PETITIONER:
LAXMAN AND OTHERS
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT28/11/1973
BENCH:
PALEKAR, D.G.
BENCH:
PALEKAR, D.G.
KRISHNAIYER, V.R.
SARKARIA, RANJIT SINGH
CITATION:
1974 AIR 303 1974 SCC (1) 309
CITATOR INFO :
D 1985 SC1156 (49,53)
ACT:
Evidence Act, Section 145-Important omissions by a witness
in the previous statements regarding participation of the
accused in the crime--whether contradictions within the
meaning of the section-Law laid down in Tahsildar Singh and
another v. State of U. P. A. I. R. 1959 S. C. 1012
explained-Impact of omissions on the probative value of the
witnesses' evidence.
HEADNOTE:
In the trial u/s 302 read with s. 34 I. P. C., one Sopan was
convicted on the evidence of one Sudam, the only eye-
witness. Sudam admitted in his cross-examination that
neither before the Executive Magistrate nor before the
Committing Magistrate, he stated that Sopan had beaten the
deceased with Rumana and that he bad stated the fact for the
first time before the trial Magistrate. Sudam also admitted
that Sopan did nothing and was simply standing there. Sudam
also stated that he could watch the incident for a very
short time as he himself was threatened by the accused and,
therefore, ran away. The F.I.R. and dying declarations also
did not mention the part played by Sopan in the incident.
The trial Court acquitted all the accused but the High Court
convicted them. As regards the omissions in Sudam's
evidence, the High Court held, following Tahsildar's case,
that the omissions do not amount to contradictions and
cannot be proved to show that the witness was. making
improvements. The High Court, therefore, ignored the
omissions.
Allowing Sopan's appeal (but not of the other two accused),
HELD . (i) We do not think that s. 145 of the Evidence Act,
on the very reasoning of Tahsildar Singh's case, cited by
the High Court, was intended to exclude from, evidence what
is relevant and admitted, and, therefore, a proved omission
from having its due effect in the assessment of
probabilities. S. 145 of Evidence Act applies only to
'contradictions.' If there are omissions in Previous
statements which do not amount to contradictions but throw
some doubt on the veracity of what was omitted, the
uncertainty or doubt may be capable of removal by questions
in reexamination. There were no such questions put to
Sudam. Neither proof nor use of such omissions, which do
not amount to contradictions is barred by s. 145 of the
Evidence Act. The error the High Court had committed was
that it entirely excluded very important, relevant and
material omissions, from duly proved previous statements of
the witness Sudam from consideration altogether as though
they were quite irrelevant and in-consequential. [51 OF]
It is not possible to lay down a general rule as to what
effect a particular omission from previous statement should
have on the probative value of what was so omitted by a
witness. The effect will depend upon the totality of
proved facts and circumstances in which the omission might
have taken place. It will often be determined by the
importance of what was omitted. The Law of Evidence
contains nothing more than s. 3 and s. 114 of the Evidence
Act to indicate and illustrate the standards and methods
employed in assessing the evidence. [510H]
(ii)The High Court ought to have examined the evidence of
Sudam, the only eye-witness, in the light of the material
omissions and found out how much Sudam actually saw with his
own eyes and how much of what he said could be attributed to
his conjecture, surmise or imagination. Sopan is entitled
to benefit of the doubt, which emerges on an examination of
the whole evidence in the case about the precise acts of
participation by him. 1513D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 122
of 1970.
Appeal by special leave from the judgment and order dated
24/; 25th September 1968 of the Bombay High Court in
Criminal Appeal 1731 of 1965.
506
M. C. Bhandare and P. H. Parekh, for the appellants.
H. R. Khanna and S. P. Nayar for the respondent.
The Judgment of the Court wag delivered by
BEG, J.-The three appellants Laxman (aged 30 at the time of
trial). Sopan (aged 18 at the time of trial), and Sakharam
(aged 40 years at the time of trial), residents of village
Walana were acquitted of charges under section 302 read with
section 34 I.P.C. by the learned Sessions Judge of Parbhani.
The trial court had declared the testimony of the only eye
witness, Sudam Sakharam, P.S. 17, to be unworthy of
credence. Neither the several dying declarations of the
deceased Narain Rao, in which he gave out the names of the
three appellants as his assailants nor other facts and
circumstances, such as the recovery on a pointing out by
Sopan of the "Rumna" said to have been used for the
murderous attack, were held by the trial Court to be
sufficient to corroborate the version of the eye witness.
On an appeal against the acquittal, a Division Bench of the
High Court of Bombay had elaborately discussed each one of
the reasons given by the learned sessions judge for
discarding the testimony of Sudam, corroborated by other
facts and circumstances, and found the logic behind the
trial court's reasoning to be unsound. The High Court had
also criticised the learned Session's Judge in treating
certain omissions from the previous statements of Sudam as
damaging contradictions without complying with the
provisions of section 145 of Evidence Act. It had relied on
Tahsildar Singh and anr. v. State of U.P.,(1) to support its
views on the requirements of s. 145 of Evidence Act. The
High Court set aside the acquittal of the three appellants
and convicted them under section 302 I. P.C. read with s. 34
IPC and sentenced them to imprisonment. for life.
in the appeal by special leave, now before us, the learned
counsel for the appellants has criticised the approach of
the High Court, its findings on individual items of
evidence, and its view that the omissions from previous
statements of the alleged eye witness Sudam could not affect
his credibility. After having examined the judgments of the
trial court and the High Court and relevant pieces of
evidence in the case, and listening to the arguments of the
learned counsel for the appellants, who said all that could
be urged to support this appeal, and learned counsel for the
respondent State, we think that the appreciation of the
evidence by the High Court was undoubtedly far superior and
that interference with the trial Court's judgment of
acquittal was justified. Nevertheless, we find that there
is an aspect of the case relating to Sopan, who was a
student aged about 18 years at the time of the alleged
offence, which has not been given due importance by the High
Court so as to determine whether this appellant was en-
titled, as we think he is, to the benefit of doubt as
regards his alleged participation in the actual commission
of an offence.
(1) AIR 1959 S.C. 1012.
507
The account of the occurrence given by Sudam, P.W. 17 may be
summarised as follows:--
The witness, who knew, Narainrao, Sarpanch of Walana, had
been engaged by the Sarpanch to assist him in the
supervising the construction of a road under a contract.
The Sarpanch got a commission and the witness got Rs. 3 per
day. He left Walana with the Sarpanch at 8 . 00 A.M. for
village Mannas Pimpri to pay the wages of the labourers on
30th April, 1966, which was a Saturday. Wages used to be
paid on Saturdays. Laxman, appellant, met and followed them
on the way saying that he too had to go to Mannas Pimpri.
As the party reached Mahboob's field, Laxman lifted and
tucked in his Dhoti like a wrestler. Then, Laxman suddenly
caught hold of Narayan's right leg, and, putting his left
hand on his back, felled Narainrao on the ground face
downwards. Narainrao's hands were under his body. Laxman
caught and then sat on Narainrao's neck. Narainrao raised a
hue and cry. When the witness tried to restrain Laxman and
caught his hand, hewas warned that he would be killed if he
interfered. Just then, thewitness saw Sopan and
Sakharam, brother and wards them. Sakharam carried a
'Ramna'. The witness let go the hand of Laxman. While
Laxman sat on the neck of Narainrao and pressed it down,
Sakharam rained blows with the 'Ramna' on the back of
Narainrao. Sopan stood watching nearby- After Sakharam had
finished beating Narainrao, Sopan took the same Ramna and
started beating him while Narain shouted : 'I am dead'.
Finally, Laxman took a big stone and threw it on the neck of
Narainrao. As Laxman saw the witness watching from a
distance, while escaping he said : "Catch this Mang". The
witness ran towards Walana. He met, Bhika Kotwal of Walana
on the way and informed him that Narainrao was being beaten
by the' three accused. At Walana, he informed Abhiman, the
brother of Narainrao, that the accused were beating up
Narainrao. He then went to his sister's house and drank
some water. He was about to go back to the scene of
occurrence when Laxman and Sopan came there. Laxman said :
'Take care Mang I If you testify in favour of the Sarpanch,
you would be murdered'. The witness was, however, not
deterred from going back to the scene of occurrence where
other villagers had. collected.
Attempts were made by cross-examination to discredit the
testimony of this witness. Firstly, it was suggested to him
that two chits (Ex. 31 and 32), showing that the witness was
demanding Rs. 30/to spoil the prosecution case, were sent by
him. But, as the High Court had rightly pointed out, the
connection of this witness with writing on these chits could
not be established. The trial Court had obviously erred in
using these chits to doubt the credibility of the witness.
Secondly, it was urged that this witness had denied his con-
viction for an offence under s. 12 of the Gambling Act. The
learned Sessions Judge had, in our opinion, attached too
much importance to this denial. , The High Court, on the
other hand, had examined the certified copy of the criminal
case register (Ex. 42) filed to contradict the statement of
this witness denying a conviction and had
508
held that, although one Sudam Sakharam of Bahar Jahagir was
shown to be one of two accused persons mentioned in the copy
filed, yet, the entries in the relevant columns did not show
anything beyond a fine of Rs. 5/- on Laxman, the co-accused.
The High Court also held that the identity of the particular
Sudam Sakharam mentioned in this copy was not established as
that of Sudam P.W. 17 and that there could be other persons
of that name in the village. The High Court had also
adversely commented on the fact that the copy was not of a
document kept in proper form. It had been only signed by a
clerk. No judgment and order of the Court was filed. The
High Court doubted the bona fides of the defence in
producing what it considered to be a suspicious copy to
contradict one of the statements of the witness. Even if we
do not question the bona fides of the defence in finding it,
the technical defect of want of proof of the exact identity
of Sudam mentioned in the copy was certainly there. We
agree with the High Court that the trial court had made too
much out of this alleged contradiction in the testimony of
Sudam. Thirdly, it was sought to be shown that Sudam had
improved the account of the incident given by him at earlier
stages by introducing, in his statement at the trial, what
he had not said earlier. The High Court held that these
omissions were not "contradictions". Alternatively, it held
that, even if an omission here could be viewed as a
'contradiction, it could not be used at all without
complying with s. 145 of the Evidence Act.
In Tahsildar's case (supra) the majority view of this Court
by Subba Rao, J., was (at p. 1023) :-
"Contradict according to the Oxford Dictionary
meant to affirm to the contrary. Section 145
of the Evidence Act indicates the manner in
which contradiction is brought out. The
cross-examining counsel shall put the part or
parts of the statement which affirms the
contrary to what is stated in evidence. This
indicates that there is something in writing
which can be set against another statement
made in evidence. If the statement before the
police officer in the sense we have indicated
and the statement in the evidence before the
Court are so inconsistent or irreconcilable
with each other that both of them cannot co-
exist, it may be said that one contradicts the
other.
It is broadly contended that a statement
includes all omissions which are material and
are such as a witness is expected to say in
the normal course. This contention ignores
the intention of legislature expressed in s.
162 of the Code and the nature of the non-
evidentiary value of such a statement, except
for the limited purpose of contradiction.
Unrecorded statement is completely excluded.
But recorded one is used for a specified
purpose. The record of a statement, however
perfunctory, is assumed to give a sufficient
guarantee to the correctness of the statement
made but if words not recorded are brought in
by some fiction, the objection of the section
would be defeated.
509
By that process, if a part of a statement is
recorded, what was not stated could go in on
the sly in the name of contradiction, whereas
if the entire statement was riot recorded, it
would be excluded. By doing so, we would be
circumventing the section by ignoring the only
safeguard imposed by the legislature, viz.,
that the statement should have been recorded".
In the case before us we find that no question
was put at all to Sudam, in his cross-
examination, about what he bad stated or
omitted to state to the police during the
course of investigation. Cross-examination of
the witness bad, however, brought out two
material omissions from statements before the
Executive Magistrate and the Committing Court.
The witness said :
"I have not stated before the Executive
Magistrate, nor before the committing court
that accused nos. 2 and 3 bad obstructed me,
when I took to my heels. Sepan (accused no.
2) had beaten Narainrao with Rumna, after
taking the same from accused no. 3. I have not
stated therefore the Executive Magistrate that
accused no. 2 bad beaten Narainrao with Rumna.
I have not stated before the committing
Magistrate that the accused no. 2 (Sopan) bad
beaten Narainrao. I have stated before the
Committing Magistrate that at the time of the
incident, accused no. 2, did nothing and he
was simply standing there".
The High Court itself observed :
"It is true that the witness had not made any
statement before the Committing Magistrate
regarding the part played by accused no. 2 in
the assault on Narainrao but that may be
because he was not questioned on that point at
that time. The same can be said about the
statement before the Executive Magistrate."
It then went on to say
"It cannot, however, be said that be bad not
made any statement on the point before the
Police. As we will presently point out, it is
not possible to any that the witness had not
made any statement on the point before the
Police, but, assuming for the present that he
bad not made any such statement, it would be
only an omission presumably due to his not
being questioned on the point. That cannot be
of any help to the defence to suggest that the
witness was making intelligent improvements as
assumed 'by the learned Judge. The omission,
if at all it is there, is not such as would
amount to controdiction and cannot, therefore,
be proved to show that the witness was making
improvements."
In so far as the High Court was presuming, from the failure
of the defence to cross-examine the witness about any
assatement before the police, that there was no such
omission in his statement before
M602SupCI/74
510
the police, the High Court was assuming the existence of
something which could not have been used by the prosecution
to corroborate its case even if it existed. The High Court
had then, proceeding on the assumption that there was such
an omission from the statement of the witness before the
police, explained an assumed infirmity in it by holding that
this constituted neither a contradiction nor was it
inexplicable by a failure to question the witness on the
point during the investigation as though it was no part of
the duty of the police to elicit or ascertain what part was
played by each accused in the occurrence before prosecuting
him.
If we were to assume that the witness had revealed to the
police the part alleged by him at the trial to have been
played by Sopan, it would make it all the more incumbent on
the prosecution to bring out this part when the witness was
making his statement in his examination-in-chief before the
Magistrates. The statements before the magistrates could be
used both to contradict and to corroborate. The prosecution
had performed its duty in questioning the witness, when he
was deposing at the trial, about the part played by Sopan.
It should not have gone to sleep at earlier stages and then
tried to fill up the possible gaps in the evidence on this
part of the case at the trial. If it does this, so that an
important prosecution witness appears to be introducing new
allegations which are vital for determining the liability of
an accused, the new statements are bound to arouse suspicion
and doubt.
It may not be out of place to mention here that the 11th
Report of the Criminal Law Revision Committee in England,
has recommended the abrogation of several artificial rules
of evidence which may result in the exclusion of what is
logically relevant (See : Criminal Law Review, June, 1973,
p. 329). So far as our law goes. we do not think that s.
145 of the Evidence Act, on the very reasoning of Tahsildar
Singh's case (supra), cited by the High Court, was intended
to exclude from evidence what is relevant and admitted, and,
therefore, a proved omission from having its due effect in
the assessment of probabilities. Section 145, Evidence Act
applies only to 'contradictions'. if there are omissions in
previous statements which do not amount to contradictions
but throw some doubt on the veracity of what was omitted,
the uncertainty or doubt may be capable of removal by
questions in re-examination. There were no such questions
put to Sudam in the case before us. Neither proof nor use
of such omissions, which do not amount to contradictions, is
barred by Sec. 145. Evidence Act.
is not possible to lay down a general rule as to what effect
a particular omission from a previous statement should have
on the probative value of what was so omitted by a witness.
The effect will depend upon the totality of proved facts and
circumstances in which the omission might have taken place
It will often be determined by the importance of wtiat was
omitted. Oar enacted law of evidence contains nothing more
than sections 3 and 114 of the Evidence Act to indicate and
illustrate the standards and methods employed in assessing
the evidence. The error the High Court had committed in
511
the case before us was that it entirely excluded very
important, relevant, and material omissions, from duty
proved previous statements of the witness Sudam from
consideration altogether as though they were quite
irrelevant and inconsequential.
Quite apart from the error of the High Court in assuming
that a material omission from a previous statement, even if
it is not to be treated strictly as a contradiction, must be
ignored in evaluating the testimony of the only eye witness
on so important a matter, for determining the liability of
Sopan, we think that what Sudam P.W. 17 had omitted to state
before the Magistrates ought also to have been more
critically examined and tested by the High Court in the
light of probabilities and the natural course of human
conduct. The important question which arose for
determination on facts and circumstances disclosed by Sudam
himself was :
How much did Sudam actually see with his own
eyes and how much of what he said could be not
unreasonably attributed to conjecture,
surmise, or imagination on his part?
Before we discuss the evidence further, we may
observe that Professor Munsterberg, in a book
called "On the Witness Stand" (p. 51), cited
by Judge Jerome Frank in his "Law and the
Modern Mind" (see : 1949 ed. p. 106), gives
instances of experiments conducted by enacting
sudden unexpected preplanned episodes before
persons who were then asked to write down,
soon afterwards, what they had seen and heard.
The astounding result was :
"Words were put into the mouths of men who had
been silent spectators during the whole short
episode; actions were attributed to the chief
participants of which not the slightest trace
existed; and essential parts of the
tragicomedy were completely eliminated from
the memory of a number of witnesses".
Hence, the Professor concluded : "We never know whether we
remember, perceive, or imagine". Witnesses cannot,
therefore, be branded as liars in toto and their testimony
rejected outright even if parts of their statements are
demonstrably incorrect or doubtful. The astute judge can
separate the grains of acceptable truth from the chaff of
exaggerations and improbabilities which cannot be safely or
prudently accepted and acted upon. It is sound commonsense
to refuse to apply mechanically, in assessing the worth of
necessarily imperfect human testimony, the maxim : "falsus
in uno falsus in omnibus."
Reverting to the evidence in the case, we find that Sudam
was, as is quite natural, in a hurry to get back to the
village because, apart from the fear of the accused (Laxman
had actually threatened to kill him and the other two had
also been alleged by him to have attempted to prevent his
escape), he had to inform the relations of Narainrao soon
about what he had seen. And, he deposed that he told both
Bhika Kotwal and Abhiman (P.W. 2) when he met them,. that
Narainrao was "being" beaten, or, in other words, the
beating had not come
512
to an end when he ran away from the scene of occurrence.
Moreover, he was quite far when Sopan is alleged by him,
apparently for the first time it the-trial, to have taken
his turn to beat the deceased with the Rumna. Even the last
act attributed by him to Laxman who is said to have hurled a
big stone at the neck of Narainrao lying on the ground, is
not corroborated by medical evidence, Moreover, it was not
possible for Sudam to have observed from a distance that the
stone hurled by Laxman actually hit Narain on his neck. He
could have mistaken some act of Sopan, such as throwing away
of the Rumna, for an assault with it claimed by him to have
been seen from a distance as he turned his head back to see
whilst escaping. We, therefore, conclude that, although
Sudam was there to witness how the attack began, he had
probably drawn upon his imagination to some extent to give
the details of how it ended.
We next turn to the several dying declarations put forward
to corroborate the statement of Sudam. These show that the
three appellants were present at the attack upon Narainrao
and were thought by Narainrao to have participated in
beating him. These dying declarations, however, do not
mention the particular part assigned by Sudam to Sopan in
his deposition at the trial. This is natural as Narainrao
was not in a position to see the actual assailant after he
was pinned down to the ground with his face downwards and
Laxman sitting on his "neck". He could only guess who was
striking him on the back.
The first dying declaration, made to Mahboob, P.W. 10, did
not impress the High Court. The second was made to Piraji
P.W. 9, the third to Laxmanramji P.W. 2 and the 4th to
Datarao P.W. 3, the Sarpanch of Mannas Pimpri. The High
Court had rightly observed that the last three dying
declarations made to villagers, who had assembled at the
scene of occurrence before Narainrao died, could not be held
to be false as the medical evidence indicated that he could
remain conscious for some time after the attack. The more
important question for determination, therefore, was :
"To what extent do the dying declarations corporate Sudam?"
Neither the dying declarations nor the F.I.R. lodged at the
police station by Abhiman P.W. 12, the brother of Narainrao,
on 30-4-1966. at 12 30 p.m. disclose the parts played by
each of the three accused. The report sent by Abhiman is
actually signed by Sudam P.W. 17. It is true that, at that
time, it was not known that Narainrao would die. But, both
Sudam and Abhiman knew that a very severe beating had been
given to Narainrao. We think that it is unlikely that, if
Sudam had seen the details of the way in which the beating
of Narainrao ended, no details of it whatsoever would be
given in the report sent by Abhiman to the police which was
signed by Sudam. Thus, the proved omission of the last part
of Sudam's version from the F.I.R. as well as from his
proved previous statements before the Executive and the
Committing Magistrates, combined with the unlikelihood that
he could either stay long enough at the scene to see how the
beating ended or
513
would be able to see this well enough when he turned his
head back while running away and his own admitted statements
to other witnesses throw that part of the story in which
Sopan appellant is said to have taken his turn in beating of
Narainrao in the region of reasonable doubt.
Sopan, appellant, a young man, may have accompanied his
elder brother, Laxman, and his cousin, Sakharam, out of
curiosity. He may have watched the beating. Sudam's own
statement before the committing magistrate quoted above, was
that this is all that Sopan did there, although the High
Court thought fit to explain it away by believing that this
assertion was confined to the earlier stage of the beating.
According to the High Court's finding, Sopan was only
standing at least when Sakharam was giving the eating with
the 'Rumna'. He must have accompanied his elder brother and
cousin back to the village. Sopan may have even taken and
thrown the 'Rumna' or known where it was lying. The fact
that he indicated the place from where it could be recovered
would not be sufficient to establish his participation in
the incident beyond reasonable doubt. Therefore, we are of
the opinion that Sopan, appellant, is entitled to the
benefit of the doubt which emerges on an examination of the
whole evidence in the case about the precise acts of
participation by him. As regards Laxman and Sakharam there
is no room for doubt that they actually attacked Narainrao
deceased as stated by Sudam. The manner in which Narainrao
was said to be beaten, corroborated by medical evidence,
makes it impossible for the beating to have been given by a
single individual. The participation of Laxman and Saharam
in the actual commission of the offence is, therefore,
established beyond any reasonable doubt. The medical
evidence also leaves no doubt that the beating was such
that, in the ordinary course of nature, it would cause the
death of Narainrao.
We, therefore, think that Laxman and Sakharam appellants
have been rightly convicted under section 302 read with s.
34 I.P.C. and sentenced to life imprisonment. Hence, we
dismiss the appeal of Laxman and Sakharam and affirm their
convictions and sentences. We allow the appeal of Sopan
appellant and set aside his conviction and sentence. We
order that Sopan be set at liberty forthwith unless wanted
in some other connection.
S.B.W. Appeal allowed in part.
514
LAXMAN AND OTHERS
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT28/11/1973
BENCH:
PALEKAR, D.G.
BENCH:
PALEKAR, D.G.
KRISHNAIYER, V.R.
SARKARIA, RANJIT SINGH
CITATION:
1974 AIR 303 1974 SCC (1) 309
CITATOR INFO :
D 1985 SC1156 (49,53)
ACT:
Evidence Act, Section 145-Important omissions by a witness
in the previous statements regarding participation of the
accused in the crime--whether contradictions within the
meaning of the section-Law laid down in Tahsildar Singh and
another v. State of U. P. A. I. R. 1959 S. C. 1012
explained-Impact of omissions on the probative value of the
witnesses' evidence.
HEADNOTE:
In the trial u/s 302 read with s. 34 I. P. C., one Sopan was
convicted on the evidence of one Sudam, the only eye-
witness. Sudam admitted in his cross-examination that
neither before the Executive Magistrate nor before the
Committing Magistrate, he stated that Sopan had beaten the
deceased with Rumana and that he bad stated the fact for the
first time before the trial Magistrate. Sudam also admitted
that Sopan did nothing and was simply standing there. Sudam
also stated that he could watch the incident for a very
short time as he himself was threatened by the accused and,
therefore, ran away. The F.I.R. and dying declarations also
did not mention the part played by Sopan in the incident.
The trial Court acquitted all the accused but the High Court
convicted them. As regards the omissions in Sudam's
evidence, the High Court held, following Tahsildar's case,
that the omissions do not amount to contradictions and
cannot be proved to show that the witness was. making
improvements. The High Court, therefore, ignored the
omissions.
Allowing Sopan's appeal (but not of the other two accused),
HELD . (i) We do not think that s. 145 of the Evidence Act,
on the very reasoning of Tahsildar Singh's case, cited by
the High Court, was intended to exclude from, evidence what
is relevant and admitted, and, therefore, a proved omission
from having its due effect in the assessment of
probabilities. S. 145 of Evidence Act applies only to
'contradictions.' If there are omissions in Previous
statements which do not amount to contradictions but throw
some doubt on the veracity of what was omitted, the
uncertainty or doubt may be capable of removal by questions
in reexamination. There were no such questions put to
Sudam. Neither proof nor use of such omissions, which do
not amount to contradictions is barred by s. 145 of the
Evidence Act. The error the High Court had committed was
that it entirely excluded very important, relevant and
material omissions, from duly proved previous statements of
the witness Sudam from consideration altogether as though
they were quite irrelevant and in-consequential. [51 OF]
It is not possible to lay down a general rule as to what
effect a particular omission from previous statement should
have on the probative value of what was so omitted by a
witness. The effect will depend upon the totality of
proved facts and circumstances in which the omission might
have taken place. It will often be determined by the
importance of what was omitted. The Law of Evidence
contains nothing more than s. 3 and s. 114 of the Evidence
Act to indicate and illustrate the standards and methods
employed in assessing the evidence. [510H]
(ii)The High Court ought to have examined the evidence of
Sudam, the only eye-witness, in the light of the material
omissions and found out how much Sudam actually saw with his
own eyes and how much of what he said could be attributed to
his conjecture, surmise or imagination. Sopan is entitled
to benefit of the doubt, which emerges on an examination of
the whole evidence in the case about the precise acts of
participation by him. 1513D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 122
of 1970.
Appeal by special leave from the judgment and order dated
24/; 25th September 1968 of the Bombay High Court in
Criminal Appeal 1731 of 1965.
506
M. C. Bhandare and P. H. Parekh, for the appellants.
H. R. Khanna and S. P. Nayar for the respondent.
The Judgment of the Court wag delivered by
BEG, J.-The three appellants Laxman (aged 30 at the time of
trial). Sopan (aged 18 at the time of trial), and Sakharam
(aged 40 years at the time of trial), residents of village
Walana were acquitted of charges under section 302 read with
section 34 I.P.C. by the learned Sessions Judge of Parbhani.
The trial court had declared the testimony of the only eye
witness, Sudam Sakharam, P.S. 17, to be unworthy of
credence. Neither the several dying declarations of the
deceased Narain Rao, in which he gave out the names of the
three appellants as his assailants nor other facts and
circumstances, such as the recovery on a pointing out by
Sopan of the "Rumna" said to have been used for the
murderous attack, were held by the trial Court to be
sufficient to corroborate the version of the eye witness.
On an appeal against the acquittal, a Division Bench of the
High Court of Bombay had elaborately discussed each one of
the reasons given by the learned sessions judge for
discarding the testimony of Sudam, corroborated by other
facts and circumstances, and found the logic behind the
trial court's reasoning to be unsound. The High Court had
also criticised the learned Session's Judge in treating
certain omissions from the previous statements of Sudam as
damaging contradictions without complying with the
provisions of section 145 of Evidence Act. It had relied on
Tahsildar Singh and anr. v. State of U.P.,(1) to support its
views on the requirements of s. 145 of Evidence Act. The
High Court set aside the acquittal of the three appellants
and convicted them under section 302 I. P.C. read with s. 34
IPC and sentenced them to imprisonment. for life.
in the appeal by special leave, now before us, the learned
counsel for the appellants has criticised the approach of
the High Court, its findings on individual items of
evidence, and its view that the omissions from previous
statements of the alleged eye witness Sudam could not affect
his credibility. After having examined the judgments of the
trial court and the High Court and relevant pieces of
evidence in the case, and listening to the arguments of the
learned counsel for the appellants, who said all that could
be urged to support this appeal, and learned counsel for the
respondent State, we think that the appreciation of the
evidence by the High Court was undoubtedly far superior and
that interference with the trial Court's judgment of
acquittal was justified. Nevertheless, we find that there
is an aspect of the case relating to Sopan, who was a
student aged about 18 years at the time of the alleged
offence, which has not been given due importance by the High
Court so as to determine whether this appellant was en-
titled, as we think he is, to the benefit of doubt as
regards his alleged participation in the actual commission
of an offence.
(1) AIR 1959 S.C. 1012.
507
The account of the occurrence given by Sudam, P.W. 17 may be
summarised as follows:--
The witness, who knew, Narainrao, Sarpanch of Walana, had
been engaged by the Sarpanch to assist him in the
supervising the construction of a road under a contract.
The Sarpanch got a commission and the witness got Rs. 3 per
day. He left Walana with the Sarpanch at 8 . 00 A.M. for
village Mannas Pimpri to pay the wages of the labourers on
30th April, 1966, which was a Saturday. Wages used to be
paid on Saturdays. Laxman, appellant, met and followed them
on the way saying that he too had to go to Mannas Pimpri.
As the party reached Mahboob's field, Laxman lifted and
tucked in his Dhoti like a wrestler. Then, Laxman suddenly
caught hold of Narayan's right leg, and, putting his left
hand on his back, felled Narainrao on the ground face
downwards. Narainrao's hands were under his body. Laxman
caught and then sat on Narainrao's neck. Narainrao raised a
hue and cry. When the witness tried to restrain Laxman and
caught his hand, hewas warned that he would be killed if he
interfered. Just then, thewitness saw Sopan and
Sakharam, brother and wards them. Sakharam carried a
'Ramna'. The witness let go the hand of Laxman. While
Laxman sat on the neck of Narainrao and pressed it down,
Sakharam rained blows with the 'Ramna' on the back of
Narainrao. Sopan stood watching nearby- After Sakharam had
finished beating Narainrao, Sopan took the same Ramna and
started beating him while Narain shouted : 'I am dead'.
Finally, Laxman took a big stone and threw it on the neck of
Narainrao. As Laxman saw the witness watching from a
distance, while escaping he said : "Catch this Mang". The
witness ran towards Walana. He met, Bhika Kotwal of Walana
on the way and informed him that Narainrao was being beaten
by the' three accused. At Walana, he informed Abhiman, the
brother of Narainrao, that the accused were beating up
Narainrao. He then went to his sister's house and drank
some water. He was about to go back to the scene of
occurrence when Laxman and Sopan came there. Laxman said :
'Take care Mang I If you testify in favour of the Sarpanch,
you would be murdered'. The witness was, however, not
deterred from going back to the scene of occurrence where
other villagers had. collected.
Attempts were made by cross-examination to discredit the
testimony of this witness. Firstly, it was suggested to him
that two chits (Ex. 31 and 32), showing that the witness was
demanding Rs. 30/to spoil the prosecution case, were sent by
him. But, as the High Court had rightly pointed out, the
connection of this witness with writing on these chits could
not be established. The trial Court had obviously erred in
using these chits to doubt the credibility of the witness.
Secondly, it was urged that this witness had denied his con-
viction for an offence under s. 12 of the Gambling Act. The
learned Sessions Judge had, in our opinion, attached too
much importance to this denial. , The High Court, on the
other hand, had examined the certified copy of the criminal
case register (Ex. 42) filed to contradict the statement of
this witness denying a conviction and had
508
held that, although one Sudam Sakharam of Bahar Jahagir was
shown to be one of two accused persons mentioned in the copy
filed, yet, the entries in the relevant columns did not show
anything beyond a fine of Rs. 5/- on Laxman, the co-accused.
The High Court also held that the identity of the particular
Sudam Sakharam mentioned in this copy was not established as
that of Sudam P.W. 17 and that there could be other persons
of that name in the village. The High Court had also
adversely commented on the fact that the copy was not of a
document kept in proper form. It had been only signed by a
clerk. No judgment and order of the Court was filed. The
High Court doubted the bona fides of the defence in
producing what it considered to be a suspicious copy to
contradict one of the statements of the witness. Even if we
do not question the bona fides of the defence in finding it,
the technical defect of want of proof of the exact identity
of Sudam mentioned in the copy was certainly there. We
agree with the High Court that the trial court had made too
much out of this alleged contradiction in the testimony of
Sudam. Thirdly, it was sought to be shown that Sudam had
improved the account of the incident given by him at earlier
stages by introducing, in his statement at the trial, what
he had not said earlier. The High Court held that these
omissions were not "contradictions". Alternatively, it held
that, even if an omission here could be viewed as a
'contradiction, it could not be used at all without
complying with s. 145 of the Evidence Act.
In Tahsildar's case (supra) the majority view of this Court
by Subba Rao, J., was (at p. 1023) :-
"Contradict according to the Oxford Dictionary
meant to affirm to the contrary. Section 145
of the Evidence Act indicates the manner in
which contradiction is brought out. The
cross-examining counsel shall put the part or
parts of the statement which affirms the
contrary to what is stated in evidence. This
indicates that there is something in writing
which can be set against another statement
made in evidence. If the statement before the
police officer in the sense we have indicated
and the statement in the evidence before the
Court are so inconsistent or irreconcilable
with each other that both of them cannot co-
exist, it may be said that one contradicts the
other.
It is broadly contended that a statement
includes all omissions which are material and
are such as a witness is expected to say in
the normal course. This contention ignores
the intention of legislature expressed in s.
162 of the Code and the nature of the non-
evidentiary value of such a statement, except
for the limited purpose of contradiction.
Unrecorded statement is completely excluded.
But recorded one is used for a specified
purpose. The record of a statement, however
perfunctory, is assumed to give a sufficient
guarantee to the correctness of the statement
made but if words not recorded are brought in
by some fiction, the objection of the section
would be defeated.
509
By that process, if a part of a statement is
recorded, what was not stated could go in on
the sly in the name of contradiction, whereas
if the entire statement was riot recorded, it
would be excluded. By doing so, we would be
circumventing the section by ignoring the only
safeguard imposed by the legislature, viz.,
that the statement should have been recorded".
In the case before us we find that no question
was put at all to Sudam, in his cross-
examination, about what he bad stated or
omitted to state to the police during the
course of investigation. Cross-examination of
the witness bad, however, brought out two
material omissions from statements before the
Executive Magistrate and the Committing Court.
The witness said :
"I have not stated before the Executive
Magistrate, nor before the committing court
that accused nos. 2 and 3 bad obstructed me,
when I took to my heels. Sepan (accused no.
2) had beaten Narainrao with Rumna, after
taking the same from accused no. 3. I have not
stated therefore the Executive Magistrate that
accused no. 2 bad beaten Narainrao with Rumna.
I have not stated before the committing
Magistrate that the accused no. 2 (Sopan) bad
beaten Narainrao. I have stated before the
Committing Magistrate that at the time of the
incident, accused no. 2, did nothing and he
was simply standing there".
The High Court itself observed :
"It is true that the witness had not made any
statement before the Committing Magistrate
regarding the part played by accused no. 2 in
the assault on Narainrao but that may be
because he was not questioned on that point at
that time. The same can be said about the
statement before the Executive Magistrate."
It then went on to say
"It cannot, however, be said that be bad not
made any statement on the point before the
Police. As we will presently point out, it is
not possible to any that the witness had not
made any statement on the point before the
Police, but, assuming for the present that he
bad not made any such statement, it would be
only an omission presumably due to his not
being questioned on the point. That cannot be
of any help to the defence to suggest that the
witness was making intelligent improvements as
assumed 'by the learned Judge. The omission,
if at all it is there, is not such as would
amount to controdiction and cannot, therefore,
be proved to show that the witness was making
improvements."
In so far as the High Court was presuming, from the failure
of the defence to cross-examine the witness about any
assatement before the police, that there was no such
omission in his statement before
M602SupCI/74
510
the police, the High Court was assuming the existence of
something which could not have been used by the prosecution
to corroborate its case even if it existed. The High Court
had then, proceeding on the assumption that there was such
an omission from the statement of the witness before the
police, explained an assumed infirmity in it by holding that
this constituted neither a contradiction nor was it
inexplicable by a failure to question the witness on the
point during the investigation as though it was no part of
the duty of the police to elicit or ascertain what part was
played by each accused in the occurrence before prosecuting
him.
If we were to assume that the witness had revealed to the
police the part alleged by him at the trial to have been
played by Sopan, it would make it all the more incumbent on
the prosecution to bring out this part when the witness was
making his statement in his examination-in-chief before the
Magistrates. The statements before the magistrates could be
used both to contradict and to corroborate. The prosecution
had performed its duty in questioning the witness, when he
was deposing at the trial, about the part played by Sopan.
It should not have gone to sleep at earlier stages and then
tried to fill up the possible gaps in the evidence on this
part of the case at the trial. If it does this, so that an
important prosecution witness appears to be introducing new
allegations which are vital for determining the liability of
an accused, the new statements are bound to arouse suspicion
and doubt.
It may not be out of place to mention here that the 11th
Report of the Criminal Law Revision Committee in England,
has recommended the abrogation of several artificial rules
of evidence which may result in the exclusion of what is
logically relevant (See : Criminal Law Review, June, 1973,
p. 329). So far as our law goes. we do not think that s.
145 of the Evidence Act, on the very reasoning of Tahsildar
Singh's case (supra), cited by the High Court, was intended
to exclude from evidence what is relevant and admitted, and,
therefore, a proved omission from having its due effect in
the assessment of probabilities. Section 145, Evidence Act
applies only to 'contradictions'. if there are omissions in
previous statements which do not amount to contradictions
but throw some doubt on the veracity of what was omitted,
the uncertainty or doubt may be capable of removal by
questions in re-examination. There were no such questions
put to Sudam in the case before us. Neither proof nor use
of such omissions, which do not amount to contradictions, is
barred by Sec. 145. Evidence Act.
is not possible to lay down a general rule as to what effect
a particular omission from a previous statement should have
on the probative value of what was so omitted by a witness.
The effect will depend upon the totality of proved facts and
circumstances in which the omission might have taken place
It will often be determined by the importance of wtiat was
omitted. Oar enacted law of evidence contains nothing more
than sections 3 and 114 of the Evidence Act to indicate and
illustrate the standards and methods employed in assessing
the evidence. The error the High Court had committed in
511
the case before us was that it entirely excluded very
important, relevant, and material omissions, from duty
proved previous statements of the witness Sudam from
consideration altogether as though they were quite
irrelevant and inconsequential.
Quite apart from the error of the High Court in assuming
that a material omission from a previous statement, even if
it is not to be treated strictly as a contradiction, must be
ignored in evaluating the testimony of the only eye witness
on so important a matter, for determining the liability of
Sopan, we think that what Sudam P.W. 17 had omitted to state
before the Magistrates ought also to have been more
critically examined and tested by the High Court in the
light of probabilities and the natural course of human
conduct. The important question which arose for
determination on facts and circumstances disclosed by Sudam
himself was :
How much did Sudam actually see with his own
eyes and how much of what he said could be not
unreasonably attributed to conjecture,
surmise, or imagination on his part?
Before we discuss the evidence further, we may
observe that Professor Munsterberg, in a book
called "On the Witness Stand" (p. 51), cited
by Judge Jerome Frank in his "Law and the
Modern Mind" (see : 1949 ed. p. 106), gives
instances of experiments conducted by enacting
sudden unexpected preplanned episodes before
persons who were then asked to write down,
soon afterwards, what they had seen and heard.
The astounding result was :
"Words were put into the mouths of men who had
been silent spectators during the whole short
episode; actions were attributed to the chief
participants of which not the slightest trace
existed; and essential parts of the
tragicomedy were completely eliminated from
the memory of a number of witnesses".
Hence, the Professor concluded : "We never know whether we
remember, perceive, or imagine". Witnesses cannot,
therefore, be branded as liars in toto and their testimony
rejected outright even if parts of their statements are
demonstrably incorrect or doubtful. The astute judge can
separate the grains of acceptable truth from the chaff of
exaggerations and improbabilities which cannot be safely or
prudently accepted and acted upon. It is sound commonsense
to refuse to apply mechanically, in assessing the worth of
necessarily imperfect human testimony, the maxim : "falsus
in uno falsus in omnibus."
Reverting to the evidence in the case, we find that Sudam
was, as is quite natural, in a hurry to get back to the
village because, apart from the fear of the accused (Laxman
had actually threatened to kill him and the other two had
also been alleged by him to have attempted to prevent his
escape), he had to inform the relations of Narainrao soon
about what he had seen. And, he deposed that he told both
Bhika Kotwal and Abhiman (P.W. 2) when he met them,. that
Narainrao was "being" beaten, or, in other words, the
beating had not come
512
to an end when he ran away from the scene of occurrence.
Moreover, he was quite far when Sopan is alleged by him,
apparently for the first time it the-trial, to have taken
his turn to beat the deceased with the Rumna. Even the last
act attributed by him to Laxman who is said to have hurled a
big stone at the neck of Narainrao lying on the ground, is
not corroborated by medical evidence, Moreover, it was not
possible for Sudam to have observed from a distance that the
stone hurled by Laxman actually hit Narain on his neck. He
could have mistaken some act of Sopan, such as throwing away
of the Rumna, for an assault with it claimed by him to have
been seen from a distance as he turned his head back to see
whilst escaping. We, therefore, conclude that, although
Sudam was there to witness how the attack began, he had
probably drawn upon his imagination to some extent to give
the details of how it ended.
We next turn to the several dying declarations put forward
to corroborate the statement of Sudam. These show that the
three appellants were present at the attack upon Narainrao
and were thought by Narainrao to have participated in
beating him. These dying declarations, however, do not
mention the particular part assigned by Sudam to Sopan in
his deposition at the trial. This is natural as Narainrao
was not in a position to see the actual assailant after he
was pinned down to the ground with his face downwards and
Laxman sitting on his "neck". He could only guess who was
striking him on the back.
The first dying declaration, made to Mahboob, P.W. 10, did
not impress the High Court. The second was made to Piraji
P.W. 9, the third to Laxmanramji P.W. 2 and the 4th to
Datarao P.W. 3, the Sarpanch of Mannas Pimpri. The High
Court had rightly observed that the last three dying
declarations made to villagers, who had assembled at the
scene of occurrence before Narainrao died, could not be held
to be false as the medical evidence indicated that he could
remain conscious for some time after the attack. The more
important question for determination, therefore, was :
"To what extent do the dying declarations corporate Sudam?"
Neither the dying declarations nor the F.I.R. lodged at the
police station by Abhiman P.W. 12, the brother of Narainrao,
on 30-4-1966. at 12 30 p.m. disclose the parts played by
each of the three accused. The report sent by Abhiman is
actually signed by Sudam P.W. 17. It is true that, at that
time, it was not known that Narainrao would die. But, both
Sudam and Abhiman knew that a very severe beating had been
given to Narainrao. We think that it is unlikely that, if
Sudam had seen the details of the way in which the beating
of Narainrao ended, no details of it whatsoever would be
given in the report sent by Abhiman to the police which was
signed by Sudam. Thus, the proved omission of the last part
of Sudam's version from the F.I.R. as well as from his
proved previous statements before the Executive and the
Committing Magistrates, combined with the unlikelihood that
he could either stay long enough at the scene to see how the
beating ended or
513
would be able to see this well enough when he turned his
head back while running away and his own admitted statements
to other witnesses throw that part of the story in which
Sopan appellant is said to have taken his turn in beating of
Narainrao in the region of reasonable doubt.
Sopan, appellant, a young man, may have accompanied his
elder brother, Laxman, and his cousin, Sakharam, out of
curiosity. He may have watched the beating. Sudam's own
statement before the committing magistrate quoted above, was
that this is all that Sopan did there, although the High
Court thought fit to explain it away by believing that this
assertion was confined to the earlier stage of the beating.
According to the High Court's finding, Sopan was only
standing at least when Sakharam was giving the eating with
the 'Rumna'. He must have accompanied his elder brother and
cousin back to the village. Sopan may have even taken and
thrown the 'Rumna' or known where it was lying. The fact
that he indicated the place from where it could be recovered
would not be sufficient to establish his participation in
the incident beyond reasonable doubt. Therefore, we are of
the opinion that Sopan, appellant, is entitled to the
benefit of the doubt which emerges on an examination of the
whole evidence in the case about the precise acts of
participation by him. As regards Laxman and Sakharam there
is no room for doubt that they actually attacked Narainrao
deceased as stated by Sudam. The manner in which Narainrao
was said to be beaten, corroborated by medical evidence,
makes it impossible for the beating to have been given by a
single individual. The participation of Laxman and Saharam
in the actual commission of the offence is, therefore,
established beyond any reasonable doubt. The medical
evidence also leaves no doubt that the beating was such
that, in the ordinary course of nature, it would cause the
death of Narainrao.
We, therefore, think that Laxman and Sakharam appellants
have been rightly convicted under section 302 read with s.
34 I.P.C. and sentenced to life imprisonment. Hence, we
dismiss the appeal of Laxman and Sakharam and affirm their
convictions and sentences. We allow the appeal of Sopan
appellant and set aside his conviction and sentence. We
order that Sopan be set at liberty forthwith unless wanted
in some other connection.
S.B.W. Appeal allowed in part.
514
