APPRECIATION OF EVIDENCE BY CRIMINAL COURT – AN ANALYSIS
M. KARUNANITHI BSc., M.L., SENIOR PANEL COUNSEL, UNION OF INDIA, FORMER SPECIAL PUBLIC PROSECUTOR, Q BRANCH CID HIGH COURT – MADURAI BENCH
Email:- kanlaw1971@gmail.com
INTRODUCTION:-
Appreciation of evidence by court of law is the primary function of a court to arrive at right conclusion. Hence, I intend to write an article with the help of judgments of Hon’ble Apex Court as well the Hon’ble High Courts in India on the point of appreciation of evidence.
DISCUSSION:-
The investigation in criminal case will start as soon as FIR is registered. The investigating officer will derive the power of investigation after registering the FIR. The FIR will logically ends with final report. The collection of evidence after the registration of FIR [First Information Report] till filing of final report is known as investigation as contemplated under section 2(h) Cr.P.C.
Sec 2(h) Cr.P.C." investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf;
Since, FIR is the earliest document on which the investigation starts, it has got its own importance. Hence, FIR is considered to be the foundation of criminal case. So, if foundation is collapsed, the entire construction on such a foundation will also collapsed. Hence, prosecution has to take care in drafting FIR and defence has to take more care in challenging the FIR by way of cross examination of the witnesses namely the author of FIR and the person who registered FIR as well the investigating officer.
In some cases prosecution will starts from the seizure of contraband, in some cases accident register will be the first document. In such cases prosecution has to take care that their case should not be contra to the earliest document that is seizure mahazar and accident register.
There are two types of cases one is based on eye witness account and another is based on circumstantial evidence. In case of eye witness account, the prosecution need not prove the motive for the occurrence whereas in case of circumstantial evidence the prosecution is expected to prove the motive also. In case of “ ” account, the case of the prosecution can be proved even by placing reliance on the evidence of solitary eyewitness provided the evidence of solitary eyewitness must inspires the confidence of the court.
2019 (2) MWN Crl 487 [ Manikaraj Vs State] –– “As pointed out by the Additional Public Prosecutor, the prosecution has projected its case on eye witness account and therefore motive fades into in significance…”
2017 (3) MLJ Crl 385 [Subash and others Vs State] – Para 21 - “Though the prosecution witnesses speak about the motive the same alone cannot be the sole factor in a case involving circumstantial evidence. After all, the first duty of the prosecution is to prove the death as envisaged by it before proceeding with the guilt of the accused. From the discussion made above, we are of the view that the witnesses deposed on behalf of the prosecution and the documents marked are not sufficient enough to prove the charges levelled against the appellants.”
1. POINT ON FIR
As per section [157 Cr.P.C,] prosecution has to forward the FIR forthwith. There should not be any delay in forwarding the FIR. No doubt the delay in forwarding the FIR by itself is not fatal to the prosecution, the same has to be explained properly. If there is no question regarding the travel of FIR, then the defence cannot get benefit out of delay in forwarding the FIR. Hence, the prosecution has to adduce evidence regarding travel of FIR and has to explain the delay in preferring FIR as well forwarding FIR to the concerned court.
It is equally important that there should not be any corrections in the FIR, if corrections are material then the same will be viewed very seriously. Since the FIR is a foundation of criminal case, the law expects the foundation to be strong and should be free from all doubts.
Omission of Important Fact on FIR – AIR 1991 SC 40 : 1991 Crl.L.J. 56 [Zahoor Vs. State] In grave case there is a tendency of falsely implicating persons belonging to opposite factions. So it requires very careful and close scrutiny of FIR but it depends upon each and every case.
1975 Crl.L.J. 870 : AIR 1975 SC 1026 [ Ramkumar Pande Vs. State of TN] Omission of important material fact in FIR repeals the argument that it was an afterthought and after due deliberation and consultation.
In case of corrections in FIR, the following judgments will come into play.
2007 MLJ(I)(Crl.) 796 [Muralisamy @ Muralidaran Vs. State of TN] Para 13 – “Since the very attack on the prosecution case centres around the genuineness of Ex.P1, we examined with care and caution Ex.P.1 to find out whether it could have come to be recorded in the hospital at the time and in the manner alleged by PW.16. At the end of page 3 in Ex.P.1 we find an endorsement that PW.16 recorded the said statement in the hospital at 4.15 a.m. Regarding the time at which the said complaint had come to be recorded in the hospital, there is definitely a correction. When PW16 was pinpointedly cross examined drawing his attention that the complaint was actually recorded only at 5.30 a.m. but it stands corrected as 4.15 a.m., he denied there is any such correction. It is not disputed even by the State counsel that the correction on the line indicated above is visible to the naked eye. We do find on a cursory perusal that there is correction regarding the time at which the complaint had come to be recorded in the Government Hospital at Salem.”
2007 MLJ (II) (Crl.) 153 [Senthilkumar Vs. State of TN] – “The revision petitioners are the accused 1 and 2. The learned counsel for the petitioners raised doubt about the date and place of occurrence. According to him, the name of the accused were corrected in FIR. There are number of corrections made in FIR. These correction were admitted by PW10 and he was unable to give any explanation. PW11, the investigating officer did not enquire about the corrections in FIR”.
2008 MLJ (III) (Crl.) 257 [Ayyadurai Vs. State of TN ] – “If the First Information Report is held to be fabricated or brought into existence long after the occurrence, with consultations and any number of witnesses could be added without there being anything to check the authenticity of their evidence, which collapses the entire case of the prosecution”.
Test to find out whether FIR is genuine - To say that the FIR is suppressed or to take a plea on FIR external check points have been given by the Hon’ble Apex Court in the following judgment.
It is to be noted that delay in giving information to police, delay in forwarding FIR and documents as well delay in examining witnesses are all fatal to the prosecution. Hence, the prosecution has to take care in forwarding the documents and also in examining the witnesses.
DELAY IN EXAMINING WITNESS:-
2019 (3) SCC Crl. 392 [Balwan Singh Vs The State Of Chhattisgarh]
Normally the delay in examining witnesses is not by itself fatal to the prosecution, but if there is no explanation is offered and witnesses admitted in cross examination that they were present in the village at the time of examination by the police, then the delay assumes importance.
2009 Crl.L.J. 3042 [Gouri Shankar Swamigal Vs. State of Karnataka]
CDJ 2012 MHC 3953 [ Mahadevan and others Vs. State of Tamilnadu]
SOLITARY EVIDENCE:-
The evidence act requires quality of evidence and not quantity of evidence. Hence, in order to prove a fact even solitary evidence is sufficient enough to prove the case, provided the evidence must inspire the confidence of the court. On the basis of solitary evidence conviction can be safely recorded if the same is trustworthy and free from all doubts.
AIR 1971 SC 1277 [Babulal Hargovinda Vs. State of Gujarat]
Solitary evidence of food inspector about the presence of witness is sufficient.
AIR 1979 SC 697 [Panda Naha Vs. State of Maharashtra]
Solitary eye-witness when does not disclose the name of assailant immediately after occurrence conviction on his evidence alone is improper.
AIR 1957 SC 614 at 619 [Vadivel Thevar Vs State of Madras] Conviction on the testimony of a single witness Propriety Capital sentence
Section 134 of the Indian Evidence Act has categorically laid it down that " no particular number of witnesses shall in any case be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses.
3. ….Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable. - In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution.
2019 (3) SCC Crl. 333 [Jagdish and another Vs State of Haryana] - 8. The question that arises to our mind is that in the mob assault by 13 persons who had surrounded the deceased at night, PW-1 was the sole eye-witness. Even if a light was burning some of them undoubtedly must have had their back to PW-1 making identification improbable if not impossible. The witness has been severely doubted both by the trail court and the High Court to grant acquittal to the other accused. Can the evidence of a solitary doubtful eye witness be sufficient for conviction? We may have a word of caution here. Conviction on basis of a solitary eye witness is undoubtedly sustainable if there is reliable evidence cogent and convincing in nature along with surrounding circumstances. The evidence of a solitary witness will therefore call for heightened scrutiny. But in the nature of materials available against the appellants on the sole testimony of PW-1 which is common to all the accused in so far as assault is concerned, we do not consider it safe to accept her statement as a gospel truth in the facts and circumstances of the present case. If PW-1 could have gone to the police station alone with her sister-in-law at an unearthly hour, there had to be an explanation why it was delayed by six hours. Given the harsh realities of our times we find it virtually impossible that two women folk went to a police station at that hour of the night unaccompanied by any male. These become crucial in the background of the pre-existing enmity between the parties Pleading to earlier police cases between them also. The possibility of false implication therefore cannot be ruled out completely in the facts of the case.
CONTRADICTION:-
It is to be considered that prosecution has to come to the court with definite case. The defence can take contradictory defence. But the evidence for prosecution should not be contradictory with other evidence should not be contradictory to the former statement. It is not that all the contradictions are fatal, but only the material contradictions are fatal and not superficial contradictions.
MINOR CONTRADICTIONS :-
2020 (1) SCC Crl 47 [Rohtas Vs State of Hariyana] - (Para 24,25)
24. In another decision of this court in State of U.P. Vs Ram Kumar, it is held that minor discrepancies in the statement of witnesses of trivial nature cannot be a ground to reject evidence as a whole. The court relied upon the exposition of Brahm Swaroop Vs State of UP. In para 32 of the said decision, the court observed, thus (Brahm Swaroop Case, SCC 303)
“32. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution’s case, may not prompt the court to reject the evidence in its entirely. ‘Irrelevant details which do not in any way corrode the credibility of a witness cannot be labeled as omissions or contradictions. Difference in some minor details, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variati9ons and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not got to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses……….
25. The so-called deficiencies pointed out by the appellants in the investigation or the prosecution case, in our opinion, are insignificant and trivial and cannot be the basis to reject the whole evidence of Bishan Singh (PW1) and Baljit Singh (PW2) which is corroborated by the other evidence in the form of medical reports and recovery of human bloodstained soil from the spot near the hospital where Mohar Pal was assaulted by the accused. The fact that the blood group of the human bloodstained soil cannot be ascertained, can be no basis to discard that piece of evidence. Even the recovery of weapon used by Rohtas (Accused 1) during the commission of the offence reinforces the role and involvement of the appellants in the commission of the crime. The quality substantive evidence on record clearly establishes the guilt of the appellants.”
AIR 1977 SC 381 [N.D.Dhayagude Vs. State of Maharashtra] “Evidence before court when substantially differs from statement before police - When evidence before court substantially differs from the statement before the police, no reliance can be placed on such evidence.”
2018 (1) HP 714 [The State of Himachal Pradesh vs Trilok Chand]
Going by the number of discrepancies in the prosecution case coupled with the contradictory statements by prosecution witnesses, the entire prosecution story vitiates and leads for discrediting its version. Contradictions in the statement of the witnesses are fatal for the case, though minor discrepancies or variance in their evidence will not disfavour [See: State of H.P. Vs. Lekh Raj (2000) 1 SCC 247].
Considering the circumstances of the case on hand, it can be said that the discrepancies are comparatively of a major character and go to the root of the prosecution story. We cannot therefore ignore them to give undue importance to the prosecution case. It is well settled that the Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence [See: Sukhdev Yadav v. State of Bihar, (2001) 8 SCC 86].
CONTRADICTION BETWEEN MEDICAL EVIDENCE AND OCULAR EVIDENCE – WHICH WILL PREVAIL :-
2019 3 SCC Crl 563 [Mallikarjun and others vs State Of Karnataka]
20. The expert is not a witness of fact. Opinionative evidence of the doctor is primarily an evidence of opinion and not of fact. It is only a corroborative piece of evidence as to the possibility that the injuries could have been caused in the manner alleged by the prosecution. Unless the medical evidence rules out such possibility of injury being caused in the manner alleged by the prosecution version, the testimony of the eye witness cannot be doubted on the ground of its inconsistency with medical evidence. Though at one place, PW-12-doctor has stated that injury No.1 could not have been caused by MO-1- dagger, on being further questioned, he has stated that injury No.1 could have been caused by MO-1 either by attacking on the throat two or three times or by inflicting injury on the throat and twisting the weapon. Considering the evidence of PW-12- doctor, there is no merit in the contention as to the alleged variance between the medical evidence and the ocular evidence.
MINOR CONTRADICTIONS:-
2019 (1) SCC Crl 319 [Smt. Shamim vs The State of Delhi]
While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the ficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether hether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/Trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case,s the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.
EVIDENCE OF INJURED WITNESS :-
2018 (1) SCC Crl 172 [The State Of Uttar Pradesh Vs Ram Kumar]
37. The trial court rightly believed that FIR was written on dictation by Maujiram Pradhan and after FIR was read over to informant he put his thumb impression on it and the same written report was given to the Police Station which is also proved from the police records. On the doubt expressed by the High Court regarding writing of FIR on dictation of informant since he claimed to be unconscious, we are of the view that this is not of any material significance on which evidence of PW1 regarding preparing and lodging of FIR could have been doubted.
3. 38. Reading of the judgment of the High Court clearly reveals that there are no such reasons given by the High Court on which the evidence of injured witnesses could be disbelieved, the minor inconsistencies pointed out by the High Court were inconsequential. This court has held in Brahm Swaroop and another Vs State of Uttar Pradesh, 2011(6) SCC 288, statement of injured witnesses is generally considered to be very reliable. In paragraphs 27 and 28 following has been stated.
6. “27. Injured witness Atar Singh (PW1) has been examined, his testimony cannot be discarded, as his presence on the spot cannot be doubted, particularly, in view of the fact that immediately after lodging of FIR, the injured witness had been medically examined without any loss of time on the same day. The injured witness had been put through a grueling cross examination but nothing can be elicited to discredit his testimony.
7. 28. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. “Convincing evidence is required to discredit an injured witness.” (Vide State of U.P. v. Kishan Chand (2004) 7 SCC 629, Krishan v.
State of Haryana(2006)12 SCC 459, Dinesh Kumar v. State of Rajasthan (2008) 8 SCC 719, Jarnail Singh v. State of Punjab (2009) 9 SCC 719, Vishnu v. State of Rajasthan (2009) 10 ACC 477, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra (2010) 6 SCC 673.)”
RELATED WITNESS :-
2018 (3) SCC Crl 738 [Ravulappali Vs. State of A.P.]
Appreciation of evidence – Witnesses relation of deceased- Relationship of witnesses with the deceased puts the court on guard to scrutinize their evidence.
2018 (3) SCC Crl 738 [Motiram Padu Joshi Vs The State of Maharashtra]
12. Like wise, the relationship of PW2 with the deceased cannot be the reason for doubting the testimony of PW2. It is fairly well settled that relationship is not a ground affecting the credibility of a witness. In Mohabbat Vs State of MP this court held as under (SCC PP 633-35)
11. The learned counsel for the respondent state on the other hand supported the judgment of the High court
12. Merely because the eyewitness are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version.
13. “5…Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal…………..as held in various decision judicial approach has to be cautious in dealing with such evidence. It is unreasonable to content that evidence given by related witness should be discarded only on the ground that such witness is related.
13. …...his brother having been critically injured, PW2 must have been in a disturbed mind and must have been in hurry to rush to the hospital to save his brother. Non mention of the names of eye witnesses PW3 and 4 in the FIR should be examined in the situation in which PW2 was placed.”
HOSTILE WITNESS :- - 2017 (3) MLJ Crl 385 [Subash and others Vs State] - 24. We have thus discussed the evidence of P.Ws.11 and 13. These evidence seriously impair the prosecution. Though P.W.11 has turned hostile, the statement made with respect to the prior information is in consistent with the evidence of P.W.13. Both have stated the presence of each other as against the case of the prosecution. Therefore, there is a clear corroboration available. In this regard A useful reference can be made to the recent judgment of the Hon'ble Supreme Court in Arjun v. State of Chhattisgarh (2017) 3 SCC 247 with the following paragraphs be apposite: "15. Though the eye witnesses PWs 1, 2, 7 and 8 were treated as hostile by the prosecution, their testimony insofar as the place of occurrence and presence of accused in the place of the incident and their questioning as to the cutting of the trees and two accused surrounding the deceased with weapons is not disputed. The trial court as well as the High Court rightly relied upon the evidence of PWs 1, 2, 7 and 8 to the above said extent of corroborating the evidence of PW-6 Shivprasad. Merely because the witnesses have turned hostile in part their evidence cannot be rejected in toto. The evidence of such witnesses cannot be treated as effaced altogether but the same can be accepted to the extent that their version is found to be dependable and the court shall examine more cautiously to find out as to what extent he has supported the case of the prosecution.
AIR 2016 SC 1150 [Arjun Vs State of Chattisgharh]
CASE DIARY AND GENERAL DIARY
2018 (3) SCC Crl 267 [State Vs H.Srinivas] –17… “64. The General Diary is a record of all important transactions/events taking place in a police station, including departure and arrival of police staff, handing over or taking over of charge, arrest of a person, details of law and order duties, visit of senior officers, etc. It is in this context that gist or substance of each FIR being registered in the police station is also mentioned in the General Diary since registration of FIR also happens to be a very important event in the police station. Since General Diary is a record that is maintained chronologically on day-to-day basis (on each day, starting with new number 1), the General Diary entry reference is also mentioned simultaneously in the FIR book, while FIR number is mentioned in the General Diary entry since both of these are prepared simultaneously.
65. It is relevant to point out that FIR book is maintained with its number given on an annual basis. This means that each FIR has a unique annual number given to it. This is on similar lines as the case numbers given in courts. Due to this reason, it is possible to keep a strict control and track over the registration of FIRs by the supervisory police officers and by the courts, wherever necessary. Copy of each FIR is sent to the superior officers and to the Judicial Magistrate concerned.
2019 (2) LW Crl 161 [P. Kalaiselvam Vs State] -– Para 26 - The Hon’ble Supreme Court in the decision reported in (1995) 4 SCC 430. (Shamshul Kanwar Vs State of UP.) observed that some vagueness or confusion is there in respect of the meaning of the word “diary” used in section 172 and other sections of Cr.P.C and suggested that a legislative change is necessary. It did not hold that the general diary or station diary will fall within the scope of section 172 of Cr.P.C. There is no doubt that as per the police standing orders in force in Tamil Nadu, there are two kinds of diaries. One is the station diary or the general diary maintained in the police station itself and the other is the diary maintained by the investigating officer setting forth the day to day proceedings in respect of the case. There is no doubt whatsoever that such a case diary or police diary maintained by the investigating officer is what is referred to section 172 of Cr.P.C. The learned Judge in
Haji Mohammed case has held that not only the case diary but also the general diary maintained in the police station would fall within the ambit of section 172 of Cr.P.C. The learned Judge extensively refers to the decision reported in 2014 (1) LW Crl 1 – 2014 (2) LW 5 SN – (2014) 2 SCC 1 (Lalita Kumari Vs Govt of Uttar Pradesh) and comes to the conclusion that the ratio that can be culled out from the said judgment is that the right of an accused in relation to a police filed and “the General Diary” is a very limited one and is controlled by Section 172 of Cr.P.C.
CONFESSION OF AN ACCUSED
2019 1 SCC Crl. 708 [Viran Gyanlal Rajput vs The State of Maharashtra]
In a given case, the accused may confess ten or fifteen days after his arrest and as such the recovery cannot be suspected on this ground alone. Together, these circumstances establish that the appellant had hidden the body of the deceased, as well as her clothes, in a bid to suppress the evidence of his crime.
The matching of the mud recovered from the spot of recovery of the victim’s body with the mud stains on the pants of the appellant is also highly incriminating, as rightly held by the trial court and the high court.
As regards the scratch marks found on the face and neck of the accused, we have considered the argument of the appellant that it was possible for the injuries to have been inflicted during the scuffle that would have ensued at the time that the party of villagers apprehended the appellant, even though the medical evidence given by PW13 also shows that they could have been inflicted by a woman resisting sexual assault.
EXTRA JUDICIAL CONFESSION
2019 (1) LW Crl 572 [Karthick @ Karthikeyan Vs State] – Para 11 - 11. “As rightly pointed out by the learned counsel for the Appellant, the whole case of the Prosecution rests on the extra judicial confession, alleged to have been given by the accused to PW.8, Village Administrative Officer, on 25.08.2014, after five days from making the complaint by PW.1 on 20.08.2014. and also after three days from the First Information Report reaching the concerned Court on 22.08.2014. Hence, the extra judicial confession made to PW.8 about the occurrence is highly unnatural and unbelievable, inasmuch as number of persons including PW.3, the accused and 20 other persons, were taken to the Police Station on 20.8.2014, and this aspect shatters the entire case of the Prosecution, thereby falsifying the alleged confession. Further, a vain attempt had been made in the confession to bring in witnesses from the Village who were stated to have seen the offence said to have been committed by the accused and strangely, they have not been examined by the Prosecution.
2020 (1) SCC Crl 2 [Ishwarlal Yadav and another Vs State of Chatisgarh] – Para 14 – “ she has also stated that all other accused were regularly going to the house of Ishwari Lal and Kiran Bai. She too in clear terms has stated that when they entered the house of Ishwari Lal Yadav and Kirab bai, they admitted the guilt of committing murder of Chirag in the form of human sacrifice and begged for mercy….”
Para 22 – There is nothing on record to show that such confessions are caused by inducement, threat or promise. When such confessions are corroborated by other evidence on record, the trial court as well as the high court rightly relied on such a confession. From the evidence it is proved that the place where the body of the deceased Chirag was traced belongs to Ishwari Lal Yadav and Kiran bai and in the absence of any explanation from their side there is no error committed by the Trial court in accepting such evidence on record. It is true that the extra judicial confession is a weak piece of evidence, but at the same time if the same is corroborated by other evidence on record same can be accepted.”
PARRAOT LIKE EVIDENCE:-
We cannot expect that all the witnesses must be reliable in all the four corners. It is impossible to reproduce the exact version stated before the police in the court. In reality some omissions and minor discrepancies are bound to occur in the evidence. If any witness is attempting to reproduce the statement recorded by the police before the court, the such evidence can be called as parrot like evidence and cannot be believed.
1981 Crl. LJ 736 [Selvi and another Vs State of Tamil Nadu]
WHOLLY RELIABLE, WHOLLY UNRELIABLE – NEITHER WHOLLY RELIABLE OR WHOLLY UNRELIABLE
See Vadivel Thevar Vs State – cited above.
ACCOMPLICE EVIDENCE :- AIR 1957 SC 637 [Sarwan Single Vs State of Punjab] - “The result is that, if the approver's evidence is discarded as unworthy of credit and his own retracted confession is excluded from consideration as not being voluntary or true, whatever circumstantial evidence remains is obviously insufficient to bring home to Sarwan Singh the charge framed against him. If that be the true position, we must hold that the learned Judges of the High Court were in error in convicting Sarwan Singh of the offence of murder. It is no doubt a matter of regret that a foul cold-blooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence. We have carefully considered all the arguments which Mr. Gopal Singh urged before us; but we do not think it would be possible to regard the approver as a reliable witness or to hold that the confession of Sarwan Singh is voluntary or true. In the result, the appeal preferred by Sarwan Singh must be allowed, the order of conviction and sentence passed against him must be set aside and he must be acquitted and discharged.”
PROSECUTRIX EVIDENCE :-
2018 (4) MLJ Crl 403 [Iyyappan Vs State] - “ 11. 1 -she has categorically stated that she did not know the appellant, who was made to stand as an accused at that point of time; she did not recollect whether she had seen him earlier anywhere; on the day of occurrence, (prior to the occurrence) she was hearing a story told by her mother and she slept; she was taken away by Kattu Raja and she was beaten over the head; thereafter, she was enquired about the incident in the presence of a lady doctor; she would also state that she told the doctor that she was beaten by house owner, which indicates Kattu Raja-PW.8. When police enquired her after recovery (from injury) she named PW8. Kattu Raja as an accused.”
11.2 – “This court had an occasion to hear the statement of the victim child “X” appears to be very logical, but no where she has stated that she was sexually abused. The father would state that there was bleeding in the private part of the victim child, but this aspect has not been spoken to by her perhaps on account of the fact that there was loss of consciousness on account of head injury. Perhaps, the sexual abuse itself might have taken place after making her unconscious. The very fact that there was bleeding from private part and the very fact that it has been recorded in the accident register copy by the Doctor would clearly prove that she had been sexually abused. Considering the cumulative circumstances, much importance ought to have been attached to the evidence of the child victim ‘X’.”
2019 (3) MLJ Crl 6 [Arul Vs State] - Para 24 – “Thus, this court finds that the evidence of PW1, prosecutrix does not inspire confidence. It is also clear that Ex.P1, complaint is not only embellished, but also tainted with falsity. The trial court erred in convicting and sentencing the appellant/accused based on the evidence of PW1.”
31. “Reliance is also placed on the decision of this court, in Mirthagai Ali Vs State 2007-1-LW-Crl 18 : LNIND 2006 MAD 3231 :(2006) 2 MLJ (Crl) 1105, wherein it was held that the evidence of PW1, prosecutrix does not all inspire confidence, as her version not only falsified by the evidence of her own mother/PW2, but also falsified by the medical evidence. In the case on hand, when considering the entire prosecution case, this court finds that the evidence of the witness, namely PW1 to PW6 does not inspire confidence, as the victim girl has not suffered any injury, much less any marks of violence were found on her, coupled with the medical evidence, as narrated above and that the prosecution could not substantiate the charges leveled against the appellant under section 376 of IPC.”
CHILD WITNESS :-
AIR 1977 SC 135 [Caelano Piedac Fernandes Vs. Union Territory]
Child Witness – Minor discrepancy in- Minor discrepancy in the testimony of child- witness is not important.
2019 (1) SCC Crl 319 [Shamim Vs State NCT of Delhi] - Stated Supra
2019 (2) SCC Crl 300 [Digamber Vaishnav Vs The State Of Chhattisgarh]
“The case of the prosecution is mainly dependent on the testimony of Chandni, the child witness, who was examined as PW-8. Section 118 of the Evidence Act governs competence of the persons to testify which also includes a child witness. Evidence of the child witness and its credibility could depend upon the facts and circumstances of each case. There is no rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before a conviction can be allowed to stand but as a prudence, the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that witness must be a reliable one.
22. This Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law. [See Panchhi and others v. State of U.P, (1998) 7 SCC 177, State of U.P. v. Ashok Dixit and another, (2000) 3 SCC 70, and State of Rajasthan v. Om Prakash, (2002) 5 SCC 745].
23. In Alagupandi alias Alagupandian v. State of Tamil Nadu, (2012) 10 SCC 451, this Court has emphasized the need to accept the testimony of a child with caution after substantial corroboration before acting upon it. It was held that:
"36. It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable."
Since, the evidence of PW8 the child witness was with inconsistencies the Hon’ble Supreme Court rejected the same.
2019 3 SCC Crl 458 [C.R. Kariyappa vs State Of Karnataka - The evidence of PW-2 injured-child witness in his cross examination stated that the admitted suggestions put to him by the defence counsel that he was tutored, in our considered view, the same cannot be the reason for discarding the evidence of PW-2. When PW-2 was examined in the Court some time after the occurrence, being a child witness(PW-2) who is not conversant with the court’s proceedings, has to be necessarily apprised about the court’s proceedings and that he has to speak about the occurrence. It cannot be said that he was tutored about the occurrence itself to depose against the appellant.
INJURY ON THE ACCUSED
2019 (3) SCC Crl. 309 [Anand Ramachandra Chougule vs Sidarai Laxman Chougala]
10. The fact that a defence may not have been taken by an accused under Section 313, Cr.P.C. again cannot absolve the prosecution from proving its case beyond all reasonable doubt. If there are materials which the prosecution is unable to answer, the weakness in the defence taken cannot become the strength of the prosecution to claim that in the circumstances it was not required to prove anything. In Sunil Kundu v. State of Jharkhand , (2013) 4 SCC 422, this Court observed:
“28…When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probabilise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt.”
11. The fact that an F.I.R. was lodged by the accused with regard to the same occurrence, the failure of the police to explain why it was not investigated, coupled with the admitted fact that the accused were also admitted in the hospital for treatment with regard to injuries sustained in the same occurrence, but the injury report was not brought on record and suppressed by the prosecution, creates sufficient doubts which the prosecution has been unable to answer.
MULTIPLE DYING DECLARATION :-
2019 (3) SCC Crl 657 [Jagbir Singh vs State (Nct Of Delhi)]
“4. It is a case where there are two dying declarations, viz., one made on 24.01.2008 and another on 27.01.2008. In regard to the statement on 24.1.2008 it is actually the history which is recorded in the M.L.C. of the deceased and it is stated that it has noted history of sustaining thermal burns when her husband was trying to ignite a match stick for smoking; accidently a fire erupted due to petrol leaking from the tank of the motorcycle as told by the patient herself. Patient got burnt along with her husband. Patient is unable to tell the cause of kerosene smell from her body.
8. Regarding the Investigating Officer not obtaining certificate from Doctor about the medical fitness of the deceased to make the dying declaration, it was found, not material. It was not a case where at any point of time, the deceased was declared unfit for the statement. No question was asked from PW30-the Doctor that considering the nature of the burn injuries and the medicines given to the deceased, it was not possible for her to give a statement without being certified. MLC-Exhibit 30/B does not show that the patient is unfit to give a statement. Evidence of PWs 1, 7 and 29 are relied upon to repose faith in the dying declaration. No cross-examination was conducted in regard to PW29-Investigating Officer with reference to his going to the hospital on the basis of the call received from the hospital.
46. The dying declaration dated 27.01.2008 is a fairly lengthy narration. It contains details about what happened on the fateful day, viz., 24.01.2008 in a fairly graphic manner including details regarding the place where it happened, the manner in which it happened, the specific role played by the appellant, even things (presence of the motorcycle), the door being locked, are reflected. Even reference was made to the relationship which the appellant was having with his sister-in-law.”
2019 2 scc Crl 345 [Sampat Babso Kale vs The State of Maharashtra]
14. No doubt, a dying declaration is an extremely important piece of evidence and where the Court is satisfied that the dying declaration is truthful, voluntary and not a result of any extraneous influence, the Court can convict the accused only on the basis of a dying declaration. We need not refer to the entire law but it would be apposite to refer to the judgment of this Court in the case of Sham Shankar Kankaria v. State of Maharashtra2 held as follows:
“11. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross¬examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence………….”
18. The second important factor which comes out from the statement of the panch witnesses is that in the first room in which there was a cot, there were two pillows on the cot and below a pillow there were some ornaments and other things. The panchanama report indicates that the ornaments were one yellow and black mangalsutra, a nathni (nose ring), some glass bangles and peinjan (an ornament worn on the foot). It is also recorded that, according to the accused, these ornaments belong to his wife. Mangalsutra, peinjan and even glass bangles are such ornaments which an Indian married woman would normally not remove. In Indian society these are normally worn by the ladies all the times. Therefore, the defence version that the deceased took off all these ornaments and then went to the kitchen and committed suicide cannot be totally ruled out.
20. In view of the aforesaid circumstances the trial court held that the prosecution had failed to prove its case beyond reasonable doubt. This finding of the trial court could not be said to be perverse. It was based on a proper appreciation of evidence. The trial court, after discussing the entire evidence in detail, had come to the conclusion that the prosecution had failed to prove its case beyond reasonable doubt. The High Court came to a different conclusion. On perusal of the entire evidence and the law on the subject we are of the view that the trial court was right in holding that the prosecution had failed to prove its case beyond reasonable doubt.
2019 1 SCC Crl 363 [The State of Madhya Pradesh vs Gangabishan @ Vishnu]
We have carefully considered the submissions of the learned counsel appearing for the appellant state and the learned advocate appearing for the respondents.
It is clear from the evidence on record that the deceased Rajesh suffered only one injury on interio aspect of thigh, which was an exit wound. Injury no.2 was a gunshot entry wound on the back side of left thigh. There was haematoma and fracture of thigh bone. Dr.Vijaysingh (PW8) examined the deceased and issued MLC report (Ex. P/11). He also examined PW-1 Dinesh, brother of the deceased and found three contusions and one lacerated wound. In the option of the doctor all the injuries were simple in nature except injury No.1 on the left forearm. PW1, Dinesh is an eyewitness. PW2 recorded the dying declaration of the deceased Rajesh (Ex.P/4). It is evident from the statement of PW1, that he has given a general and omnibus statement about the assault upon the deceased and himself by the accused. Accused No.1 was having a twelve bore gun and the other accused were armed with lathis. However, the doctor’s report shows that deceased and sustained only one injury on the left thigh caused by accused No.1. Neither the deceased nor PW1 had any injury caused by sharp edged weapon. PW1 suffered fracture of left ulna bone and three simple injuries caused by hard and blunt object but he has not pointed out as to which accused did cause injuries to him. His general statement regarding participation of all the accused with different weapons and causing injury to the deceased as well as to himself is not duly corroborated by medical evidence of PW8 and autopsy surgeon PW7, Dr.Kapil Sahay. The version of PW1 is belied by medical evidence. In the dying declaration the deceased has deposed that except Vishnu Prasad (accused No.1) he has not knowing as to who had assaulted him but in the same breath he has stated that he was assaulted by lathi by Chaturbhuj (accused No.3) and Laxmichand (accused No.2).
However, his version is not corroborated by medical evidence as he did not suffer even a single scratch on his body except fire arm injury.
RECOVERY OF DEAD BODY AT THE INSTANCE OF ACCUSED AND MINOR CONTRADICTIONS :-
2019 3 SCC Crk 575 [Sachin Kumar Singhraha Vs State of MP]
12. PW2 and PW3 have deposed about the recovery of the dead body as well as the school bag of the child based on the disclosure statement made by the accused/appellant. Needless to say, only so much of the statement as has led to the recovery of the dead body and the school bag is admissible in evidence under Section 27 of the Indian Evidence Act. Both these witnesses have deposed that after the disclosure statement of the accused/appellant was recorded, he led the police and the witnesses (PW2 and PW3) to the spot where the school bag and the dead body had been disposed of. The dead body was found in a well situated alongside Paraswara Canal. At this time, only an underwear was present on the dead body. The police took out the dead body of the deceased from the well, and after such recovery, recorded the recovery memo Ext. P7 and took the signatures of the witnesses. Thereafter, the accused/appellant led the police and the witnesses to the school at Dubehi, ………………
“18. We have considered the aggravating and mitigating circumstances for the imposition of the death sentence on the accused/appellant. He has committed a heinous offence in a premeditated manner, as is indicated by the false pretext given to PW4 to gain custody of the victim. He not only abused the faith reposed in him by the PW4, but also exploited the innocence and helplessness of a child as young as five years of age. At the same time, we are not convinced that the probability of reform of the accused/appellant is low, in the absence of prior offending history and keeping in mind his overall conduct.”
EYE WITNESS ACCOUNT :-
2018 3 SCC Crl 61 [Khurshid Ahmed vs The State of Jammu And Kashmir]
34. “It was also contested that the eye witness did not sustained any injury. It is not necessary that to prove an offence, every eye witness who had seen the accused hitting the victim should also receive injuries. Such contentions or meritless and do not fall consideration.
35. “When analyzing the evidence available on record, the court should not adopt hypertechnical approach but should look at the broader probabilities of the case. Basing on the minor contradictions, the court should not reject the evidence in its entirety. Sometimes, even in the evidence of truthful witness, there may appear certain contradictions basing on their capacity to remember and reproduce the minute details. Particularly in the criminal case, from the date of incident till the day they give evidence in the court, there may be gap of years. Hence, the courts have to take all these aspects into consideration and weigh the evidence. The discrepancies and contradictions which do not go to the root of the matter, credence shall not be given to them. In any event, the paramount consideration of the court must be to do substantial justice. We feel that the trial court has adopted a hypertechinical approach which resulted in the acquittal of the accused.?
i) On the question as to: (1) the nature and extent of corroboration of an accomplice's evidence; and (2) the procedure for the trial of offences by a 'child' under the East Punjab Children's Act, 1949,
ii) HELD: 1.1 An accomplice, by long legal tradition, is a notoriously infamous witness, one who being parties-criminis, purchases his immunity by accepting to accuse others. Section 114, illustration (b) of the Evidence Act envisages the presumptive uncreditworthiness of an accomplice. But, then section 133 provides that a conviction is not illegal merely because it rests upon an accomplice's uncorroborated testimony. [753C- D]
iii) 1.2 In indictments, particularly of serious crimes, counsel of caution and the rule of prudence enjoin that it is unsafe to rest a conviction on the evidence of a guilty partner in a crime without independent corroboration on the material particulars.
Judicial experience was, thus, elevated to a rule of law. lt is a practice which deserves all the reverence of law. [753D-E]
iv) l.3 The nature and extent of the corroboration must necessarily 747 vary with the nature and circumstances of each case. Enunciation of any general rule, valid for all occasions is, at once, unwise and unpractical. [753F]
v) 1.4 The corroboration has to be of two kinds; first belonging to the area of reassurance of the credit of the approver himself as a trustworthy witness; and the second which arises for conclusion after the court is satisfied about the creditability of the approver as to the corroboration in material particulars not only of the commission of the crime but also of the complicity of other accused person in the crime. If on the first area the court is not satisfied, the second does not arise. However, the two areas of corroboration are not two separate, watertight compartments. The evidence as a whole will have to be examined to reach conclusions on both aspects [757G 752C]
AIR 1966 SC 1273 [Sharvana Bhavan v. State of Madras], - The cardinal principle of criminal law is that the prosecution has to prove the case beyond all reasonable doubt and weakness of defence or falsity of defence cannot be considered in order to give a finding that the prosecution has proved the case. The following case laws are importance;
AIR 1974 SC 155 [Tika Vs. State of U.P.]
AIR 1974 SC 1144 [Mohanlal Vs. State of U.P]
Adverse inference
The prosecution having established the motive of the crime, the following circumstances are sufficient to infer as against accused.
1. His conduct before the occurrence or after the occurrence being unreasonable.
2. His refusal to participate in the test identification parade.
3. His refusal to give specimen foot prints AIR 1974 SC 173 [Mulkh Raj Vs. Delhi Administration].
Honest Witness
1972 (3) SCC 751 [Sohorb Vs. State of M.P] - Some difference and discrepancies in details are generally found in the case of honest witnesses and unless they are material they need not necessarily be disbelieved.
Documents obtained by illegal means
Magraj Patodia Vs. R.K. Birla Sec.3 of Evidence Act in defining relevancy states that one fact is said to be relevant to another, when one is connected with the other in any of the ways referred to in the chapter dealing with relevancy of fact. The only test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. Court is not concerned with how and where the evidence was gathered. Thus, documents procured by illegal means may be admitted in evidence if it is relevant and admissible.
1981 (Crl) L J 736 [Selvi and another Vs. State of Tamilnadu]
Cross case AIR 1975 SC 149 [Mitthulal Vs. State of M.P]
Cross case – evidence in one not to be considered in another:-
Where the court had in a connected case evaluated the credibility of the testimony of some witnesses and disbelieved them it cannot be held that the same view should have been taken in the later case. It is not altogether illegal for a court to have had regard to the view taken of the witnesses in the connected case in regard to the same incident. But the court is not obliged to be influenced by the way the witnesses have been sized up by the court in the connected case. Evidence recorded in one case is no evidence in cross –case. It is doubtful if such evidence can be treated as evidence in a cross case even with the consent of parties.
AIR 1975 SC 12 [Malkhan Singh Vs. State of U.P.]
Accused seen holding pistol by injured person:-
An injured man deposed to the effect that he on being fired from back looked behind to find the accused person holding a pistol. It was held he has not spared the real assailant to implicate an innocent man.
AIR 1978 SC 191 [State of U.P. Vs. Sughar Singh]
Father of victim inimical to accused party-
In a case, father of the victim was the witness and inimical to accused party, it is held that his testimony is to be viewed with caution but cannot be rejected unless the same is found to be untrue by reason of some infirmity.
Death by gunshot wounds.-
When direct evidence of death by gunshot wounds is available inconsistency relating to distance from which gun shots were fired between evidence of medical expert and eye-witnesses is insignificant.
AIR 1978 SC 1542 [Narottam Singh Vs. State of Punjab]
Discrepancies not necessarily demolish testimony;-
Discrepancies do not necessarily demolish testimony; delay does not necessarily spell in veracity and tortured technicalities do not necessarily upset conviction when the court has had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities.
AIR 1979 SC 1408 [Suraj Mal Vs. Delhi Administration]
Witness when makes his inconsistent statements;-
When witness makes two inconsistent statements in his evidence, he is unworthy of credit and without special circumstances no conviction on his evidence can be based.
AIR 1979 SC 1831 [Somappa Vs. State of Mysore]
Discrepancy as to timing of receipt of message in police station and admission in hospital not fatal-
Discrepancy as to timing of a receipt of message in police station and admission in hospital is not fatal.
AIR 1979 SC 1831 [Somappa Vs. State of Mysore]
Snatching of blood stained weapon from accused with no blood stain;-
Blood stained weapon snatched by witnesses from the hand of accused with no blood-stain in the hand or wearing apparel, of witnesses, is a circumstances which is not fatal to prosecution.
SUSPICION HOWEVER STRONG CANNOT TAKE THE FACE OF PROOF.
No doubt culprits have to be punished. The charges may be grave but there must be strong evidence to prove the charges. Suspicion may be strong enough against the accused but it does not take place proof.
2019 (1) LW Crl 375 [Periyasamy Vs State]
“Though materials on records holds some suspicion towards the appellant/accused the prosecution has failed to elevate its case from the realm of “may be true” to the glance of “must be true” as is indispensably required in law for conviction on a criminal charge. It is the trite to state that in a criminal trial suspicion however strong cannot substitute proof…”
WITNESS WITH MINUTE DETAILS:-
If an incident happens in a short span of time, no one can give photographic evidence regarding the accurate details of the incident. It is humanly impossible. If any witness attempts to give such a evidence, the same is liable to be reject.
1981 Crl LJ 736 [Selvi and others Vs State of Tamil Nadu]
Murder trial-eye witness – giving minute details of attack on each victim – held dramatic evidence – reject
ARREST AND RECOVERY
It is pertinent to point out here that in most of the cases prosecution is coming with confession of an accused and recovery of material objects as discovered from the confession of an accused. But, the prosecution has to prove the fact of arrest on a particular date and time and thereafter the prosecution has to strictly prove the discovery of facts in terms of Section 27 of Indian Evidence Act.
The following judgments are important in the said field.
2019(3) MLJ Crl 129 [Sathiyamoorthi and another Vs State]
7. “In addition to the above, we would like to refer to the evidence of PW-1 - Gnanaraj, who is the father of Immanuel. PW-1 - Gnanaraj has stated that from the place, where his son was found dead, the police seized wooden brush used to assault Immanuel. Thus, it is seen that the wooden brush was seized from the spot itself, hence, there can be no question of recovery of wooden brush at a later point of time, at the instance of the appellants. Thus, we find that this recovery is a planted one, hence, we are not inclined to place any reliance on the recovery of wooden brush. We may further state that according to the prosecution, this wooden brush was used to assault deceased - Immanuel. However, the wooden brush was not at all sent for chemical analysis, hence, another important link is lost.”
2019 (2) MWN Crl 487 [Manickaraj Vs State]
2019 (2) LW Crl 877 [Murugan and others Vs State] – Para 30
In the above two judgment also the accused were found in the custody of the police long before the alleged arrest. Hence, theory of arrest and discovery of material objects were disbelieved.
CONCLUSION:-
Thus, as discussed above the courts has got duty to appreciate the evidence adduced by the parties to the case, the said exercise has to be done in the light of the judgments of Hon’ble Apex Court and the judgments of various High Courts.