# RAJESH YADAV & ANR v. STATE OF U.P

- **Citation:** [2022] 16 S.C.R. 967
- **Court:** Supreme Court of India
- **Decided:** 2022-02-04
- **Case number:** Criminal Appeal Nos. 339-340 of 2014
- **Bench:** Sanjay Kishan Kaul, M.M. Sundresh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajesh-yadav-anr-v-state-of-u-p-35508
- **Pages:** 35

## Headnote

Penal Code 1860: ss. 302, 307 - Two persons were done to
death by bullet firing by the accused - Previous dispute between
the groups - Two eye-witness present on the spot - Recoveries made
from all the accused - Trial court convicted and sentenced all the
accused - High Court convicted the appellants for life, while
acquitting them for the offence charged u/s.307, with the
confirmation of conviction and sentence u/s. 25 of the Arms Act -
On appeal, held: 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 - No delay in the
registration of the FIR - Nothing is said on the credibility of the
witness who turned hostile in the cross-examination in view of the
evidence of PWs -1 & 2 - High Court rightly set aside the conviction
rendered by the trial court for the charge u/s. 307 - Merely because
the injured witness was not produced, the entire case of the
prosecution would not become false - 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, there is noting unnatural in the
testimony - No delay is found in either sending the recovered arms
to the expert or receiving the FSL report - Investigating officer
could not be produced despite the best efforts made - 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 - Trial court as well as the High court
considered the evidence threadbare in coming to the right conclusion
- Material sufficient enough to implicate and prove the offence
against the appellants - Non-explanation for the existence of some
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other empty cartridge recovered from the place of occurrence would
not facilitate an acquittal for the appellants - Thus, the judgment
passed by the High Court upheld - Arms Act - S. 25.
Evidence Act, 1972:
s. 3 - "Evidence" - Explained.
Appreciation of "evidence" - Explanation of - Held: While
appreciating evidence, evidence can be divided into three
categories, wholly reliable, wholly unreliable and 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 - 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.
s. 33 - Relevancy of certain evidence - Held: Section 33 is
an exception to the general rule which mandates adequate facility
for cross examining a witness- 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 - Issues over which the evidence is completed
could be treated as such by the court and then proceed - Issues for
which the cross examination is not over would make the entire
examination as inadmissible.
Non-examination of witness - Effect of, on prosecution case
- Held: 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 - Onus
is on the part of the party who alleges that

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RAJESH YADAV & ANR
v.
STATE OF U.P.
(Criminal Appeal Nos. 339-340 of 2014)
FEBRUARY 04, 2022
[SANJAY KISHAN KAUL AND M.M. SUNDRESH, JJ.]
Penal Code 1860: ss. 302, 307 - Two persons were done to
death by bullet firing by the accused - Previous dispute between
the groups - Two eye-witness present on the spot - Recoveries made
from all the accused - Trial court convicted and sentenced all the
accused - High Court convicted the appellants for life, while
acquitting them for the offence charged u/s.307, with the
confirmation of conviction and sentence u/s. 25 of the Arms Act -
On appeal, held: 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 - No delay in the
registration of the FIR - Nothing is said on the credibility of the
witness who turned hostile in the cross-examination in view of the
evidence of PWs -1 & 2 - High Court rightly set aside the conviction
rendered by the trial court for the charge u/s. 307 - Merely because
the injured witness was not produced, the entire case of the
prosecution would not become false - 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, there is noting unnatural in the
testimony - No delay is found in either sending the recovered arms
to the expert or receiving the FSL report - Investigating officer
could not be produced despite the best efforts made - 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 - Trial court as well as the High court
considered the evidence threadbare in coming to the right conclusion
- Material sufficient enough to implicate and prove the offence
against the appellants - Non-explanation for the existence of some
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other empty cartridge recovered from the place of occurrence would
not facilitate an acquittal for the appellants - Thus, the judgment
passed by the High Court upheld - Arms Act - S. 25.
Evidence Act, 1972:
s. 3 - "Evidence" - Explained.
Appreciation of "evidence" - Explanation of - Held: While
appreciating evidence, evidence can be divided into three
categories, wholly reliable, wholly unreliable and 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 - 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.
s. 33 - Relevancy of certain evidence - Held: Section 33 is
an exception to the general rule which mandates adequate facility
for cross examining a witness- 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 - Issues over which the evidence is completed
could be treated as such by the court and then proceed - Issues for
which the cross examination is not over would make the entire
examination as inadmissible.
Non-examination of witness - Effect of, on prosecution case
- Held: 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 - Onus
is on the part of the party who alleges that a witness has not been
produced deliberately to prove it.
Expressions hostile witness, Chance Witness, Related and
Interested Witness - Explained.
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Code of Criminal Procedure, 1973 -s. 173 - Final Report -
Evidentiary value of - Held: Final Report under Section 173 is
nothing but a piece of evidence - It forms a mere opinion of the
investigating officer on the materials collected by him - It is not
indispensable - the evidence of investigating officer is required for
corroboration and contradiction of the other material witnesses -
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.
Dismissing the appeals, the Court
HELD: While appreciating the evidence, the 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. [Para 20][979-B-D]
1.1 The expression "hostile witness" does not find a place
in the Evidence Act. It is coined to mean testimony of a witness
turning to depose in favour of the opposite party. 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. 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 has to be
assessed. [Para 21][982-A-B; D-E]
1.2 Section 33, Evidence Act, 1872 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
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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. [Para
24][988-G-H; 989-A]
1.3 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 there are other incriminating evidence
available on record. [Para 25][989-B-D]
1.4 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. 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. A related witness would become an interested
witness, only when he is desirous of implicating the accused in
rendering a conviction, on purpose. [Paras 26, 28][990-E-F;
993-C, D]
1.5 A mere non-examination of the witness per se will not
vitiate the case of the prosecution. It depends upon the quality
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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
produced deliberately to prove it. [Para 31][997-B-D]
1.6 There are three eye-witnesses examined by the
prosecution. 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. Nothing is said on the credibility of the said witness in
view of the evidence of PWs -1 & 2. The view of the courts on
this witness also deserves to be accepted. [Para 33][1000-A-C]
1.7 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. 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. [Para 34][1000-C-D]
1.8 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. There
is nothing unnatural in the testimony. On a perusal of the evidence
available no delay is found in either sending the recovered arms
to the expert or receiving the FSL report. The circumstances
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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. [Paras 36, 35][1000-E-G]
1.9 The appellants submitted that the investigating officer
could not be cross examined further with respect to the injuries
and the recoveries. 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. [Para 37][1000-G; 1001-B-C]
1.10 This Court takes 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, this Court deems 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, it is expected the trial courts to take up the examination
of the private witnesses first, before proceeding with that of the
official witnesses. [Para 39][1001-E-G]
Vadivelu Thevar v State of Madras, [1957] SCR 981;
C. Muniappan v. State of T.N., (2010) 9 SCC 567:
[2010] 10 SCR 262; Vinod Kumar v. State of Punjab
(2015) 3 SCC 220: ; Lahu Kamlakar Patil v. State of
Maharashtra, (2013) 6 SCC 417: [2015] 1 SCR 504;
State of A.P. v. K. Srinivasulu Reddy, (2003) 12 SCC
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660: [2003] 6 Suppl. SCR 1050; Jarnail Singh v. State
of Punjab (2009) 9 SCC 719: [2009] 13 SCR 774;
Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591:
[2018] 4 SCR 751 ; Sarwan Singh v. State of Punjab
(1976) 4 SCC 369; Gulam Sarbar v. State of Bihar
(2014) 3 SCC 401: [2013] 12 SCR 1 - referred to.
Case Law Reference
[1957] SCR 981
referred to
Para 20
[2010] 10 SCR 262
referred to
Para 22
(2015) 3 SCC 220
referred to
Para 23
[2015] 1 SCR 504
referred to
Para 25
[2003] 6 Suppl. SCR 1050
referred to
Para 26
[2009] 13 SCR 774
referred to
Para 27
[2018] 4 SCR 751
referred to
Para 29
(1976) 4 SCC 369
referred to
Para 31
[2013] 12 SCR 1
referred to
Para 32
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 339-340 of 2014.
From the Judgment and Order dated 14.08.2013 of the High Court
of Judicature at Allahabad in Capital Case Nos.3152 and 3153 of 2011.
Manoj Prasad, Sr. Adv., Prakash Kumar Singh, Advs. for the
Appellants.
S. R. Singh, Sr. Adv., Garvesh Kabra, Vikas Bansal, Advs. for the
Respondent.
The Judgment of the Court was delivered by
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
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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.
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.
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 eye-witnesses 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-
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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 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 if 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
RAJESH YADAV & ANR v. STATE OF UP
[M.M. SUNDRESH, J.]
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Submissions of the State:
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 probable that a
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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 nonexistence 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 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
RAJESH YADAV & ANR v. STATE OF UP
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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 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
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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 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
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enshrines the well-recognized maxim that "Evidence
has to be weighed and not counted". Our Legislature
has 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.
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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 first
witness, which is the only reliable evidence in support
of the prosecution."
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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.
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,
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(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
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exercising care and caution and sifting through the
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-in-chief 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
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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 cross-examination 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 13-91999. He has also accepted that he had 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 crossRAJESH YADAV & ANR v. STATE OF UP
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