Violation of the provisions of Section 54 of the Indian Evidence
Act, in taking into consideration the past history of the
appellants to find them guilty of commission of offence :-Considering the evidence on record, we find that the PW 7 made a
statement in course of his examination-in-chief with regard to the
antecedents of the appellants. However, after thorough consideration of the
impugned judgement, we do not find that those antecedents of the appellants
were considered by the learned trial Judge for finding the appellants guilty of
commission of offence. So, alleged violation of the provision of section 54 of
the Indian Evidence Act, is a begging question on the part of the appellants.
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
Justice Debasish Kar Gupta
And
Justice Md. Mumtaz Khan
CRA No. 800 of 2006
Munkir Sk. & Anr.
V
The State of West Bengal
Judgment on: 05/10/2016
Citation: 2017 CRLJ 1193
This appeal is directed against judgment and order dated September
16, 2006 and sentence dated September 19, 2006 passed by the learned
Additional Sessions Judge, Fast Track 2nd Court, Rampurhat, DistrictBirbhum
in Sessions Trial No.13 of 2003 arising out of Sessions Case No.38
of 2000 convicting the appellants for commission of offence punishable under
Sections 302/34 and 201/34 of the Indian Penal Code (hereinafter referred
to as the I.P.C.) as also under Section 27 of the Arms Act read with Section
34 of the I.P.C.
On September 23, 1998 one Ekamuddin Sk. (deceased person), son of
late Taiyab Sk. of village-Bankura, Police Station-Maheshpur, DistrictBirbhum
was returning back to his home from Pakur after completion of hiswork. He got down from train at Murarai station. Then he took his bicycle
from the Tailor’s shop “Samrat Tailor”. He kept his bicycle at the house of a
known person situated at Village-Bhushana. He started the journey on foot
through a narrow lane leading towards his home. At that point of time his
elder brother Niyamat Sk. (PW 2) came to receive him. He was moving down
the above lane keeping his aforesaid brother (the deceased person) behind
him. He looked at his back hearing a noise. He found that the appellants
had attacked the deceased person. Appellant Jenhar Sk. caught hold of the
hands of the deceased and appellant Munkir Sk. opened fire from his firearm
aiming at the deceased. Out of fear, the PW 2 started running towards his
village. After informing the villagers of the above incident, he came back to
the place of occurrence along with other villagers including PW 1 and PW 6.
Though they found blood stain at the place of occurrence, the deceased
person could not be found out by them. They went to the Murarai Police
Station. After informing the above incident, they came back to the place of
occurrence with police. Even then the deceased person could not be traced
out.
On the next date, i.e. on September 24, 1998, PW 1, PW 2, PW 6 and
others went to the place of occurrence once again. Following the mark of
blood stain on the earth they reached to the bank of river “Paglanadi” and
found the dead body of the deceased person.
Immediately, PW 1 submitted a written complaint dated September 24,
1998 to the Officer-in-Charge, Murarai Police Station, Birbhum. After
recording the above incident under G.D.E. No.1010 dated September 24,
1998 at 11.15 hours, the Officer-in-Charge, Murarai Police Station, Birbhum,
drew the formal FIR bearing Murarai P.S. Case No.68/98 dated September
24, 1998 incorporating the names of the appellants therein for commission of
offence punishable under Sections 302/201/34 of the I.P.C. and Section
25/27 of the Arms Act. PW 7 was engaged as Investigating Officer to
investigate into the above case.
PW 7 went to the place of occurrence. He prepared the rough sketch
map with index of the place of occurrence. He also prepared the inquestreport dated September 24, 1998 over the dead body of the deceased person
with reference to the above FIR. The history revealed from the preliminary
investigation was also incorporated in the above inquest report. The PW 7
further seized wearing apparels of the deceased person (sky colour jeans pant
and a belt fixed with it, one shirt and one Parko 1210 Pen) under seizure list.
A bunch of paddy plant stained with mud and blood was also seized under
seizure list. The dead body of the deceased person was forwarded to the
Rampurhat Police Morgue through the PW 5 for post mortem examination.
Post mortem examination on the dead body of the deceased person was
conduced by PW 4 on September 24, 1998 with reference to the U.D. Case
No.9/98 and Murarai P.S. Case No.68/98, both dated September 24, 1998
and the post mortem report was prepared at 16.00 hours. According to the
post mortem report, one bullet injury and multiple stab injuries were
detected over the dead body. According to the above post mortem report rigor
mortis was present on the dead body. According to the opinion of the PW 4,
the cause of death was due to shock and hemorrhage arising out of the
aforesaid injuries which were ante mortem and homicidal in nature.
The statement of the eyewitness PW 2 was recorded by the PW 9 under
Section 164 of the Cr.P.C.
Subsequently, the appellants surrendered before the police.
After completion of investigation, charge sheet bearing No.56/99 dated
July 21, 1999 was submitted by the PW 8 (the second I.O.) before the Court
against the appellants for commission of offence under Sections 302/201/34
of the I.P.C. as also under Section 25 of the Arms Act.
Charge was framed against the appellants on May 19, 2003 for
commission of offence punishable under Sections 302/201/34 of the I.P.C.
and Section 25/27 of the Arms Act.
After considering the evidence of nine (9) prosecution witnesses and
other documentary evidences as also the statement of the appellants
recorded under Section 313 of Cr.P.C., the impugned judgment was passed
by the learned trial Judge.It is submitted by Mr. Kushal Kr. Mukherjee, learned amicus curiae,
that a First Information Report was drawn on the date of occurrence i.e., on
September 23, 1998 by the Officer-in-Charge, Murarai Police Station. The
FIR bearing Murarai P.S. Case No.68/98 dated September 24, 1998 was
drawn at a later stage for false implication of the appellants which was not
sustainable in law.
According to him, the learned trial Judge failed to take into
consideration the major contradictions in between the evidence of the
prosecution witnesses reaching the root of the prosecution case.
It is also submitted by him that the necessary witnesses, i.e., the
Officer-in-Charge of Murarai Police Station and the owner of the land where
the incident had been occurred were not produced before the Court for
withholding the above necessary evidence to unearth the truth as also the
false implication of the appellants.
According to him, the antecedents of the appellants could not have
been taken into consideration in violation of provision of Section 54 of the
Evidence Act to find the appellants guilty of commission of offence.
Reliance is placed by Mr. Mukherjee on the decisions of Mukhtiar
Ahmed Ansari vs. State (NCT of Delhi), reported in 2005 SCC (Cri) 1037
and Javed Masood & Anr. vs. State of Rajasthan, reported in (2012) 2 C
Cr LR (SC) 44 in support of his above submissions.
On the other hand, it is submitted by Mr. Ranabir Roy Chowdhury,
learned State advocate that the prosecution case was based upon the
evidence of eyewitness PW 2. His evidence with regard to the bullet injury
sustained by the deceased person was corroborated with the post mortem
report of the autopsy surgeon, amongst other injuries. It is submitted by
him that the inquest report was prepared on the next date of occurrence of
the incident. It is also submitted by him that the FIR contained the names of
the appellants. The inquest report was prepared with reference to the FIR
under reference containing the names of the appellants on the basis of the
history recorded after preliminary investigation by the PW 7. According to
him, the evidence of the eyewitness PW 2 was further corroborated by thepost mortem report of the autopsy surgeon which was prepared with
reference to the above FIR. Therefore, the impugned judgment was based on
evidence of the eyewitness PW 2, amongst other oral and documentary
evidences. It is also submitted by him that the motive of the appellants to
kill the deceased person was also surfaced from the evidence of PW 1, the
uncle of the deceased person. According to Mr. Roy Chowdhury, there was
an attempt to destroy the evidence of commission of offence by making an
attempt to drop the dead body in the water of river “Paglanadi”. So, the nonrecovery
of weapon of offence from the appellants need not require further
explanation.
According to Mr. Roy Chowdhury, there was no impropriety in the
decision making process of the learned trial Judge to find out the appellants
guilty of commission of offence.
Reliance is placed by Mr. Roy Chowdhury on the decisions of Daya
Ram & Ors. vs. State of Haryana, reported in 2015 AIR (SCW) 3905 and
Sanjeev Kumar Gupta vs. State of U.P. (Now State of Uttarakhand),
reported in 2015 AIR (SCW) 3151 in support of his above submissions.
Having heard the Learned council appearing for the rival parties as
also after considering the evidence on record, the contentions of the
appellants are considered as follows : -
A. False implication of the appellants in the case in view of
alleged drawing of two FIR :-
It was held by the Apex Court in Pandurang Chandrakant Mhathre
Vs. State of Maharashtra, reported in (2009) 10 SCC 773, that when a
police officer had no other alternative but to leave the police station on
receipt of an information relating to commission of cognizable offence to give
first priority to control the incident which had been occurring at the place of
occurrence simply after diarizing gist of such information, the same cannot
be treated to be “first information report” under section 154 (1) of Cr.P.C.
which must contain some essential and detailed incident. The relevant
portion of the above decision is quoted below:-“ 38. It is fairly well settled that first information report is not a
substantive piece of evidence and it can be used only to discredit the
testimony of the maker thereof and it cannot be utilised for contradicting
or discrediting the testimony of other witnesses. In other words, the first
information report cannot be used with regard to the testimony of other
witnesses who depose in respect of incident. It is equally well settled that
the earliest information in regard to commission of a cognizable offence is
to be treated as the first information report. It sets the criminal law in
motion and the investigation commences on that basis. Although first
information report is not expected to be encyclopaedia of events, but an
information to the police to be “first information report” under Section 154
(1) must contain some essential and relevant details of the incident. A
cryptic information about commission of a cognizable offence irrespective
of the nature and details of such information may not be treated as first
information report.”
From the evidence on record it is revealed that the PW 1 went to the
Murari police station on September 23,1998, in the night along with PW1,
PW6 and other villagers immediately after the incident. At that time the
deceased person was missing. The Officer-in-charge, Murari police station,
noted down the statement of the PW2 and sent a police team to the place of
occurrence to trace out the deceased person. The above recording of
statement cannot be equated with FIR by any stretch of imagination.
From the other evidence on record it is revealed the PW1 submitted a
written complaint to the officer-in-charge, Murari police station on
September 24, 1998, at 11.10 hours containing the names of the appellants.
On the basis of the same, the formal FIR bearing Murari P.S. Case No. 68/98
was drawn after making a GDE bearing no.1010.
Further, we find that the inquest report was prepared with reference to
the above FIR containing the names of the appellants. The post mortem
report was also prepared with reference to the above FIR.
So, we do not find substance in the above contention of the appellants.
In view of the above distinguishable facts and circumstances we are of
the opinion that the decisions of Mukhtiar Ahamed Ansari (supra) and Javed
Masood & Anr (supra) do not help the appellants in any way.
B. Major cotradictions in the evidence of prosecution witnesses
touching the rout of the prosecution case :-In State of U.P. Vs. Krishna Master, reported in (2010) 12 SCC 324,
it was observed by the Apex Curt that minor discrepancies of trivial nature
not touching the core of the case, hypertechnical approach by taking
sentences torn out of the context here or there from the evidence, attaching
importance to some technical error committed by the investigating officer not
going to the root of the matter would not ordinarily permit the rejection of the
evidence as a whole. The relevant portion of the above decision quoted
below:-
“15. Before appreciating evidence of the witnesses examined in the
case, it would be instructive to refer to the criteria for appreciation of oral
evidence. While appreciating the evidence of a witness, the approach
must be whether the evidence of the witness read as a whole appears to
have a ring of truth. Once that impression is found, it is undoubtedly
necessary for the court to scrutinise the evidence more particularly
keeping in view the deficiencies, drawbacks and infirmities pointed out in
the evidence as a whole and evaluate them to find out whether it is
against the general tenor of the evidence and whether the earlier
evaluation of the evidence is shaken as to render it unworthy of belief.
Minor discrepancies on trivial matters not touching the core of the case,
hypertechnical approach by taking sentences torn out of context here or
there from the evidence, attaching importance to some technical error
committed by the investigating officer not going to the root of the matter
would not ordinarily permit rejection of the evidence as a whole.
16. . . . .
17. In the deposition of witnesses, there are always normal
discrepancies, howsoever honest and truthful they may be. These
discrepancies are due to normal errors of observation, normal errors of
memory due to lapse of time, due to mental disposition, shock and horror
at the time of occurrence and threat to the life. It is not unoften that
improvements in earlier version are made at the trial in order to give a
boost to the prosecution case, albeit foolishly. Therefore, it is the duty of
the court to separate falsehood from the truth. In sifting the evidence, the
court has to attempt to separate the chaff from the grains in every case
and this attempt cannot be abandoned on the ground that the case is
baffling unless the evidence is really so confusing or conflicting that the
process cannot reasonably be carried out. In the light of these principles,
this Court will have to determine whether the evidence of eyewitnesses
examined in this case proves the prosecution case.”
It is alleged by the appellants that according to the evidence of PW1, he
got the information of the commission of offence under reference when the
PW 2 was narrating the incident to the villagers. But according to the
evidence of PW2, he had informed the incident to the PW6 first and then heinformed the PW1of the incident. We are of the opinion that the above
discrepancy was minor in nature not touching the root of the prosecution
case. So, the above contention does not help the appellants.
C. Withholding of the evidence of the officer-in-charge, Murari
police station and the owner of the land where the incident
occur :-
It is the time honoured rule that the law of evidence does not require a
particular number of witnesses to be examined to prove a given fact. Where
the Court finds that the testimony of witnesses is neither wholly reliable nor
wholly unreliable in a given set of facts, it may seek corroboration but
disbelieving of reliable testimony on the ground that others have not been
examined is to do complete injustice to the prosecution. Reference may be
made to the decision of State of Uttar Pradesh Vs. Krishna Master (supra)
and the relevant portion of the above judgement is quoted below: -
“47. It is a well-known principle of law that reliance can be placed
on the solitary statement of a witness if the court comes to the conclusion
that the said statement is the true and correct version of the case of the
prosecution. The courts are concerned with the merit and the statement of
a particular witness and not at all concerned with the number of
witnesses examined by the prosecution. The time-honoured rule of
appreciating evidence is that it has to be weighed and not counted. The
law of evidence does not require any particular number of witnesses to be
examined in proof of a given fact. However, where the court finds that the
testimony of the solitary witness is neither wholly reliable nor wholly
unreliable, it may, in a given set of facts, seek corroboration, but to
disbelieve reliable testimony of a solitary witness on the ground that
others have not been examined is to do complete injustice to the
prosecution.”
Taking into consideration the facts and circumstances on the basis of
which the impugned judgement is passed, we are of the opinion that the
impugned judgement need not require interference on the above ground in
view of the settled proposition of law as discussed hereinabove.
D. Violation of the provisions of Section 54 of the Indian Evidence
Act, in taking into consideration the past history of the
appellants to find them guilty of commission of offence :-Considering the evidence on record, we find that the PW 7 made a
statement in course of his examination-in-chief with regard to the
antecedents of the appellants. However, after thorough consideration of the
impugned judgement, we do not find that those antecedents of the appellants
were considered by the learned trial Judge for finding the appellants guilty of
commission of offence. So, alleged violation of the provision of section 54 of
the Indian Evidence Act, is a begging question on the part of the appellants.
In view of the discussion and observation made hereinabove, this
appeal is dismissed.
Let this judgment together with the Lower Court’s records be sent
back to the learned Court below expeditiously.
Urgent photostat certified copy of this judgment, if applied for, be given
to the parties, on priority basis.
I agree. (Debasish Kar Gupta, J.)
(Md. Mumtaz Khan, J.)
Print Page
Act, in taking into consideration the past history of the
appellants to find them guilty of commission of offence :-Considering the evidence on record, we find that the PW 7 made a
statement in course of his examination-in-chief with regard to the
antecedents of the appellants. However, after thorough consideration of the
impugned judgement, we do not find that those antecedents of the appellants
were considered by the learned trial Judge for finding the appellants guilty of
commission of offence. So, alleged violation of the provision of section 54 of
the Indian Evidence Act, is a begging question on the part of the appellants.
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
Justice Debasish Kar Gupta
And
Justice Md. Mumtaz Khan
CRA No. 800 of 2006
Munkir Sk. & Anr.
V
The State of West Bengal
Judgment on: 05/10/2016
Citation: 2017 CRLJ 1193
This appeal is directed against judgment and order dated September
16, 2006 and sentence dated September 19, 2006 passed by the learned
Additional Sessions Judge, Fast Track 2nd Court, Rampurhat, DistrictBirbhum
in Sessions Trial No.13 of 2003 arising out of Sessions Case No.38
of 2000 convicting the appellants for commission of offence punishable under
Sections 302/34 and 201/34 of the Indian Penal Code (hereinafter referred
to as the I.P.C.) as also under Section 27 of the Arms Act read with Section
34 of the I.P.C.
On September 23, 1998 one Ekamuddin Sk. (deceased person), son of
late Taiyab Sk. of village-Bankura, Police Station-Maheshpur, DistrictBirbhum
was returning back to his home from Pakur after completion of hiswork. He got down from train at Murarai station. Then he took his bicycle
from the Tailor’s shop “Samrat Tailor”. He kept his bicycle at the house of a
known person situated at Village-Bhushana. He started the journey on foot
through a narrow lane leading towards his home. At that point of time his
elder brother Niyamat Sk. (PW 2) came to receive him. He was moving down
the above lane keeping his aforesaid brother (the deceased person) behind
him. He looked at his back hearing a noise. He found that the appellants
had attacked the deceased person. Appellant Jenhar Sk. caught hold of the
hands of the deceased and appellant Munkir Sk. opened fire from his firearm
aiming at the deceased. Out of fear, the PW 2 started running towards his
village. After informing the villagers of the above incident, he came back to
the place of occurrence along with other villagers including PW 1 and PW 6.
Though they found blood stain at the place of occurrence, the deceased
person could not be found out by them. They went to the Murarai Police
Station. After informing the above incident, they came back to the place of
occurrence with police. Even then the deceased person could not be traced
out.
On the next date, i.e. on September 24, 1998, PW 1, PW 2, PW 6 and
others went to the place of occurrence once again. Following the mark of
blood stain on the earth they reached to the bank of river “Paglanadi” and
found the dead body of the deceased person.
Immediately, PW 1 submitted a written complaint dated September 24,
1998 to the Officer-in-Charge, Murarai Police Station, Birbhum. After
recording the above incident under G.D.E. No.1010 dated September 24,
1998 at 11.15 hours, the Officer-in-Charge, Murarai Police Station, Birbhum,
drew the formal FIR bearing Murarai P.S. Case No.68/98 dated September
24, 1998 incorporating the names of the appellants therein for commission of
offence punishable under Sections 302/201/34 of the I.P.C. and Section
25/27 of the Arms Act. PW 7 was engaged as Investigating Officer to
investigate into the above case.
PW 7 went to the place of occurrence. He prepared the rough sketch
map with index of the place of occurrence. He also prepared the inquestreport dated September 24, 1998 over the dead body of the deceased person
with reference to the above FIR. The history revealed from the preliminary
investigation was also incorporated in the above inquest report. The PW 7
further seized wearing apparels of the deceased person (sky colour jeans pant
and a belt fixed with it, one shirt and one Parko 1210 Pen) under seizure list.
A bunch of paddy plant stained with mud and blood was also seized under
seizure list. The dead body of the deceased person was forwarded to the
Rampurhat Police Morgue through the PW 5 for post mortem examination.
Post mortem examination on the dead body of the deceased person was
conduced by PW 4 on September 24, 1998 with reference to the U.D. Case
No.9/98 and Murarai P.S. Case No.68/98, both dated September 24, 1998
and the post mortem report was prepared at 16.00 hours. According to the
post mortem report, one bullet injury and multiple stab injuries were
detected over the dead body. According to the above post mortem report rigor
mortis was present on the dead body. According to the opinion of the PW 4,
the cause of death was due to shock and hemorrhage arising out of the
aforesaid injuries which were ante mortem and homicidal in nature.
The statement of the eyewitness PW 2 was recorded by the PW 9 under
Section 164 of the Cr.P.C.
Subsequently, the appellants surrendered before the police.
After completion of investigation, charge sheet bearing No.56/99 dated
July 21, 1999 was submitted by the PW 8 (the second I.O.) before the Court
against the appellants for commission of offence under Sections 302/201/34
of the I.P.C. as also under Section 25 of the Arms Act.
Charge was framed against the appellants on May 19, 2003 for
commission of offence punishable under Sections 302/201/34 of the I.P.C.
and Section 25/27 of the Arms Act.
After considering the evidence of nine (9) prosecution witnesses and
other documentary evidences as also the statement of the appellants
recorded under Section 313 of Cr.P.C., the impugned judgment was passed
by the learned trial Judge.It is submitted by Mr. Kushal Kr. Mukherjee, learned amicus curiae,
that a First Information Report was drawn on the date of occurrence i.e., on
September 23, 1998 by the Officer-in-Charge, Murarai Police Station. The
FIR bearing Murarai P.S. Case No.68/98 dated September 24, 1998 was
drawn at a later stage for false implication of the appellants which was not
sustainable in law.
According to him, the learned trial Judge failed to take into
consideration the major contradictions in between the evidence of the
prosecution witnesses reaching the root of the prosecution case.
It is also submitted by him that the necessary witnesses, i.e., the
Officer-in-Charge of Murarai Police Station and the owner of the land where
the incident had been occurred were not produced before the Court for
withholding the above necessary evidence to unearth the truth as also the
false implication of the appellants.
According to him, the antecedents of the appellants could not have
been taken into consideration in violation of provision of Section 54 of the
Evidence Act to find the appellants guilty of commission of offence.
Reliance is placed by Mr. Mukherjee on the decisions of Mukhtiar
Ahmed Ansari vs. State (NCT of Delhi), reported in 2005 SCC (Cri) 1037
and Javed Masood & Anr. vs. State of Rajasthan, reported in (2012) 2 C
Cr LR (SC) 44 in support of his above submissions.
On the other hand, it is submitted by Mr. Ranabir Roy Chowdhury,
learned State advocate that the prosecution case was based upon the
evidence of eyewitness PW 2. His evidence with regard to the bullet injury
sustained by the deceased person was corroborated with the post mortem
report of the autopsy surgeon, amongst other injuries. It is submitted by
him that the inquest report was prepared on the next date of occurrence of
the incident. It is also submitted by him that the FIR contained the names of
the appellants. The inquest report was prepared with reference to the FIR
under reference containing the names of the appellants on the basis of the
history recorded after preliminary investigation by the PW 7. According to
him, the evidence of the eyewitness PW 2 was further corroborated by thepost mortem report of the autopsy surgeon which was prepared with
reference to the above FIR. Therefore, the impugned judgment was based on
evidence of the eyewitness PW 2, amongst other oral and documentary
evidences. It is also submitted by him that the motive of the appellants to
kill the deceased person was also surfaced from the evidence of PW 1, the
uncle of the deceased person. According to Mr. Roy Chowdhury, there was
an attempt to destroy the evidence of commission of offence by making an
attempt to drop the dead body in the water of river “Paglanadi”. So, the nonrecovery
of weapon of offence from the appellants need not require further
explanation.
According to Mr. Roy Chowdhury, there was no impropriety in the
decision making process of the learned trial Judge to find out the appellants
guilty of commission of offence.
Reliance is placed by Mr. Roy Chowdhury on the decisions of Daya
Ram & Ors. vs. State of Haryana, reported in 2015 AIR (SCW) 3905 and
Sanjeev Kumar Gupta vs. State of U.P. (Now State of Uttarakhand),
reported in 2015 AIR (SCW) 3151 in support of his above submissions.
Having heard the Learned council appearing for the rival parties as
also after considering the evidence on record, the contentions of the
appellants are considered as follows : -
A. False implication of the appellants in the case in view of
alleged drawing of two FIR :-
It was held by the Apex Court in Pandurang Chandrakant Mhathre
Vs. State of Maharashtra, reported in (2009) 10 SCC 773, that when a
police officer had no other alternative but to leave the police station on
receipt of an information relating to commission of cognizable offence to give
first priority to control the incident which had been occurring at the place of
occurrence simply after diarizing gist of such information, the same cannot
be treated to be “first information report” under section 154 (1) of Cr.P.C.
which must contain some essential and detailed incident. The relevant
portion of the above decision is quoted below:-“ 38. It is fairly well settled that first information report is not a
substantive piece of evidence and it can be used only to discredit the
testimony of the maker thereof and it cannot be utilised for contradicting
or discrediting the testimony of other witnesses. In other words, the first
information report cannot be used with regard to the testimony of other
witnesses who depose in respect of incident. It is equally well settled that
the earliest information in regard to commission of a cognizable offence is
to be treated as the first information report. It sets the criminal law in
motion and the investigation commences on that basis. Although first
information report is not expected to be encyclopaedia of events, but an
information to the police to be “first information report” under Section 154
(1) must contain some essential and relevant details of the incident. A
cryptic information about commission of a cognizable offence irrespective
of the nature and details of such information may not be treated as first
information report.”
From the evidence on record it is revealed that the PW 1 went to the
Murari police station on September 23,1998, in the night along with PW1,
PW6 and other villagers immediately after the incident. At that time the
deceased person was missing. The Officer-in-charge, Murari police station,
noted down the statement of the PW2 and sent a police team to the place of
occurrence to trace out the deceased person. The above recording of
statement cannot be equated with FIR by any stretch of imagination.
From the other evidence on record it is revealed the PW1 submitted a
written complaint to the officer-in-charge, Murari police station on
September 24, 1998, at 11.10 hours containing the names of the appellants.
On the basis of the same, the formal FIR bearing Murari P.S. Case No. 68/98
was drawn after making a GDE bearing no.1010.
Further, we find that the inquest report was prepared with reference to
the above FIR containing the names of the appellants. The post mortem
report was also prepared with reference to the above FIR.
So, we do not find substance in the above contention of the appellants.
In view of the above distinguishable facts and circumstances we are of
the opinion that the decisions of Mukhtiar Ahamed Ansari (supra) and Javed
Masood & Anr (supra) do not help the appellants in any way.
B. Major cotradictions in the evidence of prosecution witnesses
touching the rout of the prosecution case :-In State of U.P. Vs. Krishna Master, reported in (2010) 12 SCC 324,
it was observed by the Apex Curt that minor discrepancies of trivial nature
not touching the core of the case, hypertechnical approach by taking
sentences torn out of the context here or there from the evidence, attaching
importance to some technical error committed by the investigating officer not
going to the root of the matter would not ordinarily permit the rejection of the
evidence as a whole. The relevant portion of the above decision quoted
below:-
“15. Before appreciating evidence of the witnesses examined in the
case, it would be instructive to refer to the criteria for appreciation of oral
evidence. While appreciating the evidence of a witness, the approach
must be whether the evidence of the witness read as a whole appears to
have a ring of truth. Once that impression is found, it is undoubtedly
necessary for the court to scrutinise the evidence more particularly
keeping in view the deficiencies, drawbacks and infirmities pointed out in
the evidence as a whole and evaluate them to find out whether it is
against the general tenor of the evidence and whether the earlier
evaluation of the evidence is shaken as to render it unworthy of belief.
Minor discrepancies on trivial matters not touching the core of the case,
hypertechnical approach by taking sentences torn out of context here or
there from the evidence, attaching importance to some technical error
committed by the investigating officer not going to the root of the matter
would not ordinarily permit rejection of the evidence as a whole.
16. . . . .
17. In the deposition of witnesses, there are always normal
discrepancies, howsoever honest and truthful they may be. These
discrepancies are due to normal errors of observation, normal errors of
memory due to lapse of time, due to mental disposition, shock and horror
at the time of occurrence and threat to the life. It is not unoften that
improvements in earlier version are made at the trial in order to give a
boost to the prosecution case, albeit foolishly. Therefore, it is the duty of
the court to separate falsehood from the truth. In sifting the evidence, the
court has to attempt to separate the chaff from the grains in every case
and this attempt cannot be abandoned on the ground that the case is
baffling unless the evidence is really so confusing or conflicting that the
process cannot reasonably be carried out. In the light of these principles,
this Court will have to determine whether the evidence of eyewitnesses
examined in this case proves the prosecution case.”
It is alleged by the appellants that according to the evidence of PW1, he
got the information of the commission of offence under reference when the
PW 2 was narrating the incident to the villagers. But according to the
evidence of PW2, he had informed the incident to the PW6 first and then heinformed the PW1of the incident. We are of the opinion that the above
discrepancy was minor in nature not touching the root of the prosecution
case. So, the above contention does not help the appellants.
C. Withholding of the evidence of the officer-in-charge, Murari
police station and the owner of the land where the incident
occur :-
It is the time honoured rule that the law of evidence does not require a
particular number of witnesses to be examined to prove a given fact. Where
the Court finds that the testimony of witnesses is neither wholly reliable nor
wholly unreliable in a given set of facts, it may seek corroboration but
disbelieving of reliable testimony on the ground that others have not been
examined is to do complete injustice to the prosecution. Reference may be
made to the decision of State of Uttar Pradesh Vs. Krishna Master (supra)
and the relevant portion of the above judgement is quoted below: -
“47. It is a well-known principle of law that reliance can be placed
on the solitary statement of a witness if the court comes to the conclusion
that the said statement is the true and correct version of the case of the
prosecution. The courts are concerned with the merit and the statement of
a particular witness and not at all concerned with the number of
witnesses examined by the prosecution. The time-honoured rule of
appreciating evidence is that it has to be weighed and not counted. The
law of evidence does not require any particular number of witnesses to be
examined in proof of a given fact. However, where the court finds that the
testimony of the solitary witness is neither wholly reliable nor wholly
unreliable, it may, in a given set of facts, seek corroboration, but to
disbelieve reliable testimony of a solitary witness on the ground that
others have not been examined is to do complete injustice to the
prosecution.”
Taking into consideration the facts and circumstances on the basis of
which the impugned judgement is passed, we are of the opinion that the
impugned judgement need not require interference on the above ground in
view of the settled proposition of law as discussed hereinabove.
D. Violation of the provisions of Section 54 of the Indian Evidence
Act, in taking into consideration the past history of the
appellants to find them guilty of commission of offence :-Considering the evidence on record, we find that the PW 7 made a
statement in course of his examination-in-chief with regard to the
antecedents of the appellants. However, after thorough consideration of the
impugned judgement, we do not find that those antecedents of the appellants
were considered by the learned trial Judge for finding the appellants guilty of
commission of offence. So, alleged violation of the provision of section 54 of
the Indian Evidence Act, is a begging question on the part of the appellants.
In view of the discussion and observation made hereinabove, this
appeal is dismissed.
Let this judgment together with the Lower Court’s records be sent
back to the learned Court below expeditiously.
Urgent photostat certified copy of this judgment, if applied for, be given
to the parties, on priority basis.
I agree. (Debasish Kar Gupta, J.)
(Md. Mumtaz Khan, J.)
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