2010
CRI. L. J. 1770 "Joginder v.
State" DELHI
HIGH COURT
Coram : 2 PRADEEP NANDRAJOG AND Ms. INDERMEET KAUR,
JJ. ( Division Bench )
Crl. A. Nos. 75
and 543, 151, 214 of 2001, D/- 16 -9 -2009.
Joginder v. State.
Placitum
(C)
Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS - Evidence of eye-witnesses
- Ordinarily witness cannot be expected to recall accurately, sequence of
events took place in rapid succession or in short time span - Witness is liable
to get confused or mixed up when interrogated later on about sequence of events
which happened on incident in question. (Para
64)
(
D) Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS
- Discrepancies - Eye-witness, an
illiterate person - Likely to get confused while answering questions - Minor
discrepancies not touching core of case - Cannot be ground to reject whole
evidence given by witness.
When scanning the evidence of the various witnesses the
Court has to take care of the fact that variances on the fringes, discrepancies
in details, contradictions in narrations and embellishments in inessential
parts cannot militate against the veracity of the core of the testimony
provided there is the impress of truth and conformity to probability in the
substantial fabric of testimony delivered. Even a wholly truthful witness is
liable to be overawed by the Court atmosphere and piercing cross-examination by
counsel out of nervousness, mix up facts. Considering that 'M' eye-witness is
an illiterate person it is most likely that he has got confused while answering
the questions pertaining to the presence of wife and mother of deceased at
place of occurrence and this has given discrepant answers. Be that as it may
minor discrepancies on trivial matters not touching the core of the case do not
permit rejection of the whole evidence given by a witness. (Para 65)
(E) Evidence Act (1 of 1872), S.3 - EVIDENCE - WITNESS
- Evidence of eye-witness - Cannot be disbelieved on ground of omission by
investigating agency, to seize blood stained clothes of eye-witnesses.
2009 Cri LJ 3540 (SC); 1997 Cri LJ 3561, Foll. (Para 66)
(F) Evidence Act (1 of 1872), S.135, S.114, Illus.(g) - EVIDENCE - WITNESS - CRIMINAL
COURT - Non-Examination of witnesses - Effect - Merely because some of material
witnesses were not examined by prosecution - Criminal Court @page-CriLJ1771 would not lean to draw
adverse inference that if they were examined they would have given contrary
version. (Para 69)
Extracted from text of judgment:
37.
In dealing with the submissions pertaining to the credibility of the witnesses;
Durgpal PW-6 and Mohan Lal PW-7, we first proceed to note the following
observations made by a Division Bench of this Court of which one of us, namely,
Pradeep Nandrajog, J. was a member of, in Criminal Appeal No.327/2007 titled
Akbar and Anr. s. State, decided on 29.05.2009 (2009 Cri LJ 4199) :-
49. The appreciation of ocular evidence is a Herculean task. There is no fixed or strait-jacket formula for appreciation of ocular evidence. The judicially evolved principles regarding the appreciation of the ocular evidence in a criminal case can be enumerated as under :I While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.II If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.III When eye-witness is examined at length it is quite possible for him to make some discrepancies. 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.IV Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.V 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 judicial scrutiny.VI By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.VII Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.VIII The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.IX By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.X In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.XI Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.XII A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.XIIIA former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.(These principles have been culled out from the decisions of Supreme Court reported as Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983 Cri LJ 1096 : (AIR 1983 SC 753) Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP 1959 Cri LJ 1231) : (AIR 1959 SC 1012).(Emphasis Supplied)
64.
Insofar as the discrepancy between the endorsement Ex.PW-3/B which records that
the
statement of Durgpal was recorded at the hospital at 10.50 p.m., the MLC
Ex.PW-10/B of Durgpal which records that he was medically examined at 11.40
p.m. on 7.11.1997 and the evidence of Durgpal that his statement was recorded
subsequent to his medical examination is concerned, suffice would it be to
state that ordinarily a witness cannot be expected to recall accurately the
sequence of events which take place in rapid succession or in a short time
span. A witness is liable to get confused or mixed up when interrogated later
on about the sequence of events which happened on the incident in question.
65.
In dealing with the discrepancy relating to the wife and mother of Durgpal in
the evidence of Mohan Lal, it is most significant to note that Mohan Lal is an
illiterate person. When scanning the evidence of the various witnesses the
Court has to take care of the fact that variances on the fringes, discrepancies
in details, contradictions in narrations and embellishments in inessential
parts cannot militate against the veracity of the core of the testimony
provided there is the impress of truth and conformity to probability in the
substantial fabric of testimony delivered. Even a wholly truthful witness is
liable to be overawed by the court atmosphere and piercing cross-examination by
counsel out of nervousness mix up facts. Considering that Mohan Lal is an
illiterate person, it is most likely that he has got confused while answering
the questions pertaining to the wife and mother of the deceased and thus has
given discrepant answers. Be that as it may, minor discrepancies on trivial
matters not touching the core of the case do not permit rejection of the whole
evidence given by a witness.
2005
CRI. L. J. 2676 "State of Karnataka
v. Revannaiah"
KARNATAKA
HIGH COURT
Coram : 2 S. R. BANNURMATH AND A. C. KABBIN, JJ. (
Division Bench )
Criminal Appeal
No. 788 of 1999, D/- 25 -2 -2005.
State of Karnataka, Appellant v. Revannaiah,
Respondent.
17.
Depositions of PWs-1, 2 and 4 to 6 show that except in her private part, PW-2
had not sustained any injury. If PW-2, who was a child of six years at the time
of incident and was about 9 or 10 years, when her deposition was recorded
replies in the affirmative to a question in the cross-examination as to whether
she struggled when she was sexually assaulted and suffered any scratches or
abrasions, but she had no scratches, that reply itself does not render her
testimony unacceptable. Failure on the part of PW-3 to notice on 5-3-92
blood-stains on the garments of PW-2 also is of no consequence to decide the
acceptability of deposition. The circumstances disclose that time of incident
as disclosed on 6-3-92 was 6.30 p.m. on 5-3-92. Evidence was recorded in 1996
and, therefore, child would have been confused about the exact timing. With
regard to contradiction, inconsistencies in evidence, in a similar matter of
child rape, the Supreme Court in the case of Bharwada Bhoginibhai Hirjibhai v.
State of Gujarat, reported in AIR 1983 SC 753 : (1983 Cri LJ 1096) observed as
under :
"Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious :-1. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.2. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties, therefore, cannot be expected to be attuned to absorb the details.3. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.4. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.5. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.6. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.7. A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. Moreso when the all important "probabilities-factor' echoes in favour of the version narrated by the witnesses."
2004
CRI. L. J. 3805 "Sivakumar v.
State"
MADRAS
HIGH COURT
Coram : 1 Mrs. R. BANUMATHI, J. ( Single Bench )
Cri. Appeal No.
512 of 1997, D/- 24 -6 -2004.
Sivakumar, Appellant v. State, Respondent.
42.
By and large, the exact time consciousness cannot be expected from the
ruralites. Their sluggish time sense is matter of common experience while
dealing with the Rural witnesses. Any variation in the time of occurrence of
the Witnesses would not in any way undermine the Prosecution case.
1993
CRI. L. J. 3113 "Arjunan v.
State"
MADRAS
HIGH COURT
Coram : 2 K. M. NATARAJAN AND MARUTHAMUTHU, JJ. (
Division Bench )
Criminal Appeal
Nos. 739 and 702 of 1985, D/- 21 -4 -1992.
Arjunan, and others etc., Appellants v. The State,
Respondent.
26.
That apart, one should not lose sight of the circumstances in which P.Ws. 1 and
2 had given
evidence in that case (C.C. No. 146 of 1984). P.Ws. 1 and 2 have
given evidence therein in respect of the assault said to have been made by A-1,
A-2 and A-4 on 11-8-1984 afternoon which is the day prior to the occurrence in
the present case, and they have given their evidence on 13-12-1984 in the Court
of the Judicial Second Class Magistrate, Ambur. By that time, the murders of
three persons, namely, Murugesan, Sampath and Sampoornam, in the family of
P.Ws. 1 and 2 have taken place. (The occurrence of murders took place on the
following morning after the assault made by A-1, A-2 and A-4 on Murugesan and
P.W. 8). It might be that because both the incidents have taken place
consecutively on 11-8-1984 and 12-8-1984 and both cases were investigated by
the police and P.Ws. 1 and 2 were examined in that context, they might have
made some statements this way or that way out of confusion. Their minds ought
to have been in a state of dispair as the lives of three persons in their
family had been taken away in one day, when they gave evidence in that Court on
13-12-1984. By taking the statements of P.Ws. 1 and 2 in piecemeal here and
there, the accused cannot build up an argument that P.Ws. 1 and 2 were not
present at the time end place of occurrence. The Supreme Court has held in
Bharwada Bhoginbhai Hirijibhai v. State of Gujarat, AIR 1983 SC 753 : (1983 Cri
LJ 1096) as follows (Para 5) :
"In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on."
The
observation of the Supreme Court in another case reported in Maqsoodan v. State
of U.P., AIR 1983 SC 126 : (1983 Cri LJ 218) is that improvements made by
witnesses and variations in their earlier and later statements are not by
themselves sufficient to hold their testimony to be infirm.
27.
In Sohrab v. State of M.P. 1972 Cri LJ 1302 : (AIR 1972 SC 2020) the Supreme
Court has stated as follows (para 7) :
"This Court has held that falsus in uno in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exageration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered though where the substratum of the prosecution case or material part of the evidence is disbelievable it will not be permissible for the Court to reconstruct a story of its own out of the rest."
On
the same point of appreciation of evidence, the observations of the Supreme
Court in yet another case reported in Bhimrao v. State of Maharashtra, AIR 1980
SC 1322 : (1980 Cri LJ 958) may be usefully extracted here (para 11) :
"It is not unoften that improvements in an earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. But that does not mean that falsity of testimony in one material particular would ruin it from beginning to end. On the other hand, the circumstance will be a good reason merely for the court to be put on guard and sift the evidence with extraordinary caution and to accept those portions of it which appear fully trustworthy either intrinsically or by reason of corroboration from other trustworthy sources."
In
view of the principles stated above, we have to hold that even if there are
minor discrepancies in the evidence of P.Ws. 1 and 2, they may be ignored and
we have to find out whether their evidence as eye-witnesses in relation to the
occurrence in question is true. We have to answer this point only in the
affirmative and hold that P.Ws. 1 and 2 and also P.W. 3 are ocular witnesses
and that their testimony inspires confidence and truth.
1983
CRI. L. J. 1096 "Bhoginbhai
Hirjibhai v. State of Gujarat"
SUPREME COURT
(From : Gujarat)*
Coram : 2 A. P. SEN AND M. P. THAKKAR, JJ. ( Division
Bench )
Criminal Appeal
No.68 of 1977, D/- 24 -5 -1983.
Bharwada Bhoginbhai Hirjibhai, Appellant v. State of
Gujarat, Respondent.
Para
5………Over much importance cannot be attached to minor discrepancies. The reasons
are obvious:-
(1)
By and large a witness cannot be ex-pected to possess a photographic memory and
to recall the details of an incident. It is not as if a video tape is replayed
on the mental screen.
(2)
Ordinarily it so happens that a witness is overtaken by events. The witness
could not have anticipated the occurrence which so often has an element of
surprise. The men-tal faculties therefore cannot be expected to be attuned to
absorb the details.
(3)
The powers of observation differ from person to person. What one may notice,
an-other may not. An object or movement might emboss its image on one person's
mind, whereas it might go unnoticed on the part of another.
(4)
By and large people cannot accurately recall a conversation and reproduce the
very words used by them or heard by them. They can only recall the main purport
of the con-versation. It is unrealistic to expect a wit-ness to be a human tape
recorder.
(5)
In regard to exact time of an incident, or the time duration of an occurrence,
usually, people make their estimates by guess work on the spur of the moment at
the time of interrogation. And one cannot expect people to make very precise or
reliable esti-mates in such matters. Again, it depends on the time-sense of
individuals which varies from person to person.
(6)
Ordinarily a witness cannot be expect-ed to recall accurately the sequence of
events which take place in rapid succession or in a short time span. A witness
is liable to get confused, or mixed up when interrogated later on.
7)
A witness, though wholly truthful, is liable to be overawed by the Court
atmosphere and the piercing cross-examination made by counsel and cut of
nervousness mix up facts, get confused regarding sequence of events, or fill up
details from imagination on the spur of the moment. The sub-conscious mind of
the witness sometimes so oper-ates on account of the fear of looking foolish or
being disbelieved though the wit-ness is giving a truthful and honest account
of the occurrence witnessed by him - per-haps it is a sort of a psychological
defence mechanism activated on the spur of the moment.