2001(1) Crimes 34 (SC)
SUPREME COURT OF INDIA
(From Rajasthan High Court)
K.T. Thomas & R.P. Sethi, JJ.
Gura Singh — Appellant
versus
The State of Rajasthan —Respondent
Criminal Appeal 1184 of 1998
Decided on 6-12-2000
Counsel for the Parties :
For the appellant : Doongar Singh, V.J. Francis, P.I. Jose, Jenis Francis, Advocates.
For the Respondent : Sushil Kumar Jain, A. Misra, A.P. Dhamija, Advocates.

IMPORTANT POINT
1. Mere doubt sought to be created on the non mention of dimensions of blood stains on articles seized pursuant to disclosure statement of accused by itself is not sufficient as admittedly the accused is entitled to the benefit of only reasonable doubts.
2. Permission for cross-examination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness.
3. There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is ­declared hostile his entire evidence should be excluded or rendered unworthy of consideration.
4. Extra-judicial concession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement.

Headnote:(i) Indian Penal Code, 1860—Section 302—Murder—Patricide—Conviction on basis of extra judicial confession—No eyewitness—Extra judicial confession to relatives instantaneously immediately after commission of crime—Recovery of weapon used and blood stained clothes on basis of disclosure statement—Defence of false implication by witnesses to usurp properties of victim, father of accused—Defence plea untenable—Extra judicial confession proved by evidence of witnesses—Treating one of witnesses as hostile not correct—Witness did not resile from factum of extra judicial confession having been made by accused—Unresile part of hostile witness could be relied upon—Failure to determine origin of blood on articles seized pursuant to disclosure statement cannot be ground to accused—Circumstances sufficient to connect accused with commission of crime —Conviction and sentence of life imprisonment upheld.

       Extra-judicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. (Para 6)

       In the instant case the extra-judicial confession made by the appellant has been sought to be proved by the testimony of PWs 2, 5, 6 and 7. As noticed earlier, all the aforesaid witnesses are closely related to the appellant in whom, under the normal circumstances, he would have confided hoping help, protection and being safeguarded. The confession has been made instantaneously immediately after the ­occurrence and is not alleged to have been procured under any undue influence, ­coercion or pressure. Though the appellant expected a favour from the witnesses, yet none of them is stated to have promised to favour him in case he made a truthful statement regarding the occurrence. Except the alleged usurption of property of the deceased by PWs 6 & 7, there is no other suggestion which could tend to show that their evidence is tainted and that the extra judicial confession was not voluntarily made by the appellant. (Para 7)

       It is true that PW5 has been declared hostile and no reliance can be placed upon his testimony for the purposes of deciding as to whether the appellant had made the extra judicial confession or not. Similarly, the statement of PW7 Joginder Singh to the extent it refers to the appellant having made extra judicial confession is inadmissible in evidence as admittedly by the time this witness reached the place of occurrence, the appellant had been arrested by the police and any confession made by him thereafter is inadmissible in evidence. It is in evidence that the appellant was admittedly arrested before the arrival of Joginder Singh (PW7) in the village. However, there is reliable evidence of Niranjan Singh (PW6) which has been believed by both the courts below and we have not been persuaded to disagree with the aforesaid findings. We are also not impressed by the argument that PW6 had made the statement allegedly for depriving the appellant from succession to the estate of Bhajan Singh, deceased. The time, the manner and the attending circumstances clearly proved that the appellant had made a voluntary extra judicial confession before this witness without any fear, favour or coercion. (Para 9)

       We have no doubt in our mind that the appellant had made confessional statement to PWs 2 and 6, made voluntary disclosure statements, led to the recovery of the weapon of offence and chadar (sheet) which was concealed by him in his house Kassi studded with an hair which was compared with the hair taken from the body of the deceased and upon analysis was found to be of human hair and his chadar (sheet) was stained with human blood. The aforesaid circumstances were sufficient to connect the accused with the commission of crime for which he was rightly held guilty, convicted and sentenced by the trial court which was confirmed by the High Court. (Para 24)

       (ii) Indian Evidence Act, 1872— Section 154—Hostile witness—Request to declare a witness as hostile witness and cross examination by party producing that witness—Cannot and should not be granted at mere asking—Courts are under ­legal obligation to exercise discretion vesting in them in judicious manner—Merely because witness is declared hostile entire evidence should not be excluded or rendered unworthy of consideration.

       There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. (Para 11)

       In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy. (Para 11)

       The terms “hostile”, “adverse” or “unfavourable” witnesses are alien to the Indian Evidence Act. The terms “hostile witness”, “adverse witness”, “unfavourable witness”, “unwilling witness” are all terms of English Law. The rule of not permitting a party calling the witness to cross examine are relaxed under the common law by evolving the terms “hostile witness and unfavourable witness”. Under the common law a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and a unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves the opposite test. In India the right to cross-examine the witnesses by the party calling him is governed by the provisions of the Indian Evidence Act, 1872. Section 142 requires that leading questions cannot be put to the witness in examination-in-chief or in re-examination except with the permission of the court. The Court can, however, permit leading question as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved. Section 154 authorises the court in its discretion to permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. The courts are, therefore, under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances. Permission for cross-examination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness. Extensively dealing with the terms “hostile, adverse and unfavourable witnesses’. (Para 12)

       In the instant case the witness in his examination-in-chief the witness after vividly explaining the manner in which the extra judicial confession was made, stated that after walking on foot for about 4 kilometers he, in the company of others, reached Police Station Karanpur at about 12.00 noon and lodged the report but the Police Station did not register a case on the pretext that it was a family matter and that the report would be registered only after making an enquiry in the village. Finding such a statement to be resiling from the earlier testimony, the Public Prosecutor sought the permission of the court to declare the witness hostile and “cross-examine him on the ground that he had not stated that Exhibit P-2 was not registered at once”. The trial Court obliged the Public Prosecutor by permitting him to cross-examine to that extent. The cross-examination by the Public Prosecutor is restricted to the lodging of the First Information Report and not with respect to the factum of his deposition in so far as it relates to the making of extra-judicial confession by the appellant. The defence also appears to be conscious of the fact that the Public Prosecutor had sought the permission to cross-examine the witness to a limited extent. The witness was subjected to lengthy and detailed cross-examination with respect to the making of extra judicial confession by the appellant. The trial as well as the High Court rightly relied upon his testimony to hold that the appellant had voluntarily made the extra judicial confession to the aforesaid witness. (Para 10)

       We deprecate the manner in which the prayer was made by the Public Prosecutor and permission granted by the trial Court to cross-examine Jarnail Singh (PW2) allegedly on the ground of his being hostile. On facts we find that the said witness was wrongly permitted to be cross-examined. It was only on a post-event detail that he did not concur with the suggestion made by the Public Prosecutor. That single point, in our opinion, was too insufficient for the Public Prosecutor to proclaim that the witness made a volteface and became totally hostile to the prosecution. Otherwise also the permission granted and utilised for cross-examination was limited to the extent of the time of lodging the First Information Report (Exhibit P-2). There is no reason to disbelieve PW2 who is closely related to the appellant and has no reason to falsely implicate particularly when no inducement, threat or promise is allegedly given or assured. (Para 13)

       (iii) Criminal Trial—Appreciation of evidence—Blood stain in cloth and articles—Non-mention of dimensions of stains on articles—When would be fatal to prosecution case and when it would not affect prosecution case.

       The extent of the dimensions of the blood-stains has to be determined in the context of the circumstances of each case. It would be appreciated if the extent is mentioned in the seizure memos but failure to give its details in such memo would not entitle the accused to claim the rejection of the prosecution case on that ground alone. Non mentioning of the dimensions of the stains of blood may perhaps assume importance in cases where the accused pleads a defence of alleges the malafides of the prosecution of fabricating the evidence to wrongly involve him in the commission of the crime. The credibility of such a circumstance cannot be weakened only by referring to the non mention of dimensions of blood stains on the clothes particularly when its adverse effect on prosecution case is not pointed out. Mere doubt sought to be created on the non mention of dimensions of blood stains by itself is not sufficient as admittedly the accused is entitled to the benefit of only reasonable doubts. (Para 23)

       (iv) Criminal Trial—Appreciation of evidence—Blood stain on articles recovered pursuant to disclosure statement—Failure to determine origin of blood by serologist and chemical examiner—Failure due to disintegration of blood due to long lapse of time—No bonus is conferred upon accused to claim any benefit. (Paras 17 to 20)

       Result : Appeal dismissed.