DAVINDER SINGHversusSTATE OF PUNJAB

986               [2023] 10
               SUPREME      S.C.R.REPORTS
                         COURT     986 : 2023 INSC 585
                                                   [2023] 10 S.C.R.


A                              DAVINDER SINGH
                                         v.
                              STATE OF PUNJAB
                        (Criminal Appeal No. 12 of 2015)
B
                                  JUNE 22, 2023
               [SURYA KANT AND M. M. SUNDRESH, JJ.]
             Penal Code, 1860 – ss. 376, 452 and 506 – Acquittal under –
      Allegation that appellant committed offence against the prosecutrix
C
      (PW-6) u/s. 376 at her residence – The appellant-accused was
      charged and convicted u/ss. 376, 452 and 506 by the Trial Court
      and the same was confirmed by the High Court – On appeal, held:
      There was delay in filing complaint – There was no attempt to recover
      the knife from the appellant as it is a specific case of the prosecution
D     that he committed the offence by threatening to harm the prosecutrix
      – There was no reason as to non-examination of the sole eye witness
      i.e. brother of the PW-6 – The High Court has recorded a wrong
      factual finding that the offence u/s.376 was committed even at the
      uncle’s residence of PW-6 which was not the case spoken by her –
      The case of the prosecution does not conform to the degree of
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      probability – Evidence would also suggest that PW-4 was not willing
      to give his daughter in marriage to appellant, FIR also speaks about
      the same – Conviction and sentence set aside – Appeal allowed –
      Appellant acquitted of all charges.

F           Rajesh Yadav v. State of Uttar Pradesh (2022) 12 SCC
            200; Takhaji Hiraji v. Thakore Kubersing Chamansing
            (2001) 6 SCC 145 – relied on.
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      12 of 2015.
G           From the Judgment and Order dated 27.02.2013 of the High Court
      of Punjab & Haryana at Chandigarh in CRLAP No. 1106 of 2003.
            Ms. Rupali Yadav, Bharat Bhushan, Advs. for the Appellant.
            Ajay Pal, Mayank Dahiya, Advs. for the Respondent.
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                                        986
             DAVINDER SINGH v. STATE OF PUNJAB                                  987


      The Judgment of the Court was delivered by                                A
      M. M. SUNDRESH, J.
      1. The appellant stood charged and convicted for the offence
punishable under Sections 376, 452 and 506 of Indian Penal Code 1860,
(hereinafter referred to as IPC) by the Additional Sessions Judge
(Adhoc), Fast Track Court, Amritsar, which was confirmed by the High            B
Court of Punjab & Haryana in Criminal Appeal No. S.1106 SB of 2003.
Seeking to overturn the aforesaid decisions, the present appeal is filed.
      BRIEF FACTS:
       2. As per the prosecution version, the appellant came to the             C
residence of the prosecutrix and committed the offence punishable under
Section 376 IPC, brandishing a knife. The brother of the victim namely
Pargat Singh came home and upon seeing him, the appellant took to his
heels. On returning home, PW4, the father of the prosecutrix, filed a
complaint for quarrel alone as he felt that the dignity of his daughter,
PW6 was at stake.                                                               D
       3. After the aforesaid occurrence dated 15.03.2000, the appellant
along with the few other co-accused persons went to the residence of the
uncle of the prosecutrix wherein she was temporarily staying anticipating
trouble, and exerted threats. Accordingly, a complaint was lodged on
13.04.2000 in FIR No.60/2000 under Sections 376, 452, 506 IPC.                  E
       4. The learned Additional Sessions Judge (Adhoc), Fast Track
Court, Amritsar examined ten prosecution witnesses. It is to be noted
that the only eye witness, who is the brother of the prosecutrix Pargat
Singh has not been examined on behalf of the prosecution.
      5. The Trial Court and the High Court rendered conviction against         F
appellant under all the Sections, with the major punishment of seven years
rigorous imprisonment for the offence punishable under Section 376 IPC.
      SUBMISSIONS OF THE APPELLANT:
       6. Learned counsel for the appellant submitted that there is no
recovery of the weapon allegedly used. The non-examination of Pargat            G
Singh would make the case of prosecution doubtful. There was no external
injury found on the prosecutrix. The inordinate delay in filing the complaint
has not been taken note of. If PW4 was conscious about the reputation
of his daughter being tarnished, he would not have given the complaint
belatedly. At best, it could be a case of a relationship turning sour and       H
988            SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A     not approved by the family. The High Court erred in recording that the
      appellant took co-accused persons to the residence of the uncle of the
      prosecutrix to commit the offence punishable under Section 376 IPC,
      even when it was not the case of the prosecution. The fact that the
      parties have compromised the matter in the year 2013 is also to be kept
      in mind. The High Court being the appellate forum has dealt with the
B
      matter in a cursory manner without properly analysing the evidence on
      record. Moreover, even the maternal uncle of the prosecutrix namely
      Satnam Singh has not been examined.
            SUBMISSIONS OF THE RESPONDENT:
C            7. Learned counsel appearing for the State submitted that the
      findings being concurrent and in the absence of any perversity, there is
      no need for any interference. Subsequent arrangements between the
      parties will not have any bearing and, in any case, it is not permissible
      under law. Both the Courts have rightly relied upon the evidence of
      PW4 and PW6. In the absence of any enmity or motive, the evidence of
D     PW6 has been correctly found favourable.
            DISCUSSION:
             8. The prosecutrix PW6 did not allege that the offence punishable
      under Section 376 IPC was committed at her uncle’s residence.
      Admittedly, there is delay of 28 days in giving the complaint. The reasons
E
      assigned cannot be accepted as it defies reason and logic. If the intention
      of PW4 was to suppress the occurrence, there is no need to give the
      complaint subsequently. He did give a complaint which was not even
      registered. Strangely, the complaint was given by PW4 who was not
      present on both the occasions. Further, to commit the offence punishable
F     under Section 376 IPC no sane person would take two accomplices,
      that too after committing a similar offence earlier. The best person to
      depose would have been the uncle of the prosecutrix Satnam Singh.
      There is no attempt to recover the knife from the appellant as it is a
      specific case of the prosecution that he committed the offence by
      threatening to harm the prosecutrix. The prosecution, for the reasons
G     best known to them, has not chosen to examine him as well. PW4 is not
      the eye-witness. There is absolutely no reason as to why the son of
      PW4, who is incidentally the brother of PW6, has not been examined
      being the sole eye-witness. On the issue of non-examination of material
      witness, we wish to place reliance on the decision of this Court in Takhaji
H     Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145,
             DAVINDER SINGH v. STATE OF PUNJAB                                    989
                    [M. M. SUNDRESH, J.]

       “19. So is the case with the criticism levelled by the High Court          A
       on the prosecution case finding fault therewith for non-examination
       of independent witnesses. It is true that if a material witness, who
       would unfold the genesis of the incident or an essential part of the
       prosecution case, not convincingly brought to fore otherwise, or
       where there is a gap or infirmity in the prosecution case which
                                                                                  B
       could have been supplied or made good by examining a witness
       who though available is not examined, the prosecution case can
       be termed as suffering from a deficiency and withholding of such
       a material witness would oblige the court to draw an adverse
       inference against the prosecution by holding that if the witness
       would have been examined it would not have supported the                   C
       prosecution case. On the other hand if already overwhelming
       evidence is available and examination of other witnesses would
       only be a repetition or duplication of the evidence already adduced,
       non-examination of such other witnesses may not be material. In
       such a case the court ought to scrutinise the worth of the evidence
       adduced. The court of facts must ask itself — whether in the               D
       facts and circumstances of the case, it was necessary to examine
       such other witness, and if so, whether such witness was available
       to be examined and yet was being withheld from the court. If the
       answer be positive then only a question of drawing an adverse
       inference may arise. If the witnesses already examined are reliable        E
       and the testimony coming from their mouth is unimpeachable the
       court can safely act upon it, uninfluenced by the factum of non-
       examination of other witnesses…”
       9. In Rajesh Yadav v. State of Uttar Pradesh, (2022) 12 SCC
200:                                                                              F
       “Non-examination of witness
       34. A mere non-examination of the witness per se will not vitiate
       the case of the prosecution. It depends upon the quality and not
       the quantity of the witnesses and its importance. If the court is
       satisfied with the explanation given by the prosecution along with         G
       the adequacy of the materials sufficient enough to proceed with
       the trial and convict the accused, there cannot be any prejudice.
       Similarly, if the court is of the view that the evidence is not screened
       and could well be produced by the other side in support of its
       case, no adverse inference can be drawn. Onus is on the part of
                                                                                  H
990             SUPREME COURT REPORTS                          [2023] 10 S.C.R.


A           the party who alleges that a witness has not been produced
            deliberately to prove it.”
             10. The High Court has recorded a wrong factual finding that the
      offence under Section 376 IPC was committed even in the uncle’s
      residence of PW6 which is not even the case spoken by her. The case
B     of the prosecution, as projected, does not conform to the degree of
      probability. There is no doubt that the evidence of the prosecutrix will
      have to be kept at a higher pedestal but then, such a testimony will have
      to satisfy the conscience of the Court. It has to be seen contextually in
      the light of the other evidence available. It does appear that the appellant
      wanted to marry the prosecutrix which was stoutly opposed by her family.
C     We are not willing to go into the subsequent compromise made between
      the parties, which happened after the death of PW4. The submission
      made by the counsel for the appellant appears to be probable when
      pitted against the version of the prosecution.
            11. We wish to quote with profit the following paragraphs of the
D     decision of this Court in the case of Rajesh Yadav (Supra), on the
      approach of the court in appreciating the evidence before it,
            “12. Section 3 of the Evidence Act defines “evidence”, broadly
            divided into oral and documentary. “Evidence” under the Act is
            the means, factor or material, lending a degree of probability
E           through a logical inference to the existence of a fact. It is an
            “adjective law” highlighting and aiding substantive law. Thus, it is
            neither wholly procedural nor substantive, though trappings of both
            could be felt.
            13. The definition of the word “proved” though gives an impression
F           of a mere interpretation, in effect, is the heart and soul of the
            entire Act. This clause, consciously speaks of proving a fact by
            considering the “matters before it”. The importance is to the degree
            of probability in proving a fact through the consideration of the
            matters before the court. What is required for a court to decipher
            is the existence of a fact and its proof by a degree of probability,
G           through a logical influence.
            14. Matters are necessary, concomitant material factors to prove
            a fact. All evidence would be “matters” but not vice versa. In
            other words, matters could be termed as a genus of which evidence
            would be a species. Matters also add strength to the evidence
H           giving adequate ammunition in the Court’s sojourn in deciphering
      DAVINDER SINGH v. STATE OF PUNJAB                                  991
             [M. M. SUNDRESH, J.]

the truth. Thus, the definition of “matters” is exhaustive, and          A
therefore, much wider than that of “evidence”. However, there is
a caveat, as the court is not supposed to consider a matter which
acquires the form of an evidence when it is barred in law. Matters
are required for a court to believe in the existence of a fact.
15. Matters do give more discretion and flexibility to the court in      B
deciding the existence of a fact. They also include all the
classification of evidence such as circumstantial evidence,
corroborative evidence, derivative evidence, direct evidence,
documentary evidence, hearsay evidence, indirect evidence, oral
evidence, original evidence, presumptive evidence, primary
evidence, real evidence, secondary evidence, substantive evidence,       C
testimonial evidence, etc.
16. In addition, they supplement the evidence in proving the
existence of a fact by enhancing the degree of probability. As an
exhaustive interpretation has to be given to the word “matter”,
and for that purpose, the definition of the expression of the words      D
“means and includes”, meant to be applied for evidence, has to be
imported to that of a “matter” as well. Thus, a matter might include
such of those which do not fall within the definition of Section 3,
in the absence of any express bar.
17. What is important for the court is the conclusion on the basis       E
of existence of a fact by analysing the matters before it on the
degree of probability. The entire enactment is meant to facilitate
the court to come to an appropriate conclusion in proving a fact.
There are two methods by which the court is expected to come to
such a decision. The court can come to a conclusion on the               F
existence of a fact by merely considering the matters before it, in
forming an opinion that it does exist. This belief of the court is
based upon the assessment of the matters before it. Alternatively,
the court can consider the said existence as probable from the
perspective of a prudent man who might act on the supposition
that it exists. The question as to the choice of the options is best     G
left to the court to decide. The said decision might impinge upon
the quality of the matters before it.
18. The word “prudent” has not been defined under the Act. When
the court wants to consider the second part of the definition clause
instead of believing the existence of a fact by itself, it is expected   H
992              SUPREME COURT REPORTS                         [2023] 10 S.C.R.


A            to take the role of a prudent man. Such a prudent man has to be
             understood from the point of view of a common man. Therefore,
             a Judge has to transform into a prudent man and assess the
             existence of a fact after considering the matters through that lens
             instead of a Judge. It is only after undertaking the said exercise
             can he resume his role as a Judge to proceed further in the case.
B
             19. The aforesaid provision also indicates that the court is concerned
             with the existence of a fact both in issue and relevant, as against
             a whole testimony. Thus, the concentration is on the proof of a
             fact for which a witness is required. Therefore, a court can
             appreciate and accept the testimony of a witness on a particular
C            issue while rejecting it on others since it focuses on an issue of
             fact to be proved. However, we may hasten to add, the evidence
             of a witness as whole is a matter for the court to decide on the
             probability of proving a fact which is inclusive of the credibility of
             the witness. Whether an issue is concluded or not is also a court’s
D            domain.”
             12. If they feel no action was taken after the alleged occurrence
      and the matter was compromised as projected by the prosecution, there
      would have been other independent witnesses as well. The prosecution
      has not produced any such witness. The Courts below have not considered
E     the evidence available on record in the proper perspective. They got
      carried away by the statement made by PW6. The evidence would also
      suggest that PW4 was not willing to give his daughter in marriage to the
      appellant though he was desirous of marrying her. In fact, the First
      Information Report itself speaks about the aforesaid fact.

F           13. In view of the foregoing discussion, we have no hesitation in
      holding that the conviction and sentence rendered by the Additional
      Sessions Judge (Adhoc), Fast Track Court, Amritsar in Sessions Case
      No. 41 of 2002 as confirmed in Criminal Appeal No. S.1106 SB of 2003
      of the High Court of Punjab & Haryana require to be set aside.
      Accordingly, they are set aside and the appeal stands allowed. The
G     appellant is acquitted of all the charges. The bail bond executed stands
      discharged.

      Ankit Gyan                                                     Appeal allowed.
      (Assisted by : Aarsh Choudhary, LCRA)
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