2022 Supreme(SC) 161

SUPREME COURT OF INDIA
Sanjay Kishan Kaul, M.M. Sundresh, JJ.
RAJESH YADAV AND ANOTHER ETC. — APPELLANTS
VERSUS
STATE OF U.P. — RESPONDENTS
Criminal Appeal Nos. 339-340 of 2014
Decided on : 04-02-2022

IMPORTANT POINTS
(1) Evidence – All evidence would be “matters” but not vice versa.
(2) A related witness can also be a natural witness – Mere non-examination of witness per se will not vitiate case of prosecution.

Headnote:

(A) Indian Evidence Act, 1872 – Section 3 – Evidence – Oral and Documentary – “Evidence” under the Act is the means, factor or material, lending a degree of probability through a logical inference to existence of a fact – It is an “Adjective Law” highlighting and aiding substantive law – It is neither wholly procedural nor substantive, though trappings of both could be felt – What is required for a court to decipher is existence of a fact and its proof by a degree of probability, through a logical influence – Matters are necessary, concomitant material factors to prove a fact – All evidence would be “matters” but not vice versa – Matters could be termed as a genus of which evidence would be a species – Matters also add strength to evidence giving adequate ammunition in Court’s sojourn in deciphering truth – Definition of “matters” is exhaustive and much wider than that of “evidence” – However, court is not supposed to consider a matter which acquires form of an evidence when it is barred in law – Matters are required for a court to believe in existence of a fact – A matter might include such of those which do not fall within definition of Section 3, in absence of any express bar – What is important for court is conclusion on the basis of existence of a fact by analysing matters before it on degree of probability – Entire enactment is meant to facilitate court to come to an appropriate conclusion in proving a fact – A Judge has to transform into a prudent man and assess existence of a fact after considering the matters through that lens instead of a judge – It is only after undertaking said exercise can he resume his role as a judge to proceed further in the case.. (Paras 12 to 18)

(B) Criminal Law – Appreciation of Evidence – Court can appreciate and accept testimony of a witness on a particular issue while rejecting it on others since it focuses on an issue of fact to be proved – If evidence, along with matters surrounding it, makes court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability – Similar is case where evidence is not believable – When evidence produced is neither wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, court can also take note of contradictions available in other matters. (Paras 19 and 20)

(C) Criminal Law – Hostile Witness – Expression “hostile witness” does not find a place in Indian Evidence Act – It is coined to mean testimony of a witness turning to depose in favour of opposite party – A witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of opposite side – Similarly, there would be cases where a witness does not support case of party starting from chief examination itself – This classification has to be borne in mind by Court – With respect to first category, Court is not denuded of its power to make an appropriate assessment of evidence rendered by such a witness – Even a chief examination could be termed as evidence – Such evidence would become complete after cross examination – Once evidence is completed, said testimony as a whole is meant for court to assess and appreciate qua a fact – Not only the specific part in which a witness has turned hostile but circumstances under which it happened can also be considered, particularly in a situation where chief examination was completed and there are circumstances indicating reasons behind subsequent statement, which could be deciphered by court – It is well within powers of court to make an assessment, being a matter before it and come to correct conclusion. (Para 21)

(D) Indian Evidence Act, 1872 – Section 33 – Relevancy of certain evidence – Section 33 is an exception to general rule which mandates adequate facility for cross examining a witness – However, in a case where a witness after completion of chief examination and while subjecting him to a substantial and rigorous cross examination, did not choose to get into witness box on purpose, it is for court to utilize said evidence appropriately – Issues over which evidence is completed could be treated as such by court and then proceed – Resultantly, issues for which cross examination is not over would make entire examination as inadmissible – Ultimately, it is for court to decide such aspect. (Para 24)

(E) Arms Act, 1959 – Section 25 – Fatal assault by fire-arms – Conviction and sentence – Related witness cannot be termed as an interested witness per se – One has to see place of occurrence along with other circumstances – A related witness can also be a natural witness – Mere non-examination of witness per se will not vitiate case of prosecution – It depends upon quality and not quantity of witnesses and its importance – There is also no delay in registration of FIR – Contention that there is non-explanation for existence of some other empty cartridge recovered from place of occurrence would not facilitate an acquittal for appellants as there are materials sufficient enough to implicate and prove offence against them – Trial court as well as High Court considered evidence threadbare in coming to right conclusion – Appeals dismissed. (Paras 28, 31, 33, 37 and 38)

Facts of the case:

Present two appeals arise out of the judgment rendered by the High Court convicting the appellants for life, while acquitting all of them for the offence charged under Section 307 of the Indian Penal Code (IPC), with the confirmation of conviction and sentence under Section 25 of Arms Act except one. Of the five accused, the High Court thought it fit to remit the matter on the adequacy of charge for one. This accused was once again convicted and resultantly his appeal is pending under consideration before the High Court.

Findings of Court:

Day in and day out, we are witnessing the sorry state of affairs in which the private witnesses turn hostile for obvious reasons. This Court has already expressed its views on the need for a legislative remedy to curtail such menace. trial courts are adjourning the cross examination of

the private witnesses after the conclusion of the cross examination without any rhyme or reason, at the drop of a hat. Long adjournments are being given after completion of the chief examination, which only helps the defence to win them over at times, with the passage of time.

Result : Appeals dismissed.