While Appreciating Ocular Evidence Approach Must Be To See If Read As A Whole It Has A Ring Of Truth: Supreme Court

While enumerating the principles for appreciation of ocular evidence, the Supreme Court has held that while appreciating such evidence, the approach must be to see whether the evidence of the witness read as a whole form a ring of truth.

"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.", the Bench of Justice Surya Kant and Justice JB Pardiwala observed.

The Court also observed that if the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court shall attach due weight to the appreciation of evidence by the Trial Court.

The Court further noted "A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."

These observations were made by the Court while adjudicating upon an appeal by a convict-appellant who was sentenced to life imprisonment for offence under Section 302 of the Indian Penal Code.

In this case deceased viz. Mahankal Jaiswal was found lying dead by Police. It was prosecution's case that a quarrel had ensued between the convict-appellant and the deceased on account of money. The original first informant claimed that he had saw the convict-appellant assaulting the deceased with a hammer on his head.

Relying upon the oral testimony of eye witnesses, the Trial Court recorded the finding of guilt against the appellant. The Trial Court also relied upon the evidence of discovery of weapon i.e. the hammer at the instance of the appellant as one of the incriminating circumstances pointing towards the guilt of the accused.

Accordingly the Trial Court convicted the accused and sentenced him to undergo life imprisonment. The appeal before the High Court against the judgment and order of the Trial Court was dismissed. Feeling aggrieved the convict-appellant approached Supreme Court.

Advocate Richa Kapoor appearing for the appellant submitted that the eye-witnesses in the present case were unreliable. It was further submitted that the eye-witness had kept quiet for the whole night and lodged the FIR on the next day in the morning and that too only after the police got into action.

On the other hand Advocate Rahul Chitnis, appearing for the State, submitted that the Court in exercise of powers under Article 136 of the Constitution may not disturb the concurring findings of fact recorded by the Trial Court and the High Court respectively.

At the outset the Court while placing reliance on a catena of its judgments observed that the power of Supreme Court under Article 136 of the Constitution of India was exercisable even in cases of concurrent findings of fact.

"It is now well settled that the power of this Court under Article 136 of the Constitution of India is exercisable even in cases of concurrent findings of fact and such powers are very wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances.", the Court observed.

While scrutinizing the material on record the Court noticed that except a minor contradiction in the form of an omission, nothing substantial could be elicited from the cross examination of the eye-witness-original first informant so as to render his entire evidence doubtful.

While observing the evidence of the second eye-witness in the case the Court noticed "So far as the evidence of the PW-8 Udaysingh is concerned the defence has been able to bring on record a major contradiction in the form of an omission as the PW-8 in his police statement recorded under Section 161 of the Cr.PC had not stated anything about the appellant inflicting blows with a hammer on the head of the deceased. The PW-8 in his cross-examination stated that he had no idea as to why the police did not record in his police statement the factum of assault with the hammer. However, the PW-8 in his evidence has deposed that after the incident the appellant was confronted by the PW-1 Nandlal. Some part of the evidence of the PW-8 corroborates the oral testimony of the PW-1 Nandlal."

The Court noted that ordinarily a witness cannot be expected to recall accurately the sequence of events that take place in rapid succession or in a short time span.

A witness is liable to get confused, or mixed up when interrogated later on, the Court added further.

The Court noted that there was nothing palpable or glaring in the evidence of the two eye-witnesses on the basis of which it could take the view that they are not true or reliable eye-witnesses. The Court observed further that few contradictions in the form of omissions here or there was not sufficient to discard the entire evidence of the eye-witnesses.

The Court noted that the medical evidence on record also corroborated the ocular version of the eye witnesses.

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

However before parting with the judgment, the Court remarked that it had noticed a serious infirmity in the reasonings assigned by the trial court as affirmed by the High Court as regards the discovery of weapon of offence under Section 27 of the Act.

The Court noted that the public prosecutor who had conducted the prosecution before the trial court did not take the pains to bring on record the substantive evidence of the aforesaid two witnesses.

"…it is evident that the learned public prosecutor who conducted the prosecution before the trial court did not take the pains to bring on record the substantive evidence of the aforesaid two witnesses i.e. the PW-4 and PW-10 resply, the fact of the accused having made a statement that he had concealed the hammer and he was inclined to show that spot, even though it has been recorded in the panchnama (Exh. 22) that the accused made such a statement. The learned public prosecutor does not appear to have realized that there should be substantive evidence on record in this regard and that the panchnama can be used only to corroborate the evidence of the panch and not as a substantive piece of evidence. It appears that the panchnamas (Exh.22 and 23 resply) were shown to the panch (PW-4) and he admitted his signature and, therefore, it was exhibited at Exhs.22 and 23 respectively.", the Court observed.

The Court held that a panchnama which can be used only to corroborate the panch has to be read over to the panch and only thereafter it can be exhibited.

"If the panch has omitted to state something which is found in the panchnama, then after reading over the panchnama the panch has to be asked whether that portion of the panchnama is correct or not and whatever reply he gives has to be recorded. If he replies in the affirmative, then only that portion of the panchnama can be read into evidence to corroborate the substantive evidence of the panch. If he replies in the negative, then that part of the panchnama cannot be read in evidence for want of substantive evidence on record.", the Court noted.

Another serious infirmity that the Court observed was as regards the authorship of concealment by the person who is said to have discovered the weapon.

"What emerges from the evidence of the PW-4 & PW-10 resply is that the appellant stated before the panch witnesses to the effect that "I will show you the weapon concealed adjacent the shoe shop at Parle". This statement does not suggest that the appellant indicated anything about his involvement in the concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon.", the Court held.

The Court cautioned that although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty for a serious offence like murder.

"What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Act, cannot form the basis of conviction. In the ultimate analysis, we have reached to the conclusion that there is no merit in the present appeal.", the Court held while dismissing the appeal.

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