2022 Supreme(SC) 569

SUPREME COURT OF INDIA
Surya Kant, J.B. Pardiwala, JJ.
Shahaja @ Shahajan Ismail Mohd. Shaikh – Appellant
Versus
STATE OF MAHARASHTRA – Respondent
Criminal Appeal No. 739 of 2017
Decided on : 14-07-2022

IMPORTANT POINTS
(1) Power of Supreme Court under Article 136 of Constitution of India is exercisable even in cases of concurrent findings of fact and such powers are very wide but in criminal appeals Supreme Court does not interfere with concurrent findings of fact save in exceptional circumstances.
(2) A witness is liable to get confused, or mixed up when interrogated later on – Powers of observation differ from person to person.
(3) Conduct of accused alone, though may be relevant under Section 8 of Evidence Act, cannot form basis of conviction.

Headnote:

(A) Constitution of India – Article 136 – Appeal – Scope and ambit – Power of Supreme Court under Article 136 of Constitution of India is exercisable even in cases of concurrent findings of fact and such powers are very wide but in criminal appeals Supreme Court does not interfere with concurrent findings of fact save in exceptional circumstances – It is open to this Court to interfere with findings of fact recorded by High Court if High Court has acted perversely or otherwise improperly – Where appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to principles of natural justice, errors of record and misreading of evidence, or where conclusions of High Court are manifestly perverse and unsupportable from evidence on record. (Paras 20 and 23)

(B) Criminal Law – Appreciation of evidence – There is no fixed or strait-jacket formula for appreciation of ocular evidence – Ordinarily a witness cannot be expected to recall accurately 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 – Powers of observation differ from person to person – In assessing value of evidence of eyewitnesses, two principal considerations are whether, in circumstances of case, it is possible to believe their presence at scene of occurrence or in such situations as would make it possible for them to witness facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence – Although in cases where plea of accused is a mere denial, yet evidence of prosecution witnesses has to be examined on its own merits, where accused raise a definite plea or puts forward a positive case which is inconsistent with that of prosecution, nature of such plea or case and probabilities in respect of it will also have to be taken into account while assessing value of prosecution evidence. (Paras 27 and 28)

(C) Indian Penal Code, 1860 – Section 302 – Indian Evidence Act, 1872 – Sections 8 and 27 – Murder – Life sentence – There is nothing palpable or glaring in evidence of two eye-witnesses on the basis of which Court can take the view that they are not true or reliable eye-witnesses – Few contradictions in form of omissions here or there is not sufficient to discard entire evidence of eye-witnesses – Medical evidence on record further corroborates ocular version of eye witnesses – Courts below rightly believed two eye witnesses – However, Public Prosecutor who conducted prosecution before trial court did not take pains to bring on record substantive evidence of two witnesses – Panchanama can be used only to corroborate evidence of Panch and not as a substantive piece of evidence – Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by person who discovered weapon – He could have derived knowledge of existence of that weapon at the place through some other source also – He might have even seen somebody concealing the weapon and it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it – Even while discarding evidence in form of discovery Panchanama conduct of appellant would be relevant under Section 8 of Act – Evidence of discovery would be admissible as conduct under Section 8 of Act quite apart from admissibility of disclosure statement under Section 27 – Appeal dismissed. (Paras 29, 31, 33, 39, 45, 48, 50 and 52)

(D) Indian Evidence Act, 1872 – Section 8 – Conduct of accused – Although conduct of an accused may be a relevant fact under Section 8 of Act, yet same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder – Like any other piece of evidence, conduct of an accused is also one of circumstances which court may take into consideration along with other evidence on record, direct or indirect – Conduct of accused alone, though may be relevant under Section 8 of Act, cannot form basis of conviction. (Para 50)

Facts of the case:

Present appeal, by special leave, is at the instance of a convict accused of offence of murder punishable under Section 302 of Indian Penal Code, 1860 and is directed against the judgment and order passed by High Court of Judicature at Bombay dated 10.07.2015 in the Criminal Appeal No. 449 of 2014 by which High Court dismissed Appeal filed by convict accused and thereby affirmed the judgment and order of conviction passed by Trial Court.

Findings of Court:

Even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence.

Result : Appeal dismissed.