Once the witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from the testimony given in Court on oath.

 It is clear from the testimony of Munnabhai @ Geti as a prosecution witness that although he is not an eye-witness of the incident, yet he throws light on the conduct of the accused on the day of the incident around the time of incident. His testimony together with the testimony of Investigating Officer corroborates the presence of PW-2 at the place of the incident.

Significantly this witness, later on filed an affidavit, wherein he had sworn to the fact that whatever he had deposed before Court as PW-1 was not true and it was so done at the instance of Police.

The averments in the affidavit are rightly rejected by the High Court and also the Sessions Court. Once the witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from the testimony given in Court on oath. It is pertinent to note that during the intervening period between giving of evidence as PW-1 and filing of affidavit in Court later he was in jail in a narcotic case and that the accused persons were also fellow inmates there.

Supreme Court of India

Yakub Ismailbhai Patel vs State Of Gujarat on 31 August, 2004

The present criminal appeal arises out of the judgment and order dated 29.08.2003 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 327 of 1998 wherein the High Court confirmed the conviction of the Appellant along with two other co-accused for offence under Section 302 read with Section 34 of the I.P.C. and sentenced them to imprisonment for life.
The brief facts of the present case are as under:
On 25.08.1995 at about 13.15 hrs. the Ahmedabad Railway Police received a Vardhi from one Abdulmajid that a knife blow has been inflicted on Nazim at Kankaria Loco Shed. On the strength of the said entry, Police Sub-Inspector went to the scene of occurrence, prepared inquest report of dead body and also drew panchanama of scene of occurrence. In the meantime, at about 17.40 hrs. complaint was given by Munna @ Gheti Mohamadshafi Shaikh. In the said complaint, it is stated that he happens to be a friend of Nizamuddin Ismailbhai (deceased) for the last 15 years and the said Nizamuddin has been allotted one quarter in B scale colony of Kankaria railway colony, but he was not residing there. He gave the quarter to his relative. Nearby the quarter of Nizamuddin, Yakubbhai Patel (accused No.1) was residing. The Complainant also used to visit the said quarter along with Nizamuddin. On 24.08.1995, there was altercation and quarrel in between accused No.1 and deceased in respect to the said quarter, as he wanted to get it evicted. On 25.08.1995, the day of the incident, while the said Munna @ Gheti was returning from the house of his friend, somewhere near Kankaria railway colony, he saw accused No.1 and accused No.2 along with other person. They were running. There was Jamaiya (kukari) in the hands of accused Nos.1 and 2. Therefore, he went towards the fuel room of diesel shed, where he saw the dead body of Nizamuddin in a pool of blood lying near the railway track. One Raju was also there. In the inquiry, he could gather from the said Raju that accused No.1 and 2 along with one another person had inflicted injuries on the person Nizamuddin and thus has resulted into death. The said Munna had also seen the injury on the throat and on the face of Nizamuddin.
During investigation, police recorded the statements of witnesses, panchanamas were drawn in respect of the clothes of the deceased, discovery of weapons at the instance of the accused persons and post mortem note of the deceased was collected. Incriminating articles were also collected for having scientific examination. Police arrested accused Nos. 1 and 2 and Tapan @ Tondi Shashdhar accused No.3 on 19.09.1995. After completion of investigation, accused came to be charge-sheeted on 16.12.1995 before the Metropolitan Magistrate, Court No.5, Ahmedabad. The said charge-sheet was for the alleged offences punishable under Sections 302 and 304 of the I.P.C. and Section 135 of the Bombay Police Act. It was numbered as Criminal Case No. 2833 of 1995. The Metropolitan Magistrate, in turn, committed the said Criminal Case No. 2833 of 1995 of his file to the Court of Sessions Ahmedabad on 01.02.1996 and it was numbered as Sessions Case No. 101 of 1996. Charge was framed against all the three accused. They pleaded not guilty to the charges and claimed to be tried.
The prosecution, in order to prove the charge against the accused, examined 14 witnesses and also relied on documentary evidence which consisted of FIR, Panchanama of place of incident, recovery of weapons panchanama from the present appellants. The appellants have also examined D.W. 1 Munna @ Gheti Mohammadsami Shaikh and produced documentary evidence.
After the prosecution case was over, the appellants were questioned with regard to the evidence led by the prosecution against them and their statements were recorded under Section 313 of the Code. In their further statements, all the appellants have denied the alleged part played by them in the commission of the offence. However, they gave application to examine the Complainant Munna @ Gheti Mohammadshafi Shaikh as defence witness.
The Additional Sessions Judge, after appreciating the oral and documentary evidence and arguments advanced by the respective counsel for the prosecution as well as the defence, held that on the day of incident i.e. 25.08.1995 all the appellants had common intention to kill the deceased. It was further held that the deceased Nizamuddin died a homicidal death. In the light of this, the Additional Sessions Judge convicted all the appellants and sentenced them, as stated above, which has given rise to the appeal before the High Court. The High Court, after considering the entire evidence and the facts and circumstances of the case, found themselves in complete agreement with the reasoning and findings of the Sessions Judge and dismissed the appeal and gave liberty to the trial Court to proceed against the witness Munna @ Gheti under Section 344 of the Cr.P.C. Aggrieved by the order of the High Court, the appellant has preferred the special leave petition before this Court. Leave was granted on 12.01.2004.
We heard Mr. Huzefa Ahmadi, learned counsel appearing for the Appellant ably assisted by Mr. Nakul Dewan and Mr. Ejaz Maqbool and Mr. Madhukar, learned counsel for the Respondent ably assisted by Ms. Sadhana Sandhu and Ms. Hemantika Wahi. We have been taken through the pleadings, the evidence let in and the documents produced by learned counsel appearing on either side.
Mr. Huzefa Ahmadi, learned counsel appearing for the appellant, made the following submissions:
a) the Courts below have relied upon the sole testimony of PW-2 and, therefore, no reliance can be placed on the statement of PW-1; b) the Courts have disbelieved the statement of PW-1 and have based the conviction solely on the ocular testimony of PW-2;
c) No other eye-witness supports the case;
d) In any event, it is evident that the statements of PW-1 and PW-2, far from establishing their respective presence near the railway tracks are, in fact, contradictory. In order to establish the above contention, learned counsel for the appellant drew our attention to the following extract from the judgment of the High Court:
"Thereafter, he saw the body of deceased Nizamuddin lying in a pool of blood. He saw Raju standing near the body for Nizamuddin. Raju told the witness that Yakub Patel and other accused persons gave blow to Nizamuddin and ran away. Subsequently, Raju and witness went to police station to lodge complaint which is given mark 10/1.
The witness came after some time and he saw the body of Nizamuddin at a distance of 200 ft. from the office. He did not see any blood on way to his office. Munna @ Geti was standing near deceased Nizamuddin before witness went there."
According to learned counsel for the appellant, the following is evident from the above extract:
? There is clear dichotomy between the statements of PW-1 and PW-2 as regards who was there first at the railway tracks near the body; ? If, indeed, the sole eye-witness PW-2 is to be believed, then it is PW-1 who reached the railway tracks first and not vice versa. Therefore, PW- 1's statement that he had seen three persons running away while he was approaching the railway tracks and that he was told by PW-2 that said persons killed the deceased is wholly unbelievable.
Learned counsel for the appellant further submitted that no T.I. Parade was conducted for accused No.1. Learned counsel also pointed out the discrepancy between medical and ocular evidence. It was submitted that while the witnesses deposed that the accused had used jamiyas/kukaris which are blunt edged weapons, the medical evidence and the wounds show that sharp edged weapons were used. Learned counsel drew our attention to pages 17, 19, 22 and 23 of Volume-I of the paper-book.
It was further submitted that the weapon of offence was alleged to be kukari/jamiya which is a blunt weapon whereas the medical evidence shows that there were as many as 24 wounds caused by the sharp edged weapons. It was, therefore, submitted that the High Court in view of the discrepancy between the medical and ocular evidence ought not to have relied upon the ocular evidence to convict the accused.
The learned counsel brought to our notice the following discrepancies in the case of the prosecution:
STATEMENT OF PW-2:
The case of PW-2 is that on the request of the deceased, he accompanied the deceased to his office in order to enable the deceased to file a sick note. However, PW-2 had stated in his deposition that the deceased had not signed the muster roll, which the High Court has recorded as under:
"When they went to diesel shed on scooter, Nizamuddin did not sign the muster roll".
The statement of PW-2 is, however, belied by the fact that the muster roll was signed by the deceased. The High Court has recorded this as under: "As per muster roll exh. 66 it is clear that on 25.08.1995 the deceased was present on his duty."
He would submit that in view of the High Court noting the discrepancy, it ought not to have continued to place reliance on the statement of PW-2.
It was further submitted that PW-2 is not an employee of the railway and otherwise not a person who would ordinarily be at the scene of the offence. It was his submission that because the deceased was sick, at 7.30 AM he took the deceased to drop a sick note. The case of the prosecution is that both the persons were at one office for two and a half hours and then in another office for another two and a half hours and were, therefore, together from 12.30 AM to 1.00 PM when the alleged incident took place.
According to learned counsel for the appellant, it is inconceivable to believe that: i. A person who is sick and needs to be taken to office by a friend in order to drop a sick note, will continue to remain present in office;
ii. Even if the deceased had, in fact, decided to stay on, it is unbelievable that his friend would continue to remain with him and not attend to his daily work.
iii. Lastly, it is not as if the case of the prosecution is that the deceased had changed his mind about the sick note, or that he was feeling better on reaching his office. PW-2 has stated that the deceased did not sign the muster roll, a fact which has not proved to be untrue. SCENE OF THE OFFENCE:
In the deposition of PW-12, Police Sub-Inspector, the scene of the offence has been stated to be between two railway tracks. According to learned counsel for the appellant, this is contrary to the deposition of PW-2, who states that the deceased was attacked in the diesel shed 200 meters away. Learned counsel invited our attention to appreciate the deposition of PW-12, the Investigating Officer.
He has admitted that Fuel Room, gate of Fuel Room and the tracks of railway are distinct places. He volunteers that though, it may be called distinct, but it is nearby. He has admitted that no blood sample was obtained from the Fuel Room. He has admitted that he has not shown date and time of preparation of report exh. 48 when he reached at Loco Diesel Shed, dead body was not there. Dog squad was available however no trace was found out.
According to the learned counsel for the appellant, there is no explanation of how the body came to be found 200 meters away. No investigation was done on that behalf and even the dog squad could not determine the trace. Therefore, it is submitted that the prosecution version is not believable.
NO OTHER EYE-WITNESS SUPPORTS THE CASE:
Learned counsel for the appellant submitted that PW-2 in his deposition has stated that there were four other railway employees who were present at the scene of offence and, therefore, their deposition becomes necessary for unfolding the narrative.
In the present case, out of the four other alleged eye-witnesses, the prosecution only called upon PW-3 and PW-9 to depose as eye-witnesses and even these two eye- witnesses did not support the case of the prosecution. Thus it is submitted that the failure of the prosecution to call all material witnesses leads to an adverse inference against the prosecution under Section 114: illustration (g) of the Indian Evidence Act.
THE STATEMENT OF P.W.1 IS UNRELIABLE:
The learned counsel for the Respondent submitted that the statement of PW- 1 supports the case in identifying the accused persons. It was also his submission that the statement of PW-1 established the presence of PW-2 at the scene of the offence. According to learned counsel for the appellant, the said submission is devoid of merits for the following reasons:
a) the Courts below have relied upon the sole testimony of PW-2 and, therefore, no reliance can be placed on the statement of PW-1 at this stage; b) the Courts have disbelieved the statement of PW-1 and have based the conviction solely on the ocular testimony of PW-2;
c) In any event, it is evident that the statements of PW-1 and PW-2, far from establishing their respective presence near the railway tracks are, in fact, contradictory.
The learned counsel for the appellant made two legal propositions for consideration of this Court:
(1) THE TESTIMONY OF A SINGLE EYE-WITNESS MUST BE ENTIRELY RELIABLE FOR A CONVICTION:
According to Mr. Huzefa Ahmadi, the test for relying on the testimony of a sole eye-witness is based on the rule of caution, expounded by this Court in a catena of judgments. He placed reliance on the following judgments: 1) Joseph vs. State of Kerala, (2003) 1 SCC 465 which prescribes that the evidence of other witnesses must corroborate the single eye-witness. "When there is a sole witness to the incident his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable. Particularly, when the trial court had given cogent reasons to acquit the accused, the High Court ought not to have interfered with the same merely because another opinion is possible and not that the finding concluded by the trial court was impossible. The High Court did not follow the aforesaid standard but went on to analyse evidence as if the material before them was given for the first time and not in appeal. (Paras 12 & 13)
2) Suresh Chaudhary vs. State of Bihar, (2003) 4 SCC 128 In the above case, this Court while setting aside the sentence of conviction of two Courts below advocated the Rule of Caution.
3) The Rule of Caution has also been advocated by this Court in Shahbuddin Abdul Kahlik Shaikh vs. State of Gujarat, 1995 Supp (2) SCC 441.
4) The aforesaid judgments are based on the judgment of this Court in Vadivelu Thevar etc. vs. The State of Madras etc., AIR 1957 SC 614 wherein this Court has divided the appreciation of evidence into three categories, namely: (1) wholly reliable; (2) wholly unreliable; and (3) Neither wholly reliable nor wholly unreliable and thereafter stated that 'it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable'.
5) The above view emerges from the view of the Privy Council in Mohamed Sugal Esa vs. The King, AIR 1946 PC 3.
"In England where provision has been made for the reception of unsworn evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accused. But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a Court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law."
Mr. Ahmadi, in view of the above judgments and of the facts stated above, submitted that the statement of PW-2, sole eye-witness fails to meet the test of 'entire reliability' and, therefore, cannot be the basis for convicting the accused and that the testimony of PW-2 to the effect that there were other employees present at the time of the occurrence is belied by the evidence of two of the said employees, who have deposed otherwise and, therefore, the evidence of the other two witnesses far from corroborating the sole eye-witness account in fact belies it.
The learned counsel for the appellant then concentrated on the second legal proposition, namely, non-production of material witnesses leads to an adverse inference against the prosecution:
It was contended that it is the duty of the prosecution to produce all material witnesses and failure thereof leads to an adverse inference under Section 114, illustration (g) of the Indian Evidence Act, 1857.
This Court in Habeeb Mohammad vs. The State of Hyderabad, [1954] SCR 475 at 490 extracting from the judgment of the Privy Council in Stephen Senivaratne vs. The King, AIR 1936 PC 289 stated as under:
"Witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution."
The above two judgments have been relied upon by this Court in the case of State of U.P. and Anr. vs. Jaggo Alias Jagdish and Ors. 1971 (2) SCC 42.
It was submitted that while the prosecution is not necessarily required to call upon each and every witness, it is bound to call all witnesses who are material to the unfolding of the narrative and failure to do so, leads to an adverse inference. In the present case, the other two eye-witnesses did not support the prosecution and it can thus be inferred that the other eye-witnesses would also not support the version of the prosecution and in these circumstances, the Courts below have erred in relying upon the sole statement of PW-2 for convicting the accused.
Concluding his argument, Mr. Huzefa Ahmadi, submitted that the accused have spent over seven years in jail and if this Court is to allow the present appeal, it would only be trite to allow the appeal qua accused Nos. 2 and 3 who were unable to approach this Court. For this, the learned counsel for the appellant, relied on the judgment of this Court in Suresh Chaudhary's case (supra) wherein relying on precedents, the Court stated as under:
"This Court in a catena of cases has held where on the evaluation of a case this Court reaches the conclusion that no conviction of any accused is possible, the benefit of doubt must be extended to the co-accused similarly situated though he has not challenged the order of conviction by way of an appeal. [See Bijoy Singh vs. State of Bihar, (2002) 9 SCC 147]. This Court while rendering the above judgment has placed reliance on some other judgments of this Court in Raja Ram vs. State of M.P.,(1994) 2 SCC 568, Dandu Lakshmi Reddy vs. State of A.P., (1999) 7 SCC 69 and Anil Rai vs. State of Bihar, (2001) 7 SCC 318 wherein this Court had taken a similar view. Following the above dictum of this Court in the judgments noticed by us hereinabove, we are of the opinion since we have come to the conclusion that no conviction of any accused is possible based on the prosecution case as presented, it becomes our duty to extend the benefit of acquittal in these appeals also to a non-appealing accused, therefore, Sona @ Sonwa Chaudhary who is the first accused before the Sessions Court in Sessions Trial No. 417 of 1993 and who was the first appellant before the High Court in Crl. A. No. 88 of 1995 will also be acquitted of all the charges of which he is found guilty by the two courts below".
Concluding his argument, learned counsel submitted that the prosecution has failed to prove the case beyond reasonable doubt and, therefore, the accused appellant ought to be acquitted.
Learned counsel for the State of Gujarat Mr. Madhukar while justifying the judgments of the Courts below submitted that the body of the evidence produced by the prosecution against the appellant consisted of the following:-
1. Testimony of eyewitness to the incident (PW-2);
2. Motive;
3. Evidence relating to Recovery of weapons at the instance of the accused;
4. Medical evidence;
5. Absence of accused from railway duty and their arrest only after 24 days of incident;
After narrating the case of the prosecution and the evidence and documents produced, he submitted that it has come in the evidence of PW-1 and PW-2 that both the witnesses were known to the deceased as well as the appellant accused and the testimony of both these witnesses has been relied upon by the trial Court and the High Court to base the conviction of the appellant.
He invited our attention to paras 20, 21 and 29 of the High Court's order and paras 50-53 of the trial Court's order of PW-2 Akbar Khan @ Raju. This witness is an eye-witness to the incident. The two other eye-witnesses who were examined by the prosecution turned hostile during the trial and thus this witness was rendered in the position of being the sole eye-witness. We have perused the evidence of PW-2. It has given in his testimony that on the fateful day of the incident, he escorted the deceased to the railway office in order to enable him to place a sick note in the railway office. PW-2 has specifically stated in that while he has present in the railway office, the appellant along with the co-accused threatened and attacked the deceased with sharp dangerous weapons on his neck. It is the version of PW-2 that on witnessing this ghastly attack, he ran away from the spot out of fear. He came back from the hiding after sometime and saw the dead body of the deceased while PW-2 was near the body. He has stated to have met PW-1. In fact, PW-1 who is also the Complainant was accompanied by PW-2 to the Police Station for lodging of the complaint. The testimony of this witness, in our opinion, proves and corroborates the presence of the Complainant PW-1 and vice-versa. PW-2 does not claim to have seen the entire attack but has categorically deposed about having seen the initial attack by the appellant and co-accused with sharp edged weapons on a vital organ of the deceased, namely, the neck.
The testimony of PW-2, in our view, is wholly believable and worthy of inspiring confidence but is also sufficient by itself to prove the case against the appellant and that the credibility of this witness has not been impaired in the cross-examination by the appellant. This witness has stuck to his police statement and the subsequent examination in chief in Court where he identified the appellant accused as well as the co-accused as the assailants of the deceased. This deposition, in our view, proved the intention of the accused to cause the death of the deceased inasmuch as he deposes that the assault was directed at the neck of the deceased. It is also not the case of the appellant that this witness was inimical to the appellant or that there was a reason for PW-2 to implicate the appellants falsely. The factum of his friendship with the deceased does not reduce PW-2 to the position of being an interested witness.
The learned counsel for the appellant has argued before this Court as well as the Courts below that the conduct of this witness in not saving the life of his friend, the deceased, renders him an improbable witness. In our view, the act of this witness in running away to save his own life and not going forward to help the deceased at the time of the incident is a most probable and natural human conduct which most men faced in such situation would resort to. In our view, the conduct of PW-2 in not having the courage to stop three persons armed with deadly sharp edged weapons is not and cannot be a circumstance or a ground to disbelieve his testimony particularly when the rest of his testimony is tested with cross-examination.
Next we analyse the evidence of PW-1 Munna @ Gheti. Our attention was drawn to the various paras in the trial Court's order and the High Court's order of this witness. PW-1's evidence was relied upon by the trial Court and also by the High Court. The most important feature of the testimony of this witness is that he corroborates the presence of the eye-witness PW-2 at the spot. It is submitted that in face of the specific deposition of this witness, the PW-2 was present at the spot the doubts sought to be raised by the appellant in receipt of the sick note of the deceased and the subsequent staying back at the office are rendered irrelevant and insignificant. PW-1 has deposed that he was known to the deceased and the appellant and that there were altercation on 24.08.1995 between the appellant and the deceased in respect of the railway quarter. It is the version of this witness that on the day of the incident he saw the present appellant running away and also saw the deceased in the pool of blood. Raju was present there. PW-1 has deposed as prosecution witness that while he was returning from railway colony after meeting his friend at about 12.00 noon accused Nos. 1 and 2 and one another were being seen by him, they were running away. PW-1 has identified the appellants and the co-accused in the Court. Thus, it is clear from the testimony of Munnabhai @ Geti as a prosecution witness that although he is not an eye-witness of the incident, yet he throws light on the conduct of the accused on the day of the incident around the time of incident. His testimony together with the testimony of Investigating Officer corroborates the presence of PW-2 at the place of the incident.
Significantly this witness, later on filed an affidavit, wherein he had sworn to the fact that whatever he had deposed before Court as PW-1 was not true and it was so done at the instance of Police.
The averments in the affidavit are rightly rejected by the High Court and also the Sessions Court. Once the witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from the testimony given in Court on oath. It is pertinent to note that during the intervening period between giving of evidence as PW-1 and filing of affidavit in Court later he was in jail in a narcotic case and that the accused persons were also fellow inmates there.
It was argued by the learned counsel for the appellant that no identification parade was conducted for the accused. The Investigating Officer has stated in his testimony that the test identification parade was not necessary in the instant case. This apart, both the witnesses PW-1 and 2 have categorically stated in their deposition that they knew the appellant from the past.
RECOVERY:
It is seen from the records that a weapon of offence has been recovered at the instance of the appellant from his own house. The testimony of the panch witness PW- 6 in respect of the recovery and the appellant's identity therein has remained unshaken during extensive cross-examination and blood stains were also seen on the said weapon recovered at the instance of the accused.

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