2000 Supreme(SC) 1913

2000(7) Supreme 728
SUPREME COURT OF INDIA
(From Delhi High Court)
K.T. Thomas & R.P. Sethi, JJ.
State Govt. of NCT of Delhi -Appellant
versus
Sunil & Anr. -Respondents
Criminal Appeal Nos. 1119-1120 of 1998
Decided on 29-11-2000
Counsel for the Parties :
For the Appellant : T.L.V. Iyer, Sr. Advocate, K.C. Kaushik and D.S. Mehra, Advocates.
For the Respondents : K.V. Sreekumar, Advocate.

VERY IMPORTANT POINTS
1. There is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written.
2. It is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses.
3. When a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.

Headnote:(i) Indian Penal Code, 1860-Sections 364, 376, 377 and 320 r/w Section 34-Rape and murder-Appeal against acquittal-Rape and sodomy on four year old girl by two person-Death due to intracranial damage consequent upon surface force impact to head-Subdural haemotoma resulted in subarachnoid haemorrage as a consequence of violent ravishment committed by rapists-Trial Court convicting one accused with death sentence and another with life imprisonment-High Court acquitting on ground of discrepancies between evidence of witnesses and recovery statement could not be believed in absence of attestation by independent witness-Reasons ex facie puerile-Discrepancies common features in testimony of any two witnesses-Evidence of witnesses cannot be jettisoned on such insignificant reasons-Seizure memo need not necessarily be attested by independent witnesses-Reasons adopted by High Court very tenuous-Rapists cannot disclaim knowledge that act done on little infant likely to cause its death-Rapists cannot conviction from offence of culpable homicide not amounting to murder-Conviction rendered by trial Court under Section 376 and 377 r/w Section 34 restored-Accused persons also convicted under Section 304 Part II but no separate sentence awarded in view of life sentence awarded under Sections 376 and 377. (Paras 15 to 23)

       (ii) Criminal Trial-Evidence-Discrepancy between witnesses-Minor discrepancies common features in testimony of any two witnesses-Such discrepancies cannot be ground to jettison evidence of witnesses. (Para 15)

       (iii) Indian Evidence Act, 1872-Section 27-Code of Criminal Procedure, 1973-Section 161-Recovery statement-Non attestation of seizure memo by independent witnesses cannot be ground to disbelieve recovery of articles seized consequent upon statement of accused-No requirement either under Section 27 Evidence Act or under Section 161 Cr.P.C. to obtain signature of independent witnesses-When recovery is effected pursuant to statement of accused document prepared by I.O. need not necessarily be attested by independent witnesses-Court has to believe version of police to be correct if it is otherwise shown to be unreliable.

       There is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person "and signed by such witnesses". It must be remembered that search is made to find out a thing or document which the searching officer has no prior idea where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guess work that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helter-skelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. (Para 18)

       It is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the Investigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. (Para 19)

       It is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions. (Para 20)

       In the instant case it was held that the mere absence of independent witness when PW17 recorded the statement of A2 - Ramesh and the nicker was recovered pursuant to the said statement, is not a sufficient ground to discard the evidence under Section 27 of the Evidence Act. (Para 21)