Laxman & Ors Vs. State of
Maharashtra  INSC 222 (28 November 1973)
SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 303 1974 SCC (1) 309
CITATOR INFO :
D 1985 SC1156 (49,53)
Evidence Act, Section 145-Important omissions
by a witness in the previous statements regarding participation of the accused
in the crime--whether contradictions within the meaning of the section-Law laid
down in Tahsildar Singh and another v. State of U. P. A. I. R. 1959 S. C. 1012
explained-Impact of omissions on the probative value of the witnesses'
In the trial u/s 302 read with s. 34 I. P.
C., one Sopan was convicted on the evidence of one Sudam, the only eye-
witness. Sudam admitted in his cross-examination that neither before the
Executive Magistrate nor before the Committing Magistrate, he stated that Sopan
had beaten the deceased with Rumana and that he bad stated the fact for the
first time before the trial Magistrate. Sudam also admitted that Sopan did nothing
and was simply standing there. Sudam also stated that he could watch the
incident for a very short time as he himself was threatened by the accused and,
therefore, ran away. The F.I.R. and dying declarations also did not mention the
part played by Sopan in the incident.
The trial Court acquitted all the accused but
the High Court convicted them. As regards the omissions in Sudam's evidence,
the High Court held, following Tahsildar's case, that the omissions do not
amount to contradictions and cannot be proved to show that the witness was.
making improvements. The High Court, therefore, ignored the omissions.
Allowing Sopan's appeal (but not of the other
HELD . (i) We do not think that s. 145 of the
Evidence Act, on the very reasoning of Tahsildar Singh's case, cited by the
High Court, was intended to exclude from, evidence what is relevant and
admitted, and, therefore, a proved omission from having its due effect in the
assessment of probabilities. S. 145 of Evidence Act applies only to 'contradictions.'
If there are omissions in Previous statements which do not amount to
contradictions but throw some doubt on the veracity of what was omitted, the
uncertainty or doubt may be capable of removal by questions in reexamination.
There were no such questions put to Sudam. Neither proof nor use of such
omissions, which do not amount to contradictions is barred by s. 145 of the
Evidence Act. The error the High Court had committed was that it entirely
excluded very important, relevant and material omissions, from duly proved
previous statements of the witness Sudam from consideration altogether as
though they were quite irrelevant and in-consequential. [51 OF] It is not
possible to lay down a general rule as to what effect a particular omission
from previous statement should have on the probative value of what was so
omitted by a witness. The effect will depend upon the totality of proved facts
and circumstances in which the omission might have taken place. It will often
be determined by the importance of what was omitted. The Law of Evidence
contains nothing more than s. 3 and s. 114 of the Evidence Act to indicate and
illustrate the standards and methods employed in assessing the evidence. [510H]
(ii)The High Court ought to have examined the evidence of Sudam, the only
eye-witness, in the light of the material omissions and found out how much
Sudam actually saw with his own eyes and how much of what he said could be
attributed to his conjecture, surmise or imagination. Sopan is entitled to
benefit of the doubt, which emerges on an examination of the whole evidence in
the case about the precise acts of participation by him. 1513D]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 122 of 1970.
Appeal by special leave from the judgment and
order dated 24/; 25th September 1968 of the Bombay High Court in Criminal
Appeal 1731 of 1965.
506 M. C. Bhandare and P. H. Parekh, for the
H. R. Khanna and S. P. Nayar for the
The Judgment of the Court wag delivered by
BEG, J.-The three appellants Laxman (aged 30 at the time of trial). Sopan (aged
18 at the time of trial), and Sakharam (aged 40 years at the time of trial),
residents of village Walana were acquitted of charges under section 302 read
with section 34 I.P.C. by the learned Sessions Judge of Parbhani.
The trial court had declared the testimony of
the only eye witness, Sudam Sakharam, P.S. 17, to be unworthy of credence.
Neither the several dying declarations of the deceased Narain Rao, in which he
gave out the names of the three appellants as his assailants nor other facts
and circumstances, such as the recovery on a pointing out by Sopan of the
"Rumna" said to have been used for the murderous attack, were held by
the trial Court to be sufficient to corroborate the version of the eye witness.
On an appeal against the acquittal, a
Division Bench of the High Court of Bombay had elaborately discussed each one
of the reasons given by the learned sessions judge for discarding the testimony
of Sudam, corroborated by other facts and circumstances, and found the logic
behind the trial court's reasoning to be unsound. The High Court had also
criticised the learned Session's Judge in treating certain omissions from the
previous statements of Sudam as damaging contradictions without complying with
the provisions of section 145 of Evidence Act. It had relied on Tahsildar Singh
and anr. v. State of U.P.,(1) to support its views on the requirements of s.
145 of Evidence Act. The High Court set aside the acquittal of the three
appellants and convicted them under section 302 I. P.C. read with s. 34 IPC and
sentenced them to imprisonment. for life.
in the appeal by special leave, now before
us, the learned counsel for the appellants has criticised the approach of the
High Court, its findings on individual items of evidence, and its view that the
omissions from previous statements of the alleged eye witness Sudam could not
affect his credibility. After having examined the judgments of the trial court
and the High Court and relevant pieces of evidence in the case, and listening
to the arguments of the learned counsel for the appellants, who said all that
could be urged to support this appeal, and learned counsel for the respondent
State, we think that the appreciation of the evidence by the High Court was undoubtedly
far superior and that interference with the trial Court's judgment of acquittal
was justified. Nevertheless, we find that there is an aspect of the case
relating to Sopan, who was a student aged about 18 years at the time of the
alleged offence, which has not been given due importance by the High Court so
as to determine whether this appellant was en- titled, as we think he is, to
the benefit of doubt as regards his alleged participation in the actual
commission of an offence.
(1) AIR 1959 S.C. 1012.
507 The account of the occurrence given by
Sudam, P.W. 17 may be summarised as follows:-- The witness, who knew,
Narainrao, Sarpanch of Walana, had been engaged by the Sarpanch to assist him
in the supervising the construction of a road under a contract.
The Sarpanch got a commission and the witness
got Rs. 3 per day. He left Walana with the Sarpanch at 8 . 00 A.M. for village
Mannas Pimpri to pay the wages of the labourers on 30th April, 1966, which was
a Saturday. Wages used to be paid on Saturdays. Laxman, appellant, met and
followed them on the way saying that he too had to go to Mannas Pimpri.
As the party reached Mahboob's field, Laxman
lifted and tucked in his Dhoti like a wrestler. Then, Laxman suddenly caught
hold of Narayan's right leg, and, putting his left hand on his back, felled
Narainrao on the ground face downwards. Narainrao's hands were under his body.
Laxman caught and then sat on Narainrao's neck. Narainrao raised a hue and cry.
When the witness tried to restrain Laxman and caught his hand, hewas warned
that he would be killed if he interfered. Just then, thewitness saw Sopan and
Sakharam, brother and wards them. Sakharam carried a 'Ramna'. The witness let
go the hand of Laxman. While Laxman sat on the neck of Narainrao and pressed it
down, Sakharam rained blows with the 'Ramna' on the back of Narainrao. Sopan
stood watching nearby- After Sakharam had finished beating Narainrao, Sopan
took the same Ramna and started beating him while Narain shouted : 'I am dead'.
Finally, Laxman took a big stone and threw it
on the neck of Narainrao. As Laxman saw the witness watching from a distance,
while escaping he said : "Catch this Mang". The witness ran towards
Walana. He met, Bhika Kotwal of Walana on the way and informed him that Narainrao
was being beaten by the' three accused. At Walana, he informed Abhiman, the
brother of Narainrao, that the accused were beating up Narainrao. He then went
to his sister's house and drank some water. He was about to go back to the
scene of occurrence when Laxman and Sopan came there. Laxman said :
'Take care Mang I If you testify in favour of
the Sarpanch, you would be murdered'. The witness was, however, not deterred
from going back to the scene of occurrence where other villagers had.
Attempts were made by cross-examination to
discredit the testimony of this witness. Firstly, it was suggested to him that
two chits (Ex. 31 and 32), showing that the witness was demanding Rs. 30/to
spoil the prosecution case, were sent by him. But, as the High Court had rightly
pointed out, the connection of this witness with writing on these chits could
not be established. The trial Court had obviously erred in using these chits to
doubt the credibility of the witness.
Secondly, it was urged that this witness had
denied his con- viction for an offence under s. 12 of the Gambling Act. The
learned Sessions Judge had, in our opinion, attached too much importance to
this denial. , The High Court, on the other hand, had examined the certified
copy of the criminal case register (Ex. 42) filed to contradict the statement
of this witness denying a conviction and had 508 held that, although one Sudam
Sakharam of Bahar Jahagir was shown to be one of two accused persons mentioned
in the copy filed, yet, the entries in the relevant columns did not show
anything beyond a fine of Rs. 5/- on Laxman, the co-accused.
The High Court also held that the identity of
the particular Sudam Sakharam mentioned in this copy was not established as
that of Sudam P.W. 17 and that there could be other persons of that name in the
village. The High Court had also adversely commented on the fact that the copy
was not of a document kept in proper form. It had been only signed by a clerk.
No judgment and order of the Court was filed. The High Court doubted the bona
fides of the defence in producing what it considered to be a suspicious copy to
contradict one of the statements of the witness. Even if we do not question the
bona fides of the defence in finding it, the technical defect of want of proof
of the exact identity of Sudam mentioned in the copy was certainly there. We
agree with the High Court that the trial court had made too much out of this
alleged contradiction in the testimony of Sudam. Thirdly, it was sought to be
shown that Sudam had improved the account of the incident given by him at
earlier stages by introducing, in his statement at the trial, what he had not
said earlier. The High Court held that these omissions were not
"contradictions". Alternatively, it held that, even if an omission
here could be viewed as a 'contradiction, it could not be used at all without
complying with s. 145 of the Evidence Act.
In Tahsildar's case (supra) the majority view
of this Court by Subba Rao, J., was (at p. 1023) :- "Contradict according
to the Oxford Dictionary meant to affirm to the contrary. Section 145 of the
Evidence Act indicates the manner in which contradiction is brought out. The
cross-examining counsel shall put the part or parts of the statement which
affirms the contrary to what is stated in evidence. This indicates that there
is something in writing which can be set against another statement made in
evidence. If the statement before the police officer in the sense we have
indicated and the statement in the evidence before the Court are so inconsistent
or irreconcilable with each other that both of them cannot co- exist, it may be
said that one contradicts the other.
It is broadly contended that a statement
includes all omissions which are material and are such as a witness is expected
to say in the normal course. This contention ignores the intention of
legislature expressed in s.162 of the Code and the nature of the non-
evidentiary value of such a statement, except for the limited purpose of
Unrecorded statement is completely excluded.
But recorded one is used for a specified
purpose. The record of a statement, however perfunctory, is assumed to give a
sufficient guarantee to the correctness of the statement made but if words not
recorded are brought in by some fiction, the objection of the section would be
509 By that process, if a part of a statement
is recorded, what was not stated could go in on the sly in the name of
contradiction, whereas if the entire statement was riot recorded, it would be
excluded. By doing so, we would be circumventing the section by ignoring the
only safeguard imposed by the legislature, viz., that the statement should have
In the case before us we find that no
question was put at all to Sudam, in his cross- examination, about what he bad
stated or omitted to state to the police during the course of investigation.
Cross-examination of the witness bad, however, brought out two material
omissions from statements before the Executive Magistrate and the Committing
The witness said :
"I have not stated before the Executive
Magistrate, nor before the committing court that accused nos. 2 and 3 bad
obstructed me, when I took to my heels. Sepan (accused no.
2) had beaten Narainrao with Rumna, after
taking the same from accused no. 3. I have not stated therefore the Executive
Magistrate that accused no. 2 bad beaten Narainrao with Rumna.
I have not stated before the committing
Magistrate that the accused no. 2 (Sopan) bad beaten Narainrao. I have stated
before the Committing Magistrate that at the time of the incident, accused no.
2, did nothing and he was simply standing there".
The High Court itself observed :
"It is true that the witness had not
made any statement before the Committing Magistrate regarding the part played
by accused no. 2 in the assault on Narainrao but that may be because he was not
questioned on that point at that time. The same can be said about the statement
before the Executive Magistrate." It then went on to say "It cannot,
however, be said that be bad not made any statement on the point before the
Police. As we will presently point out, it is not possible to any that the
witness had not made any statement on the point before the Police, but,
assuming for the present that he bad not made any such statement, it would be
only an omission presumably due to his not being questioned on the point. That
cannot be of any help to the defence to suggest that the witness was making
intelligent improvements as assumed 'by the learned Judge. The omission, if at
all it is there, is not such as would amount to controdiction and cannot,
therefore, be proved to show that the witness was making improvements." In
so far as the High Court was presuming, from the failure of the defence to
cross-examine the witness about any assatement before the police, that there
was no such omission in his statement before M602SupCI/74 510 the police, the
High Court was assuming the existence of something which could not have been
used by the prosecution to corroborate its case even if it existed. The High
Court had then, proceeding on the assumption that there was such an omission
from the statement of the witness before the police, explained an assumed
infirmity in it by holding that this constituted neither a contradiction nor
was it inexplicable by a failure to question the witness on the point during
the investigation as though it was no part of the duty of the police to elicit
or ascertain what part was played by each accused in the occurrence before
If we were to assume that the witness had
revealed to the police the part alleged by him at the trial to have been played
by Sopan, it would make it all the more incumbent on the prosecution to bring
out this part when the witness was making his statement in his
examination-in-chief before the Magistrates. The statements before the
magistrates could be used both to contradict and to corroborate. The
prosecution had performed its duty in questioning the witness, when he was
deposing at the trial, about the part played by Sopan.
It should not have gone to sleep at earlier
stages and then tried to fill up the possible gaps in the evidence on this part
of the case at the trial. If it does this, so that an important prosecution
witness appears to be introducing new allegations which are vital for determining
the liability of an accused, the new statements are bound to arouse suspicion
It may not be out of place to mention here
that the 11th Report of the Criminal Law Revision Committee in England, has
recommended the abrogation of several artificial rules of evidence which may
result in the exclusion of what is logically relevant (See : Criminal Law
Review, June, 1973, p. 329). So far as our law goes. we do not think that s.
145 of the Evidence Act, on the very
reasoning of Tahsildar Singh's case (supra), cited by the High Court, was
intended to exclude from evidence what is relevant and admitted, and,
therefore, a proved omission from having its due effect in the assessment of
probabilities. Section 145, Evidence Act applies only to 'contradictions'. if
there are omissions in previous statements which do not amount to
contradictions but throw some doubt on the veracity of what was omitted, the
uncertainty or doubt may be capable of removal by questions in re-examination.
There were no such questions put to Sudam in the case before us. Neither proof
nor use of such omissions, which do not amount to contradictions, is barred by
Sec. 145. Evidence Act.
is not possible to lay down a general rule as
to what effect a particular omission from a previous statement should have on
the probative value of what was so omitted by a witness.
The effect will depend upon the totality of
proved facts and circumstances in which the omission might have taken place It
will often be determined by the importance of wtiat was omitted. Oar enacted
law of evidence contains nothing more than sections 3 and 114 of the Evidence
Act to indicate and illustrate the standards and methods employed in assessing
the evidence. The error the High Court had committed in 511 the case before us
was that it entirely excluded very important, relevant, and material omissions,
from duty proved previous statements of the witness Sudam from consideration
altogether as though they were quite irrelevant and inconsequential.
Quite apart from the error of the High Court
in assuming that a material omission from a previous statement, even if it is
not to be treated strictly as a contradiction, must be ignored in evaluating
the testimony of the only eye witness on so important a matter, for determining
the liability of Sopan, we think that what Sudam P.W. 17 had omitted to state
before the Magistrates ought also to have been more critically examined and
tested by the High Court in the light of probabilities and the natural course
of human conduct. The important question which arose for determination on facts
and circumstances disclosed by Sudam himself was :
How much did Sudam actually see with his own
eyes and how much of what he said could be not unreasonably attributed to
conjecture, surmise, or imagination on his part? Before we discuss the evidence
further, we may observe that Professor Munsterberg, in a book called "On
the Witness Stand" (p. 51), cited by Judge Jerome Frank in his "Law
and the Modern Mind" (see : 1949 ed. p. 106), gives instances of
experiments conducted by enacting sudden unexpected preplanned episodes before
persons who were then asked to write down, soon afterwards, what they had seen
The astounding result was :
"Words were put into the mouths of men
who had been silent spectators during the whole short episode; actions were
attributed to the chief participants of which not the slightest trace existed;
and essential parts of the tragicomedy were completely eliminated from the
memory of a number of witnesses".
Hence, the Professor concluded : "We
never know whether we remember, perceive, or imagine". Witnesses cannot,
therefore, be branded as liars in to and their testimony rejected outright even
if parts of their statements are demonstrably incorrect or doubtful. The astute
judge can separate the grains of acceptable truth from the chaff of
exaggerations and improbabilities which cannot be safely or prudently accepted
and acted upon. It is sound commonsense to refuse to apply mechanically, in
assessing the worth of necessarily imperfect human testimony, the maxim :
"falsus in uno falsus in omnibus." Reverting to the evidence in the
case, we find that Sudam was, as is quite natural, in a hurry to get back to
the village because, apart from the fear of the accused (Laxman had actually
threatened to kill him and the other two had also been alleged by him to have
attempted to prevent his escape), he had to inform the relations of Narainrao
soon about what he had seen. And, he deposed that he told both Bhika Kotwal and
Abhiman (P.W. 2) when he met them,. that Narainrao was "being"
beaten, or, in other words, the beating had not come 512 to an end when he ran
away from the scene of occurrence.
Moreover, he was quite far when Sopan is
alleged by him, apparently for the first time it the-trial, to have taken his
turn to beat the deceased with the Rumna. Even the last act attributed by him
to Laxman who is said to have hurled a big stone at the neck of Narainrao lying
on the ground, is not corroborated by medical evidence, Moreover, it was not
possible for Sudam to have observed from a distance that the stone hurled by
Laxman actually hit Narain on his neck. He could have mistaken some act of
Sopan, such as throwing away of the Rumna, for an assault with it claimed by
him to have been seen from a distance as he turned his head back to see whilst
escaping. We, therefore, conclude that, although Sudam was there to witness how
the attack began, he had probably drawn upon his imagination to some extent to
give the details of how it ended.
We next turn to the several dying
declarations put forward to corroborate the statement of Sudam. These show that
the three appellants were present at the attack upon Narainrao and were thought
by Narainrao to have participated in beating him. These dying declarations,
however, do not mention the particular part assigned by Sudam to Sopan in his
deposition at the trial. This is natural as Narainrao was not in a position to
see the actual assailant after he was pinned down to the ground with his face downwards
and Laxman sitting on his "neck". He could only guess who was
striking him on the back.
The first dying declaration, made to Mahboob,
P.W. 10, did not impress the High Court. The second was made to Piraji P.W. 9,
the third to Laxmanramji P.W. 2 and the 4th to Datarao P.W. 3, the Sarpanch of
Mannas Pimpri. The High Court had rightly observed that the last three dying
declarations made to villagers, who had assembled at the scene of occurrence
before Narainrao died, could not be held to be false as the medical evidence
indicated that he could remain conscious for some time after the attack. The
more important question for determination, therefore, was :
"To what extent do the dying
declarations corporate Sudam?" Neither the dying declarations nor the F.I.R.
lodged at the police station by Abhiman P.W. 12, the brother of Narainrao, on
30-4-1966. at 12 30 p.m. disclose the parts played by each of the three
accused. The report sent by Abhiman is actually signed by Sudam P.W. 17. It is
true that, at that time, it was not known that Narainrao would die. But, both
Sudam and Abhiman knew that a very severe beating had been given to Narainrao.
We think that it is unlikely that, if Sudam had seen the details of the way in
which the beating of Narainrao ended, no details of it whatsoever would be
given in the report sent by Abhiman to the police which was signed by Sudam.
Thus, the proved omission of the last part of Sudam's version from the F.I.R.
as well as from his proved previous statements before the Executive and the
Committing Magistrates, combined with the unlikelihood that he could either
stay long enough at the scene to see how the beating ended or 513 would be able
to see this well enough when he turned his head back while running away and his
own admitted statements to other witnesses throw that part of the story in
which Sopan appellant is said to have taken his turn in beating of Narainrao in
the region of reasonable doubt.
Sopan, appellant, a young man, may have
accompanied his elder brother, Laxman, and his cousin, Sakharam, out of
curiosity. He may have watched the beating. Sudam's own statement before the
committing magistrate quoted above, was that this is all that Sopan did there,
although the High Court thought fit to explain it away by believing that this
assertion was confined to the earlier stage of the beating.
According to the High Court's finding, Sopan
was only standing at least when Sakharam was giving the eating with the
'Rumna'. He must have accompanied his elder brother and cousin back to the
village. Sopan may have even taken and thrown the 'Rumna' or known where it was
lying. The fact that he indicated the place from where it could be recovered
would not be sufficient to establish his participation in the incident beyond
reasonable doubt. Therefore, we are of the opinion that Sopan, appellant, is
entitled to the benefit of the doubt which emerges on an examination of the
whole evidence in the case about the precise acts of participation by him. As
regards Laxman and Sakharam there is no room for doubt that they actually
attacked Narainrao deceased as stated by Sudam. The manner in which Narainrao
was said to be beaten, corroborated by medical evidence, makes it impossible
for the beating to have been given by a single individual. The participation of
Laxman and Saharam in the actual commission of the offence is, therefore,
established beyond any reasonable doubt. The medical evidence also leaves no
doubt that the beating was such that, in the ordinary course of nature, it
would cause the death of Narainrao.
We, therefore, think that Laxman and Sakharam
appellants have been rightly convicted under section 302 read with s.34 I.P.C.
and sentenced to life imprisonment. Hence, we dismiss the appeal of Laxman and
Sakharam and affirm their convictions and sentences. We allow the appeal of
Sopan appellant and set aside his conviction and sentence. We order that Sopan
be set at liberty forthwith unless wanted in some other connection.
S.B.W. Appeal allowed in part.