1999 Supreme(SC) 1087

1999(8) Supreme 364
Supreme Court of India
(From Madhya Pradesh High Court)
K.T. Thomas & A.P. Misra, JJ.
Rammi @ Rameshwar etc. -Appellant
versus
State of Madhya Pradesh -Respondent
Criminal Appeal No. 61 of 1999
With
Criminal Appeal No. 33 of 1999
Decided on 21-9-1999
Counsel for the Parties :
For the Appellant : Uday Umesh Lalit, Advocate.
For the Respondent : Anoop Choudhary, Sr. Advocate, (Prashant Kumar) Advocate for Uma Nath Singh, Advocate.

Important points
1. Information which an accused furnishes leading to recovery of weapon 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.
2. Re-examination need not be confined to clarification of ambigui­ties. Questions to elicit new matters can be put with permission of Court. Re-examination is not limited to one or two questions. Any number of questions can be asked if exigency so requires. If the Court thinks new matters are necessary, Court must be liberal in granting permission to put necessary questions.
3. 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.
4. To contradict a witness 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.

Headnote:(i) Indian Evidence Act, 1872-Section 138-Re-examination purpose, scope and amplitude of re-exami­nation-Purpose is to explain matters which have been brought down in cross-examination-Re-examina­tion need not be confined to clarification of ambiguities-Questions to elicit new mat­ters can be put with permission of Court - If Court thinks new matters are necessary, Court must be liberal in granting permission to put necessary questions-Re-examination not limited to one or two ques­tions-Any number of questions can be asked if exigency so requires.

       Held : The very purpose of re-examination is to explain matters which have been brought down in cross-examination. Section 138 of the Evi­dence Act outlines the amplitude of re-examination. There 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 the 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. (Paras 16 & 17)

       Even 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. (Para 18)

       A 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. There 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. (Para 19)

       (ii) Evidence - Impeachment of witness-Eyewitness -Appreciation of evidence of eyewitness-Discre­pancies-It is only when discrepancies in eviden­ce of a witness are so incompatible with credibility of his version that Court would be justified in jettisoning his evidence-Merely because there is inconsistency in evidence, it is not sufficient to impair credit of witness (Indian Evidence Act, 1872-Section 155-Criminal Procedure Code, 1973-Section 162).

       Held : When 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 judicial scrutiny. (Para 24)

       It is 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. (Para 25)

       A 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 witness. (Para 26)

       To contradict a witness 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. (Para 27)

       (iii) Code of Criminal Procedure, 1973-Section 379 r/w Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970-Appeal against conviction by High Court-Charge that accused persons attacked deceased inside mooving bus-Motive that alleged murder of accused person’s brother by deceased-Occurrence of incident not disputed-Identity of assailant disputed-Eyewitnesses of con­ductor, driver and passenger of bus-Rejection of evidence of eyewit­ness of passenger by Trial Court on ground that he did not report incident to police or family members of deceased holding that conduct of witness incompatible with normal behaviour of a person witnessing a crime-Acquittal by trial Court-Conviction by High Court on reappre­ciation of evidence observing that reasoning of Trial Court as per­verse-High Court’s decision warrants no interference-Conviction justified.

       Held : PW-9 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. (Para 7)

       Such a 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. Different 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. (Para 8)

       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. (Para 28)

       (iv) Indian Evidence Act, 1872-Section 27-Statement relating to recovery of weapon-Admissibility of-Test-Court has to see whether statement was voluntarily stated by accused-In the instant case there was material discrepancy as regards time of arrest which rendered recovery of weapon as stated by police suspicious-Evidence regarding recovery of weapon, held to be unreliable.

       Held : Regarding the recovery of weapons, the prosecution could utilize statements attributed to the accused on the basis of which recovery of certain weapons was effected. Section 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. True, 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. (Paras 11 & 12)

       PW-13-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 re-examination. As it 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. With 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. (Paras 13, 14 & 15)