The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act.

 The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act.

Admittedly, on 15th March 2000, the said Society was served with a notice informing the said Society that an exemption has been granted from payment of commercial tax to the said Society. Therefore, the said Society was not liable to pay any tax for the year 1996-97. The issue of the final assessment order was only a procedural formality. Therefore, the prosecution’s case about the demand of bribe made on 23rd March 2000 by the appellant appears to be highly doubtful.

1

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 261 OF 2022

(Arising out of SLP (Criminal) No. 7182 of 2019)

K. SHANTHAMMA … APPELLANT

v.

THE STATE OF TELANGANA ... RESPONDENT

J U D G M E N T

ABHAY S. OKA, J.

Leave granted.

1. The Special Court under the Prevention of Corruption

Act, 1988 (for short ‘the PC Act’) convicted the appellant for

the offences punishable under Sections 7 and 13 (1)(d) read

with Section 13(2) of the PC Act. The order of conviction has

been confirmed in appeal by the High Court of Telangana.

2. The prosecution case, in brief, is that the appellant was

working as a Commercial Tax Officer at Secunderabad. PW1

2

Shri R.Seetharamulu @ Sharma is the complainant. PW1 was

working at the relevant time as a supervisor in Farmers’

Service Co-operative Society (for short ‘the said Society’). He

was doing the work of filing returns of commercial tax of the

said Society. Though the assessment of the said Society for

the year 1997-98 was completed, till February 2000, the

returns of the said Society for the year 1996-97 remained

pending for assessment. The appellant issued a notice dated

14th February 2000 calling upon the said Society to produce

cash book, general ledger, and purchase and sales statements

for the year 1996-97. In February 2000, on the instructions of

the Managing Director of the said Society, PW1 attended the

office of the appellant along with the concerned record. After

PW1 showed the documents to the appellant, she called PW4

Ahmed Moinuddin, ACTO, and directed him to verify the

records. The case of PW1 is that on 24th February 2000, when

he met the appellant, she demanded a bribe of Rs.3,000/- for

issuing an assessment order. Though he showed

unwillingness to pay the amount, for consecutive three days,

the appellant reiterated the demand. On 29th February 2000,

3

PW1 requested the appellant to issue final assessment order.

At that time, the appellant informed PW1 that unless the bribe

as demanded is paid, she will not issue final assessment

order. On 23rd March 2000, PW1 again approached the

appellant when she scaled down her demand to Rs.2,000/-.

3. On 27th March 2000, PW1, along with the Managing

Director of the said Society, visited the office of the AntiCorruption Bureau (ACB) at Hyderabad. PW1 filed a written

complaint to the Deputy Superintendent of Police, ACB.

Accordingly, a trap was laid. The allegation of the prosecution

is that when PW1 tendered the tainted currency notes of

Rs.2,000/- to the appellant in her office, instead of taking the

amount directly, she took out a diary from her table drawer

and opened the same. She asked the appellant to keep the

currency notes in the diary. Accordingly, PW1 kept the notes

in the said diary. After closing the diary, the appellant kept

the same in her table drawer. She locked the table drawer

and kept the key in her handbag. After that, she called ACTO

along with the record. The appellant signed on the last page

of the ledger and cash book by putting the date as 26th

4

February 2000. Thereafter, the appellant directed the attender

to affix an official rubber stamp below her signature.

Accordingly, a rubber stamp was put by the attender. PW1

collected the general ledger and cash book from the attender,

and after coming out of the office, he gave a signal to the trap

party. Then the trap party entered the office of the appellant.

When the appellant was questioned by the Deputy

Superintendent of Police, she showed her right-hand side

table drawer. She took out the key of the drawer from her

handbag and opened the table drawer. She took out the diary

from the drawer and placed the same on the table. After the

diary was opened by the Deputy Superintendent of Police, he

found a wad of currency notes. The numbers on the currency

notes tallied with the serial numbers of currency notes

described in pre-trap proceedings. After that, the seizure was

carried out, and necessary formalities were completed. The

Special Court found that the demand of bribe and acceptance

of bribe was proved by the prosecution. The High Court has

affirmed the said finding.

5

4. Mrs. V. Mohana, the learned Senior counsel appearing

for the appellant, has taken us through the evidence of the

prosecution witnesses. Her first submission is that the

demand for a bribe by the appellant was not proved, and the

evidence of PW1 to that effect is an improvement. Moreover,

LW8, who was instructed by the Deputy Superintendent of

Police of ACB to accompany PW1 inside the chamber of the

appellant, did not enter the chamber along with the appellant.

She pointed out that when the sodium carbonate test was

conducted, the fingers of the appellant did not turn pink;

therefore, it was not established that she accepted the

currency notes. The alleged recovery of currency notes was

shown from a diary. The recovery has not been proved. She

pointed out the appellant’s defence that PW1 deliberately kept

the currency notes in the diary lying on her table when she

went to the washroom before leaving her office. Her

submission is that the recovery of currency notes has not

been proved.

5. The learned Senior Counsel pointed out that the notice

dated 26th February 2000 issued by the appellant was

6

admittedly served on the said Society on 15th March 2000,

which recorded that the net turnover of the said Society was

nil in the year 1996-97. Therefore, the Society was not liable

to pay any tax. Her submission is that this makes the entire

prosecution case about the demand extremely doubtful. She

pointed out that PW4, ACTO had a grudge against the

appellant as, admittedly on 22nd March 2000, the appellant

had served a memo on him pointing out the defaults

committed by him in the discharge of his duties. The learned

counsel relied upon various decisions of this Court in support

of the proposition that unless the demand and acceptance of

bribe are established, a presumption under Section 20 of the

PC Act will not apply. She urged that the demand and

acceptance have not been proved. She also pointed out the

case made out by the appellant in her statement under

Section 313 of the Code of Criminal Procedure, 1973 (for short

“the CrPC”). Her defence is that at about 5.30 pm on 27th

March 2000, she went to the washroom attached to her

chamber before leaving the office. When she came back, she

found PW1 sitting in her room. She informed PW1 that the file

7

was no longer pending with her. Afterward, she called PW4-

ACTO through the attender and returned the account books to

PW1. She pointed out that PW7, P.V.S.S.P. Raju, and PW8,

U.V.S.Raju, the then Deputy Superintendent of Police, ACB,

Hyderabad, accepted that there is a washroom attached to the

chamber of the appellant. She submitted that both the Courts

have committed an error by convicting the appellant.

6. Ms. Bina Madhavan, the learned counsel appearing for

the respondent, supported the impugned Judgments. She

pointed out that the evidence of PW1 on continuous demands

made by the appellant is trustworthy as there is no reason for

PW1 to make any false allegation or falsely implicate the

appellant. She submitted that the tainted notes were found in

the diary of the appellant, which was kept in her table drawer.

She was in possession of keys of the table drawer. She herself

opened the table drawer and produced the diary from her

custody in which tainted notes were kept. Her submission is

that though communication may have been served on the said

Society on 15th March 2000 recording that the Society is not

liable to pay any amount, the appellant did not issue the final

8

assessment order. She pointed out that the demand made by

the appellant was for issuing final assessment order, which

was issued on the day of the trap. Her submission is that the

Special Court and the High Court, after appreciating the

evidence, have recorded findings of fact based on evidence on

record. Her submission is that under Article 136 of the

Constitution of India, no interference is called for.

7. We have given careful consideration to the submissions.

We have perused the depositions of the prosecution witnesses.

The offence under Section 7 of the PC Act relating to public

servants taking bribe requires a demand of illegal gratification

and the acceptance thereof. The proof of demand of bribe by a

public servant and its acceptance by him is sine quo non for

establishing the offence under Section 7 of the PC Act. In the

case of P. Satyanarayana Murthy v. District Inspector of

Police, State of Andhra Pradesh and another1

, this Court

has summarised the well-settled law on the subject in

paragraph 23 which reads thus:

1

(2015) 10 SCC 152

9

“23. The proof of demand of illegal

gratification, thus, is the gravamen of the

offence under Sections 7 and 13(1)(d)(i) and (ii)

of the Act and in absence thereof,

unmistakably the charge therefor, would fail.

Mere acceptance of any amount allegedly by

way of illegal gratification or recovery thereof,

dehors the proof of demand, ipso facto, would

thus not be sufficient to bring home the charge

under these two sections of the Act. As a

corollary, failure of the prosecution to prove

the demand for illegal gratification would be

fatal and mere recovery of the amount from

the person accused of the offence under

Section 7 or 13 of the Act would not entail

his conviction thereunder.”

 (emphasis added)

8. The prosecution’s case is that the appellant had kept

pending the return of commercial tax filed by the said Society

for the year 1996-97. The appellant had issued a notice dated

14th February 2000 to the said Society calling upon the said

Society to produce the record. Accordingly, the necessary

books were produced by the said Society. The case made out

by PW1 is that when he repeatedly visited the office of the

appellant in February 2020, the demand of Rs.3,000/- by way

of illegal gratification was made by the appellant for passing

the assessment order. However, PW1, in his crossexamination, accepted that the notice dated 26th February

10

2000 issued by the appellant was received by the said Society

on 15th March 2000 in which it was mentioned that after

verification of the books of accounts of the said Society,

exemption from payment of commercial tax as claimed by the

said Society was allowed. PW1 accepted that it was stated in

the said notice that there was no necessity for the said Society

to pay any commercial tax for the assessment year 1996-97.

According to the case of the PW1, on 23rd March 2000, he

visited the appellant’s office to request her to issue final

assessment order. According to his case, at that time,

initially, the appellant reiterated her demand of Rs.3,000/-.

But she scaled it down to Rs.2,000/-. Admittedly, on 15th

March 2000, the said Society was served with a notice

informing the said Society that an exemption has been

granted from payment of commercial tax to the said Society.

Therefore, the said Society was not liable to pay any tax for the

year 1996-97. The issue of the final assessment order was

only a procedural formality. Therefore, the prosecution’s case

about the demand of bribe made on 23rd March 2000 by the

appellant appears to be highly doubtful.

11

9. PW1 described how the trap was laid. In the pre-trap

mediator report, it has been recorded that LW8, Shri R.Hari

Kishan, was to accompany PW1 - complainant at the time of

offering the bribe. PW7 Shri P.V.S.S.P. Raju deposed that

PW8 Shri U.V.S. Raju, the Deputy Superintendent of Police,

ACB, had instructed LW8 to accompany PW1 - complainant

inside the chamber of the appellant. PW8 has accepted this

fact by stating in the examination-in-chief that LW8 was asked

to accompany PW1 and observe what transpires between the

appellant and PW1. PW8, in his evidence, accepted that only

PW1 entered the chamber of the appellant and LW8 waited

outside the chamber. Even PW7 admitted in the crossexamination that when PW1 entered the appellant’s chamber,

LW8 remained outside in the corridor. Thus, LW8 was

supposed to be an independent witness accompanying PW1.

In breach of the directions issued to him by PW8, he did not

accompany PW1 inside the chamber of the appellant, and he

waited outside the chamber in the corridor. The prosecution

offered no explanation why LW8 did not accompany PW1

inside the chamber of the appellant at the time of the trap.

12

10. Therefore, PW1 is the only witness to the alleged demand

and acceptance. According to PW1, firstly, the demand was

made of Rs.3,000/- by the appellant on 24th February 2000.

Thereafter, continuously for three days, she reiterated the

demand when he visited the appellant’s office. Lastly, the

appellant made the demand on 29th February 2000 and 23rd

March 2000. On this aspect, he was cross-examined in detail

by the learned Senior Counsel appearing for the appellant.

His version about the demand and acceptance is relevant

which reads thus :

“In the vicinity of office of AO the jeep, in which

we went there was stopped and I was asked to go

into the office of AO and the trap party took

vantage positions. Accordingly, I went inside the

office of AO. I wished AO. At that time apart

from AO some other person was found in the

office room of AO and he was talking to the AO.

AO offered me a chair. After discussion with the

AO the said other person left the room of AO. I

informed AO that I brought the bribe amount as

demanded by her and also asked her to issue the

Final Assessment Orders. Then I took the said

tainted currency notes from my shirt pocket and

I was about to give the same to the AO and on

which instead of taking the same amount directly

by her with her hands she took out a diary from

her table drawer, opened the diary and asked me

to keep the said amount in the diary.

Accordingly, I kept the amount in the said diary.

She closed the said diary and again kept the

13

same in her table drawer and locked the drawer

and kept the keys in her hand bag which was

hanging to her seat. She pressed the calling bell

and a lady attender came into the room of AO,

then she instructed the lady attender to call

concerned ACTO to her along with the concerned

society records.

Accordingly, ACTO came to AO along with record.

After going through the Ledger and Cash Book

etc., AO signed on the last page of the said

Ledger and Cash Book mentioning 26.02.2000

below her signature in the said register though

she signed on 27.03.2000 in my presence. AO

directed her attender to affix official rubber

stamp below her signature in the Ledger and

Cash Book and accordingly attender affixed the

same. AO also signed on the office note of Final

Assessment Orders at that time. Thereafter, I

collected the General Ledger and Cash Book from

the attender after affixing the said rubber stamp

thereon and came out of the office of AO and

relayed the pre-arranged signal to the trap

party.”

 (underlines supplied)

11. Thus, PW1 did not state that the appellant reiterated her

demand at the time of trap. His version is that on his own, he

told her that he had brought the amount. What is material is

the cross-examination on this aspect. In the crossexamination, PW1 accepted that his version regarding the

demand made by the appellant on various dates was an

14

improvement. The relevant part of the cross-examination of

the appellant reads thus:

“I did not state to ACB Inspector in section 161

Cr.P.C. statement that on the evening of

24.02.2000 I met the AO and that she

demanded the bribe. I did not mention in Ex.P3

complaint that continuously for 3 days after

24.02.2000 I met the AO and the AO reiterated

her demand. I did not mention in Ex.P3

complaint that on 29.02.2000 I approached the

AO and the AO demanded bribe of Rs.3,000/-

and that unless I pay the said bribe amount she

will not issue final assessment orders. I did not

state in my Sec.164 statement before the

Magistrate that 13.03.2000 to 16.03.2000 I was

on leave and from 01.03.2000 to 12.03.2000, I

was engaged in recovering the dues of the

society. It is not true to suggest that I did not

meet the AO continuously 3 days i.e., on 25th,

26th and 27th of February, 2000 and that

27.02.2000 is Sunday. It is not true to suggest

that I did not meet the AO in the evening of

24.02.2000 and that AO did not demand any

money from me. I did not state in my section

161 Cr.P.C. statement to Inspector of ACB that

before I left the office of DSP on the date of trap

I made a phone call enquiring about the

availability of AO and the AO was in the office

and informed me that she should be available in

the office from 6.00 to 7.00 P.M. on that day so

also in my Sec.164 Cr.P.C. I made such a

phone call from the office of the DSP, ACB. I do

not remember as to from which phone number I

made phone call on that day. I cannot describe

office telephone number of the AO. It is not true

to suggest that I did not make any such phone

call to AO and that she did not give any such

reply to me. I did not state to ACB Inspector in

15

my 161 Cr.P.C. statement or to the Magistrate

in my S.164 Cr.P.C. statement that I went

inside the office of AO and I wished AO and at

that time apart from AO some other person was

found in the office room of AO and that he was

talking to the AO and that the AO offered me a

chair and that after discussion with the AO the

said person left the room of AO and then I

informed the AO that I brought the bribe

amount. I did not state that said aspects to

DSP during the post trap proceedings also.

 (underlines supplied)

12. Thus, the version of PW1 in his examination-in-chief

about the demand made by the appellant from time to time is

an improvement. As stated earlier, LW8 did not enter the

appellant’s chamber at the time of trap. There is no other

evidence of the alleged demand. Thus, the evidence of PW1

about the demand for bribe by the appellant is not at all

reliable. Hence, we conclude that the demand made by the

appellant has not been conclusively proved.

13. PW2, Shri B.D.V. Ramakrishna had no personal

knowledge about the demand. However, he accepted that on

15th March 2000, the said Society received a communication

informing that the said Society need not pay any tax for the

year 1996-97. PW3 Shri L. Madhusudhan was working as

Godown Incharge with the said Society. He stated that on 15th

16

March 2000, when he visited the appellant’s office, ACTO

served the original notice dated 26th February 2000 in which it

was mentioned that the Society was not liable to pay any tax.

It is his version that when he met the appellant on the same

day, she enquired whether he had brought the demanded

amount of Rs.3,000/-. However, PW3 did not state that the

appellant demanded the said amount for granting any favour

to the said society.

14. PW 4 Ahmed Moinuddin was ACTO at the relevant time.

He deposed that on 27th March 2000, the appellant instructed

him to prepare the final assessment order, which was kept

ready in the morning. He stated that he was called at 6 pm to

the chamber of the appellant along with books of the said

Society. At that time, PW1 was sitting there. He stated that

the appellant subscribed her signature on a Register of the

said Society and put the date as 26th February 2000 below it.

He was not a witness to the alleged demand. However, in the

cross-examination, he admitted that the appellant had served

a memo dated 21st March 2000 to him alleging that he was

careless in performing his duties.

17

15. Thus, this is a case where the demand of illegal

gratification by the appellant was not proved by the

prosecution. Thus, the demand which is sine quo non for

establishing the offence under Section 7 was not established.

16. Hence, the impugned Judgments will have to be set

aside. Accordingly, the appeal is allowed. The conviction of the

appellant for the offences punishable under Sections 7 and

13(1)(d) read with Section 13(2) of the PC Act is set aside and

the appellant is acquitted of the charges framed against her.

…………..…………………J

(AJAY RASTOGI)

…………..…………………J

(ABHAY S. OKA)

New Delhi;

February 21, 2022.

Suit for Partition and separate possession - When plaintiff Nos.4 to 8, whose claim was denied by the trial court and who had not challenged the same by way of appeal, are not entitled to relief in the second appeal.? - No ; Whether in the second appeal the question of fact is to be reconsidered ? yes .

 Suit for partition  and separate possession of the suit properties. - suit came to be decreed, in part, declaring that plaintiff No. 2 was entitled to 7/24th  share and plaintiff No.3 was entitled to 1/8th share in the suit schedule properties.  It was further held that the plaintiffs were not entitled to any share in suit Item Nos. 7 to 9 and 22. -  the appellant herein defendant No.1 was directed to render accounts in respect of the receipt and expenditure of the money incurred by him on the suit schedule properties for the period from the date of the suit till the date of effecting actual partition of the suit schedule properties. -  It was further held that the appellant herein, who was defendant No.1, is liable to divide   the   profits   earned   from   the   properties   in   favour   of defendant Nos.2 and 3 to plaintiff Nos.2 and 3 as per their respective shares. -  appeal was allowed by judgement and order dated 23rd November   1994,   by   setting   aside   the   judgment   and   decree -  The High Court vide its judgment dated 18th March 1998, set aside the judgment and order dated 23rd November 1994 passed by the First Appellate Court and restored the judgment and decree dated 11th  September 1987 passed by the trial court. -  This Court vide its order dated 17th August 2004,   found   that   the   High   Court   had   allowed   the   appeal  without framing the questions of law as required under Section 100 of the Code of Civil Procedure, 1908 and set aside the judgment dated 18th  March 1998, passed by the High Court and remanded the matter to the High Court for disposal afresh in accordance with law.  

On remand, the second appeal was heard afresh and the High Court framed the following questions of law: (1) Whether the plaintiffs 1 and 2 are entitled to share   in   the   suit   schedule   properties, particularly   when   Rehaman   Barid   through whom   plaintiffs   1   and   2   claim   partition predeceased his father ­ Mohiyuddin Pasha ­ the propositus?  

(2) Whether the first Appellate Court is justified in negativing the case of the plaintiffs 3 to 8 for partition and separate possession after having found   that   the   documents   Exs.P­1   to   P­7 disclose the paternity of plaintiffs 4 to 8?  

 (3) Whether the first Appellate Court is justified in dismissing the suit filed by plaintiffs 3 to 8 mainly   on   the   ground   that   the   Nikhanama evidencing the marriage of plaintiff No.3 with Mohiyuddin Pasha is not produced?  (4) Whether the properties found in Mehar Deed Ex.D­1   executed   by   Mohiyuddin   Pasha   in favour   of   first   wife   Noorabi   are   liable   to   be divided among the parties to the present suit?

High court  held   that   all   the   suit schedule properties were required to be divided amongst Azgar Barid i.e. appellant defendant No.1 and plaintiff Nos.3 to 8. The High Court also held that plaintiff Nos.1 and 2 were not entitled   for   any   share   in   the   suit   schedule   properties   as Rehaman Barid, husband of plaintiff No.1 and father of plaintiff No.2   predeceased   the   propositus   i.e.,   Mohiyuddin   Pasha. Insofar as the shares of the parties are concerned, the High 5 Court held that the properties are liable to be divided amongst the legal heirs of Mohiyuddin Pasha in the following proportion:

Apex court held that 

When plaintiff Nos.4 to 8, whose claim was denied by the trial court and who had not challenged the same by way of appeal, are not entitled to relief in the second appeal.? - No 

 Chandramohan Ramchandra Patil  and  Others   v.   Bapu  Koyappa  Patil  (Dead)   Through LRs and Others - (2003) 3 SCC 552 , has held thus:

 “14. Order 41 Rule 4 of the Code enables reversal of the decree by the court in appeal at the instance of one or some of the plaintiffs appealing and it can do so in favour of even non appealing plaintiffs. As a necessary consequence such reversal of the decree can be against the interest of the defendants vis­àvis non appealing plaintiffs. Order 41 Rule 4 has to be read with Order 41 Rule 33. Order 41 Rule 33 empowers the appellate court to do complete justice between the parties by passing such order or decree which ought to have been passed or made although not   all   the   parties   affected   by   the   decree   had appealed. 15. In our opinion, therefore, the appellate court by invoking Order 41 Rule 4 read with Order 41 Rule 33 of the Code could grant relief even to the non appealing   plaintiffs   and   make   an   adverse   order against all the defendants and in favour of all the plaintiffs. In such a situation, it is not open to urge on   behalf   of   the   defendants   that   the   decree   of   dismissal   of   suit   passed   by   the   trial   court   had become   final inter   se between   the   non appealing plaintiffs and the defendants.”

Whether in the second appeal the question of fact is to be reconsidered ? yes

Municipal Committee,  Hoshiarpur   v.  Punjab  State  Electricity  Board and Others (2010) 13 SCC 216  : 

“27. There   is   no   prohibition   on   entertaining   a second appeal even on a question of fact provided the   court   is   satisfied   that   the   findings   of   fact recorded by the courts below stood vitiated by nonconsideration of relevant evidence or by showing an erroneous   approach   to   the   matter   i.e.   that   the findings of fact are found to be perverse. But the High   Court   cannot   interfere   with   the   concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that   of   the   lower   courts.   

(Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604] ; Karnataka Board of Wakf v. Anjuman­EIsmail Madris­Un­Niswan [(1999) 6 SCC 343 : AIR 1999   SC   3067]   and Dinesh   Kumar v. Yusuf Ali [(2010) 12 SCC 740 : AIR 2010 SC 2679] .)

The First Appellate Court held that plaintiff No.3 had failed to prove that she was married to Mohiyuddin Pasha, since she had failed to produce any documentary evidence in support thereof.   It further held that plaintiff Nos.4 to 8 had failed   to   establish   that   they   were   the   children   of   deceased Mohiyuddin Pasha. It was held that neither plaintiff No.3 nor plaintiff   Nos.4   to   8   were   entitled   to   any   share   in   the   suit schedule   properties.     Insofar   as   plaintiff   Nos.1   and   2   are concerned, the First Appellate Court held that since they were claiming through Rahaman Barid, who died in 1945 i.e. prior to Mohiyuddin Pasha, who died in 1964, they are also not entitled to any share in the suit schedule properties.

Whether the finding of the First Appellate Court that Mazambi @ Pyarembi­plaintiff No.3 was not married to Mohiyuddin Pasha was erroneous in law ?

Syed Ahmed Ali­PW­1, who was aged 75 years at the time of   giving   evidence,   was   the   brother   of   Noorbi,   first   wife   of Mohiyuddin Pasha.  As such, he was a maternal uncle of the appellant   herein­defendant   No.1.   He   has   clearly   and emphatically deposed that Mohiyuddin Pasha had two wives i.e. Noorbi and Mazambi @ Pyarembi.  He has further deposed that after the death of his sister Noorbi, Mohiyuddin Pashaa took Mazambi   @   Pyarembi   as   his   second   wife.     He   has   also specifically   deposed   that   he   has   attended   the   marriage   of Mazambi   @   Pyarembi­plaintiff   No.3   with   Mohiyuddin  Pasha. The   High   Court   found   that   in   spite   of   searching   crossexamination, nothing came on record to discard the evidence of PW­1.   It was further found that the evidence of PW­1 was supported by Nabi Sab­PW­2, who was also an independent 17 witness.     Appenna­PW­3,   who   was   also   an   independent witness, supported the case of the plaintiffs. 28. The High Court found that the voluminous documents of evidence including the birth certificates of plaintiff Nos.4 to 8, the   transfer   certificates   issued   by   the   Government   Higher Primary   School,   Thadigol   and   Higher   Primary   Boys   School, Thadigol, established that plaintiff Nos.4 to 8 were the children born to Mohiyuddin Pasha through Mazambi @ Pyarembi.  We are of the view that, the High Court rightly interfered with the findings as recorded by the First Appellate Court, inasmuch as the   First   Appellate   Court   was  not   justified   in   reversing  the findings of the trial court in that regard which were based on proper appreciation of evidence.   We are of the view that the First Appellate Court had failed in appreciating the evidence in correct perspective.  The High Court was justified in reversing the same. 

It could thus clearly be seen that in the present case, the First Appellate Court had reversed the findings recorded by the trial   court   which   were   based   upon   correct   appreciation   of evidence.  The High Court has given sound and cogent reasons as   to   why   an   interference   with   the   findings   of   the   First Appellate   Court   was   required.   We   also   find   that   the   First Appellate   Court   has   failed   to   take   into   consideration   the voluminous oral as well as documentary evidence, on the basis of which the trial court had recorded its findings.  The findings as   recorded   by   the   First   Appellate   Court   are   based   on conjectures and surmises.  As such, we are of the considered view that the perverse approach of the First Appellate Court in arriving at the findings would give rise to a substantial question of law, thereby justifying the High Court to interfere with the same.  

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NO. 249 OF 2010

AZGAR BARID (D) BY LRS. AND OTHERS     ...APPELLANT(S)

VERSUS

MAZAMBI @ PYAREMABI AND OTHERS    ...RESPONDENT(S)

J U D G M E N T

B.R. GAVAI, J.

1. This appeal challenges the judgment and order dated 17th

March   2009,   passed   by   the   High   Court   of   Karnataka   at

Bangalore in Regular Second Appeal No. 160 of 1995, thereby

allowing the appeal filed by the respondents herein.

2. The facts in brief giving rise to filing of the present appeal

are as under:

1

A suit for partition being O.S. No. 388/77 came to be filed

by plaintiff Nos. 1 to 8, who are respondent Nos. 1 to 8 herein

before the Prl. Munshiff at Kolar (hereinafter referred to as the

“trial court”), for partition and separate possession of the suit

properties.   Vide judgment and decree dated 11th  September

1987, the said suit came to be decreed, in part, declaring that

plaintiff No. 2 was entitled to 7/24th  share and plaintiff No.3

was entitled to 1/8th share in the suit schedule properties.  It

was further held that the plaintiffs were not entitled to any

share in suit Item Nos. 7 to 9 and 22.  Vide the said judgment

and decree, the appellant herein­defendant No.1 was directed to

render accounts in respect of the receipt and expenditure of the

money incurred by him on the suit schedule properties for the

period from the date of the suit till the date of effecting actual

partition of the suit schedule properties.   It was further held

that the appellant herein, who was defendant No.1, is liable to

divide   the   profits   earned   from   the   properties   in   favour   of

defendant Nos.2 and 3 to plaintiff Nos.2 and 3 as per their

respective shares.

2

3. Being aggrieved by the said judgment and decree of the

trial   court,   the   appellant­defendant   No.1   through   L.Rs.   had

filed Regular Appeal No. 60 of 1988 before the Prl. Civil Judge

at Kolar (hereinafter referred to as the “First Appellate Court”).

The said appeal was allowed by judgment and order dated 23rd

November   1994,   by   setting   aside   the   judgment   and   decree

dated 11th September 1987 passed by the trial court.  

4. The judgment and order passed by the First Appellate

Court came to be challenged before the Karnataka High Court

by filing Regular Second Appeal No. 160 of 1995.   The High

Court vide its judgment dated 18th March 1998, set aside the

judgment and order dated 23rd November 1994 passed by the

First Appellate Court and restored the judgment and decree

dated 11th  September 1987 passed by the trial court.   The

judgment passed by the High Court dated 18th  March 1998

came to be challenged before this Court by filing Civil Appeal

No. 6478 of 1998.  This Court vide its order dated 17th August

2004,   found   that   the   High   Court   had   allowed   the   appeal

3

without framing the questions of law as required under Section

100 of the Code of Civil Procedure, 1908 and set aside the

judgment dated 18th  March 1998, passed by the High Court

and remanded the matter to the High Court for disposal afresh

in accordance with law.  

5. On remand, the second appeal was heard afresh and the

High Court framed the following questions of law:

(1) Whether the plaintiffs 1 and 2 are entitled to

share   in   the   suit   schedule   properties,

particularly   when   Rehaman   Barid   through

whom   plaintiffs   1   and   2   claim   partition

predeceased his father ­ Mohiyuddin Pasha ­

the propositus? 

(2) Whether the first Appellate Court is justified in

negativing the case of the plaintiffs 3 to 8 for

partition and separate possession after having

found   that   the   documents   Exs.P­1   to   P­7

disclose the paternity of plaintiffs 4 to 8? 

4

(3) Whether the first Appellate Court is justified in

dismissing the suit filed by plaintiffs 3 to 8

mainly   on   the   ground   that   the   Nikhanama

evidencing the marriage of plaintiff No.3 with

Mohiyuddin Pasha is not produced? 

(4) Whether the properties found in Mehar Deed

Ex.D­1   executed   by   Mohiyuddin   Pasha   in

favour   of   first   wife   Noorabi   are   liable   to   be

divided among the parties to the present suit?

6. After answering the aforesaid questions of law, the High

Court   vide   the   impugned   judgment,   held   that   all   the   suit

schedule properties were required to be divided amongst Azgar

Barid i.e. appellant­defendant No.1 and plaintiff Nos.3 to 8.

The High Court also held that plaintiff Nos.1 and 2 were not

entitled   for   any   share   in   the   suit   schedule   properties   as

Rehaman Barid, husband of plaintiff No.1 and father of plaintiff

No.2   predeceased   the   propositus   i.e.,   Mohiyuddin   Pasha.

Insofar as the shares of the parties are concerned, the High

5

Court held that the properties are liable to be divided amongst

the legal heirs of Mohiyuddin Pasha in the following proportion:

1. Plaintiff   No.3­Mazambi   @

Pyarembi is entitled to

­ 1/8th share

2. Defendant No.1­Azgar Barid

is entitled to

­ 7/36th share

3. Plaintiff   No.4­Syed   Rehman

Barid @ Sabulal is entitled to

­ 7/36th share

4. Defendant   No.8­Rahiman

Barid   @   Ikbal   Pasha   is

entitled to

­ 7/36th share

5. Plaintiff No.5­Shakila Begum

is entitled to

­ 7/72nd share

6. Plaintiff No.6­Zamila Begum

is entitled to

­ 7/72nd share

7. Plaintiff  No.7­Akhila  Begum

is entitled to

­ 7/72nd share

7. Being aggrieved thereby, the present appeal is filed by the

appellant­defendant No.1­Azgar Barid, through L.Rs.

8. We   have   heard   Shri   Naresh   Kaushik,   learned   counsel

appearing on behalf of the appellant­defendant No.1 and Shri

Girish Ananthamurthy, learned counsel appearing on behalf of

the respondents­plaintiffs.

6

9. Shri Kaushik submitted that the trial court had decreed

the suit only in favour of plaintiff Nos.2 and 3.  As such, in fact,

the trial court held that plaintiff Nos. 4 to 8 were not entitled to

any share in the suit schedule properties of Mohiyuddin Pasha.

The   said   judgment   and   decree   of   the   trial   court   was   not

challenged   by   plaintiff   Nos.4   to   8.     The   same   was   only

challenged   by   the   appellant   herein­defendant   No.1.     It   is

therefore submitted that the second appeal at the behest of

plaintiff   Nos.4   to   8   was   not   at   all   tenable.     He   therefore

submitted   that,   on   this   short   ground   alone,   this   appeal

deserves to be allowed.

10. Shri Kaushik further submitted that though on remand by

this Court, the High Court framed the questions of law, they

cannot be construed to be questions of law inasmuch as all the

said questions pertain to appreciation of evidence.  He therefore

submitted that this appeal deserves to be allowed and the wellreasoned judgment and order passed by the First Appellate

Court deserves to be maintained.

7

11. Per contra, Shri Ananthamurthy submitted that the trial

court had rightly appreciated the evidence.  However, the First

Appellate   Court   had   reversed   the   same   on   the   basis   of

conjectures and surmises.  The High Court has therefore rightly

interfered with the same while reversing the judgment of the

First Appellate Court.  He further submitted that in a partition

suit, all the parties stand on a same pedestal and every party is

a plaintiff as well as a defendant.

12. We will first deal with the objection of the appellant that

since plaintiff Nos.4 to 8, whose claim was denied by the trial

court and who had not challenged the same by way of appeal,

are not entitled to relief in the second appeal.  This Court in the

cases of Bhagwan Swaroop and Others v. Mool Chand and

Others1 and  Dr.  P.  Nalla   Thampy   Thera   v.   B.L.   Shanker

and Others2

, has held that in a suit for partition, the position

of the plaintiff and the defendant can be interchangeable.  Each

party adopts the same position with the other parties.  It has

1 (1983) 2 SCC 132

2 1984 (Supp) SCC 631

8

been   further   held   that   so   long   as   the   suit   is   pending,   a

defendant can ask the Court to transpose him as a plaintiff and

a plaintiff can ask for being transposed as a defendant.  

13. This Court in the case of Chandramohan Ramchandra

Patil  and  Others   v.   Bapu  Koyappa  Patil  (Dead)   Through

LRs and Others3

, has held thus:

“14. Order 41 Rule 4 of the Code enables reversal of

the decree by the court in appeal at the instance of

one or some of the plaintiffs appealing and it can do

so in favour of even non­appealing plaintiffs. As a

necessary consequence such reversal of the decree

can be against the interest of the defendants vis­àvis non­appealing plaintiffs. Order 41 Rule 4 has to

be read with Order 41 Rule 33. Order 41 Rule 33

empowers the appellate court to do complete justice

between the parties by passing such order or decree

which ought to have been passed or made although

not   all   the   parties   affected   by   the   decree   had

appealed.

15. In our opinion, therefore, the appellate court by

invoking Order 41 Rule 4 read with Order 41 Rule

33 of the Code could grant relief even to the nonappealing   plaintiffs   and   make   an   adverse   order

against all the defendants and in favour of all the

plaintiffs. In such a situation, it is not open to urge

on   behalf   of   the   defendants   that   the   decree   of

3 (2003) 3 SCC 552

9

dismissal   of   suit   passed   by   the   trial   court   had

become   final inter   se between   the   non­appealing

plaintiffs and the defendants.”

14. In that view of the matter, we find that the contention

raised on behalf of the appellant with regard to plaintiff Nos.4

to 8 being not entitled to relief in the second appeal on the

ground that they have not challenged the judgment and decree

of   the   trial   court   before   the   First   Appellate   Court,   is   not

sustainable.   As   held   by   this   Court   in   the   case   of

Chandramohan   Ramchandra   Patil  (supra), the trial court

could grant relief even to the non­appealing plaintiffs and make

an adverse order against all the defendants and in favour of all

the plaintiffs.  Merely because the trial court had not granted

relief in favour of plaintiff Nos.4 to 8, would not come in their

way in the High Court allowing their claim.

15. That leads us to the other contention of the appellant.  It

is sought to be urged by him that the High Court, in the second

appeal, has framed questions of law, which are, in fact, not

questions of law but questions of fact.  

10

16. In this respect, it will be relevant to refer to the following

observations   of   this   Court   in   the   case   of  Municipal

Committee,  Hoshiarpur   v.  Punjab  State  Electricity  Board

and Others4

:

“27. There   is   no   prohibition   on   entertaining   a

second appeal even on a question of fact provided

the   court   is   satisfied   that   the   findings   of   fact

recorded by the courts below stood vitiated by nonconsideration of relevant evidence or by showing an

erroneous   approach   to   the   matter   i.e.   that   the

findings of fact are found to be perverse. But the

High   Court   cannot   interfere   with   the   concurrent

findings of fact in a routine and casual manner by

substituting its subjective satisfaction in place of

that   of   the   lower   courts.   (Vide Jagdish

Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992

SC 1604] ; Karnataka Board of Wakf v. Anjuman­EIsmail Madris­Un­Niswan [(1999) 6 SCC 343 : AIR

1999   SC   3067]   and Dinesh   Kumar v. Yusuf

Ali [(2010) 12 SCC 740 : AIR 2010 SC 2679] .)

28. If a finding of fact is arrived at by ignoring or

excluding   relevant   material   or   by   taking   into

consideration irrelevant material or if the finding so

outrageously defies logic as to suffer from the vice of

irrationality incurring the blame of being perverse,

then the finding is rendered infirm in the eye of the

law. If the findings of the Court are based on no

evidence or evidence which is thoroughly unreliable

4 (2010) 13 SCC 216

11

or evidence that suffers from the vice of procedural

irregularity   or   the   findings   are   such   that   no

reasonable   person   would   have   arrived   at   those

findings,   then   the   findings   may   be   said   to   be

perverse. Further if the findings are either ipse dixit

of the Court or based on conjecture and surmises,

the judgment suffers from the additional infirmity of

non­application of mind and thus, stands vitiated.

(Vide Bharatha   Matha v. R.   Vijaya

Renganathan [(2010) 11 SCC 483 : AIR 2010 SC

2685] .)”

17. This Court in the case of Illoth Valappil Ambunhi (D) By

LRs. v. Kunhambu Karanavan5

, has observed thus:

“14. It is now well settled that perversity in arriving

at   a   factual   finding   gives   rise   to   a   substantial

question of law, attracting intervention of the High

Court under Section 100 of the CPC.”

18. Recently, this Court in the case of  K.N.   Nagarajappa

and Others v. H. Narasimha Reddy6

, to which one of us (L.N.

Rao, J.) was a party, has observed thus:

“17. In a recent judgment  of this court, Narayan

Sitaramji   Badwaik   (Dead)   Through   Lrs. v. Bisaram

2021 SCC OnLine SC 319, this court observed as

follows, in the context of High Courts' jurisdiction to

appreciate factual issues under Section 103 IPC:

5 2019 SCC OnLine SC 1336

6 2021 SCC OnLine SC 694

12

“11. A bare perusal of this section clearly

indicates   that   it   provides   for   the   High

Court to decide an issue of fact, provided

there   is   sufficient   evidence   on   record

before   it,   in   two   circumstances.   First,

when an issue necessary for the disposal

of the appeal has not been determined by

the lower Appellate Court or by both the

Courts below. And second, when an issue

of fact has been wrongly determined by

the Court(s) below by virtue of the decision

on the question of law under Section 100

of the Code of Civil Procedure.”

18. In the opinion of this court, in the present case,

the   High   Court   recorded   sound   and   convincing

reasons   why   the   first   appellate   court's   judgment

required   interference.   These   were   entirely   based

upon the evidence led by the parties on the record.

The appreciation of evidence by the first appellate

court   was   on   the   basis   of   it   having   overlooked

material facts, such as appreciation of documentary

and oral evidence led before the trial court, that the

execution of Ex.D­3 was denied……”

19. The   parties   have   claimed   through   Mohiyuddin   Pasha.

According   to   the   plaintiffs,   Mohiyuddin   Pasha   had   earlier

married Noorbi, who died in 1944.  Out of the said wedlock, two

sons   namely   Rahaman   Barid   and   Azgar   Barid­appellant

(defendant No.1) were born. Rahaman Barid was married to

Rahamathunnisa­plaintiff   No.1.   Out   of   the   said   wedlock,

13

Noorjahan­plaintiff   No.2   was   born.   Rahaman   Barid   died   in

1945 i.e. prior to Mohiyuddin Pasha, who died in 1964.

20. According to the plaintiffs, after the death of Noorbi in

1944, Mohiyuddin Pasha married Mazambi @ Pyarembi­plaintiff

No.3.   Out   of   the   said   wedlock,   five   children   namely   Syed

Rahaman   Barid   @   Sabulal­plaintiff   No.4,   Shakila   Begumplaintiff   No.5,   Zamila   Begum­plaintiff   No.6,   Akhila   Begumplaintiff No.7 and Rahiman Barid @ Ikbal Pasha­plaintiff No.8,

were born.

21. The   appellant­defendant   No.1   has   not   disputed   that

Rahaman Barid was his brother.  However, he contended that

plaintiff  Nos.1  and  2  i.e.  wife  and  daughter respectively,  of

Rahaman   Barid   were   not   entitled   to   any   share   in   the   suit

schedule properties inasmuch as Rahaman Barid had died in

1944 i.e. prior to Mohiyuddin Pasha, who died in 1964.

22. The appellant­defendant No.1 has specifically denied that

Mazambi @ Pyarembi­plaintiff No.3 was married to Mohiyuddin

14

Pasha and that plaintiff Nos.4 to 8 were children of Mohiyuddin

Pasha.

23. It is further contended by the appellant­defendant No.1

that Mohiyuddin Pasha had executed a Mehar Deed in favour of

his first wife Noorbi, which was registered on 30th  July 1936,

and as such, the said properties ceased to be the properties of

Mohiyuddin Pasha.

24. The trial court, on the basis of the evidence recorded, had

come to a specific finding that after the death of his first wife

Noorbi, Mohiyuddin Pasha had married Mazambi @ Pyarembiplaintiff No.3 and plaintiff Nos.4 to 8 were born out of the said

wedlock.  While arriving at such a finding, the trial court has

relied on oral as well as documentary evidence.  The trial court

further came to a finding that from the judgment passed in an

earlier suit for partition i.e. O.S. No.514/1961, it was clear that

Mohiyuddin Pasha as well as the appellant herein­defendant

No.1 had taken a specific stand in O.S. No.514/1961 that the

said Mehar Deed was a nominal one and was never acted upon.

15

It was also contended in the said suit that the properties were

never handed over to the first  wife Noorbi and that  it was

created with a view to avoid the share to the first son Rahaman

Barid.

25. These findings of fact were reversed by the First Appellate

Court.  The First Appellate Court held that plaintiff No.3 had

failed to prove that she was married to Mohiyuddin Pasha,

since she had failed to produce any documentary evidence in

support thereof.   It further held that plaintiff Nos.4 to 8 had

failed   to   establish   that   they   were   the   children   of   deceased

Mohiyuddin Pasha. It was held that neither plaintiff No.3 nor

plaintiff   Nos.4   to   8   were   entitled   to   any   share   in   the   suit

schedule   properties.     Insofar   as   plaintiff   Nos.1   and   2   are

concerned, the First Appellate Court held that since they were

claiming through Rahaman Barid, who died in 1945 i.e. prior to

Mohiyuddin Pasha, who died in 1964, they are also not entitled

to any share in the suit schedule properties.

16

26. While holding that the finding of the First Appellate Court

that Mazambi @ Pyarembi­plaintiff No.3 was not married to

Mohiyuddin Pasha was erroneous in law, the High Court has

mainly relied on the oral as well as the documentary evidence.

27. Syed Ahmed Ali­PW­1, who was aged 75 years at the time

of   giving   evidence,   was   the   brother   of   Noorbi,   first   wife   of

Mohiyuddin Pasha.  As such, he was a maternal uncle of the

appellant   herein­defendant   No.1.   He   has   clearly   and

emphatically deposed that Mohiyuddin Pasha had two wives i.e.

Noorbi and Mazambi @ Pyarembi.  He has further deposed that

after the death of his sister Noorbi, Mohiyuddin Pashaa took

Mazambi   @   Pyarembi   as   his   second   wife.     He   has   also

specifically   deposed   that   he   has   attended   the   marriage   of

Mazambi   @   Pyarembi­plaintiff   No.3   with   Mohiyuddin  Pasha.

The   High   Court   found   that   in   spite   of   searching   crossexamination, nothing came on record to discard the evidence of

PW­1.   It was further found that the evidence of PW­1 was

supported by Nabi Sab­PW­2, who was also an independent

17

witness.     Appenna­PW­3,   who   was   also   an   independent

witness, supported the case of the plaintiffs.

28. The High Court found that the voluminous documents of

evidence including the birth certificates of plaintiff Nos.4 to 8,

the   transfer   certificates   issued   by   the   Government   Higher

Primary   School,   Thadigol   and   Higher   Primary   Boys   School,

Thadigol, established that plaintiff Nos.4 to 8 were the children

born to Mohiyuddin Pasha through Mazambi @ Pyarembi.  We

are of the view that, the High Court rightly interfered with the

findings as recorded by the First Appellate Court, inasmuch as

the   First   Appellate   Court   was  not   justified   in   reversing  the

findings of the trial court in that regard which were based on

proper appreciation of evidence.   We are of the view that the

First Appellate Court had failed in appreciating the evidence in

correct perspective.  The High Court was justified in reversing

the same.

29. Similarly, the High Court found that the Mehar Deed in

favour of deceased Noorbi, first wife of Mohiyuddin Pasha, was

18

a nominal one and was not acted upon and the reversal of the

findings of the trial court by the First Appellate Court in that

regard, was erroneous.  It will be relevant to note that the trial

court, on the basis of the proceedings in the earlier suit for

partition i.e. O.S. No.514/1961, had found that in the said suit

for partition, deceased Mohiyuddin Pasha was defendant No.1,

whereas  the  appellant  herein­defendant   No.1  was  defendant

No.2.  In the said suit, the case pleaded by them was that the

first son of Noorbi and Mohiyuddin Pasha, namely Rahaman

Barid, was demanding separate share in the properties and was

residing separately.  It was therefore contended by them in their

respective written statements that to avoid any share in the suit

schedule properties, deceased Mohiyuddin Pasha had created

the Mehar Deed in favour of his first wife Noorbi.   The High

Court found that in view of the findings arrived in the said O.S.

No.514/1961,   which   were   based   on   the   admission   of

Mohiyuddin   Pasha   and   the   appellant   herein­defendant   No.1

herein, it was not open for the appellant herein­defendant No.1

again   to   contend   that   the   properties   belonged   to   Noorbi

19

exclusively as they were given to her in Mehar.  The High Court

further found that the appellant herein­defendant No.1 himself

had produced the judgment in O.S. No.514/1961 at Ex.D­16

and relied upon the same for opposing the present suit for

partition.  

30. It could thus clearly be seen that in the present case, the

First Appellate Court had reversed the findings recorded by the

trial   court   which   were   based   upon   correct   appreciation   of

evidence.  The High Court has given sound and cogent reasons

as   to   why   an   interference   with   the   findings   of   the   First

Appellate   Court   was   required.   We   also   find   that   the   First

Appellate   Court   has   failed   to   take   into   consideration   the

voluminous oral as well as documentary evidence, on the basis

of which the trial court had recorded its findings.  The findings

as   recorded   by   the   First   Appellate   Court   are   based   on

conjectures and surmises.  As such, we are of the considered

view that the perverse approach of the First Appellate Court in

arriving at the findings would give rise to a substantial question

20

of law, thereby justifying the High Court to interfere with the

same.  

31. In that view of the matter, we do not find any merit in this

appeal.  Hence, this appeal is dismissed.

32. No order as to cost.  Pending application(s), if any, shall

stand disposed of in the above terms.

….……..….......................J.

                                                       [L. NAGESWARA RAO]

    ………….........................J.       

[B.R. GAVAI]

NEW DELHI;

FEBRUARY 21, 2022.

21

VVIP - Criminal Matter - Sec.307 IPC - acquitted - Criminal Appeal - Hostile Witness - Section 33 of the Indian Evidence Act - Evidentiary Value of a Final Report:Section 173(2) of the CrPC - Chance Witness: - Related and Interested Witness: - Non-examination of witness:- we take judicial note of the factual scenario that the trial courts are adjourning the cross examination of the private witnesses after the conclusion of the cross examination without any rhyme or reason, at the drop of a hat. Long adjournments are being given after the completion of the chief examination, which only helps the defense to win them over at times, with the passage of time. Thus, we deem it appropriate to reiterate that the trial courts shall endeavor to complete the examination of the private witnesses both chief and cross on the same day as far as possible. To further curtail this menace, we would expect the trial courts to take up the examination of the private witnesses first, before proceeding with that of the official witnesses

 VVIP - Criminal Matter - Sec.307 IPC - acquitted - Criminal Appeal - Hostile Witness - Section 33 of the Indian Evidence Act - Evidentiary Value of a Final Report:Section 173(2) of the CrPC - Chance Witness: - Related and Interested Witness: - Non-examination of witness:-  we take judicial note of the factual scenario that the trial courts are adjourning the cross examination of the private witnesses after the conclusion of the cross examination without any rhyme or reason, at the drop of a hat. Long adjournments are being given after the completion of the chief examination, which only helps the defense to win them over at times, with the passage of time. Thus, we deem it appropriate to reiterate that the trial courts shall endeavor to complete the examination of the private witnesses both chief and cross on the same day as far as possible. To further curtail this menace, we would expect the trial courts to take up the examination of the private witnesses first, before proceeding with that of the official witnesses

Hostile Witness: 21.The expression “hostile witness” does not find a place in the Indian Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. We must bear it in mind that 

a witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. 

Similarly, there would be cases where a witness does not support the case of the party starting from chief examination itself. 

This classification has to be borne in mind by the Court. 

With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. 

Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion.

 Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded.

Section 33 of the Indian Evidence Act:

Section 33 is an exception to the general rule which mandates adequate facility for cross examining a witness. However, in a case where a witness after the completion of the chief examination and while subjecting him to a substantial and rigorous cross examination, did not choose to get into the witness box on purpose, it is for the court to utilize the said evidence appropriately. The issues over which the evidence is completed could be treated as such by the court and then proceed. Resultantly, the issues for which the cross examination is not over would make the entire examination as inadmissible. Ultimately, it is for the court to decide the aforesaid aspect.

 Evidentiary Value of a Final Report: 

Section 173(2) of the CrPC calls upon the investigating officer to file his final report before the court. It being a report, is nothing but a piece of evidence. It forms a mere opinion of the investigating officer on the materials collected by him. He takes note of the offence and thereafter, conducts an investigation to identify the offender, the truth of which can only be decided by the court. The aforesaid conclusion would lead to the position that the evidence of the investigating officer is not indispensable. The evidence is required for corroboration and contradiction of the other material witnesses as he is the one who links and presents them before the court. Even assuming that the investigating officer has not deposed before the court or has not cooperated sufficiently, an accused is not entitled for acquittal solely on that basis, when 16 there are other incriminating evidence available on record.

Chance Witness: 

A chance witness is the one who happens to be at the place of occurrence of an offence by chance, and therefore, not as a matter of course. In other words, he is not expected to be in the said place. A person walking on a street witnessing the commission of an offence can be a chance witness. Merely because a witness happens to see an occurrence by chance, his testimony cannot be eschewed  though a little more scrutiny may be required at times. This again is an aspect which is to be looked into in a given case by the court.

Related and Interested Witness: 

A related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstood the rigor of cross examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose. 

Once again, we reiterate with a word of caution, the trial court is the best court to decide on the aforesaid aspect as no mathematical calculation or straightjacket formula can be made on the assessment of a witness, as the journey towards the truth can be seen better through the eyes of the trial judge. In fact, this is the real objective behind the enactment itself which extends the maximum discretion to the court.

 Non-examination of witness: 

A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. Onus is on the part of the party who alleges that a witness has not been 22 produced deliberately to prove it.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 339-340 OF 2014

RAJESH YADAV & ANR. ETC. …APPELLANTS

 VERSUS

STATE OF U.P. …RESPONDENTS

J U D G M E N T

M.M. SUNDRESH, J.

1. These two appeals arise out of the judgment rendered by the High Court

convicting the appellants for life, while acquitting all of them for the offence

charged under Section 307 of the Indian Penal Code (IPC), with the confirmation

of conviction and sentence under Section 25 of the Arms Act except one. Of the

five accused, the High Court thought it fit to remit the matter on the adequacy of

charge for one. This accused was once again convicted and resultantly his appeal

is pending under consideration before the High Court.

1

BRIEF FACTS:

2. Two persons were done to death on 17.09.2004 at about 08.15 a.m. The death was

caused by multiple bullet injuries. An FIR was lodged within an hour’s time by

PW-1, who is none other than the nephew of one of the deceased.

3. The motive for the occurrence appears to be a prolonged election dispute between

two groups. On the fateful day, two of the eye-witnesses were having tea. The

deceased, passing the road on a two-wheeler were waylaid by the accused also

travelling in two two-wheelers. Both the deceased died on the spot. The

postmortem was done by PW-4 on the very same date. The First Information

Report (FIR) was registered by PW-7. PW-13, 8 and 14 were the Investigating

Officers. PW-13 did the substantial part of the investigation and on his transfer,

the final report was filed by PW-8. Pertaining to the charge under Section 25 of

the Arms Act, it was PW-14 who filed the subsequent final report.

4. Recoveries have been made from all the accused before us. In so far as Accused

No.3 is concerned, on his statement the recovery was made from the custody of

his wife from his house.

5. The seized articles were sent to the Forensic Science Laboratory (FSL) and a

report was received. PW-10, the police constable was the one who took the arms

to the laboratory.

2

6. On behalf of the prosecution, 14 witness have been examined while marking 47

documents including the FSL report. The accused persons let in only one witness

and that too to support Accused No. 5 who is not before us.

7. PW-1 is the de facto complainant. He along with PWs-2 & 3 form the eyewitnesses to the case. PW-2 is the brother of one of the deceased. PW-3, who is

an independent witness, turned hostile after his deposition in chief in favour of

the prosecution. PW-4 is the doctor who conducted the postmortem and gave his

opinion. The other witnesses are the official witnesses including the three

investigating officers. Of these witnesses, PW-13 who was the one to undertake

the investigation. After elaborate chief examination followed by another detailed

cross-examination, despite efforts made by the courts including the issuance of

non-bailable warrant, he did not turn up to depose further. One witness, by name

Om Prakash, stated to be an injured witness, has not been examined by the

prosecution on the premise that he could not be secured. Taking note of the

above, the High Court rightly acquitted the appellants for the offence punishable

under Section 307 IPC.

8. During the questioning by the Court under Section 313 of the Criminal Procedure

Code (CrPC), all the accused made a simple denial, though incrementing

materials- both oral and documentary, were brought to their notice. The

conviction and sentence rendered by the trial court was modified by the High

Court as aforesaid resulting in imposition of life sentence. The High Court went

3

into all the aspects and rendered a well-considered decision which is sought to be

impugned before us.

SUBMISSIONS:

 Submissions of the Appellants:

9. The learned counsel appearing for the appellants submitted that for inexplicable

reasons the independent injured eye-witness, Om Prakash was screened by the

prosecution. The other two eye-witnesses being related and chance witnesses are

obviously interested in getting convection. The evidence of PW-13 ought not to

have been accepted as he was not put to cross examination fully. If the deceased

were running and the injuries were caused by chasing them, the cartridges could

not have been found at a particular place near their bodies instead of spreading

them over. There is a considerable delay in receiving the FSL report. There is an

unrelated cartridge recovered which creates serious suspicion on the version of

the prosecution. Reliance has been made on the following decisions in support of

the aforesaid contentions:

 Gopal Saran v. Satyanarayana, (1989) 3 SCC 56

 State of Orissa v. Prasanna Kumar Mohanty, (2009) 7 SCC 412

 Santa Singh v. State of Punjab, AIR 1956 SC 526

 Anter Singh v. State of Rajasthan, (2004) 10 SCC 657

 Jagir Singh v. State (Delhi Administration), 1975 Crl LJ 1009

 Submissions of the State:

4

10.Learned counsel appearing for the State submitted that the trial court and the

High Court made adequate assessment of the materials for coming to the

conclusion. Merely because PWs-1 & 2 are the relatives of the deceased, their

testimonies cannot be disbelieved. The courts rightly took into consideration the

evidence PW-3 though turned hostile along with that of PW-13. The other

witnesses also speak about the investigation.

11.The report submitted by the experts would clearly indicate that weapons

recovered from the appellants were indeed used for committing the offence. There

is no need to examine all the witnesses. PW-13 has clearly stated the reason for

his inability to produce the injured witness, Om Prakash. In any case, the High

Court has set aside the conviction under Section 307 IPC. Hence, there is

absolutely no ground made out for interference by this Court.

PRINCIPLES OF LAW:

Section 3 of the Evidence Act, 1872:

“3. Interpretation-clause.––In this Act the following words and

expressions are used in the following senses, unless a contrary intention

appears from the context: ––

xxx xxx xxx

“Evidence”. ––“Evidence” means and includes ––

(1) all statements which the Court permits or requires to be made

before it by witnesses, in relation to matters of fact under inquiry,

such statements are called oral evidence;

(2) [all documents including electronic records produced for the

inspection of the Court],

such documents are called documentary evidence.

“Proved”. –– A fact is said to be proved when, after considering the matters

before it, the Court either believes it to exist, or considers its existence so

5

probable that a prudent man ought, under the circumstances of the particular

case, to act upon the supposition that it exists.

“Disproved”. –– A fact is said to be disproved when, after considering the

matters before it, the Court either believes that it does not exist, or considers

its non-existence so probable that a prudent man ought, under the

circumstances of the particular case, to act upon the supposition that it does

not exist.”

12.Section 3 of the Evidence Act defines “evidence”, broadly divided into oral and

documentary. “Evidence” under the Act is the means, factor or material, lending a

degree of probability through a logical inference to the existence of a fact. It is an

“Adjective Law” highlighting and aiding substantive law. Thus, it is neither

wholly procedural nor substantive, though trappings of both could be felt.

13.The definition of the word “proved” though gives an impression of a mere

interpretation, in effect, is the heart and soul of the entire Act. This clause,

consciously speaks of proving a fact by considering the “matters before it”. The

importance is to the degree of probability in proving a fact through the

consideration of the matters before the court. What is required for a court to

decipher is the existence of a fact and its proof by a degree of probability, through

a logical influence.

14.Matters are necessary, concomitant material factors to prove a fact. All evidence

would be “matters” but not vice versa. In other words, matters could be termed

as a genus of which evidence would be a species. Matters also add strength to the

evidence giving adequate ammunition in the Court’s sojourn in deciphering the

6

truth. Thus, the definition of “matters” is exhaustive, and therefore, much wider

than that of “evidence”. However, there is a caveat, as the court is not supposed to

consider a matter which acquires the form of an evidence when it is barred in law.

Matters are required for a court to believe in the existence of a fact.

15.Matters do give more discretion and flexibility to the court in deciding the

existence of a fact. They also include all the classification of evidence such as

circumstantial evidence, corroborative evidence, derivative evidence, direct

evidence, documentary evidence, hearsay evidence, indirect evidence, oral

evidence, original evidence, presumptive evidence, primary evidence, real

evidence, secondary evidence, substantive evidence, testimonial evidence, etc.

16.In addition, they supplement the evidence in proving the existence of a fact by

enhancing the degree of probability. As an exhaustive interpretation has to be

given to the word “matter”, and for that purpose, the definition of the expression

of the words “means and includes”, meant to be applied for evidence, has to be

imported to that of a “matter” as well. Thus, a matter might include such of those

which do not fall within the definition of Section 3, in the absence of any express

bar.

17.What is important for the court is the conclusion on the basis of existence of a

fact by analysing the matters before it on the degree of probability. The entire

enactment is meant to facilitate the court to come to an appropriate conclusion in

proving a fact. There are two methods by which the court is expected to come to

7

such a decision. The court can come to a conclusion on the existence of a fact by

merely considering the matters before it, in forming an opinion that it does exist.

This belief of the court is based upon the assessment of the matters before it.

Alternatively, the court can consider the said existence as probable from the

perspective of a prudent man who might act on the supposition that it exists. The

question as to the choice of the options is best left to the court to decide. The said

decision might impinge upon the quality of the matters before it.

18.The word “prudent” has not been defined under the Act. When the court wants to

consider the second part of the definition clause instead of believing the existence

of a fact by itself, it is expected to take the role of a prudent man. Such a prudent

man has to be understood from the point of view of a common man. Therefore, a

judge has to transform into a prudent man and assess the existence of a fact after

considering the matters through that lens instead of a judge. It is only after

undertaking the said exercise can he resume his role as a judge to proceed further

in the case.

19.The aforesaid provision also indicates that the court is concerned with the

existence of a fact both in issue and relevant, as against a whole testimony. Thus,

the concentration is on the proof of a fact for which a witness is required.

Therefore, a court can appreciate and accept the testimony of a witness on a

particular issue while rejecting it on others since it focuses on an issue of fact to

be proved. However, we may hasten to add, the evidence of a witness as whole is

8

a matter for the court to decide on the probability of proving a fact which is

inclusive of the credibility of the witness. Whether an issue is concluded or not is

also a court’s domain.

Appreciation of Evidence:

20.We have already indicated different classification of evidence. While appreciating

the evidence as aforesaid along with the matters attached to it, evidence can be

divided into three categories broadly namely, (i) wholly reliable, (ii) wholly

unreliable and (iii) neither wholly reliable nor wholly unreliable. If evidence,

along with matters surrounding it, makes the court believe it is wholly reliable

qua an issue, it can decide its existence on a degree of probability. Similar is the

case where evidence is not believable. When evidence produced is neither wholly

reliable nor wholly unreliable, it might require corroboration, and in such a case,

court can also take note of the contradictions available in other matters. The

aforesaid principle of law has been enunciated in the celebrated decision of this

Court in Vadivelu Thevar v. State of Madras, 1957 SCR 981:

“In view of these considerations, we have no hesitation in holding that

the contention that in a murder case, the court should insist upon

plurality of witnesses, is much too broadly stated. Section 134 of the

Indian Evidence Act has categorically laid it down that “no particular

number of witnesses shall in any case, be required for the proof of any

fact”. The legislature determined, as long ago as 1872, presumably after

due consideration of the pros and cons, that it shall not be necessary for

proof or disproof of a fact to call any particular number of witnesses. In

England, both before and after the passing of the Indian Evidence Act,

1872, there have been a number of statutes as set out in Sarkar's Law of

Evidence — 9th Edn., at pp. 1100 and 1101, forbidding convictions on

the testimony of a single witness. The Indian Legislature has not insisted

on laying down any such exceptions to the general rule recognized in

s.134 quoted above. The section enshrines the well-recognized maxim

that “Evidence has to be weighed and not counted”. Our Legislature has

9

given statutory recognition to the fact that administration of justice may

be hampered if a particular number of witnesses were to be insisted

upon. It is not seldom that a crime has been committed in the presence

of only one witness, leaving aside those cases which are not of

uncommon occurrence, where determination of guilt depends entirely on

circumstantial evidence. If the Legislature were to insist upon plurality

of witnesses, cases where the testimony of a single witness only could

be available in proof of the crime, would go unpunished. It is here that

the discretion of the presiding judge comes into play. The matter thus

must depend upon the circumstances of each case and the quality of the

evidence of the single witness whose testimony has to be either accepted

or rejected. If such a testimony is found by the court to be entirely

reliable, there is no legal impediment to the conviction of the accused

person on such proof. Even as the guilt of an accused person may be

proved by the testimony of a single witness, the innocence of an accused

person may be established on the testimony of a single witness, even

though a considerable number of witnesses may be forthcoming to

testify to the truth of the case for the prosecution. Hence, in our opinion,

it is a sound and well-established rule of law that the court is concerned

with the quality and not with the quantity of the evidence necessary for

proving or disproving a fact. Generally speaking, oral testimony in this

context may be classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

In the first category of proof, the court should have no difficulty in

coming to its conclusion either way — it may convict or may acquit on

the testimony of a single witness, if it is found to be above reproach or

suspicion of interestedness, incompetence or subornation. In the second

category, the court, equally has no difficulty in coming to its conclusion.

It is in the third category of cases, that the court has to be circumspect

and has to look for corroboration in material particulars by reliable

testimony, direct or circumstantial. There is another danger in insisting

on plurality of witnesses. Irrespective of the quality of the oral evidence

of a single witness, if courts were to insist on plurality of witnesses in

proof of any fact, they will be indirectly encouraging subornation of

witnesses. Situations may arise and do arise where only a single person

is available to give evidence in support of a disputed fact. The court

naturally has to weigh carefully such a testimony and if it is satisfied

that the evidence is reliable and free from all taints which tend to render

oral testimony open to suspicion, it becomes its duty to act upon such

testimony. The law reports contain many precedents where the court had

to depend and act upon the testimony of a single witness in support of

the prosecution. There are exceptions to this rule, for example, in cases

of sexual offences or of the testimony of an approver; both these are

cases in which the oral testimony is, by its very nature, suspect, being

that of a participator in crime. But, where there are no such exceptional

reasons operating, it becomes the duty of the court to convict, if it is

satisfied that the testimony of a single witness is entirely reliable. We

have, therefore, no reasons to refuse to act upon the testimony of the

10

first witness, which is the only reliable evidence in support of the

prosecution.”

Hostile Witness:

21.The expression “hostile witness” does not find a place in the Indian Evidence Act.

It is coined to mean testimony of a witness turning to depose in favour of the

opposite party. We must bear it in mind that a witness may depose in favour of a

party in whose favour it is meant to be giving through his chief examination,

while later on change his view in favour of the opposite side. Similarly, there

would be cases where a witness does not support the case of the party starting

from chief examination itself. This classification has to be borne in mind by the

Court. With respect to the first category, the Court is not denuded of its power to

make an appropriate assessment of the evidence rendered by such a witness.

Even a chief examination could be termed as evidence. Such evidence would

become complete after the cross examination. Once evidence is completed, the

said testimony as a whole is meant for the court to assess and appreciate qua a

fact. Therefore, not only the specific part in which a witness has turned hostile but

the circumstances under which it happened can also be considered, particularly in

a situation where the chief examination was completed and there are

circumstances indicating the reasons behind the subsequent statement, which

could be deciphered by the court. It is well within the powers of the court to make

an assessment, being a matter before it and come to the correct conclusion.

11

22.On the law laid down in dealing with the testimony of a witness over an issue, we

would like to place reliance on the decision of this Court in C. Muniappan v.

State of T.N., (2010) 9 SCC 567:

“81. It is settled legal proposition that:

“6. … the evidence of a prosecution witness cannot be rejected

in toto merely because the prosecution chose to treat him as

hostile and cross-examined him. The evidence of such

witnesses cannot be treated as effaced or washed off the record

altogether but the same can be accepted to the extent their

version is found to be dependable on a careful scrutiny

thereof.”

(Vide Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389, Rabindra

Kumar Dey v. State of Orissa, (1976) 4 SCC 233, Syad Akbar v. State of

Karnataka, (1980) 1 SCC 30 and Khujji v. State of M.P., (1991) 3 SCC

627, SCC p. 635, para 6.)

82. In State of U.P. v. Ramesh Prasad Misra [(1996) 10 SCC 360: 1996

SCC (Cri) 1278] this Court held that (at SCC p. 363, para 7) evidence of

a hostile witness would not be totally rejected if spoken in favour of the

prosecution or the accused but required to be subjected to close scrutiny

and that portion of the evidence which is consistent with the case of the

prosecution or defence can be relied upon. A similar view has been

reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra

[(2002) 7 SCC 543: 2003 SCC (Cri) 112], Gagan Kanojia v. State of

Punjab [(2006) 13 SCC 516: (2008) 1 SCC (Cri) 109], Radha Mohan

Singh v. State of U.P. [(2006) 2 SCC 450: (2006) 1 SCC (Cri) 661],

Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360: (2009) 1

SCC (Cri) 188] and Subbu Singh v. State [(2009) 6 SCC 462: (2009) 2

SCC (Cri) 1106].

83. Thus, the law can be summarised to the effect that the evidence of a

hostile witness cannot be discarded as a whole, and relevant parts

thereof which are admissible in law, can be used by the prosecution or

the defence.

84. In the instant case, some of the material witnesses i.e. B. Kamal (PW

86) and R. Maruthu (PW 51) turned hostile. Their evidence has been

taken into consideration by the courts below strictly in accordance with

law. Some omissions, improvements in the evidence of the PWs have

been pointed out by the learned counsel for the appellants, but we find

them to be very trivial in nature.

85. It is settled proposition of law that even if there are some omissions,

contradictions and discrepancies, the entire evidence cannot be

disregarded. After exercising care and caution and sifting through the

12

evidence to separate truth from untruth, exaggeration and improvements,

the court comes to a conclusion as to whether the residuary evidence is

sufficient to convict the accused. Thus, an undue importance should not

be attached to omissions, contradictions and discrepancies which do not

go to the heart of the matter and shake the basic version of the

prosecution's witness. As the mental abilities of a human being cannot

be expected to be attuned to absorb all the details of the incident, minor

discrepancies are bound to occur in the statements of witnesses.”

Vide Sohrab v. State of M.P., [(1972] 3 SCC 751 : (1972) SCC (Cri)

819 : AIR 1972 SC 2020], State of U.P. v. M.K. Anthony, [(1985) 1 SCC

505 : 1985 SCC (Cri) 105], Bharwada Bhoginbhai Hirjibhai v. Sate of

Gujrat, [(1983) 3 SCC 217 : 1983 SCC (Cri) 728 : AIR 1983 SC 753],

State of Rajasthan v. Om Prakash, [(2007) 12 SCC 381 : (2008) 1 SCC

(Cri) 411], Prithu v. State of H.P., [(2009) 11 SCC 585 : (2009) 3 SCC

(Cri) 1502], State of U.P. v. Santosh Kumar, [(2009) 9 SCC 626 : (2010)

1 SCC (Cri) 88] and State v. Saravanan, [(2008) 17 SCC 587 : (2010) 4

SCC (Cri) 580].

23.This Court in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 had already

dealt with a situation where a witness after rendering testimony in line with the

prosecution’s version, completely abandoned it, in view of the long adjournments

given permitting an act of manoeuvring. While taking note of such situations

occurring with regularity, it expressed its anguish and observed that:

“51. It is necessary, though painful, to note that PW 7 was examined-inchief on 30-9-1999 and was cross-examined on 25-5-2001, almost after

1 year and 8 months. The delay in said cross-examination, as we have

stated earlier had given enough time for prevarication due to many a

reason. A fair trial is to be fair both to the defence and the prosecution as

well as to the victim. An offence registered under the Prevention of

Corruption Act is to be tried with all seriousness. We fail to appreciate

how the learned trial Judge could exhibit such laxity in granting so much

time for cross-examination in a case of this nature. It would have been

absolutely appropriate on the part of the learned trial Judge to finish the

cross-examination on the day the said witness was examined. As is

evident, for no reason whatsoever it was deferred and the crossexamination took place after 20 months. The witness had all the time in

the world to be gained over. We have already opined that he was

declared hostile and re-examined.

52. It is settled in law that the testimony of a hostile witness can be

relied upon by the prosecution as well as the defence. In re-examination

by the Public Prosecutor, PW 7 has accepted about the correctness of his

statement in the court on 13-9-1999. He has also accepted that he had

13

not made any complaint to the Presiding Officer of the court in writing

or verbally that the Inspector was threatening him to make a false

statement in the court. It has also been accepted by him that he had

given the statement in the court on account of fear of false implication

by the Inspector. He has agreed to have signed his statement dated 13-9-

1999 after going through and admitting it to be correct. It has come in

the re-examination that PW 7 had not stated in his statement dated 13-9-

1999 in the court that recovery of tainted money was not effected in his

presence from the accused or that he had been told by the Inspector that

amount has been recovered from the accused. He had also not stated in

his said statement that the accused and witnesses were taken to the

Tehsil and it was there that he had signed all the memos.

53. Reading the evidence in entirety, PW 7's evidence cannot be brushed

aside. The delay in cross-examination has resulted in his prevarication

from the examination-in-chief. But, a significant one, his examinationin-chief and the re-examination impels us to accept the testimony that he

had gone into the octroi post and had witnessed about the demand and

acceptance of money by the accused. In his cross-examination he has

stated that he had not gone with Baj Singh to the Vigilance Department

at any time and no recovery was made in his presence. The said part of

the testimony, in our considered view, does not commend acceptance in

the backdrop of entire evidence in examination-in-chief and the reexamination.

xxx xxx xxx

57. Before parting with the case we are constrained to reiterate what we

have said in the beginning. We have expressed our agony and anguish

for the manner in which trials in respect of serious offences relating to

corruption are being conducted by the trial courts:

57.1. Adjournments are sought on the drop of a hat by the counsel, even

though the witness is present in court, contrary to all principles of

holding a trial. That apart, after the examination-in-chief of a witness is

over, adjournment is sought for cross-examination and the disquieting

feature is that the trial courts grant time. The law requires special

reasons to be recorded for grant of time but the same is not taken note

of.

57.2. As has been noticed earlier, in the instant case the crossexamination has taken place after a year and 8 months allowing ample

time to pressurise the witness and to gain over him by adopting all kinds

of tactics.

57.3. There is no cavil over the proposition that there has to be a fair and

proper trial but the duty of the court while conducting the trial is to be

guided by the mandate of the law, the conceptual fairness and above all

bearing in mind its sacrosanct duty to arrive at the truth on the basis of

the material brought on record. If an accused for his benefit takes the

14

trial on the path of total mockery, it cannot be countenanced. The court

has a sacred duty to see that the trial is conducted as per law. If

adjournments are granted in this manner it would tantamount to

violation of the rule of law and eventually turn such trials to a farce. It is

legally impermissible and jurisprudentially abominable. The trial courts

are expected in law to follow the command of the procedure relating to

trial and not yield to the request of the counsel to grant adjournment for

non-acceptable reasons.

57.4. In fact, it is not at all appreciable to call a witness for crossexamination after such a long span of time. It is imperative if the

examination-in-chief is over, the cross-examination should be completed

on the same day. If the examination of a witness continues till late hours

the trial can be adjourned to the next day for cross-examination. It is

inconceivable in law that the cross-examination should be deferred for

such a long time. It is anathema to the concept of proper and fair trial.

57.5. The duty of the court is to see that not only the interest of the

accused as per law is protected but also the societal and collective

interest is safeguarded. It is distressing to note that despite series of

judgments of this Court, the habit of granting adjournment, really an

ailment, continues. How long shall we say, “Awake! Arise!”. There is a

constant discomfort. Therefore, we think it appropriate that the copies of

the judgment be sent to the learned Chief Justices of all the High Courts

for circulating the same among the learned trial Judges with a command

to follow the principles relating to trial in a requisite manner and not to

defer the cross-examination of a witness at their pleasure or at the leisure

of the defence counsel, for it eventually makes the trial an apology for

trial and compels the whole society to suffer chicanery. Let it be

remembered that law cannot allowed to be lonely; a destitute.”

Section 33 of the Indian Evidence Act:

“33. Relevancy of certain evidence for proving, in subsequent

proceeding, the truth of facts therein stated.—Evidence given by a

witness in a judicial proceeding, or before any person authorized by law

to take it, is relevant for the purpose of proving, in a subsequent judicial

proceeding, or in a later stage of the same judicial proceeding, the truth

of the facts which it states, when the witness is dead or cannot be found,

or is incapable of giving evidence, or is kept out of the way by the

adverse party, or if his presence cannot be obtained without an amount

of delay or expense which, under the circumstances of the case, the

Court considers unreasonable:

Provided— that the proceeding was between the same parties or their

representatives in interest; that the adverse party in the first proceeding

had the right and opportunity to cross-examine; that the questions in

issue were substantially the same in the first as in the second proceeding.

15

Explanation—A criminal trial or inquiry shall be deemed to be a

proceeding between the prosecutor and the accused within the meaning

of this section.”

24.Section 33 is an exception to the general rule which mandates adequate facility

for cross examining a witness. However, in a case where a witness after the

completion of the chief examination and while subjecting him to a substantial and

rigorous cross examination, did not choose to get into the witness box on purpose,

it is for the court to utilize the said evidence appropriately. The issues over which

the evidence is completed could be treated as such by the court and then proceed.

Resultantly, the issues for which the cross examination is not over would make

the entire examination as inadmissible. Ultimately, it is for the court to decide the

aforesaid aspect.

Evidentiary Value of a Final Report:

25.Section 173(2) of the CrPC calls upon the investigating officer to file his final

report before the court. It being a report, is nothing but a piece of evidence. It

forms a mere opinion of the investigating officer on the materials collected by

him. He takes note of the offence and thereafter, conducts an investigation to

identify the offender, the truth of which can only be decided by the court. The

aforesaid conclusion would lead to the position that the evidence of the

investigating officer is not indispensable. The evidence is required for

corroboration and contradiction of the other material witnesses as he is the one

who links and presents them before the court. Even assuming that the

investigating officer has not deposed before the court or has not cooperated

sufficiently, an accused is not entitled for acquittal solely on that basis, when

16

there are other incriminating evidence available on record. In Lahu Kamlakar

Patil v. State of Maharashtra, (2013) 6 SCC 417, this Court held:

“18. Keeping in view the aforesaid position of law, the testimony of PW

1 has to be appreciated. He has admitted his signature in the FIR but has

given the excuse that it was taken on a blank paper. The same could

have been clarified by the investigating officer, but for some reason, the

investigating officer has not been examined by the prosecution. It is an

accepted principle that non-examination of the investigating officer is

not fatal to the prosecution case. In Behari Prasad v. State of

Bihar [(1996) 2 SCC 317: 1996 SCC (Cri) 271], this Court has stated

that non-examination of the investigating officer is not fatal to the

prosecution case, especially, when no prejudice is likely to be suffered

by the accused. In Bahadur Naik v. State of Bihar [(2000) 9 SCC 153:

2000 SCC (Cri) 1186] , it has been opined that when no material

contradictions have been brought out, then non-examination of the

investigating officer as a witness for the prosecution is of no

consequence and under such circumstances, no prejudice is caused to the

accused. It is worthy to note that neither the trial Judge nor the High

Court has delved into the issue of non-examination of the investigating

officer. On a perusal of the entire material brought on record, we find

that no explanation has been offered. The present case is one where we

are inclined to think so especially when the informant has stated that the

signature was taken while he was in a drunken state, the panch witness

had turned hostile and some of the evidence adduced in the court did not

find place in the statement recorded under Section 161 of the Code.

Thus, this Court in Arvind Singh v. State of Bihar, [(2001) 6 SCC 407:

2001 SCC (Cri) 1148], Rattanlal v. State of J&K [(2007) 13 SCC 18:

(2009) 2 SCC (Cri) 349] and Ravishwar Manjhi v. State of

Jharkhand [(2008) 16 SCC 561: (2010) 4 SCC (Cri) 50], has explained

certain circumstances where the examination of investigating officer

becomes vital. We are disposed to think that the present case is one

where the investigating officer should have been examined and his nonexamination creates a lacuna in the case of the prosecution.”

Chance Witness:

26.A chance witness is the one who happens to be at the place of occurrence of an

offence by chance, and therefore, not as a matter of course. In other words, he is

not expected to be in the said place. A person walking on a street witnessing the

commission of an offence can be a chance witness. Merely because a witness

happens to see an occurrence by chance, his testimony cannot be eschewed

17

though a little more scrutiny may be required at times. This again is an aspect

which is to be looked into in a given case by the court. We do not wish to reiterate

the aforesaid position of law which has been clearly laid down by this Court in

State of A.P. v. K. Srinivasulu Reddy, (2003) 12 SCC 660:

“12. Criticism was levelled against the evidence of PWs 4 and 9 who are

independent witnesses by labelling them as chance witnesses. The

criticism about PWs 4 and 9 being chance witnesses is also without any

foundation. They have clearly explained as to how they happened to be

at the spot of occurrence and the trial court and the High Court have

accepted the same.

13. Coming to the plea of the accused that PWs 4 and 9 were “chance

witnesses” who have not explained how they happened to be at the

alleged place of occurrence, it has to be noted that the said witnesses

were independent witnesses. There was not even a suggestion to the

witnesses that they had any animosity towards any of the accused. In a

murder trial by describing the independent witnesses as “chance

witnesses” it cannot be implied thereby that their evidence is suspicious

and their presence at the scene doubtful. Murders are not committed

with previous notice to witnesses; soliciting their presence. If murder is

committed in a dwelling house, the inmates of the house are natural

witnesses. If murder is committed in a street, only passers-by will be

witnesses. Their evidence cannot be brushed aside or viewed with

suspicion on the ground that they are mere “chance witnesses”. The

expression “chance witness” is borrowed from countries where every

man's home is considered his castle and everyone must have an

explanation for his presence elsewhere or in another man's castle. It is

quite unsuitable an expression in a country where people are less formal

and more casual, at any rate in the matter explaining their presence.”

27.The principle was reiterated by this court in Jarnail Singh v. State of Punjab,

(2009) 9 SCC 719:

“21. In Sachchey Lal Tiwari v. State of U.P. [(2004) 11 SCC 410: 2004

SCC (Cri) Supp 105] this Court while considering the evidentiary value

of the chance witness in a case of murder which had taken place in a

street and a passerby had deposed that he had witnessed the incident,

observed as under:

If the offence is committed in a street only a passerby will be

the witness. His evidence cannot be brushed aside lightly or

viewed with suspicion on the ground that he was a mere

chance witness. However, there must be an explanation for his

presence there.

18

The Court further explained that the expression “chance witness” is

borrowed from countries where every man's home is considered his

castle and everyone must have an explanation for his presence elsewhere

or in another man's castle. It is quite unsuitable an expression in a

country like India where people are less formal and more casual, at any

rate in the matter of explaining their presence.

22. The evidence of a chance witness requires a very cautious and close

scrutiny and a chance witness must adequately explain his presence at

the place of occurrence (Satbir v. Surat Singh [(1997) 4 SCC 192: 1997

SCC (Cri) 538], Harjinder Singh v. State of Punjab [(2004) 11 SCC 253:

2004 SCC (Cri) Supp 28], Acharaparambath Pradeepan v. State of

Kerala [(2006) 13 SCC 643: (2008) 1 SCC (Cri) 241] and Sarvesh

Narain Shukla v. Daroga Singh [(2007) 13 SCC 360: (2009) 1 SCC

(Cri) 188]). Deposition of a chance witness whose presence at the place

of incident remains doubtful should be discarded

(vide Shankarlal v. State of Rajasthan [(2004) 10 SCC 632: 2005 SCC

(Cri) 579]).

23. Conduct of the chance witness, subsequent to the incident may also

be taken into consideration particularly as to whether he has informed

anyone else in the village about the incident (vide Thangaiya v. State of

T.N. [(2005) 9 SCC 650: 2005 SCC (Cri) 1284]). Gurcharan Singh (PW

18) met the informant Darshan Singh (PW 4) before lodging the FIR and

the fact of conspiracy was not disclosed by Gurcharan Singh (PW 18)

and Darshan Singh (PW 4). The fact of conspiracy has not been

mentioned in the FIR. Hakam Singh, the other witness on this issue has

not been examined by the prosecution. Thus, the High Court was

justified in discarding the part of the prosecution case relating to

conspiracy. However, in the fact situation of the present case, acquittal

of the said two co-accused has no bearing, so far as the present appeal is

concerned.”

Related and Interested Witness:

28.A related witness cannot be termed as an interested witness per se. One has to see

the place of occurrence along with other circumstances. A related witness can also

be a natural witness. If an offence is committed within the precincts of the

deceased, the presence of his family members cannot be ruled out, as they assume

the position of natural witnesses. When their evidence is clear, cogent and

withstood the rigor of cross examination, it becomes sterling, not requiring

further corroboration. A related witness would become an interested witness, only

19

when he is desirous of implicating the accused in rendering a conviction, on

purpose.

29.When the court is convinced with the quality of the evidence produced,

notwithstanding the classification as quoted above, it becomes the best evidence.

Such testimony being natural, adding to the degree of probability, the court has to

make reliance upon it in proving a fact. The aforesaid position of law has been

well laid down in Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591:

“32. Coming back to the appreciation of the evidence at hand, at the

outset, our attention is drawn to the fact that the witnesses were

interrelated, and this Court should be cautious in accepting their

statements. It would be beneficial to recapitulate the law concerning the

appreciation of evidence of related witness. In Dalip Singh v. State of

Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465], Vivian

Bose, J. for the Bench observed the law as under: (AIR p. 366, para 26)

“26. A witness is normally to be considered independent

unless he or she springs from sources which are likely to be

tainted and that usually means unless the witness has cause,

such as enmity against the accused, to wish to implicate him

falsely. Ordinarily, a close relative would be the last to screen

the real culprit and falsely implicate an innocent person. It is

true, when feelings run high and there is personal cause for

enmity, that there is a tendency to drag in an innocent person

against whom a witness has a grudge along with the guilty, but

foundation must be laid for such a criticism and the mere fact

of relationship far from being a foundation is often a sure

guarantee of truth. However, we are not attempting any

sweeping generalisation. Each case must be judged on its own

facts. Our observations are only made to combat what is so

often put forward in cases before us as a general rule of

prudence. There is no such general rule. Each case must be

limited to and be governed by its own facts.”

33. In Masalti v. State of U.P., (1964) 8 SCR 133 : AIR 1965 SC 202 :

(1965) 1 Cri LJ 226] , a five-Judge Bench of this Court has categorically

observed as under: (AIR pp. 209-210, para 14)

“14. … There is no doubt that when a criminal court has to

appreciate evidence given by witnesses who are partisan or

interested, it has to be very careful in weighing such evidence.

Whether or not there are discrepancies in the evidence;

whether or not the evidence strikes the court as genuine;

20

whether or not the story disclosed by the evidence is probable,

are all matters which must be taken into account. But it would,

we think, be unreasonable to contend that evidence given by

witnesses should be discarded only on the ground that it is

evidence of partisan or interested witnesses. Often enough,

where factions prevail in villages and murders are committed

as a result of enmity between such factions, criminal courts

have to deal with evidence of a partisan type. The mechanical

rejection of such evidence on the sole ground that it is

partisan would invariably lead to failure of justice. No hardand-fast rule can be laid down as to how much evidence

should be appreciated. Judicial approach has to be cautious in

dealing with such evidence; but the plea that such evidence

should be rejected because it is partisan cannot be accepted as

correct.”

34. In Darya Singh v. State of Punjab [(1964) 3 SCR 397 : AIR 1965 SC

328 : (1965) 1 Cri LJ 350] , this Court held that evidence of an

eyewitness who is a near relative of the victim, should be closely

scrutinised but no corroboration is necessary for acceptance of his

evidence. In Harbans Kaur v. State of Haryana [(2005) 9 SCC 195 :

2005 SCC (Cri) 1213 : 2005 Cri LJ 2199] , this Court observed that:

(SCC p. 227, para 6)

“6. There is no proposition in law that relatives are to be

treated as untruthful witnesses. On the contrary, reason has to

be shown when a plea of partiality is raised to show that the

witnesses had reason to shield actual culprit and falsely

implicate the accused.”

35. The last case we need to concern ourselves is Namdeo v. State of

Maharashtra [(2007) 14 SCC 150 : (2009) 1 SCC (Cri) 773] , wherein

this Court after observing previous precedents has summarised the law

in the following manner: : (SCC p. 164, para 38)

“38. … it is clear that a close relative cannot be characterised

as an “interested” witness. He is a “natural” witness. His

evidence, however, must be scrutinised carefully. If on such

scrutiny, his evidence is found to be intrinsically reliable,

inherently probable and wholly trustworthy, conviction can be

based on the “sole” testimony of such witness. Close

relationship of witness with the deceased or victim is no

ground to reject his evidence. On the contrary, close relative of

the deceased would normally be most reluctant to spare the

real culprit and falsely implicate an innocent one.”

36. From the study of the aforesaid precedents of this Court, we may

note that whoever has been a witness before the court of law, having a

strong interest in result, if allowed to be weighed in the same scales with

those who do not have any interest in the result, would be to open the

doors of the court for perverted truth. This sound rule which remains the

bulwark of this system, and which determines the value of evidence

21

derived from such sources, needs to be cautiously and carefully

observed and enforced. There is no dispute about the fact that the

interest of the witness must affect his testimony is a universal truth.

Moreover, under the influence of bias, a man may not be in a position to

judge correctly, even if they earnestly desire to do so. Similarly, he may

not be in a position to provide evidence in an impartial manner, when it

involves his interest. Under such influences, man will, even though not

consciously, suppress some facts, soften or modify others, and provide

favourable colour. These are most controlling considerations in respect

to the credibility of human testimony, and should never be overlooked in

applying the rules of evidence and determining its weight in the scale of

truth under the facts and circumstances of each case.”

30.Once again, we reiterate with a word of caution, the trial court is the best court to

decide on the aforesaid aspect as no mathematical calculation or straightjacket

formula can be made on the assessment of a witness, as the journey towards the

truth can be seen better through the eyes of the trial judge. In fact, this is the real

objective behind the enactment itself which extends the maximum discretion to

the court.

Non-examination of witness:

31.A mere non-examination of the witness per se will not vitiate the case of the

prosecution. It depends upon the quality and not the quantity of the witnesses and

its importance. If the court is satisfied with the explanation given by the

prosecution along with the adequacy of the materials sufficient enough to proceed

with the trial and convict the accused, there cannot be any prejudice. Similarly, if

the court is of the view that the evidence is not screened and could well be

produced by the other side in support of its case, no adverse inference can be

drawn. Onus is on the part of the party who alleges that a witness has not been

22

produced deliberately to prove it. The aforesaid settled principle of law has been

laid down in Sarwan Singh v. State of Punjab, (1976) 4 SCC 369:

“13. Another circumstance which appears to have weighed heavily with

the Additional Sessions Judge was that no independent witness of

Salabatpura had been examined by the prosecution to prove the

prosecution case of assault on the deceased, although the evidence

shows that there were some persons living in that locality like the

‘pakodewalla’, hotelwalla, shopkeeper and some of the passengers who

had alighted at Salabatpura with the deceased. The Additional Sessions

Judge has drawn an adverse inference against the prosecution for its

failure to examine any of those witnesses. Mr Hardy has adopted this

argument. In our opinion the comments of the Additional Sessions Judge

are based on serious misconception of the correct legal position. The

onus of proving the prosecution case rests entirely on the prosecution

and it follows as a logical corollary that the prosecution has complete

liberty to choose its witnesses if it is to prove its case. The court cannot

compel the prosecution to examine one witness or the other as its

witness. At the most, if a material witness is withheld, the court may

draw an adverse inference against the prosecution. But it is not the law

that the omission to examine any and every witness even on minor

points would undoubtedly lead to rejection of the prosecution case or

drawing of an adverse inference against the prosecution. The law is

well-settled that the prosecution is bound to produce only such witnesses

as are essential for unfolding of the prosecution narrative. In other

words, before an adverse inference against the prosecution can be drawn

it must be proved to the satisfaction of the court that the witnesses who

had been withheld were eyewitnesses who had actually seen the

occurrence and were therefore material to prove the case. It is not

necessary for the prosecution to multiply witnesses after witnesses on

the same point; it is the quality rather than the quantity of the evidence

that matters. In the instant case, the evidence of the eyewitnesses does

not suffer from any infirmity or any manifest defect on its intrinsic

merit. Secondly, there is nothing to show that at the time when the

deceased was assaulted a large crowd had gathered and some of the

members of the crowd had actually seen the occurrence and were cited

as witnesses for the prosecution and then withheld. We must not forget

that in our country there is a general tendency amongst the witnesses in

mofussil to shun giving evidence in courts because of the cumbersome

and dilatory procedure of our courts, the harassment to which they are

subjected by the police and the searching cross-examination which they

have to face before the courts. Therefore nobody wants to be a witness

in a murder or in any serious offence if he can avoid it. Although the

evidence does show that four or five persons had alighted from the bus

at the time when the deceased and his companions got down from the

bus, yet there is no suggestion that any of those persons stayed on to

witness the occurrence. They may have proceeded to their village

homes…”

(Emphasis supplied)

23

32.This Court has reiterated the aforesaid principle in Gulam Sarbar v. State of

Bihar, (2014) 3 SCC 401:

“19. In the matter of appreciation of evidence of witnesses, it is not the

number of witnesses but quality of their evidence which is important, as

there is no requirement under the Law of Evidence that any particular

number of witnesses is to be examined to prove/disprove a fact. It is a

time-honoured principle that evidence must be weighed and not counted.

The test is whether the evidence has a ring of truth, is cogent, credible

and trustworthy or otherwise. The legal system has laid emphasis on

value provided by each witness, rather than the multiplicity or plurality

of witnesses. It is quality and not quantity, which determines the

adequacy of evidence as has been provided by Section 134 of the

Evidence Act. Even in probate cases, where the law requires the

examination of at least one attesting witness, it has been held that

production of more witnesses does not carry any weight. Thus,

conviction can even be based on the testimony of a sole eyewitness, if

the same inspires confidence. (Vide Vadivelu Thevar v. State of

Madras [AIR 1957 SC 614: 1957 Cri LJ 1000] , Kunju v. State of

T.N. [(2008) 2 SCC 151: (2008) 1 SCC (Cri) 331] , Bipin Kumar

Mondal v. State of W.B. [(2010) 12 SCC 91: (2011) 2 SCC (Cri) 150 :

AIR 2010 SC 3638] , Mahesh v. State of M.P. [(2011) 9 SCC 626 :

(2011) 3 SCC (Cri) 783], Prithipal Singh v. State of Punjab [(2012) 1

SCC 10 : (2012) 1 SCC (Cri) 1] and Kishan Chand v. State of

Haryana [(2013) 2 SCC 502 : (2013) 2 SCC (Cri) 807: JT (2013) 1 SC

222].)”

ON FACTS:

33.There are three eye-witnesses examined by the prosecution. We find PWs-1 & 2

have not contradicted between themselves being the eye-witnesses. Merely

because they are related witnesses, in the absence of any material to hold that

they are interested, their testimonies cannot be rejected. There is also no delay in

the registration of the FIR. PW-3 though turned hostile, spoke about the incident

in his chief examination. Strangely, in the cross examination he turned turtle,

while disputing the very factum of his chief examination made before the court.

We do not wish to say anything on the credibility of the said witness in view of

24

the evidence of PWs -1 & 2. The view of the courts on this witness also deserves

to be accepted.

34.The High Court has rightly set aside the conviction rendered by the trial court for

the charge under Section 307 IPC. PWs-1 & 2 have not spoken about the presence

of the injured witness, Om Prakash. The circumstances under which he could not

be produced was explained by the prosecution. Merely because he was not

produced, the entire case of the prosecution would not become false.

35.The FSL report was placed on record. Both the courts have considered and relied

upon the said report. The entire circumstances under which the material was

collected including the cartridges, along with the recoveries made which were

sent to the expert, have been explained by the official witnesses. We do not find

anything unnatural in the testimony.

36.On a perusal of the evidence available we do not find any delay in either sending

the recovered arms to the expert or receiving the FSL report. The circumstances

under which they were sent and received were spoken about and explained. The

appellants have neither shown any prejudice being caused by the alleged delay,

nor have disputed the findings of the said report.

37.The learned counsel appearing for the appellants submitted that the investigating

officer could not be cross examined further with respect to the injuries and the

recoveries. We find that evidence was also let in to that extent along with the

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cross-examination. The High Court has considered this aspect in the correct

perspective. It is very unfortunate that the investigating officer could not be

produced despite the best efforts made. The reason is obvious. There are three

investigating officers. The other two investigating officers have been examined

including for the charge under the Arms Act. PW-13, the first investigating

officer, has been examined in extenso during cross examination. It is only for the

further examination he turned turtle. That per se would not make the entire case

of the prosecution bad is law particularly when the final report itself cannot be

termed as a substantive piece of evidence being nothing but a collective opinion

of the investigating officer. The trial court as well as the High court considered

the evidence threadbare in coming to the right conclusion. Similarly, the

contention that there is non-explanation for the existence of some other empty

cartridge recovered from the place of occurrence would not facilitate an acquittal

for the appellants as there are materials sufficient enough to implicate and prove

the offence against them.

38.Thus, on the aforesaid conclusion arrived at, we are in conformity with the well

merited judgment of the High court. The appeals stand dismissed.

39.Before we part with this case, we are constrained to record our anguish on the

deliberate attempt to derail the quest for justice. Day in and day out, we are

witnessing the sorry state of affairs in which the private witnesses turn hostile for

obvious reasons. This Court has already expressed its views on the need for a

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legislative remedy to curtail such menace. Notwithstanding the above stated

directions issued by this court in Vinod Kumar (supra), we take judicial note of

the factual scenario that the trial courts are adjourning the cross examination of

the private witnesses after the conclusion of the cross examination without any

rhyme or reason, at the drop of a hat. Long adjournments are being given after the

completion of the chief examination, which only helps the defense to win them

over at times, with the passage of time. Thus, we deem it appropriate to reiterate

that the trial courts shall endeavor to complete the examination of the private

witnesses both chief and cross on the same day as far as possible. To further

curtail this menace, we would expect the trial courts to take up the examination of

the private witnesses first, before proceeding with that of the official witnesses. A

copy of this judgment shall be circulated to all the trial courts, to be facilitated

through the respective High Courts.

…….………………………J.

(SANJAY KISHAN KAUL)

……………………………J.

(M.M. SUNDRESH)

New Delhi

February 04, 2022

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