Maharashtra) 2004(2) Criminal Court Cases 57
(Bombay)
- Postmortem report - By itself not a substantive piece of evidence - However,
evidence of doctor conducting post-mortem is significant as to injuries appearing
on the body of the deceased and likely use of weapons therefor - It is then
prosecution's duty and obligation to have the corroborative evidence available on
record from the other prosecution witnesses. (State of Haryana Vs Ram Singh)
AIR 2002 SC 620, 2002 (1) ALT Cri 123.
-Presumption of innocence: One of the cardinal principles which should
always be kept in our system of administration of justice in criminal cases is that a
person arraigned as an accused is presumed to be innocent unless and until
proved otherwise. Another golden thread which runs through the web of
administration of justice in criminal cases is that if two views are possible on the
evidence adduced in the case- one pointing to the guilt of the accused and the
other to his innocence, the view which is favourable to the accused is to be
accepted
Kaliram v. The State of H.P.-AIR 1973 SC 2773,
Sheo Nandan Paswan v. State of Bihar- 1987 AIR 877, 1987 SCR (1) 702 AIR
1983 SC 194-
Nishar Ali v. State of U.P.- AIR 1957 SC 366).
Even in an appeal against acquittal, the presumption of innocence in favour of the
accused is not weakened and in considering an appeal against acquittal, the High
Court has to keep this presumption in mind. (S.A.A.Biyabani v. State of Madras-
AIR 1954 SC-645,) and Ram Jog v. State of U.P.-AIR 1974 SC 606; Rajendra Rai v.
State of Bihar –AIR 1974 SC 2145, Autar Singh v. State of Punjab- AIR 1979 SC
1188, State of A.P. v. Anjaneulau – AIR 1982 SC 1598, Babu v. State of U.P.- AIR
1983 SC 308, Ramji Surjiya v. State of Maharashtra-AIR 1983 SC 810 and Chandra
Kanta Deb v. Stateof Tripura- AIR 1986 SC 606). In paragraph 40 of the
Constitution Bench decision of the Apex Court in B.R.Kapur v. State of T.N. – 2001
(7) SCC 231 it has been observed that when a lower court convicts an accused
and sentences him, the presumption that he is innocent comes to an end.
- Presence at scene of occurrence - Absence of finger impression is not guarantee
of absence of the person concerned at the scene. (Gade Lakshmi Mangraju alias
Page 91
Ramesh Vs State of Andhra Pradesh) 2002(2) Criminal Court Cases 715 (S.C.)
- Presence of I.O. during trial - Investigating Officer should be present during trial
unless compelling reasons exist for a departure. (Zahira Habibulla H.Sheikh & Anr.
Vs State of Gujarat & Ors.) 2004(3) Criminal Court Cases 195 (S.C.) AIR 2004 SC
3467, 2004 (2) ALD Cri 1, 2004 CriLJ 2855
- Prosecution cannot be permitted to lead evidence contrary to complaint.
(R.G.Srivastava Vs State of Punjab) 2003(2) Criminal Court Cases 176 (P&H)
- Prosecution cannot take advantage of the weakness in defence case -
Prosecution can succeed by substantially proving the version it alleges. (Suchand
Pal Vs Phani Pal & Anr.) 2004 CriLJ 628, 2004 AIR 973,2004(2) Criminal Court
Cases 292 (S.C.)
- Prosecution evidence - Relief sought to close evidence of prosecution on ground
that time fixed by Supreme Court for completion of trial is over - Held, it is open to
Court to consider whether evidence should be closed or further time should be
granted to prosecution to complete evidence. (Udayakumar Vs Superintendent of
Police) 2002(1) Criminal Court Cases 455 (Kerala)
- Prosecution led evidence - The same remained unchallenged - Held, it is open to
accused to rely upon same for defence. (Kajal Sen Vs State of Assam) AIR 2002
SC 617, 2002 (1) ALD Cri 310
- Prosecution must establish its case on its own merits and not on the weakness of
the defence. (Sukhdev Bhimrao Hastapure Vs State of Maharashtra) 2002(3)
Criminal Court Cases 183 (Bombay)
- Prosecution not examining certain witnesses - If defence feels importance of
evidence of witnesses not examined by prosecution, defence could have called
them in defence - No such steps taken - Held, defence has raised such objection
only for the sake of arguments. (Babukhan & Anr. Vs State of M.P.) 2005(2)
Criminal Court Cases 228 (M.P.)
- PW changing his version - His evidence does not get totally wiped out - A part of
it which is reliable can be taken note of by the court. (Sunil Kumar Vs The State
Govt. of NCT of Delhi) 2004 AIR 552 , , 2003(11 )SCC367 , 2003(8 )SCALE633 , 2004
CriLJ 819,
Page 92
- PW on seeing six accused persons felt panicky and hid herself - She was thus not
in a position to observe each of the accused carrying a particular weapon - Her
evidence to that effect not believed. (Shiva Shankar Pandey & Ors. Vs State of
Bihar) 2002 AIR SC 3151, 2002( 2 )Suppl.SCR 166, 2002( 7 )SCC 229,
2002( 6 )SCALE306 , 2002( 6 )JT 570 2003(1) Apex Court Judgments 240 (S.C.)
- Radio transmission of the incident to higher authorities - Message transmitted to
higher authorities of an incident is only an information sent about a crime that has
occurred which does not require all the particulars of the crime to be stated. ( Jai
Sree Yadav Vs State of U.P.) 2004(4) Criminal Court Cases 28 (S.C.)
- Reaction of a witness - There is no set rule of natural reaction - Everyone reacts
in his own special way and in what way the witness should react cannot be
predicted. (State of Punjab Vs Hardan Singh & Ors.) AIR 2003 SC 4343, 2003 CriLJ
5048,
- Rebuttal evidence - Not to be conclusively established but such evidence must
be adduced before the Court in support of the defence that Court must either
believe the defence to exist or consider its existence to be reasonably probable,
the standard of reasonability being that of the 'prudent man'. (Shri Wilson
Fernandes Vs Shri Nitin Pandurang & Anr.) 2004(4) Criminal Court Cases 433
(Bombay)
- Recall of witness for further cross examination - Ground that during earlier cross
examination certain points left out from being asked - Application rejected being
vague. (Haribabu Vs State of U.P. & Anr.) 2002(1) Criminal Court Cases 605 (All.)
- Recovery - Independent witnesses - None ready to be a witness - Explanation of
IO does not appear to be plausible as it does not appear from record that he made
efforts to procure independent witnesses and the witnesses declined to come
forward - Evidence of I.O. is worthy of ejection and no reliance can be placed on
his testimony. (Pappu & Anr. Vs The State of Rajasthan) 2003(2) Criminal Court
Cases 44 (Rajasthan)
- Recovery of contraband from house - Joining of neighbours - Explanation given
that neighbours did not join on the plea that accused is a person of bad character
- This is a plausible explanation. (Rohtas alias Bunder Vs State of Haryana)
2003(2) Criminal Court Cases 367 (P&H)
Page 93
Reference to books of accounts— 159 and Sec 160 - Permissibility—Deposition
relating to large number of transaction—The witness rightly permitted to refer
books of account to refresh his memory. The State of Andhra Pradesh V.
Cheemalapati Ganeswara Rao and another 1963(2) CrLJ 671 : 1963 AIR (SC)
1850 : 1964 (3) SCR 297
- Related, interested or inimical witness - Evidence of a witness cannot be
discredited simply for the reason that he is a victim or is related to or interested in
the victim/complainant or is inimical towards the accused - As a rule of prudence
evidence of such witness must be read with care and caution if found confidence
inspiring, trustworthy and finds corroboration from some other independent
evidence on material particular, a conviction can be based on such evidence - In
case on scrutiny of evidence of an interested witness, keeping in view the
probability and the attendant circumstances, the evidence is found unnatural,
improbable and non-confidence inspiring, no conviction can be based on such
evidence - While appreciating evidence of interested witnesses, the attendant
circumstances must always be kept in view as a human being may lie but not the
circumstances. (Dorje Ram Vs State of H.P.) 2005(2) Criminal Court Cases 890
(H.P.)
- Related or interested witness - By itself not sufficient to discard their evidence
unless it is proved that their evidence suffers from serious infirmities which raises
considerable doubt in the mind of the Court. (Jeeva @ Khema Vs State of
Rajasthan) 2005(1) Criminal Court Cases 90(Rajasthan)
- Related or interested witness - Evidence of such a witness not to be rejected
merely because he is related to or interested in the parties on either side - If the
presence of such a witness at the time of occurrence is proved or considered to
be natural and the evidence tendered by such witness is found in the light of the
surrounding circumstances and probabilities of the case to be true, it can provide
a good and sound basis for conviction of the accused - Where it is shown that
there is enmity and the witnesses are near relatives too, the Court has a duty to
scrutinize their evidence with great care, caution and circumspection and very
careful too in weighing such evidence. (Harijana Narayana & Ors. Vs State of A.P.)
2004(1) Criminal Court Cases 370 (S.C.)
- Related or interested witnesses - Evidence of eye witnesses if otherwise reliable
cannot be rejected on the ground that deceased was related to the eye witnesses
or previously there was some dispute in between the prosecution and the accused
side. (Padarath Dhanuk & Ors. Vs Upendra Dhanuk & Anr.) 2004(4) Criminal Court
Page 94
Cases 326 (Patna)
- Related witness - Credibility - (i) Merely a related witness is not a ground to
reject the testimony of a witness if otherwise found to be trustworthy and reliable;
(ii) Judicial approach has to be cautious in dealing with such evidence, but the
plea that such evidence should be rejected because it is partisan, cannot be
accepted as correct; (iii) If for the plea of false implication proper foundation is
laid, Court, by adopting a cautious approach, will analyse the evidence to find its
credibility; (iv) A related witness normally to be considered independent unless he
or she springs from sources which are likely to be tainted; (v) There is no general
rule in regard to appreciation of testimony of related witnesses. Each case must
be limited to and governed by its own facts. (Lotan & Anr. Vs State of Rajasthan)
2003(3) Criminal Court Cases 51 (Rajasthan)
- Related witness - Daughter of deceased - Presence of daughter of deceased
proved at the time of incident and her evidence inspire confidence - Conviction
not interfered inspite of the fact that other eye witness and relative witnesses of
deceased turned hostile. (Ramesh & Ors. Vs State) 2004(2) Criminal Court Cases
405 (Madras)
- Related witness - Evidence of eye witnesses cannot be rejected merely because
they are related. (Ravi Vs State Rep. by Inspector of Police) 2004(11 )SCC266
2005(1) Apex Court Judgments 16 (S.C.)
- Related witness - Evidence of eye witnesses cannot be rejected merely because
they are related. (Ravi Vs State Rep. by Inspector of Police) 2004(11 )SCC266
2005(2) Criminal Court Cases 679 (S.C.)
- Related witness - Evidence of such a witness cannot be thrown out - Court
should approach such evidence with care and caution in order to exclude the
possibility of false implication. (Basu Harijan Vs State of Orissa) 2003(3) Criminal
Court Cases 170 (Orissa)
- Related witness - Ground that the witness being a close relative and
consequently being a partisan witness, should not be relied upon, has no
substance. (Surinder Singh Vs State of U.P.) AIR2003SC3811, 2003CriLJ4446,
JT2003(Suppl1)SC226, 2003(7)SCALE184, (2003)10SCC26, 2004(1)UJ197(SC)
2003(2) Apex Court Judgments 679 (S.C.) : 2004(1) Criminal Court Cases 72 (S.C.)
- Related witness - It does not render per se their evidence suspect - All that is
Page 95
required to be done in such case is to carefully analyse the evidence and if after
deeper scrutiny it is found acceptable, to act on it. (Shriram Vs State of Madhya
Pradesh) 2004 AIR SC 491 , 2003(6 )Suppl.SCR129 , 2004(9 )SCC292 ,
2003(10 )SCALE312 , 2003(9 )JT293 ... (S.C.)
- Related witness - Just because the witnesses are related to the deceased is not a
ground to discard their testimony, if otherwise their testimony inspires
confidence. (State of U.P. Vs Kishan Chand & Ors.) 2004 AIR SC 4671,
2004(3 )Suppl.SCR640 , 2004(7 )SCC629 ,
- Related witness - Kith and kin of deceased, if they had seen the occurrence,
would not absolve the real offenders and involve innocent persons. (Babulal Vs
The State of Rajasthan) 2002(3) Criminal Court Cases 340 (Raj.)
- Related witness - Merely on account of the witnesses being closely related to the
victim their evidence cannot be thrown out, if the same otherwise appears to be
truthful. (Karbasappa & Ors. Vs State Through Narona Police Station) 2004(4)
Criminal Court Cases 332 (Karnataka)
- Related witness - No ground to reject the testimony of the witness who
otherwise is found to be trustworthy and reliable. (Bijoy Singh Vs State of Bihar)
2002 AIR SC 1949, 2002( 3 )SCR 179, 2002( 9 )SCC 147, 2002( 3 )
- Related witness - Not a ground to discard their evidence - Careful scrutiny has to
be done of their evidence. (Banti @ Guddu Vs State of Madhya Pradesh) AIR 2004
SC 261, 2004 (1) ALD Cri 94, 2004 CriLJ 372
- Related witness - Not a ground to reject their evidence as untrustworthy - In law,
what is expected is to analyse and scrutinise the same due care and caution
before accepting or acting upon the same. (Malhu Yadav Vs State of Bihar) 2002
AIR SC 2137, 2002( 3 )SCR 676, 2002( 5 )SCC 724, 2002( 4 )SCALE285 , 2002(2)
Criminal Court Cases 694 (S.C.)
- Related witness - On account of relationship with the deceased credibility of a
witness cannot be questioned. (Kailash Kumar @ Kalji & Ors. Vs State of
Rajasthan) 2004(3) Criminal Court Cases 310 (Rajasthan)
- Related witness - Relationship is not a factor to affect credibility of a witness - It
is more often than not that a relation would not conceal actual culprit and make
Page 96
allegations against an innocent person - Foundation has to be laid if plea of false
implication is made - In such cases, court has to adopt a careful approach and
analyse evidence to find out whether it is cogent and credible. (Surinder Singh Vs
State of U.P.) DISCUSSED EARLIER IN RELATED WITNESS { PRABHAKAR Advocate}
- Related witness - Relationship is not a factor to affect credibility of a witness - A
relation would not conceal actual culprit and make allegations against an innocent
person - Foundation has to be laid if plea of false implication is made and court
has to adopt a careful approach and analyse evidence to find out whether it is
cogent and credible. (Sucha Singh & Anr. Vs State of Punjab) AIR 2003 SC 3617,
2003 (2) ALD Cri 506
- Related witness - Relationship is not a factor to affect credibility of a witness - It
is more often than not that a relation would not conceal actual culprit and make
allegations against an innocent person - Foundation has to be laid if plea of false
implication is made - In such cases, court has to adopt a careful approach and
analyse evidence to find out whether it is cogent and credible. (Surinder Singh Vs State of
U.P.)see Discussed earlier related witness (Prabhakar advocate}
- Related witness - Relationship is not a factor to affect credibility of a witness - It
is more often than not that a relation would not conceal actual culprit and make
allegations against an innocent person - Foundation has to be laid if plea of false
implication is made. (Hari Ram Vs State of U.P.) , 2004(3 )Suppl.SCR379 , 2004(8
)SCC146 , 2004(6 )SCALE499 , 2004(6 )JT331 2004(4) Criminal Court Cases 198
(S.C.)
- Related witness - Relationship is not a factor to affect credibility of a witness - It
is more often than not that a relation would not conceal actual culprit and make
allegations against an innocent person. (Gangadhar Behera & Ors. Vs State of
Orissa) , 2002( 3 )Suppl.SCR 183, 2002( 8 )SCC 381, 2002( 7 )SCALE402 ,
2002( 8 )JT 135 ( Appeal ( Crl ) 1282/2001 dated 1-10-2002 ( Prabakar advocate)
- Related witness - Relationship is not a factor to affect the credibility of a witness
- It is more often than not that a relation would not conceal the actual culprit and
make allegations against an innocent person - Foundation has to be laid if a plea
of false implication is made - In such cases, the court has to adopt a careful
approach and analyse the evidence to find out whether it is cogent and credible.
(State of Karnataka Vs Papanaika & Ors.) 2004 AIR SC4967, 2005(1) Criminal Court
Cases 629 (S.C.)
- Related witness - Relationship is not a factor to attract credibility of a witness -
Page 97
Court has to adopt a careful approach to find out whether evidence is cogent and
credible. (Bhargavan & Ors. Vs State of Kerala) 2004 AIR SC 1058,
2003(5 )Suppl.SCR535 , 2004(12 )SCC414 , 2003(9 )SCALE627 ,
2003(9 )JT513
- Related witness - Testimony of a witness cannot be discarded merely for the
reason that he is related to the deceased or that his name does not find place in
the first information report. (Sher Singh Vs The State of Rajasthan) 2004(2)
Criminal Court Cases 18 (Rajasthan)
- Related witness - Testimony of eye witnesses if found to be trustworthy cannot
be discarded merely because they are closely related to the deceased. (Rajesh @
Khanna Vs State of Maharashtra) 2004(3) Criminal Court Cases 156 (Bombay)
- Related witness - The testimony of relative witness cannot be disbelieved on the
ground of relationship - The only requirement is to examine their testimony with
caution. (State of Himachal Pradesh Vs Mast Ram) 2004 AIR SC 5056,
2004(4 )Suppl.SCR269 , 2004(8 )SCC660 , 2004(7 )SCALE637 ,
- Related witness - There is no proposition in law that relatives are to be treated
as untruthful witnesses - Reason has to be shown when a plea of partiality is
raised to show that the witnesses had reason to shield actual culprit and falsely
implicate the accused. (Harbans Kaur & Anr. Vs State of Haryana) 2005 AIR 2989,
2005(2 )SCR450 , 2005(9 )SCC195 , 2005(2 )SCALE457 , 2005(3 )JT233 –
Related witness and witness having criminal antecedents - Evidence which is
found truthful and credible otherwise cannot be discarded on the ground that
witness is related with deceased and their criminal antecedents. (Anil Sharma &
Ors. Vs State of Jharkhand) 2004 AIR SC 2294, 2004(1 )Suppl.SCR907 ,
2004(5 )SCC679 , 2004(5 )SCALE289 , 2004(1 )Suppl.JT559
- Related witnesses - Evidence of two sons of deceased rightly believed as they
were natural witnesses and their evidence was consistent. (Rajinder Vs State of
Haryana) 2005(1) Criminal Court Cases 274 (S.C.)
- Related witnesses - Their evidence has to be appreciated with greater care and
caution and evidence of such witnesses is not to be disbelieved merely because
they are related to the deceased. (Ram Shanker & Ors. Vs State) 2004(4) Criminal
Court Cases 663 (Allahabad)
- Relationship of witness with deceased is no ground to disbelieve his evidence.
Page 98
(Ram Rattan Vs State of U.P.) 2002(2) Criminal Court Cases 391 (All.)
- Relative or interested witness - “Related” is not equivalent to “interested” - A
witness may be called “interested” only when he or she derives some benefit
from the result of a litigation; in the decree in a civil case, or in seeing an accused
punished - A witness who is a natural one and is the possible eye witness in the
circumstances of case cannot be said to be “interested”. (Saka Vs State of
Rajasthan) 2004(3) Criminal Court Cases 188 (Rajasthan)
- Relative or interested witness - By itself not sufficient to discard their evidence
straightaway unless it is proved that their evidence suffers from serious infirmities
which raises considerable doubt in the mind of the court. (Saka Vs State of
Rajasthan) 2004(3) Criminal Court Cases 188 (Rajasthan)
- Relatives - Evidence of eye witnesses cannot be over thrown above board simply
because they are close relatives of the deceased - The only caution is that
evidence of such witnesses is to be scrutinized with greater care and caution.
(Shiv Ram @ Shiva Lal & Anr. Vs State of Rajasthan) 2004(4) Criminal Court Cases
584 (Rajasthan)
- Requisition to doctor for post mortem - Though it is necessary to give the gist of
the information collected during the course of inquest proceedings and from the
material available in the FIR to the doctor conducting the post mortem, it is not
necessary to give all the particulars as contained in either of the above said
documents. (Jai Sree Yadav Vs State of U.P.) 2004(4) Criminal Court Cases 28
(S.C.)
- Res gestae evidence can be used in corroboration of primary evidence. (Rudal
Shahi & Ors. Vs State) 2005(2) Criminal Court Cases 129 (Allahabad)
- Residents of other villages cannot be said to be natural witnesses. (Radhey
Shyam Gupta (In Jail) Vs State of U.P.) 2002(3) Criminal Court Cases 614 (All.)
- Resiling from statement made in Court by filing an affidavit that he had deposed
at the instance of police - Once the witness is examined he cannot be allowed to
resile from the testimony given in Court on oath. (Yakub Ismailbhai Patel Vs State
of Gujarat) 2004 AIR SC 4209, 2004(3 )Suppl.SCR978 , 2004(12 )SCC229 ,
2004(7 )SCALE374 , 2004(7 ) .
- Right to go abroad during Pendency of corruption case - Petitioner on bail -
Application for cancellation of bail pending - State not able to secure any interim
Page 99
adverse order against the petitioner - While moving application for cancellation of
bail it is not the case of State that petitioner would run away from law - Held,
fundamental right or civil right cannot be curtailed only if a criminal case is
pending against a person and surely, to go abroad to see his children or grand
children is a right of an individual. (Naginder Singh Rana Vs State of Punjab)
2004(4) Criminal Court Cases 295 (P&H)
ROLE OF THE JUDGE IN A CRIMINAL TRIAL:- Section 165 of the
Evidence Act, 1872 confers vast and unrestricted powers on the trial court to put
"any question he pleases, inany form, at any time, of any witness, or of the
parties, about any fact relevant or irrelevant" in order to discover relevant facts.
The saidsection was framed by lavishly studding it with the word "any" which
could only have been inspired by the legislative intent to confer unbridled power
on the trial court to use the power whenever he deems it necessary to elicit truth.
Even if any such question crosses into irrelevance the same would not transgress
beyond the contours of powers of the court. This is clear from the words "relevant
or irrelevant" in Section 165. Neither of the parties has any right to raise objection
to any such question.
Reticence may be good in many circumstances, but a judge remaining
mute during trial is not an ideal situation, A taciturn Judge may be the model
caricatured in public mind. But there is nothing wrong in his becoming active or
dynamic during trial so that criminal justice being the end could be achieved.
Criminal trial should not turn out to be a bout or combat between two rival sides
with the judge performing the role only of spectator or even an umpire to
pronounce finally who won the race. A judges expected to actively participate in
the trial, elicit necessary materials from witnesses at the appropriate contest,
which he feels necessary for reaching the correct conclusion. There is nothing,
which inhibits his power to put questions to the witnesses, either during chief
examination or cross-examination or even during re-examination to elicit truth.
The corollary of it is that if a judge felt that a witness has committed an error or a
slip it is the duty of the judge to ascertain whether it was so, for, to err is human
and the chances of erring may accelerate under stress of nervousness during
cross-examination. Criminal justice is not to be founded on erroneous answers
spelled out by witnesses during evidence collecting process. It is a useful exercise
for trial judge to remain active and alert so that errors can be minimized ( State of
Rajasthan vs. Ani @ hanif and others: (1997 AIR SC 1023, 1997(1)SCR 199,
1997(6)SCC 162, 1997(1)SCALE287 , 1997( 1 )JT 460) RELID ON Ram Chander v.
State of Haryana, AIR (1981) SC 1036,
Page 100
- Running away when police raided the spot - Not sufficient for basing conviction.
(Rajeshkumar Babulal Sharma Vs State of Maharashtra) 2002(1) Criminal Court
Cases 610 (Bom.)
- Rustic villagers - Testimony - There are bound to occur certain discrepancies - It
is difficult to expect them to remember the events with mathematical precision
after a lapse of more than two years - It is common knowledge that ordinarily
human memories are apt to blur with the passage of time - They are unexposed
to the technicalities of urban life and they speak plainly what they saw and did -
They are straightforward looking people, truthful and trustworthy. (State of
Karnataka Vs M.V.Manjunathegowda & Anr.) 2003 AIR SC 809,
- Seal - No evidence that seal with which the sample was sealed was put in safe
custody and that at no stage the same was not available to the police - It cannot
be held that there was no scope of tampering of the sample or of the recovered
item. (Balbir Singh Vs State of Punjab) 2003(1) Criminal Court Cases 505 (P&H)
- Search - Independent witnesses - Failure to join local, independent and
respectable witnesses may be an irregularity which, by itself, will not vitiate the
trial - However, Court while appreciating evidence should keep in mind that
provision of S.100(4) Cr.P.C. is not complied with. (Sandeep Kumar Vs State of
H.P.) 2003(2) Criminal Court Cases 62 (H.P.)
- Search and seizure - I.O. remained for more than two hours at a crowded place
but still no independent witness joined - This casts doubt in the veracity of the
prosecution case. (Shambhu Ram Vs The State of Haryana) 2003(2) Criminal
Court Cases 342 (P&H)
- Search of bag in the hand of accused - Amounts to search of person of accused.
(Bhanwar Lal Vs State of Rajasthan) 2002(3) Criminal Court Cases 433 (Rajasthan)
- Second complaint on same facts - Previous complaint dismissed in default and
no reasons given for the second complaint - Second complaint dismissed. (Om
Parkash Bhatia Vs State of Punjab) 2002(1) Criminal Court Cases 632 (P&H)
- Seizure memo - I.O. not examined - Seizure witness turned hostile - Seizure not
proved - Ignoring seizures decision based on other evidence and evidence of two
eye witnesses reliable - Conviction - No interference. (Birendra Rai & Ors. Vs State
of Bihar) 2005(1) Criminal Court Cases 725 (S.C.)
Page 101
- Sentence - In awarding sentence the facts and given circumstances in each
case, the nature of the crime, the manner in which it was planned and committed,
the motive for commission of the crime, the conduct of the accused, the nature of
weapons used and all other attending circumstances are relevant facts which
would enter into the area of consideration. (State of Madhya Pradesh Vs
Ghanshyam Singh) AIR 2003 SC 3191, 2003 (2) ALT Cri 380, 2003 CriLJ 4339
2004(1) Criminal Court Cases 286 (S.C.)
- Sentence - Long pendency of a matter by itself cannot justify lesser sentence.
(State of Madhya Pradesh Vs Ghanshyam Singh) SEE NOTED ABOVE 2004(1)
Criminal Court Cases 286 (S.C.)
- Single eye witness - Conviction can be based on evidence of single eye witness
provided Court is totally and completely satisfied about not only the truth and
credibility but about the reliability with regard to every aspect of that evidence.
(State of Karnataka Vs Daya @ Dayananda) 2003(3) Criminal Court Cases 555
(Karnataka)
- Single witness - Conviction can be based on the testimony of a single witness if
he is wholly reliable - Corroboration may be necessary when he is only partially
reliable - If evidence is unblemished and beyond all possible criticism and the
Court is satisfied that the witness was speaking the truth then on his evidence
alone conviction can be maintained. (Evidence Act, 1872, S.134). (Chacko @
Aniyan Kunju & Ors. Vs State of Kerala) 2004 AIR SC 2688, 2004(1 )SCR900 , 2004(12
)SCC269 , 2004(1 )SCALE625 , 2004(1 )JT358 ... 2004(3) Criminal Court Cases 48
(S.C.)
- Single witness - If neither wholly reliable nor wholly unreliable Court to look for
corroboration in material particulars by reliable testimony, direct or
circumstantial, before acting upon testimony of a single witness. (Lallu Manjhi Vs
State of Jharkhand) 2003 AIR SC 854, 2003( 1 )SCR 1, 2003( 2 )SCC 401, 2003(
1 )SCALE14
- Single witness - Partly reliable and partly unreliable - It is hazardous to base
conviction upon the uncorroborated testimony of a single witness who has been
found to be partly reliable and partly unreliable. (Qamruddin Vs State of U.P.)
2002(2) Criminal Court Cases 527 (All.)
- Site plan - Merely because name of PW-2 did not appear at the site plan that
does not render his presence at the place of occurrence improbable. (Surinder
Page 102
Singh Vs State of U.P.) AIR 2003 SC 3811, 2003 CriLJ 4446,
Sitting other witness in Court while trail ;- The court has, under the proviso to
Sec. 327 (1) Cr.P.C., the power to order that any particular person, witness or
police officer not under examination shall not remain in the court room. A general
direction can be given to the Public Prosecutor that occurrence witnesses to be
examined are not allowed to remain in the court hall till their turn arrives. When
the accused objects to the presence of a police officer or other person inside the
court hall, the trial judge has to consider his objections, having regard to the
intelligence and the susceptibilities of the class to which he belongs and such
other relevant circumstances ( State v. Charulata Joshi - AIR 1999 SC 1373;
- Sketch - Murder and dacoity at night time - Omission to indicate location of gas
light in site plan is not fatal when FIR is lodged without unreasonable delay. (State
of U.P. Vs Babu & Ors.) AIR 2003 SC 3408, 2004 (1) ALD Cri 15, 2003 CriLJ 4982
- Sketch map - Prepared by I.O. - No evidence adduced with reference to the
sketch by the witnesses - Sketch is not of much use unless some of the witnesses
state as to the state of affairs at the scene. (State of Himachal Pradesh Vs Prem
Chand) 2003 AIRSC 708 , , 2002(10 )SCC518 , 2002(9 )SCALE328 , 2003(1)
Criminal Court Cases 680 (S.C.)
- Sole child witness - Conviction not sustainable solely upon testimony of a solitary
child witness when there is a serious doubt as to whether she knew the accused
at all when the occurrence took place. (Jagjit Singh @ Jagga Vs State of Punjab)
AIR 2005 SC 913, 2005 (1) ALD Cri 741, 2005 CriLJ 955
- Sole eye witness - If his testimony does not suffer from any infirmity it can form
basis of conviction - Conviction can be based on the sole testimony of a witness if
Court is fully satisfied that such witness is truthful witness and his presence at the
time of occurrence has been proved beyond reasonable doubt. (Nisar Vs State of
Rajasthan) 2003(1) Criminal Court Cases 109 (Rajasthan)
- Sole testimony - Conviction can be based on the sole testimony of a witness
provided it finds corroboration from other physical factors and circumstances - It
is also of no consequence that the sole witness is the police personnel. (Alim Ullah
Vs State of U.P.) 2003(3) Criminal Court Cases 407 (Allahabad)
- Sole witness - Court can and may act on the testimony of a single witness
provided he is wholly reliable - If there are doubts about the testimony the courts
Page 103
will insist for corroboration - It is not the number, the quantity, but the quality that
is material - Evidence has to be weighed and not counted. (Evidence Act, 1872,
S.134). (Sunil Kumar Vs The State Govt. of NCT of Delhi) 2004 AIR 552 , 2003(4
)Suppl.SCR767 , 2003(11 )SCC367 , 2003(8 )SCALE633 , 2003(2 )Suppl.JT426
2004(1) Criminal Court Cases 524 (S.C.)
- Sole witness - When a case is based upon the testimony of the only witness, his
statement must be confident and inspiring, leaving no doubt in the mind of the
court being above from all suspicions. (State of Haryana Vs Inder Singh) (2002) 9
SCC 537 2002(2) Criminal Court Cases 464 (S.C.)
- Solitary witness - Conviction can be based on his evidence provided the witness
is wholly reliable and his evidence is unimpeachable. (Ashok Kumar Gupta Vs
State of Bihar) 2004(3) Criminal Court Cases 508 (Patna)
- Solitary witness - Conviction can be based on the evidence of a solitary witness if
it is found reliable and trustworthy and inspires confidence. (Surendra Prasad Vs
State of Bihar) 2004(1) Criminal Court Cases 408 (Patna)
- Some of the accused acquitted - Same direct evidence against all - Does not
lead as a necessary corollary that those who have been convicted must also be
acquitted - It is always open to a Court to differentiate accused who had been
acquitted from those who were convicted. (Krishna Mochi & Ors. Vs State of Bihar)
2002 AIR SC 1965, 2002( 3 )SCR 1, 2002( 6 )SCC 81, 2002( 3 )
- Specific names of children PW2 and PW4 not mentioned in fard beyan as well as
in statement before police but stated that at the relevant time children of her
family were also at the place of occurrence - It will not negative the presence of
PW2 and PW4 at the place of occurrence. (Shankar Mahto & Anr. Vs State of
Bihar) AIR 2002 SC 2857, 2002 (2) ALD Cri 388
- Speedy trial - No time limit can be prescribed for conclusion of trial - Each case
has to be judged on its own special features - Court to see whether delayed trial
become oppressive and unwarranted. (State through CBI Vs Dr.Narayan Waman
Nerukar) 2002 AIR SC2977, 2002( 1 )Suppl.SCR 676, 2002( 7 )SCC 6,
2002( 6 )SCALE95 = 2003(1) Criminal Court Cases 07 (S.C.)
- Spot witness wrongly identifying accused in cross examination - Mistake indicate
that witness is not telling the truth and his presence at the time of occurrence is
Page 104
doubtful and that he had not witnessed the occurrence otherwise he would have
rightly identified the accused person who had actually shot the deceased.
(Ramesh & Ors. Vs State of U.P.) 2005(2) Criminal Court Cases 156 (Allahabad)
- Statement of witness recorded 10 days after occurrence despite his availability -
Before giving statement to police, witness did not divulge incident to anybody in
village - It is dangerous and immensely risky to act upon such evidence to sustain
conviction. (Santosh Kumar Bhukta Vs State of Orissa) 2004(2) Criminal Court
Cases 517 (Orissa)
- Statutory provision - Requirement of statutory provision cannot be dispensed
with as a result of agreement between the parties. (Kamal Prasad Singh Vs State
of Bihar) 2003(3) Criminal Court Cases 506 (Patna)
- Stock witness - Appearance as a witness in two prosecution cases - Not a stock
witness in absence of any other evidence to show he is a stock witness. (Ramesh
Kumar Vs State of Himachal Pradesh) 2002(3) Criminal Court Cases 504 (H.P.)
- Stock witness - Recovery of opium - Eye witness to recovery was a stock witness
who had been cited as a witness in ten other cases u/s 15 of NDPS Act - These
cases relating to the year 1995 (1 case), 1997(1 case) and 1998 (8 cases) - This
witness not examined at trial and given up having been won over - Character of
this witness cannot be impeached unless he had appeared as a witness and cross
examined - Fact remains that police invariably had this witness as a recovery
witness - This brings a sort of taint to the whole investigation - Conviction set
aside. (Narcotic Drugs and Psychotropic Substances Act, 1985, S.18). (Raj Kumar
Vs State of Punjab) 2005(1) Criminal Court Cases 368 (P&H)
- Suspicion - Circumstances appearing from record creating suspicion that
accused might have killed the deceased considering his past conduct and
relationship with the deceased - However, suspicion cannot take place of proof.
(Bigan Prajapat Vs State of Bihar) 2004(3) Criminal Court Cases 680 (Patna)
- Suspicion - However strong it may be cannot take the place of proof. (Anjlus
Dungdung Vs State of Jharkhand) 2005 AIR SC 1394, , 2005(9 )SCC765 , 2004(8
)SCALE452 , 2004(8 )JT583 2005(1) Criminal Court Cases 246 (S.C.)
- Sworn affidavits of witnesses Ex.DB & DC that injuries were caused by some
other persons and the same were not attributable to the accused - Two witnesses
examined and both related to the injured - Occurrence took place in a cattle fair
Page 105
where there was a large crowd but independent witnesses not joined - Held,
prosecution failed to prove the guilt of accused - Conviction set aside. (Mohan Vs
State of Punjab) 2003(2) Criminal Court Cases 640 (P&H)
- T.I. parade - P.W.1 failed to identify in T.I. parade held 4-1/2 months after the
occurrence - Evidence identifying in Court about one year after the date of
occurrence - Not to be accepted. (Nimai Bhandari @ Barik & Anr. Vs State)
2003(1) Criminal Court Cases 690 (Orissa)
Surrender —Refusal to grant bail to accused who did not appear before the Magistrate but staying the arrest to enable the accused to move to Sessions court without surrendering to Police—The conduct is contrary to mandatory provision of Section 439 Criminal Procedure Code, 1973.( Niranjan Singh and another V. Prabhakr Rajaram Kharote and others 1980 CrLJ 426 : 1980 AIR (SC) 785 :
- Telephonic message by Sarpanch at 11.00 P.M. of cognizable offence - A note of
it not made in station diary - Place of occurrence 4 kms. from police station -
Police reached place of occurrence at 6.30 A.M. next morning - It leads to doubt
that Sarpanch reported the matter to police at 11.00 P.M. (State of Andhra
Pradesh Vs Patnam Anandam) 2005 AIR SC 764 , , 2005(9 )SCC237 , , 2005(11
)JT461 2005(1) Criminal Court Cases 851 (S.C.)
- Test identification parade - Train robbery - Test identification parade held after
36 days - Eye witnesses travelled for seven hours in same compartment - Had
ample opportunity of noticing facial features of accused in light in compartment -
Accused proved to be kept 'baparda' right from day of their arrest - Held, in such
circumstances delay in holding parade is of no consequence. (Lal Singh & Ors. Vs
State of Uttar Pradesh) 2004 AIR SC 299 , , 2003(12 )SCC554 ,
2003(9 )SCALE256 , 2003(8 )JT488 2004(1) Criminal Court Cases 606 (S.C.)
- Test identification parade - Conducted after 35 days of arrest - Nothing to show
that prosecution had taken care to ensure that identity of appellant was not
revealed when they were produced in Court - It would be unsafe to place implicit
reliance on evidence of identification. (Shyam Singh & Anr. Vs State of U.P.)
2003(2) Criminal Court Cases 128 (Allahabad)
- Test identification parade - Delay - It is desirable to hold test identification
parade at the earliest possible opportunity - However, no hard and fast rule can
be laid down in this regard - If delay is inordinate and there is evidence
probabilising the possibility of the accused having been shown to the witnesses,
Court may not act on the basis of such evidence - Moreover, cases where
conviction is based not solely on the basis of identification in Court, but on the
Page 106
basis of other corroborative evidence, such as recovery of looted articles, case
stand on a different footing and the Court has to consider the evidence in its
entirety. (Lal Singh & Ors. Vs State of Uttar Pradesh)SSEEEE N NOTEDOTED ABOVEABOVE TESTTEST OFOF
IIDENTIFICATIONDENTIFICATION 2004(1) Criminal Court Cases 606 (S.C.)
- Test Identification Parade-Effect of mistake —Large number of accused persons involved in murder charge—Witness identifying nine persons out of forty-six making three correct identification and six mistake—Reliance on such witness is not possible.( Vaikuntam Chndrappa and others V. State of A.P 1960 AIR (SC) 1340 : 1960 CrLJ 1681
- Test identification parade - Law as to - Enumerated. (Dana Yadav @ Dahu & Ors.
Vs State of Bihar) AIR 2002 SC 3325, 2002 (2) ALD Cri 729
- Test identification parade - Non holding of - By itself does not disprove the
prosecution case - To what extent and if at all the same would adversely affect
the prosecution case, depends upon the facts and circumstances of each case.
(Dastagir Sab & Anr. Vs State of Karnataka) 2004 AIR 2884, 2004(1 )SCR952 ,
2004(3 )SCC106 , 2004(2 )SCALE8 2004(2) Criminal Court Cases 399 (S.C.)
- Test identification parade - Not held - Accused identified for the first time during
trial - Evidence of eye witnesses identifying the accused for the first time during
trial does not become inadmissible or totally useless - Evidence whether deserves
any credence or not depends on the facts and circumstances of each case.
(Chandresh Paswan Vs State of U.P.) 2002(2) Criminal Court Cases 132 (All.)
- Test identification parade - Rape of girl aged 8 years - No identification parade
held - Accused too did not apply for test identification parade - Accused cannot
take advantage that he was not put to test identification parade. (Bhupinder Vs
State of Haryana) 2002(1) Criminal Court Cases 639 (P&H)
- Test identification parade - Should not be held in police station buildings and
separate rooms should be reserved for holding identification parades in separate
buildings from the police station. (Anthony @ Tony William Rosario Vs State of
Maharashtra) 2004(1) Criminal Court Cases 344 (Bombay)
- Testimony of a witness can be rejected qua some accused and can be believed
qua some other accused. (Sher Singh Vs The State of Rajasthan) 2004(2)
Criminal Court Cases 18 (Rajasthan)
- There is no hard and fast rule that the names of all witnesses more particularly
Page 107
eye-witnesses should be indicated in the FIR. (State of Madhya Pradesh Vs
Mansingh & Ors.) 2003 (2) ALT Cri 368, JT 2003 (1) SC 252 SCC414 , 2003(6)
- Three accused - Conviction - Appeal by two - Conviction based solely on
evidence of identification - Evidence of identification found not reliable to sustain
conviction - Case of third accused who had not appealed was not distinguished -
His conviction also liable to be set aside. (Nirmal Pasi & Anr. Vs State of Bihar)
2003 (1) ALD Cri 628, JT 2002 (6) SC 28
- Three eye witnesses - Patent inconsistency between one eye witness on one side
and two on the other side - If one set is to be accepted, other set has necessarily
to be rejected as they are mutually destructive and it is impossible to reconcile
two sets - When it is impossible to hold with certainty as to which of two sets
represents the truth, it is unsafe to rely on either of two for conviction - In such a
situation there is no option except to afford the benefit of doubt to the accused.
(State Vs Vaijinath) 2003(1) Criminal Court Cases 84 (Karnataka)
- Three eye witnesses examined - Their testimony cannot be discarded on the
ground that other persons who may have collected at the spot were not examined
- It would have been better if some more persons who may have collected at the
spot at the time of incident had been examined but their non examination will not
as such erode the credibility of the testimony of the witnesses examined. (Dhanraj
& Ors. Vs State of Maharashtra) 2002 AIR 3302, , 2002( 7 )SCC 425,
2002( 6 )SCALE474 , 2002( 7 )JT 160 2003(2)
- Time - Villagers do not have a mathematical idea of the actual time. (Jeeva @
Khema Vs State of Rajasthan) 2005(1) Criminal Court Cases 90 (Rajasthan)
- Time of death - Medical science is not yet so perfect as to determine exact
time of death nor can the same be determined in a computerised or mathematical
fashion so as to be accurate to the last second. (Ram Bali Vs State of Uttar
Pradesh) 2004 AIR 2329, 2004(1 )Suppl.SCR195 , 2004(10 )SCC598 RRELIEDELIED ONON
Pattipati Venkaiah v. State of A.P., AIR (1985) SC 1715 =1985 CriLJ 2012 (PRIVATE
DOCTORS CAN TREAT AND REPORT IN MLC CASES
= Andhra High CourtBandi Narendra Kumar vs State Of A.P. on 4 September, 2002 : 2002 (2) ALD Cri 476, 2002 (5)
ALT 129
LEGAL DUTIES OF A MEDICAL PRACTITIONER IN DEALING WITH POISONING CASES
Page 108
During his professional career, every general medical practitioner
comes across many cases of poisoning. In our country, a majority of the
cases of poisoning are suicidal/ accidental in nature. Rarely do we come
across a case of homicidal poisoning.
Whenever a victim of poisoning is brought to a medical practitioner, even
though it is a medico-legal case, medical responsibilities of the doctor
assume first importance i.e. saving the life of the patient. Legal duties, i.e.
informing the legal authorities and other related procedures always take a
back seat in such instances.
Therefore the legal duties of the medical practitioner are likely to be
missed during the management of the poisoned patient.
* As soon as the doctor agrees to treat a patient, the doctor-patient
relationship is established. It then becomes the duty of a doctor to treat
the patient.
*A doctor working in a government hospital can never refuse treatment to
a patient of poisoning. *On the other hand, a private practitioner has the
right to choose a patient and hence, can refuse to treat a case of
poisoning.
*Though every doctor has a right to choose a patient (i.e. he can refuse to
treat any patient), as per the Supreme Court Ruling (Parmananda Katara
Vs Union of India) 1989 AIR SC 2039, 1989 SCR (3) 997,) no doctor shall
refuse to treat a patient in emergency. In the same case, the MCI filed an
affidavit stating that “the MCI expects that all registered medical
practitioners must attend to the sick and the injured immediately and it is
the duty of the medical practitioner to make immediate and timely medical
care available to every injured person, whether he is injured in an accident
or otherwise…..Life of a person is far more important than the legal
formalities.” However, in such cases, the doctor-patient relationship is not
established till the patient has been given first-aid treatment and is in a
position to give consent for further treatment or medico-legal examination.
All legal formalities stand suspended till the patient’s life is out of danger.
The duty of the doctor to provide medical aid, even in MLCs, has been
extended to the private doctors also as exemplified by the High Court of
Andhra Pradesh in Pattipati Venkaiah Vs State of AP. CITED
ABOVE )Therefore, it is unethical to refuse any case of emergency like
poisoning.
*A medical practitioner must remember that he is protected against any
harm done in good faith to a patient in an emergency situation ethically as
well as legally as per Section 92 IPC.
Page 109
*In order to avoid any legal or medical complications, it is always advisable
to consult a senior colleague in cases of doubt or otherwise.
*In the absence of tell-tale signs and symptoms of poisoning, observation
of the patient for at least 24 hours is a good practice and can help medical
practitioners avoid a lot of suits of negligence being filed against them.
*If working in a government hospital, a doctor is bound to inform the legal
authorities of all the cases of poisoning regardless of their manner, either
suicidal/accidental/homicidal.
*A private medical practitioner, on the other hand, is not legally bound to
inform the legal authorities of all the cases of poisoning. He only has a
legal obligation to inform in homicidal cases of poisoning as per Section 39
CrPC. He is not bound to inform the legal authorities if he is sure the case
is suicidal/ accidental in nature. However, as doctor is not an investigating
officer and can never be sure about the manner of poisoning, to be on the
safer side, he should always inform the legal authorities about any case of
poisoning.
*Failure to inform the police in a case of homicidal poisoning makes the
doctor liable for prosecution under Section 176 IPC [punishment is simple
imprisonment of 1 month or fine of Rs. 500/- or both].
*In circumstance of death in a case of poisoning (irrespective of whether
the police was informed of the case or not due to any reason), death
certificate should not be issued and the body should be handed over to the
legal authorities for a medico-legal postmortem examination.
*If an investigating officer inquires about a case of poisoning, regardless of
its nature, the medical practitioner is expected to report all details to him
(without taking excuse of professional secrecy) failing which he can be
penalized under Sections 193 IPC [punishment is imprisonment of either
description upto 7 years with fine] and 202 IPC [punishment is
imprisonment of either description upto 6 months or fine or both].
*If the doctor provides false information, then he is liable to be punished
under Section 177 IPC [punishment is of simple imprisonment for 6 months
or fine of Rs. 1000 or both]. It is the duty of a medical practitioner to
collect and preserve any evidence suggestive of ( Courtesy= Medical
Council Of India ,KV.S.S. Prabhakar Rao Advocate Rajahmundry)
- Time of occurrence - 7.00 p.m. or 10.00 p.m. - PW4 stated it to be 7.00 p.m.
whereas PW3 has given time of occurrence in between 9.00 and 10.00 p.m. - It is
a great variation and it cannot be attributed merely to the inability of the
witnesses hailing from the village to give correct time - PW3 signed in Hindi and
he is a 'Lambardar' and PW4 signed in English - Held, witnesses are not illiterate
Page 110
persons though living in a village - It is difficult to assume that they will not have
the idea of time - PW3 has come forward with the story that the incident
happened between 9.00 and 10.00 p.m. to cover up the delay as report to police
was given at 11.20 p.m. (Harjinder Singh @ Bhola Vs State of Punjab) 2004 AIR
3962, , 2004(11 )SCC253 , 2004(6 )SCALE289 , 2004(6 )JT23
- Time of occurrence - Variance between oral evidence and medical evidence -
Witnesses when rustic villagers who have no sense of time, slight variance in time
cannot be reason to discard their evidence which otherwise conforms to
probability in testimony already delivered. (Karbasappa & Ors. Vs State Through
Narona Police Station) 2004(4) Criminal Court Cases 332 (Karnataka)
- Transfer of investigation - Body abducted - Not recovered for one year -
Investigation not yet complete - None of accused arrested, nor FIR submitted -
Investigation not prompt - Case transferred for investigation by CBI. (Prem Chand
Vs State of Rajasthan & Ors.) 2002(1) Criminal Court Cases 259 (Raj.)
- Two or more offences - If one offence is cognizable then case shall be deemed to
be a cognizable case notwithstanding that the other offences are non-cognizable.
(Vaman Narayan Ghiya Vs State of Rajasthan) 2004(3) Criminal Court Cases 08
(Rajasthan)
- Two views - In the event of there being two possible views, the one supporting
the accused should be upheld. (Narendra Singh & Anr. Vs State of M.P.) 2004 AIR
3249, 2004(3 )SCR1148, 2004(10 )SCC699 , 2004(4 )SCALE543 ,
2004(1 )Suppl.JT29 2004(3) Criminal Court Cases 705 (S.C.)
- Version given in FIR changed subsequently while giving evidence to suit medical
evidence - Erodes credibility of prosecution version. (Debi Prasad Panda Vs State
of Orissa) 2003(1) Criminal Court Cases 409 (Orissa)
“ VE MAR GAYE” - Expression “Ve” cannot be said definitely to be used for
husband - “Ve” though is often used by ladies as a respectful term while referring
to the husbands but it is not possible to say definitely that the said expression
was used not in the normal plural sense but with reference to her husband.
(Rajkumar Vs State of M.P.) 2004 AIR SC 4408, , 2004(12 )SCC77 , ) Crl. Appeal NO 120 /2004, Dt
14-9-2004 ( Sec. 304- Part II, 498- A , IP.C. )
- Weapon of offence - Non recovery - Sticks used in commission of offence not
recovered - Not a ground to throw out the prosecution case when the same has
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been otherwise found to be truthful by credible evidence. (Rajinder Vs State of
Haryana) 2005(1) Criminal Court Cases 274 (S.C.)
- When there are contradictions and omissions of serious nature casting doubt on
prosecution case, conviction of accused cannot be sustained. (State of H.P. Vs
Sukhvinder Singh) 2004 AIR SC 2834, , 2004(12 )SCC101 , 2004(2 )SCALE210 ,
2004(2 )JT194
- While assessing evidence one has to keep realities in view and not adopt a hyper
sensitive approach. (Damodar Vs State of Rajasthan) AIR 2003 SC 4414, 2003 (2)
ALD Cri 969, 2003 CriLJ 5014
- Witness - An adverse inference would be drawn in respect of a matter for which
no explanation is sought for from the relevant witnesses. (State of Punjab Vs
Pohla Singh & Anr.) AIR 2003 SC 4407, 2003 CriLJ 5010
- Witness - Can be believed and disbelieved in part. (Gopal & Ors. Vs State of M.P.)
2003(2) Criminal Court Cases 266 (M.P.)
- Witness - Credibility - Contradiction with statement u/s 161 - Omission to state a
fact - Omission must be a significant one and relevant - An omission to be
significant must depend upon whether the specific question, the answer to which
is omitted, was asked of the witness by the police officer during investigation.
(Sadhuram & Anr. Vs State of Rajasthan) 2002(1) Criminal Court Cases 390 (Raj.)
- Witness - Evidence of witnesses cannot be discarded merely because their
statements were recorded under Section 164 Cr.P.C. - All that is required as a
matter of caution is a careful analysis of the evidence. (State of Madhya Pradesh
Vs Mansingh & Ors.) , 2003(2 )Suppl.SCR460 , 2003(10 )SCC414 ,
2003(6 )SCALE429 , 2003(1 )Suppl.JT252 2003 (2) ALT Cri 368, 2003(2) Apex
Court Judgments 277 (S.C.) : 2003(3) Criminal Court Cases 559 (S.C.)
- Witness - Intending to change his earlier testimony - Held, if a witness who
deposed one way earlier comes before the appellate Court with a prayer that he is
prepared to give evidence which is materially different from what he has given
earlier at the trial with the reasons for the earlier lapse, Court can consider the
genuineness of the prayer in the context as to whether the party concerned had a
fair opportunity to speak the truth earlier and in an appropriate case accept it.
(Zahira Habibulla H.Sheikh & Anr. Vs State of Gujarat & Ors.) 2006 AIR 1367,
2006(2 )SCR1081, 2006(3 )SCC374 , 2006(3 )SCALE104 , 2006(3 )JT399 (
Best Bakery Case k.v.s.s.prabhakar advocate )
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Witness—Re-examination—Sec 138 Considerations for exercise of power
for re-examination of witness—The re-examination cannot be limited to
one or two questions and any number of questions can be asked. There is
no warrant that re-examination should be limited to one or two questions.
If the exigency requires any number of questions can be asked in
re-examination. ( Rammi alias Rameswhwar V. State of Madhya Pradesh )
1999 CrLJ 4561 : 1999 AIR (SC) 3544 : 1999(8) SCC 649 : 1999 (2) Jab LJ 354 :
1999(4) Rec CrR 246 : 1999(39) All CrR 762 and AIR 1995 SC 1601
- Witness - Won over - Prosecution cannot be compelled to examine a witness who
has been won over and no adverse inference can be drawn for non-examination of
such witness. (Tunai Sharma Vs State of Bihar) 2003(2) Criminal Court Cases 223
(Patna)
- Witness belonged to a different area and had no business to be near the place of
occurrence - Not a ground to disbelieve his evidence. (State of Uttar Pradesh Vs
Farid Khan & Ors.) 2004 AIR 5050, , 2005(9 )SCC103 , 2004(8 )SCALE139 ,
2004(8 )JT322
- Witness closely connected with the deceased in view of the fact that he was a
teacher in the School of which deceased was the Manager - By this it cannot be
presumed that this witness has volunteered to be a false witness. (Jai Sree Yadav
Vs State of U.P.) 2004 AIR 4443, , 2005(9 )SCC788 , 2004(6 )SCALE587 , 2004(6
)JT519
- Witness examined earlier when wants to change his stand - Court not to readily
accede to such request - If the witness gives reasons for the earlier lapse, only
then Court can consider the genuineness of the prayer in the context as to
whether the party concerned had a fair opportunity to speak the truth earlier and
in an appropriate case accept it. (Anil Sharma & Ors. Vs State of Jharkhand) 2004
AIR 2294, 2004(1 )Suppl.SCR907 , 2004(5 )SCC679 , 2004(5 )SCALE289 ,
2004(1 )Suppl.JT559
- Witness not available to police for 10 days after the incident - Plausible
explanation given that he was afraid for his safety hence he went to his in-laws'
Page 113
place and remained there and it is only when things settled down he decided to
come out and give a statement to the police - I.O. stated that there was tension in
the village at the time of funeral of the deceased, which proves the apprehension
of the witness for his non availability to the investigating agency. (Jai Sree Yadav
Vs State of U.P.) 2004 AIR 4443, , 2005(9 )SCC788 , 2004(6 )SCALE587 , 2004(6
)JT519
- Witness reaching spot after occurrence - Evidence of such witness is of no value.
(Vijay Kumar Vs The State of Rajasthan) 2002(3) Criminal Court Cases 325
(Rajasthan)
- Witnesses - Minor contradictions - Instead of discarding their testimony
strengthens the case of the prosecution as witnesses are truthful and have not
made parrot like statement. (Allarakha K.Mansuri Vs State of Gujarat) 2002 AIR
1051, 2002( 1 )SCR1011, 2002( 3 )SCC 57, 2002( 2 )SCALE131 , 2002( 2 )JT 63
- Witnesses gathered at the spot and put on guard of the dead body not examined
- Witness given up as being unnecessary - Evidence of persons who gathered
immediately after the occurrence would have been valuable piece of evidence to
serve as corroboration of the account given by the direct witnesses, especially
when presence of the alleged eye witnesses at the spot was too much of
coincidence - This is a serious lapse which casts a doubt on the prosecution case.
(Harjinder Singh @ Bhola Vs State of Punjab) 2004 AIR 3962, , 2004(11 )SCC253 ,
2004(6 )SCALE289 , 2004(6 )JT23 ( Noted Time of occurrence kvssprabhakar advocate)
- Witnesses partly not trustworthy - Simply because the statements of the
witnesses are partly not trustworthy that does not mean that the whole of the
testimony of the witnesses should be discarded. (State of Karnataka Vs Papanaika
& Ors.) 2004 AIR 4967, , , 2004(8 )SCALE774 , 2004(9 )JT161
