Alias Rameshwar Vs. State of Madhya Pradesh  INSC 358 (21 September 1999)
A.P.Misra THOMAS, J.
manslaughter in an automobile in locomotion is the subject matter of this case.
The slaughtered man was a Home Guard personnel, by name Sardar Singh Thakur.
When he boarded the bus destined to Naseerabad on the evening of 20.7.1985, he
had no foreboding that it was his last journey alive. Before the bus could
reach its terminus he was finished by armed assailants inside the vehicle while
it was in motion. Appellants (Rammi alias Rameshwar and Bhura alias Sajjan
Kumar) were two of the three persons arraigned before the Sessions Court.
Though the Sessions Judge acquitted all of them a Division Bench of the High
Court of Madhya Pradesh convicted the two appellants under Section 302 read
with Section 34 of the IPC and sentenced them to imprisonment for life. The
third accused (Suresh alias Chhigga) died before the appeal was decided by the
High Court. These appeals were filed by the two convicted persons as of right
under Section 379 of the Code of Criminal Procedure (for short the Code) and
under Section 2 of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970.
story of the prosecution, as revealed through evidence, can be summarised like
this: One Channa Babu (brother of appellant Rammi and late Chhigga) was
murdered for which the police charge-sheeted Sardar Singh Thakur (the deceased
in this case) and his brother Shyam Singh (PW-3 in this case) and a few others.
From then on these accused were thirsting for revenge for the murder of Channa Babu.
were prowling for an opportune opportunity to strike back. In such a background
accused came to know that Sardar Singh Thakur was travelling in a bus. Accused
wanted to avail themselves of that opportunity and boarded the bus on the way. After
the vehicle moved for some distance the assailants mounted the attack on the
deceased with chopper and knives.
assailants inflicted as many as 12 incised injuries on Sardar Singh Thakur.
Those who tried to intervene were told by the assailants to mind their own
business as the attack was intended for a revenge. After accomplishing the
object all the assailants alighted from the vehicle and escaped from the scene.
The passengers of the bus became frightened and most of them jumped out of the
vehicle and ran helter-skelter.
stage carriage was then driven towards the police station by its driver (PW-12 Jabbar
Khan). Ext. P-12 - First Information Statement was lodged at the police station
by the conductor of the vehicle (PW-8 Ramashray). The accused were arrested and
after interrogation the weapons used for the murder were recovered by PW-13
Investigating Officer from hidden places on the basis of informations elicited
from the accused.
is no doubt that deceased Sardar Singh Thakur was murdered inside the said bus
at about 5 P.M. while the bus was in motion. In
fact that part of the case is not controverted by the appellants. The dispute
now centers round the identity of the assailants. PW-8 Ramashray and PW-12 Jabbar
Khan supported the case of the prosecution regarding the identity of the
assailants, besides one of the passengers of the bus (PW-9 Ram Dulare). But the
trial court was not impressed by their evidence. Nor did the trial court place
any reliance on the evidence relating to the recovery of weapons which the
prosecution adduced as per Section 27 of the Evidence Act. But the Division
Bench of the High Court made complete reversal of the findings of the trial
judge and made a scathing observation in the penultimate paragraph of the
judgment under appeal, as under: Before parting with this appeal, we cannot
resist from observing that the perverse reasoning and conclusions given by the
trial judge in appreciating the evidence in the instant case cannot be
supported. Such unrealistic approach in appreciating evidence in a criminal
case shakes the confidence of the society in the legal system itself and our
interference, therefore, is urgently called for.
Umesh Lalit, learned counsel for the appellants contended that the reasoning of
the trial judge regarding different items of incriminating evidence did not
warrant interference in an appeal against acquittal as the views expressed by
the trial judge were not unreasonable.
counsel dealt with the evidence almost threadbare in his endeavour to show that
the sessions judge was not altogether wrong in acquitting the appellants.
Ram Dulare (a passenger in the bus) in his evidence said that he saw the appellants
attacking the deceased with chopper and knives. The trial court pointed out
that he did not inform the members of the family of the deceased nor did he
bring this matter to the notice of the police. The Sessions Judge regarded the
above as a conduct incompatible with the normal behaviour of a person
witnessing such a crime.
remark on the conduct of a person who witnessed the murderous attack is least
justified in the realm of appreciation of evidence. This Court has said time
and again that the post event conduct of a witness varies from person to
person. It cannot be a cast-iron reaction to be followed as a model by everyone
witnessing such event.
persons would react differently on seeing any violence and their behaviour and
conduct would, therefore, be different. We have not noticed anything which can
be regarded as an abnormal conduct of PW-9 Ram Dulare.
there are two broad circumstances which would bridle the court from placing
full reliance on the evidence of PW-9. First is, though his name appeared in
the First Information Statement its author PW-8 (the conductor of the bus) said
in his evidence that Ram Dulare was not a person known to him. Second is, PW-9
has said in cross-examination that he did not mention anything about the
incident to anybody else at all until he was questioned by the police.
the aforesaid two incongruities came on record during cross-examination no
attempt whatsoever was made by the Additional Public Prosecutor to secure any
explanation regarding such aspects.
the recovery of weapons, the prosecution could utilize statements attributed to
the accused on the basis of which recovery of certain weapons was effected.
27 of the Evidence Act permits so much of information which lead to the
discovery of a fact to be admitted in evidence. Here the fact discovered by the
police was that the accused had hidden the blood-stained weapons. In that
sphere what could have been admitted in evidence is only that part of the
information which accused had furnished to the police officer and which led to
the recovery of the weapons.
such information is admissible in evidence under Section 27 of the Evidence
Act, but admissibility alone would not render the evidence, pertaining to the
above information, reliable. While testing the reliability of such evidence the
court has to see whether it was voluntarily stated by the accused.
Investigating Officer has said in his evidence that the accused were arrested
on the succeeding day of the occurrence from a different place and they were
interrogated by him. But PW-12 (the driver of the bus) has said in his evidence
that after he reached the police station on the same evening he saw the three
accused inside the police station. We do not know whether it was an error which
PW-12 committed during cross-examination. No doubt the Public Prosecutor who
conducted the prosecution did not choose to put any question to PW-12 also in
is, there is material discrepancy regarding the time when police took the
accused in custody. If PW-13 is correct the accused would have been arrested
only on the succeeding day of occurrence. But if PW-12 is correct the accused
should have been interrogated on the very day of occurrence in which case the
accused would have had no occasion to conceal the weapons.
the above scrutiny we are unable to place any reliance on the evidence of PW-13
regarding recovery of the weapons at the instance of the accused. In this
context we are tempted to observe that the Additional Public Prosecutor who
conducted prosecution has not discharged his responsibility as he avoided
putting any question to those witnesses when an opportunity for re-examination
was provided to him.
very purpose of re-examination is to explain matters which have been brought
down in cross-examination.
138 of the Evidence Act outlines the amplitude of re-examination. It reads
thus: Direction of re-examination.- The re- examination shall be directed to
the explanation of matters referred to in cross-examination;
new matter is, by permission of the Court, introduced in re-examination, the
adverse party may further cross-examine upon that matter.
is an erroneous impression that re-examination should be confined to clarification
of ambiguities which have been brought down in cross-examination. No doubt,
ambiguities can be resolved through re-examination. But that is not the only
function of the re-examiner. If the party who called the witness feels that
explanation is required for any matter referred to in cross-examination he has
the liberty to put any question in re-examination to get the explanation. The
Public Prosecutor should formulate his questions for that purpose. Explanation
may be required either when ambiguity remains regarding any answer elicited
during cross-examination or even otherwise. If the Public Prosecutor feels that
certain answers require more elucidation from the witness he has the freedom
and the right to put such questions as he deems necessary for that purpose,
subject of course to the control of the court in accordance with the other
provisions. But the court cannot direct him to confine his questions to
ambiguities alone which arose in cross-examination.
if the Public Prosecutor feels that new matters should be elicited from the
witness he can do so, in which case the only requirement is that he must secure
permission of the court. If the Court thinks that such new matters are
necessary for proving any material fact, courts must be liberal in granting
permission to put necessary questions.
Public Prosecutor who is attentive during cross- examination cannot but be
sensitive to discern which answer in cross-examination requires explanation. An
efficient Public Prosecutor would gather up such answers falling from the mouth
of a witness during cross-examination and formulate necessary questions to be
put in re-examination.
is no warrant that re-examination should be limited to one or two questions. If
the exigency requires any number of questions can be asked in re-examination.
this case the Additional Public Prosecutor in the trial court seemed oblivious
of such a right. It is rather amazing that he did not avail himself of that
right in respect of a single witness. The defence counsel would have had a free
day as he was left totally undisturbed by the Public Prosecutor. Be that as it
may, side-stepping above items of evidence is hardly sufficient to end the woes
of the appellant because the prosecution examined two of the most important
witnesses to the occurrence, PW-8 Ramashray - the conductor, and PW-12 Jabbar
Khan - the driver.
had given three former statements regarding the occurrence (Ext.P-12 the First
Information Statement, and then what the Investigating Officer recorded under
Section 161 of the Code, and another statement which the magistrate recorded
under Section 164 of the Code). The defence counsel used all those three
statements to ferret out one or two omissions therefrom for confronting PW-8.
The trial court on the strength of such answers castigated PW-8. This was what
the Sessions Judge said about their evidence:
(PW-8) stood contradicted on material and vital points from the first
information report Ex.P.11, case diary statement ex.D-1. Those contradictions
relate to the material and vital points. These details go to show that Ramshray
(PW-8) is not a truthful or reliable witness. He was made to modulate his
version but to suit the prosecution case and it is not safe to place implicit
reliance on his testimony. The evidence of this witness appears artificial,
unnatural and improbable and suffers from intrinsic infirmities. In the
circumstances, his testimony cannot be accepted on its face value.
Umesah Lalit, learned counsel for the appellant tried to support the said
reasoning of the trial court. We feel that the approach made by the trial court
in groping for discrepancies in the testimony of such important witnesses had
resulted in the unmerited acquittal.
eye-witness is examined at length it is quite possible for him to make some
discrepancies. No true witness can possibly escape from making some discrepant
details. Perhaps an untrue witness who is well tutored can successfully make
his testimony totally non-discrepant. But courts should bear in mind that it is
only when discrepancies in the evidence of a witness are so incompatible with
the credibility of his version that the court is justified in jettisoning his
evidence. But too serious a view to be adopted on mere variations falling in the
narration of an incident (either as between the evidence of two witnesses or as
between two statements of the same witness) is an unrealistic approach for
a common practice in trial courts to make out contradictions from previous
statement of a witness for confronting him during cross-examination. Merely
because there is inconsistency in evidence it is not sufficient to impair the
credit of the witness. No doubt Section 155 of the Evidence Act provides scope
for impeaching the credit of a witness by proof of inconsistent former
statement. But a reading of the Section would indicate that all inconsistent
statements are not sufficient to impeach the credit of the witness. The
material portion of the Section is extracted below: 155. Impeaching credit of
witness.- The credit of a witness maybe impeached in the following ways by the
adverse party, or, with the consent of the court, by the party who calls him
(3) by proof of former statements inconsistent with any part of his evidence which
is liable to be contradicted.
former statement though seemingly inconsistent with the evidence need not
necessarily be sufficient to amount to contradiction. Only such of the
inconsistent statement which is liable to be contradicted would affect the credit
of the witness. Section 145 of the Evidence Act also enables the cross-examiner
to use any former statement of the witness, but it cautions that if it is
intended to contradict the witness the cross-examiner is enjoined to comply
with the formality prescribed therein. Section 162 of Code also permits the
cross-examiner to use the previous statement of the witness (recorded under
Section 161 of the Code) for the only limited purpose, i.e. to contradict the
contradict a witness, therefore, must be to discredit the particular version of
the witness. Unless the former statement has the potency to discredit the
present statement, even if the latter is at variance with the former to some
extent it would not be helpful to contradict that witness, (vide Tahsildar
Singh and anr. vs. State of U.P., AIR 1959
this case the evidence of the conductor and the driver of the bus evinces
credibility. As pointed out earlier they are the most natural witnesses for the
murder which took place inside the bus. The minor variations which the defence
counsel discovered from their former statements did not amount to discredit the
core of their evidence. The strained reasoning of the Sessions Judge for
side-stepping their evidence is too fragile for judicial countenance. The
Division Bench of the High Court has rightly reversed the finding regarding the
credibility of their evidence.
the aforesaid reasons we agree with the High Court that appellants are liable
to be convicted under Section 302 of the IPC. We, therefore, dismiss this