Supreme Court of India
RAJESH YADAV & ANRversusSTATE OF U.P.
- Citation
- 2022 INSC 148
- Decided
- 4 February 2022
- Disposal
- Dismissed
- Bench
- SANJAY KISHAN KAUL
Holding
The Supreme Court upheld the High Court’s conviction under Section 25 of the Arms Act and acquittal under Section 307 IPC, finding the overall evidence sufficient despite the issues raised.
Summary
The appellants Rajesh Yadav and others were convicted for murder and for violating the Arms Act, with the High Court acquitting them of the attempt to murder charge under Section 307 IPC but confirming life imprisonment under Section 25 of the Arms Act. The Supreme Court examined whether the testimonies of related eye‑witnesses, a hostile witness, and the non‑production of an injured witness could be rejected, and whether the non‑examination of the investigating officer and alleged delays in forensic analysis vitiated the prosecution case. It held that related witnesses are not per se interested, that a hostile witness’s evidence can be relied upon if credible, and that the absence of one injured witness does not render the entire case false. The Court also ruled that the final report under Section 173 CrPC is merely an opinion and its non‑examination does not merit acquittal when other incriminating material exists. Consequently, the Supreme Court upheld the High Court’s judgment and dismissed the appeals.
Issues considered
- The credibility and admissibility of related eye‑witnesses in a murder trial
- The effect of a hostile witness turning hostile on the prosecution case
- The impact of non‑production of an injured witness on the charge under Section 307 IPC
- The evidentiary value of the final report under Section 173 CrPC and the non‑examination of the investigating officer
- The relevance of alleged delays in sending recovered arms to the forensic laboratory
- The applicability of Section 33 of the Evidence Act to incomplete cross‑examination
- The propriety of setting aside the conviction under Section 307 IPC
Legislation cited
- Arms Act, 1959s. 25
- Code of Criminal Procedure, 1973s. 173
- Indian Evidence Act, 1872s. 3, s. 33
- Indian Penal Code, 1860s. 302, s. 307
Subjects
evidence appraisalhostile witnessrelated witnesschance witnessSection 25 Arms ActSection 307 IPCforensic reportfinal report Section 173 CrPCcross‑examinationtrial adjournments
Judgment
[2022] 16 S.C.R. 967 967
RAJESH YADAV & ANR A
v.
STATE OF U.P.
(Criminal Appeal Nos. 339-340 of 2014)
FEBRUARY 04, 2022 B
[SANJAY KISHAN KAUL AND M.M. SUNDRESH, JJ.]
Penal Code 1860: ss. 302, 307 – Two persons were done to
death by bullet firing by the accused – Previous dispute between
the groups – Two eye-witness present on the spot – Recoveries made
C
from all the accused – Trial court convicted and sentenced all the
accused – High Court convicted the appellants for life, while
acquitting them for the offence charged u/s.307, with the
confirmation of conviction and sentence u/s. 25 of the Arms Act –
On appeal, held: PWs-1 & 2 have not contradicted between
themselves being the eye-witnesses – Merely because they are related D
witnesses, in the absence of any material to hold that they are
interested, their testimonies cannot be rejected – No delay in the
registration of the FIR – Nothing is said on the credibility of the
witness who turned hostile in the cross-examination in view of the
evidence of PWs -1 & 2 – High Court rightly set aside the conviction
E
rendered by the trial court for the charge u/s. 307 – Merely because
the injured witness was not produced, the entire case of the
prosecution would not become false – Entire circumstances under
which the material was collected including the cartridges, along
with the recoveries made which were sent to the expert, have been
explained by the official witnesses, there is noting unnatural in the F
testimony – No delay is found in either sending the recovered arms
to the expert or receiving the FSL report – Investigating officer
could not be produced despite the best efforts made – That per se
would not make the entire case of the prosecution bad is law
particularly when the final report itself cannot be termed as a
G
substantive piece of evidence being nothing but a collective opinion
of the investigating officer – Trial court as well as the High court
considered the evidence threadbare in coming to the right conclusion
– Material sufficient enough to implicate and prove the offence
against the appellants - Non-explanation for the existence of some
H
967
968 SUPREME COURT REPORTS [2022] 16 S.C.R.
A other empty cartridge recovered from the place of occurrence would
not facilitate an acquittal for the appellants – Thus, the judgment
passed by the High Court upheld – Arms Act – S. 25.
Evidence Act, 1972:
s. 3 – “Evidence” – Explained.
B
Appreciation of “evidence” – Explanation of – Held: While
appreciating evidence, evidence can be divided into three
categories, wholly reliable, wholly unreliable and neither wholly
reliable nor wholly unreliable – If evidence, along with matters
surrounding it, makes the court believe it is wholly reliable qua an
C issue, it can decide its existence on a degree of probability – 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 the contradictions available in other matters.
s. 33 – Relevancy of certain evidence – Held: Section 33 is
D an exception to the general rule which mandates adequate facility
for cross examining a witness– In a case where a witness after the
completion of the chief examination and while subjecting him to a
substantial and rigorous cross examination, did not choose to get
into the witness box on purpose, it is for the court to utilize the said
E evidence appropriately – Issues over which the evidence is completed
could be treated as such by the court and then proceed – Issues for
which the cross examination is not over would make the entire
examination as inadmissible.
Non-examination of witness – Effect of, on prosecution case
F – Held: 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
the adequacy of the materials sufficient enough to proceed with the
trial and convict the accused, there cannot be any prejudice – Onus
G is on the part of the party who alleges that a witness has not been
produced deliberately to prove it.
Expressions hostile witness, Chance Witness, Related and
Interested Witness – Explained.
H
RAJESH YADAV & ANR v. STATE OF UP 969
Code of Criminal Procedure, 1973 –s. 173 – Final Report – A
Evidentiary value of – Held: Final Report under Section 173 is
nothing but a piece of evidence – It forms a mere opinion of the
investigating officer on the materials collected by him – It is not
indispensable – the evidence of investigating officer is required for
corroboration and contradiction of the other material witnesses -
B
Even assuming that the investigating officer has not deposed before
the court or has not cooperated sufficiently, an accused is not entitled
for acquittal solely on that basis.
Dismissing the appeals, the Court
HELD: While appreciating the evidence, the evidence can C
be divided into three categories broadly namely, (i) wholly reliable,
(ii) wholly unreliable and (iii) neither wholly reliable nor wholly
unreliable. If evidence, along with matters surrounding it, makes
the court believe it is wholly reliable qua an issue, it can decide
its existence on a degree of probability. Similar is the case where
evidence is not believable. When evidence produced is neither D
wholly reliable nor wholly unreliable, it might require
corroboration, and in such a case, court can also take note of the
contradictions available in other matters. [Para 20][979-B-D]
1.1 The expression “hostile witness” does not find a place
in the Evidence Act. It is coined to mean testimony of a witness E
turning to depose in favour of the 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 the opposite side. Not only the specific part in
which a witness has turned hostile but the circumstances under F
which it happened can also be considered, particularly in a
situation where the chief examination was completed and there
are circumstances indicating the reasons behind the subsequent
statement, which could be deciphered by the court has to be
assessed. [Para 21][982-A-B; D-E]
G
1.2 Section 33, Evidence Act, 1872 is an exception to the
general rule which mandates adequate facility for cross examining
a witness. However, in a case where a witness after the completion
of the chief examination and while subjecting him to a substantial
H
970 SUPREME COURT REPORTS [2022] 16 S.C.R.
A and rigorous cross examination, did not choose to get into the
witness box on purpose, it is for the court to utilize the said
evidence appropriately. The issues over which the evidence is
completed could be treated as such by the court and then proceed.
Resultantly, the issues for which the cross examination is not
over would make the entire examination as inadmissible. [Para
B
24][988-G-H; 989-A]
1.3 Section 173(2) of the CrPC calls upon the investigating
officer to file his final report before the court. It being a report, is
nothing but a piece of evidence. It forms a mere opinion of the
investigating officer on the materials collected by him. He takes
C note of the offence and thereafter, conducts an investigation to
identify the offender, the truth of which can only be decided by
the court. The aforesaid conclusion would lead to the position
that the evidence of the investigating officer is not indispensable.
The evidence is required for corroboration and contradiction of
D the other material witnesses as he is the one who links and
presents them before the court. Even assuming that the
investigating officer has not deposed before the court or has not
cooperated sufficiently, an accused is not entitled for acquittal
solely on that basis, when there are other incriminating evidence
available on record. [Para 25][989-B-D]
E
1.4 A chance witness is the one who happens to be at the
place of occurrence of an offence by chance, and therefore, not
as a matter of course. In other words, he is not expected to be in
the said place. A person walking on a street witnessing the
commission of an offence can be a chance witness. Merely because
F a witness happens to see an occurrence by chance, his testimony
cannot be eschewed. A related witness cannot be termed as an
interested witness per se. One has to see the place of occurrence
along with other circumstances. A related witness can also be a
natural witness. A related witness would become an interested
G witness, only when he is desirous of implicating the accused in
rendering a conviction, on purpose. [Paras 26, 28][990-E-F;
993-C, D]
1.5 A mere non-examination of the witness per se will not
vitiate the case of the prosecution. It depends upon the quality
H
RAJESH YADAV & ANR v. STATE OF UP 971
and not the quantity of the witnesses and its importance. If the A
court is satisfied with the explanation given by the prosecution
along with 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
B
support of its case, no adverse inference can be drawn. Onus is
on the part of the party who alleges that a witness has not been
produced deliberately to prove it. [Para 31][997-B-D]
1.6 There are three eye-witnesses examined by the
prosecution. PWs-1 & 2 have not contradicted between
themselves being the eye-witnesses. Merely because they are C
related witnesses, in the absence of any material to hold that
they are interested, their testimonies cannot be rejected. There
is also no delay in the registration of the FIR. PW-3 though turned
hostile, spoke about the incident in his chief examination.
Strangely, in the cross examination he turned turtle, while D
disputing the very factum of his chief examination made before
the court. Nothing is said on the credibility of the said witness in
view of the evidence of PWs -1 & 2. The view of the courts on
this witness also deserves to be accepted. [Para 33][1000-A-C]
1.7 The High Court has rightly set aside the conviction E
rendered by the trial court for the charge under Section 307 IPC.
PWs-1 & 2 have not spoken about the presence of the injured
witness. The circumstances under which he could not be produced
was explained by the prosecution. Merely because he was not
produced, the entire case of the prosecution would not become
false. [Para 34][1000-C-D] F
1.8 The FSL report was placed on record. Both the courts
have considered and relied upon the said report. The entire
circumstances under which the material was collected including
the cartridges, along with the recoveries made which were sent
to the expert, have been explained by the official witnesses. There G
is nothing unnatural in the testimony. On a perusal of the evidence
available no delay is found in either sending the recovered arms
to the expert or receiving the FSL report. The circumstances
H
972 SUPREME COURT REPORTS [2022] 16 S.C.R.
A under which they were sent and received were spoken about and
explained. The appellants have neither shown any prejudice being
caused by the alleged delay, nor have disputed the findings of the
said report. [Paras 36, 35][1000-E-G]
1.9 The appellants submitted that the investigating officer
B could not be cross examined further with respect to the injuries
and the recoveries. That per se would not make the entire case
of the prosecution bad is law particularly when the final report
itself cannot be termed as a substantive piece of evidence being
nothing but a collective opinion of the investigating officer. The
trial court as well as the High court considered the evidence
C threadbare in coming to the right conclusion. Similarly, the
contention that there is non-explanation for the existence of some
other empty cartridge recovered from the place of occurrence
would not facilitate an acquittal for the appellants as there are
materials sufficient enough to implicate and prove the offence
D against them. [Para 37][1000-G; 1001-B-C]
1.10 This Court takes judicial note of the factual scenario
that the 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
E adjournments are being given after the completion of the chief
examination, which only helps the defense to win them over at
times, with the passage of time. Thus, this Court deems it
appropriate to reiterate that the trial courts shall endeavor to
complete the examination of the private witnesses both chief and
cross on the same day as far as possible. To further curtail this
F menace, it is expected the trial courts to take up the examination
of the private witnesses first, before proceeding with that of the
official witnesses. [Para 39][1001-E-G]
Vadivelu Thevar v State of Madras, [1957] SCR 981;
C. Muniappan v. State of T.N., (2010) 9 SCC 567:
G [2010] 10 SCR 262; Vinod Kumar v. State of Punjab
(2015) 3 SCC 220: ; Lahu Kamlakar Patil v. State of
Maharashtra, (2013) 6 SCC 417: [2015] 1 SCR 504;
State of A.P. v. K. Srinivasulu Reddy, (2003) 12 SCC
H
RAJESH YADAV & ANR v. STATE OF UP 973
660: [2003] 6 Suppl. SCR 1050; Jarnail Singh v. State A
of Punjab (2009) 9 SCC 719: [2009] 13 SCR 774;
Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591:
[2018] 4 SCR 751 ; Sarwan Singh v. State of Punjab
(1976) 4 SCC 369; Gulam Sarbar v. State of Bihar
(2014) 3 SCC 401: [2013] 12 SCR 1 – referred to.
B
Case Law Reference
[1957] SCR 981 referred to Para 20
[2010] 10 SCR 262 referred to Para 22
(2015) 3 SCC 220 referred to Para 23 C
[2015] 1 SCR 504 referred to Para 25
[2003] 6 Suppl. SCR 1050 referred to Para 26
[2009] 13 SCR 774 referred to Para 27
[2018] 4 SCR 751 referred to Para 29 D
(1976) 4 SCC 369 referred to Para 31
[2013] 12 SCR 1 referred to Para 32
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 339-340 of 2014. E
From the Judgment and Order dated 14.08.2013 of the High Court
of Judicature at Allahabad in Capital Case Nos.3152 and 3153 of 2011.
Manoj Prasad, Sr. Adv., Prakash Kumar Singh, Advs. for the
Appellants.
F
S. R. Singh, Sr. Adv., Garvesh Kabra, Vikas Bansal, Advs. for the
Respondent.
The Judgment of the Court was delivered by
M.M. SUNDRESH, J.
G
1. These 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 the Arms Act except one. Of the five accused, the High Court
H
974 SUPREME COURT REPORTS [2022] 16 S.C.R.
A 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.
BRIEF FACTS:
2. Two persons were done to death on 17.09.2004 at about 08.15
B a.m. The death was caused by multiple bullet injuries. An FIR was lodged
within an hour’s time by PW-1, who is none other than the nephew of
one of the deceased.
3. The motive for the occurrence appears to be a prolonged election
dispute between two groups. On the fateful day, two of the eye-witnesses
C were having tea. The deceased, passing the road on a two-wheeler
were waylaid by the accused also travelling in two two-wheelers. Both
the deceased died on the spot. The postmortem was done by PW-4 on
the very same date. The First Information Report (FIR) was registered
by PW-7. PW-13, 8 and 14 were the Investigating Officers. PW-13 did
D the substantial part of the investigation and on his transfer, the final report
was filed by PW-8. Pertaining to the charge under Section 25 of the
Arms Act, it was PW-14 who filed the subsequent final report.
4. Recoveries have been made from all the accused before us. In
so far as Accused No.3 is concerned, on his statement the recovery
E was made from the custody of his wife from his house.
5. The seized articles were sent to the Forensic Science
Laboratory (FSL) and a report was received. PW-10, the police constable
was the one who took the arms to the laboratory.
6. On behalf of the prosecution, 14 witness have been examined
F while marking 47 documents including the FSL report. The accused
persons let in only one witness and that too to support Accused No. 5
who is not before us.
7. PW-1 is the de facto complainant. He along with PWs-2 & 3
form the eye-witnesses to the case. PW-2 is the brother of one of the
G deceased. PW-3, who is an independent witness, turned hostile after his
deposition in chief in favour of the prosecution. PW-4 is the doctor who
conducted the postmortem and gave his opinion. The other witnesses
are the official witnesses including the three investigating officers. Of
these witnesses, PW-13 who was the one to undertake the investigation.
After elaborate chief examination followed by another detailed cross-
H
RAJESH YADAV & ANR v. STATE OF UP 975
[M.M. SUNDRESH, J.]
examination, despite efforts made by the courts including the issuance A
of non-bailable warrant, he did not turn up to depose further. One witness,
by name Om Prakash, stated to be an injured witness, has not been
examined by the prosecution on the premise that he could not be secured.
Taking note of the above, the High Court rightly acquitted the appellants
for the offence punishable under Section 307 IPC.
B
8. During the questioning by the Court under Section 313 of the
Criminal Procedure Code (CrPC), all the accused made a simple denial,
though incrementing materials- both oral and documentary, were brought
to their notice. The conviction and sentence rendered by the trial court
was modified by the High Court as aforesaid resulting in imposition of
life sentence. The High Court went into all the aspects and rendered a C
well-considered decision which is sought to be impugned before us.
SUBMISSIONS:
Submissions of the Appellants:
9. The learned counsel appearing for the appellants submitted D
that for inexplicable reasons the independent injured eye-witness, Om
Prakash was screened by the prosecution. The other two eye-witnesses
being related and chance witnesses are obviously interested in getting
convection. The evidence of PW-13 ought not to have been accepted as
he was not put to cross examination fully. If the deceased were running E
and the injuries were caused by chasing them, the cartridges could not
have been found at a particular place near their bodies instead of spreading
them over. There is a considerable delay in receiving the FSL report.
There is an unrelated cartridge recovered which creates serious suspicion
on the version of the prosecution. Reliance has been made on the
following decisions in support of the aforesaid contentions: F
Gopal Saran v. Satyanarayana, (1989) 3 SCC 56
State of Orissa v. Prasanna Kumar Mohanty, (2009) 7
SCC 412
Santa Singh v. State if Punjab, AIR 1956 SC 526 G
Anter Singh v. State of Rajasthan, (2004) 10 SCC 657
Jagir Singh v. State (Delhi Administration), 1975 Crl LJ
1009
H
976 SUPREME COURT REPORTS [2022] 16 S.C.R.
A Submissions of the State:
10. Learned counsel appearing for the State submitted that the
trial court and the High Court made adequate assessment of the materials
for coming to the conclusion. Merely because PWs-1 & 2 are the relatives
of the deceased, their testimonies cannot be disbelieved. The courts
B rightly took into consideration the evidence PW-3 though turned hostile
along with that of PW-13. The other witnesses also speak about the
investigation.
11. The report submitted by the experts would clearly indicate
that weapons recovered from the appellants were indeed used for
C committing the offence. There is no need to examine all the witnesses.
PW-13 has clearly stated the reason for his inability to produce the injured
witness, Om Prakash. In any case, the High Court has set aside the
conviction under Section 307 IPC. Hence, there is absolutely no ground
made out for interference by this Court.
D PRINCIPLES OF LAW:
Section 3 of the Evidence Act, 1872:
“3. Interpretation-clause.––In this Act the following
words and expressions are used in the following senses,
unless a contrary intention appears from the context: ––
E
xxx xxx xxx
“Evidence”. ––”Evidence” means and includes ––
(1) all statements which the Court permits or
requires to be made before it by witnesses, in
F relation to matters of fact under inquiry,
such statements are called oral evidence;
(2) [all documents including electronic records
produced for the inspection of the Court],
G such documents are called documentary
evidence.
“Proved”. –– A fact is said to be proved when, after
considering the matters before it, the Court either believes
it to exist, or considers its existence so probable that a
H
RAJESH YADAV & ANR v. STATE OF UP 977
[M.M. SUNDRESH, J.]
prudent man ought, under the circumstances of the A
particular case, to act upon the supposition that it exists.
“Disproved”. –– A fact is said to be disproved when,
after considering the matters before it, the Court either
believes that it does not exist, or considers its non-
existence so probable that a prudent man ought, under B
the circumstances of the particular case, to act upon the
supposition that it does not exist.”
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 through a logical C
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
of a mere interpretation, in effect, is the heart and soul of the entire Act. D
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, through a logical influence.
E
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 giving adequate
ammunition in the Court’s sojourn in deciphering the truth. Thus, the
definition of “matters” is exhaustive, and therefore, much wider than F
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 G
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
H
978 SUPREME COURT REPORTS [2022] 16 S.C.R.
A evidence, primary evidence, real evidence, secondary evidence,
substantive evidence, 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
B that purpose, the definition of the expression of the words “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.
C 17. What is important for the court is the conclusion on the basis
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 existence of a fact by merely considering
D 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 left to the
E 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 to take the
F 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.
G
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 issue while rejecting
H
RAJESH YADAV & ANR v. STATE OF UP 979
[M.M. SUNDRESH, J.]
it on others since it focuses on an issue of fact to be proved. However, A
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 domain.
Appreciation of Evidence: B
20. We have already indicated different classification of evidence.
While appreciating the evidence as aforesaid along with the matters
attached to it, evidence can be divided into three categories broadly
namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly
reliable nor wholly unreliable. If evidence, along with matters surrounding C
it, makes the court believe it is wholly reliable qua an issue, it can decide
its existence on a degree of probability. Similar is the 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 the contradictions available in other matters.
The aforesaid principle of law has been enunciated in the celebrated D
decision of this Court in Vadivelu Thevar v. State of Madras, 1957
SCR 981:
“In view of these considerations, we have no
hesitation in holding that the contention that in a
murder case, the court should insist upon plurality of E
witnesses, is much too broadly stated. 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, F
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. In England, both before and after the
passing of the Indian Evidence Act, 1872, there have
been a number of statutes as set out in Sarkar’s Law G
of Evidence — 9th Edn., at pp. 1100 and 1101,
forbidding convictions on the testimony of a single
witness. The Indian Legislature has not insisted on
laying down any such exceptions to the general rule
recognized in s.134 quoted above. The section H
980 SUPREME COURT REPORTS [2022] 16 S.C.R.
A enshrines the well-recognized maxim that “Evidence
has to be weighed and not counted”. Our Legislature
has given statutory recognition to the fact that
administration of justice may be hampered if a
particular number of witnesses were to be insisted
upon. It is not seldom that a crime has been
B
committed in the presence of only one witness,
leaving aside those cases which are not of
uncommon occurrence, where determination of guilt
depends entirely on circumstantial evidence. If the
Legislature were to insist upon plurality of witnesses,
C cases where the testimony of a single witness only
could be available in proof of the crime, would go
unpunished. It is here that the discretion of the
presiding judge comes into play. The matter thus must
depend upon the circumstances of each case and
the quality of the evidence of the single witness
D
whose testimony has to be either accepted or
rejected. If such a testimony is found by the court to
be entirely reliable, there is no legal impediment to
the conviction of the accused person on such proof.
Even as the guilt of an accused person may be
E proved by the testimony of a single witness, the
innocence of an accused person may be established
on the testimony of a single witness, even though a
considerable number of witnesses may be
forthcoming to testify to the truth of the case for the
prosecution. Hence, in our opinion, it is a sound and
F
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,
G namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
H
RAJESH YADAV & ANR v. STATE OF UP 981
[M.M. SUNDRESH, J.]
In the first category of proof, the court should have A
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,
B
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 C
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
D
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 E
many precedents where the court had to depend
and act upon the testimony of a single witness in
support of the prosecution. There are exceptions to
this rule, for example, in cases of sexual offences or
of the testimony of an approver; both these are cases
F
in which the oral testimony is, by its very nature,
suspect, being that of a participator in crime. But,
where there are no such exceptional reasons
operating, it becomes the duty of the court to convict,
if it is satisfied that the testimony of a single witness
is entirely reliable. We have, therefore, no reasons G
to refuse to act upon the testimony of the first
witness, which is the only reliable evidence in support
of the prosecution.”
H
982 SUPREME COURT REPORTS [2022] 16 S.C.R.
A Hostile Witness:
21. The expression “hostile witness” does not find a place in the
Indian Evidence Act. It is coined to mean testimony of a witness turning
to depose in favour of the opposite party. We must bear it in mind that a
witness may depose in favour of a party in whose favour it is meant to
B be giving through his chief examination, while later on change his view
in favour of the opposite side. Similarly, there would be cases where a
witness does not support the case of the party starting from chief
examination itself. This classification has to be borne in mind by the
Court. With respect to the first category, the Court is not denuded of its
power to make an appropriate assessment of the evidence rendered by
C such a witness. Even a chief examination could be termed as evidence.
Such evidence would become complete after the cross examination.
Once evidence is completed, the said testimony as a whole is meant for
the court to assess and appreciate qua a fact. Therefore, not only the
specific part in which a witness has turned hostile but the circumstances
D under which it happened can also be considered, particularly in a situation
where the chief examination was completed and there are circumstances
indicating the reasons behind the subsequent statement, which could be
deciphered by the court. It is well within the powers of the court to
make an assessment, being a matter before it and come to the correct
conclusion.
E
22. On the law laid down in dealing with the testimony of a witness
over an issue, we would like to place reliance on the decision of this
Court in C. Muniappan v. State of T.N., (2010) 9 SCC 567:
“81. It is settled legal proposition that:
F “6. … the evidence of a prosecution witness
cannot be rejected in toto merely because the
prosecution chose to treat him as hostile and
cross-examined him. The evidence of such
witnesses cannot be treated as effaced or
G washed off the record altogether but the same
can be accepted to the extent their version is
found to be dependable on a careful scrutiny
thereof.”
(Vide Bhagwan Singh v. State of Haryana, (1976)
1 SCC 389, Rabindra Kumar Dey v. State of Orissa,
H
RAJESH YADAV & ANR v. STATE OF UP 983
[M.M. SUNDRESH, J.]
(1976) 4 SCC 233, Syad Akbar v. State of A
Karnataka, (1980) 1 SCC 30 and Khujji v. State of
M.P., (1991) 3 SCC 627, SCC p. 635, para 6.)
82. In State of U.P. v. Ramesh Prasad Misra
[(1996) 10 SCC 360: 1996 SCC (Cri) 1278] this Court
held that (at SCC p. 363, para 7) evidence of a hostile B
witness would not be totally rejected if spoken in
favour of the prosecution or the accused but required
to be subjected to close scrutiny and that portion of
the evidence which is consistent with the case of
the prosecution or defence can be relied upon. A
similar view has been reiterated by this Court in Balu C
Sonba Shinde v. State of Maharashtra [(2002) 7
SCC 543: 2003 SCC (Cri) 112], Gagan Kanojia v.
State of Punjab [(2006) 13 SCC 516: (2008) 1 SCC
(Cri) 109], Radha Mohan Singh v. State of U.P.
[(2006) 2 SCC 450: (2006) 1 SCC (Cri) 661], D
Sarvesh Narain Shukla v. Daroga Singh [(2007)
13 SCC 360: (2009) 1 SCC (Cri) 188] and Subbu
Singh v. State [(2009) 6 SCC 462: (2009) 2 SCC
(Cri) 1106].
83. Thus, the law can be summarised to the effect E
that the evidence of a hostile witness cannot be
discarded as a whole, and relevant parts thereof
which are admissible in law, can be used by the
prosecution or the defence.
84. In the instant case, some of the material witnesses F
i.e. B. Kamal (PW 86) and R. Maruthu (PW 51)
turned hostile. Their evidence has been taken into
consideration by the courts below strictly in
accordance with law. Some omissions, improvements
in the evidence of the PWs have been pointed out
by the learned counsel for the appellants, but we G
find them to be very trivial in nature.
85. It is settled proposition of law that even if there
are some omissions, contradictions and discrepancies,
the entire evidence cannot be disregarded. After
H
984 SUPREME COURT REPORTS [2022] 16 S.C.R.
A 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
B
and discrepancies which do not go to the heart of
the matter and shake the basic version of the
prosecution’s witness. As the mental abilities of a
human being cannot be expected to be attuned to
absorb all the details of the incident, minor
C discrepancies are bound to occur in the statements
of witnesses.”
Vide Sohrab v. State of M.P., [(1972] 3 SCC 751 :
(1972) SCC (Cri) 819 : AIR 1972 SC 2020], State
of U.P. v. M.K. Anthony, [(1985) 1 SCC 505 : 1985
D SCC (Cri) 105], Bharwada Bhoginbhai Hirjibhai
v. Sate of Gujrat, [(1983) 3 SCC 217 : 1983 SCC
(Cri) 728 : AIR 1983 SC 753], State of Rajasthan
v. Om Prakash, [(2007) 12 SCC 381 : (2008) 1 SCC
(Cri) 411], Prithu v. State of H.P., [(2009) 11 SCC
585 : (2009) 3 SCC (Cri) 1502], State of U.P. v.
E Santosh Kumar, [(2009) 9 SCC 626 : (2010) 1 SCC
(Cri) 88] and State v. Saravanan, [(2008) 17 SCC
587 : (2010) 4 SCC (Cri) 580].
23. This Court in Vinod Kumar v. State of Punjab, (2015) 3
SCC 220 had already dealt with a situation where a witness after
F rendering testimony in line with the prosecution’s version, completely
abandoned it, in view of the long adjournments given permitting an act of
manoeuvring. While taking note of such situations occurring with
regularity, it expressed its anguish and observed that:
“51. It is necessary, though painful, to note that PW
G 7 was examined-in-chief on 30-9-1999 and was
cross-examined on 25-5-2001, almost after 1 year
and 8 months. The delay in said cross-examination,
as we have stated earlier had given enough time for
prevarication due to many a reason. A fair trial is to
H be fair both to the defence and the prosecution as
RAJESH YADAV & ANR v. STATE OF UP 985
[M.M. SUNDRESH, J.]
well as to the victim. An offence registered under A
the Prevention of Corruption Act is to be tried with
all seriousness. We fail to appreciate how the learned
trial Judge could exhibit such laxity in granting so
much time for cross-examination in a case of this
nature. It would have been absolutely appropriate
B
on the part of the learned trial Judge to finish the
cross-examination on the day the said witness was
examined. As is evident, for no reason whatsoever
it was deferred and the cross-examination took place
after 20 months. The witness had all the time in the
world to be gained over. We have already opined C
that he was declared hostile and re-examined.
52. It is settled in law that the testimony of a hostile
witness can be relied upon by the prosecution as
well as the defence. In re-examination by the Public
Prosecutor, PW 7 has accepted about the D
correctness of his statement in the court on 13-9-
1999. He has also accepted that he had not made
any complaint to the Presiding Officer of the court
in writing or verbally that the Inspector was
threatening him to make a false statement in the
court. It has also been accepted by him that he had E
given the statement in the court on account of fear
of false implication by the Inspector. He has agreed
to have signed his statement dated 13-9-1999 after
going through and admitting it to be correct. It has
come in the re-examination that PW 7 had not stated F
in his statement dated 13-9-1999 in the court that
recovery of tainted money was not effected in his
presence from the accused or that he had been told
by the Inspector that amount has been recovered
from the accused. He had also not stated in his said
statement that the accused and witnesses were taken G
to the Tehsil and it was there that he had signed all
the memos.
53. Reading the evidence in entirety, PW 7’s
evidence cannot be brushed aside. The delay in cross-
H
986 SUPREME COURT REPORTS [2022] 16 S.C.R.
A examination has resulted in his prevarication from
the examination-in-chief. But, a significant one, his
examination-in-chief and the re-examination impels
us to accept the testimony that he had gone into the
octroi post and had witnessed about the demand and
acceptance of money by the accused. In his cross-
B
examination he has stated that he had not gone with
Baj Singh to the Vigilance Department at any time
and no recovery was made in his presence. The
said part of the testimony, in our considered view,
does not commend acceptance in the backdrop of
C entire evidence in examination-in-chief and the re-
examination.
xxx xxx xxx
57. Before parting with the case we are constrained
to reiterate what we have said in the beginning. We
D have expressed our agony and anguish for the
manner in which trials in respect of serious offences
relating to corruption are being conducted by the
trial courts:
57.1. Adjournments are sought on the drop of a hat
E by the counsel, even though the witness is present
in court, contrary to all principles of holding a trial.
That apart, after the examination-in-chief of a
witness is over, adjournment is sought for cross-
examination and the disquieting feature is that the
F trial courts grant time. The law requires special
reasons to be recorded for grant of time but the same
is not taken note of.
57.2. As has been noticed earlier, in the instant case
the cross-examination has taken place after a year
G and 8 months allowing ample time to pressurise the
witness and to gain over him by adopting all kinds of
tactics.
57.3. There is no cavil over the proposition that there
has to be a fair and proper trial but the duty of the
court while conducting the trial is to be guided by
H
RAJESH YADAV & ANR v. STATE OF UP 987
[M.M. SUNDRESH, J.]
the mandate of the law, the conceptual fairness and A
above all bearing in mind its sacrosanct duty to arrive
at the truth on the basis of the material brought on
record. If an accused for his benefit takes the trial
on the path of total mockery, it cannot be
countenanced. The court has a sacred duty to see
B
that the trial is conducted as per law. If adjournments
are granted in this manner it would tantamount to
violation of the rule of law and eventually turn such
trials to a farce. It is legally impermissible and
jurisprudentially abominable. The trial courts are
expected in law to follow the command of the C
procedure relating to trial and not yield to the request
of the counsel to grant adjournment for non-
acceptable reasons.
57.4. In fact, it is not at all appreciable to call a
witness for cross-examination after such a long span D
of time. It is imperative if the examination-in-chief
is over, the cross-examination should be completed
on the same day. If the examination of a witness
continues till late hours the trial can be adjourned to
the next day for cross-examination. It is inconceivable
in law that the cross-examination should be deferred E
for such a long time. It is anathema to the concept
of proper and fair trial.
57.5. The duty of the court is to see that not only the
interest of the accused as per law is protected but
also the societal and collective interest is F
safeguarded. It is distressing to note that despite
series of judgments of this Court, the habit of granting
adjournment, really an ailment, continues. How long
shall we say, “Awake! Arise!”. There is a constant
discomfort. Therefore, we think it appropriate that G
the copies of the judgment be sent to the learned
Chief Justices of all the High Courts for circulating
the same among the learned trial Judges with a
command to follow the principles relating to trial in
a requisite manner and not to defer the cross-
H
988 SUPREME COURT REPORTS [2022] 16 S.C.R.
A examination of a witness at their pleasure or at the
leisure of the defence counsel, for it eventually
makes the trial an apology for trial and compels the
whole society to suffer chicanery. Let it be
remembered that law cannot allowed to be lonely; a
destitute.”
B
Section 33 of the Indian Evidence Act:
“33. Relevancy of certain evidence for proving,
in subsequent proceeding, the truth of facts
therein stated.—Evidence given by a witness in a
C judicial proceeding, or before any person authorized
by law to take it, is relevant for the purpose of
proving, in a subsequent judicial proceeding, or in a
later stage of the same judicial proceeding, the truth
of the facts which it states, when the witness is dead
or cannot be found, or is incapable of giving evidence,
D or is kept out of the way by the adverse party, or if
his presence cannot be obtained without an amount
of delay or expense which, under the circumstances
of the case, the Court considers unreasonable:
Provided— that the proceeding was between the
E same parties or their representatives in interest; that
the adverse party in the first proceeding had the right
and opportunity to cross-examine; that the questions
in issue were substantially the same in the first as in
the second proceeding.
F Explanation—A criminal trial or inquiry shall be
deemed to be a proceeding between the prosecutor
and the accused within the meaning of this section.”
24. Section 33 is an exception to the general rule which mandates
adequate facility for cross examining a witness. However, in a case
G where a witness after the completion of the chief examination and while
subjecting him to a substantial and rigorous cross examination, did not
choose to get into the witness box on purpose, it is for the court to utilize
the said evidence appropriately. The issues over which the evidence is
completed could be treated as such by the court and then proceed.
Resultantly, the issues for which the cross examination is not over would
H
RAJESH YADAV & ANR v. STATE OF UP 989
[M.M. SUNDRESH, J.]
make the entire examination as inadmissible. Ultimately, it is for the A
court to decide the aforesaid aspect.
Evidentiary Value of a Final Report:
25. Section 173(2) of the CrPC calls upon the investigating officer
to file his final report before the court. It being a report, is nothing but a
piece of evidence. It forms a mere opinion of the investigating officer on B
the materials collected by him. He takes note of the offence and thereafter,
conducts an investigation to identify the offender, the truth of which can
only be decided by the court. The aforesaid conclusion would lead to the
position that the evidence of the investigating officer is not indispensable.
The evidence is required for corroboration and contradiction of the other C
material witnesses as he is the one who links and presents them before
the court. Even assuming that the investigating officer has not deposed
before the court or has not cooperated sufficiently, an accused is not
entitled for acquittal solely on that basis, when there are other
incriminating evidence available on record. In Lahu Kamlakar Patil v.
State of Maharashtra, (2013) 6 SCC 417, this Court held: D
“18. Keeping in view the aforesaid position of law,
the testimony of PW 1 has to be appreciated. He
has admitted his signature in the FIR but has given
the excuse that it was taken on a blank paper. The
same could have been clarified by the investigating E
officer, but for some reason, the investigating officer
has not been examined by the prosecution. It is an
accepted principle that non-examination of the
investigating officer is not fatal to the prosecution
case. In Behari Prasad v. State of Bihar [(1996) F
2 SCC 317: 1996 SCC (Cri) 271], this Court has
stated that non-examination of the investigating
officer is not fatal to the prosecution case, especially,
when no prejudice is likely to be suffered by the
accused. In Bahadur Naik v. State of
Bihar [(2000) 9 SCC 153: 2000 SCC (Cri) 1186] , it G
has been opined that when no material contradictions
have been brought out, then non-examination of the
investigating officer as a witness for the prosecution
is of no consequence and under such circumstances,
no prejudice is caused to the accused. It is worthy H
990 SUPREME COURT REPORTS [2022] 16 S.C.R.
A to note that neither the trial Judge nor the High Court
has delved into the issue of non-examination of the
investigating officer. On a perusal of the entire
material brought on record, we find that no
explanation has been offered. The present case is
one where we are inclined to think so especially when
B
the informant has stated that the signature was taken
while he was in a drunken state, the panch witness
had turned hostile and some of the evidence adduced
in the court did not find place in the statement
recorded under Section 161 of the Code. Thus, this
C Court in Arvind Singh v. State of Bihar, [(2001) 6
SCC 407: 2001 SCC (Cri) 1148], Rattanlal v. State
of J&K [(2007) 13 SCC 18: (2009) 2 SCC (Cri)
349] and Ravishwar Manjhi v. State of
Jharkhand [(2008) 16 SCC 561: (2010) 4 SCC (Cri)
50], has explained certain circumstances where the
D
examination of investigating officer becomes vital.
We are disposed to think that the present case is
one where the investigating officer should have been
examined and his non-examination creates a lacuna
in the case of the prosecution.”
E Chance Witness:
26. A chance witness is the one who happens to be at the place of
occurrence of an offence by chance, and therefore, not as a matter of
course. In other words, he is not expected to be in the said place. A
person walking on a street witnessing the commission of an offence can
F be a chance witness. Merely because a witness happens to see an
occurrence by chance, his testimony cannot be eschewed though a little
more scrutiny may be required at times. This again is an aspect which is
to be looked into in a given case by the court. We do not wish to reiterate
the aforesaid position of law which has been clearly laid down by this
G Court in State of A.P. v. K. Srinivasulu Reddy, (2003) 12 SCC 660:
“12. Criticism was levelled against the evidence of
PWs 4 and 9 who are independent witnesses by
labelling them as chance witnesses. The criticism
about PWs 4 and 9 being chance witnesses is also
H without any foundation. They have clearly explained
RAJESH YADAV & ANR v. STATE OF UP 991
[M.M. SUNDRESH, J.]
as to how they happened to be at the spot of A
occurrence and the trial court and the High Court
have accepted the same.
13. Coming to the plea of the accused that PWs 4
and 9 were “chance witnesses” who have not
explained how they happened to be at the alleged B
place of occurrence, it has to be noted that the said
witnesses were independent witnesses. There was
not even a suggestion to the witnesses that they had
any animosity towards any of the accused. In a
murder trial by describing the independent witnesses
as “chance witnesses” it cannot be implied thereby C
that their evidence is suspicious and their presence
at the scene doubtful. Murders are not committed
with previous notice to witnesses; soliciting their
presence. If murder is committed in a dwelling
house, the inmates of the house are natural witnesses. D
If murder is committed in a street, only passers-by
will be witnesses. Their evidence cannot be brushed
aside or viewed with suspicion on the ground that
they are mere “chance witnesses”. The expression
“chance witness” is borrowed from countries where
every man’s home is considered his castle and E
everyone must have an explanation for his presence
elsewhere or in another man’s castle. It is quite
unsuitable an expression in a country where people
are less formal and more casual, at any rate in the
matter explaining their presence.” F
27. The principle was reiterated by this court in Jarnail Singh v.
State of Punjab, (2009) 9 SCC 719:
“21. In Sachchey Lal Tiwari v. State of
U.P. [(2004) 11 SCC 410: 2004 SCC (Cri) Supp 105]
this Court while considering the evidentiary value of G
the chance witness in a case of murder which had
taken place in a street and a passerby had deposed
that he had witnessed the incident, observed as
under:
H
992 SUPREME COURT REPORTS [2022] 16 S.C.R.
A If the offence is committed in a street only a
passerby will be the witness. His evidence
cannot be brushed aside lightly or viewed with
suspicion on the ground that he was a mere
chance witness. However, there must be an
explanation for his presence there.
B
The Court further explained that the expression
“chance witness” is borrowed from countries where
every man’s home is considered his castle and
everyone must have an explanation for his presence
elsewhere or in another man’s castle. It is quite
C unsuitable an expression in a country like India where
people are less formal and more casual, at any rate
in the matter of explaining their presence.
22. The evidence of a chance witness requires a
very cautious and close scrutiny and a chance
D witness must adequately explain his presence at the
place of occurrence (Satbir v. Surat Singh [(1997)
4 SCC 192: 1997 SCC (Cri) 538], Harjinder
Singh v. State of Punjab [(2004) 11 SCC 253: 2004
SCC (Cri) Supp 28], Acharaparambath
E Pradeepan v. State of Kerala [(2006) 13 SCC 643:
(2008) 1 SCC (Cri) 241] and Sarvesh Narain
Shukla v. Daroga Singh [(2007) 13 SCC 360:
(2009) 1 SCC (Cri) 188]). Deposition of a chance
witness whose presence at the place of incident
remains doubtful should be discarded
F (vide Shankarlal v. State of Rajasthan [(2004) 10
SCC 632: 2005 SCC (Cri) 579]).
23. Conduct of the chance witness, subsequent to
the incident may also be taken into consideration
particularly as to whether he has informed anyone
G else in the village about the incident
(vide Thangaiya v. State of T.N. [(2005) 9 SCC 650:
2005 SCC (Cri) 1284]). Gurcharan Singh (PW 18)
met the informant Darshan Singh (PW 4) before
lodging the FIR and the fact of conspiracy was not
H disclosed by Gurcharan Singh (PW 18) and Darshan
RAJESH YADAV & ANR v. STATE OF UP 993
[M.M. SUNDRESH, J.]
Singh (PW 4). The fact of conspiracy has not been A
mentioned in the FIR. Hakam Singh, the other
witness on this issue has not been examined by the
prosecution. Thus, the High Court was justified in
discarding the part of the prosecution case relating
to conspiracy. However, in the fact situation of the
B
present case, acquittal of the said two co-accused
has no bearing, so far as the present appeal is
concerned.”
Related and Interested Witness:
28. A related witness cannot be termed as an interested witness C
per se. One has to see the place of occurrence along with other
circumstances. A related witness can also be a natural witness. If an
offence is committed within the precincts of the deceased, the presence
of his family members cannot be ruled out, as they assume the position
of natural witnesses. When their evidence is clear, cogent and withstood
the rigor of cross examination, it becomes sterling, not requiring further D
corroboration. A related witness would become an interested witness,
only when he is desirous of implicating the accused in rendering a
conviction, on purpose.
29. When the court is convinced with the quality of the evidence
produced, notwithstanding the classification as quoted above, it becomes E
the best evidence. Such testimony being natural, adding to the degree of
probability, the court has to make reliance upon it in proving a fact. The
aforesaid position of law has been well laid down in Bhaskarrao v.
State of Maharashtra, (2018) 6 SCC 591:
“32. Coming back to the appreciation of the evidence F
at hand, at the outset, our attention is drawn to the
fact that the witnesses were interrelated, and this
Court should be cautious in accepting their
statements. It would be beneficial to recapitulate the
law concerning the appreciation of evidence of G
related witness. In Dalip Singh v. State of Punjab,
1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465],
Vivian Bose, J. for the Bench observed the law as
under: (AIR p. 366, para 26)
H
994 SUPREME COURT REPORTS [2022] 16 S.C.R.
A “26. A witness is normally to be considered
independent unless he or she springs from
sources which are likely to be tainted and that
usually means unless the witness has cause,
such as enmity against the accused, to wish to
implicate him falsely. Ordinarily, a close relative
B
would be the last to screen the real culprit and
falsely implicate an innocent person. It is true,
when feelings run high and there is personal
cause for enmity, that there is a tendency to
drag in an innocent person against whom a
C witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and
the mere fact of relationship far from being a
foundation is often a sure guarantee of truth.
However, we are not attempting any sweeping
generalisation. Each case must be judged on its
D
own facts. Our observations are only made to
combat what is so often put forward in cases
before us as a general rule of prudence. There
is no such general rule. Each case must be
limited to and be governed by its own facts.”
E
33. In Masalti v. State of U.P., (1964) 8 SCR 133 :
AIR 1965 SC 202 : (1965) 1 Cri LJ 226] , a five-
Judge Bench of this Court has categorically observed
as under: (AIR pp. 209-210, para 14)
F
“14. … There is no doubt that when a
criminal court has to appreciate evidence
given by witnesses who are partisan or
interested, it has to be very careful in
weighing such evidence. Whether or not there
G are discrepancies in the evidence; whether
or not the evidence strikes the court as
genuine; whether or not the story disclosed
by the evidence is probable, are all matters
which must be taken into account. But it
H would, we think, be unreasonable to contend
RAJESH YADAV & ANR v. STATE OF UP 995
[M.M. SUNDRESH, J.]
that evidence given by witnesses should be A
discarded only on the ground that it is
evidence of partisan or interested witnesses.
Often enough, where factions prevail in
villages and murders are committed as a
result of enmity between such factions,
B
criminal courts have to deal with evidence
of a partisan type. The mechanical rejection
of such evidence on the sole ground that it
is partisan would invariably lead to failure
of justice. No hard-and-fast rule can be laid
down as to how much evidence should be C
appreciated. Judicial approach has to be
cautious in dealing with such evidence; but the
plea that such evidence should be rejected
because it is partisan cannot be accepted as
correct.”
D
34. In Darya Singh v. State of Punjab [(1964) 3
SCR 397 : AIR 1965 SC 328 : (1965) 1 Cri LJ 350]
, this Court held that evidence of an eyewitness who
is a near relative of the victim, should be closely
scrutinised but no corroboration is necessary for
acceptance of his evidence. In Harbans Kaur v. E
State of Haryana [(2005) 9 SCC 195 : 2005 SCC
(Cri) 1213 : 2005 Cri LJ 2199] , this Court observed
that: (SCC p. 227, para 6)
“6. There is no proposition in law that relatives
are to be treated as untruthful witnesses. On F
the contrary, reason has to be shown when a
plea of partiality is raised to show that the
witnesses had reason to shield actual culprit and
falsely implicate the accused.”
35. The last case we need to concern ourselves is G
Namdeo v. State of Maharashtra [(2007) 14 SCC
150 : (2009) 1 SCC (Cri) 773] , wherein this Court
after observing previous precedents has summarised
the law in the following manner: : (SCC p. 164, para
38) H
996 SUPREME COURT REPORTS [2022] 16 S.C.R.
A “38. … it is clear that a close relative cannot be
characterised as an “interested” witness. He is
a “natural” witness. His evidence, however,
must be scrutinised carefully. If on such scrutiny,
his evidence is found to be intrinsically reliable,
inherently probable and wholly trustworthy,
B
conviction can be based on the “sole” testimony
of such witness. Close relationship of witness
with the deceased or victim is no ground to reject
his evidence. On the contrary, close relative of
the deceased would normally be most reluctant
C to spare the real culprit and falsely implicate an
innocent one.”
36. From the study of the aforesaid precedents of
this Court, we may note that whoever has been a
witness before the court of law, having a strong
D interest in result, if allowed to be weighed in the
same scales with those who do not have any interest
in the result, would be to open the doors of the court
for perverted truth. This sound rule which remains
the bulwark of this system, and which determines
the value of evidence derived from such sources,
E needs to be cautiously and carefully observed and
enforced. There is no dispute about the fact that the
interest of the witness must affect his testimony is a
universal truth. Moreover, under the influence of bias,
a man may not be in a position to judge correctly,
F even if they earnestly desire to do so. Similarly, he
may not be in a position to provide evidence in an
impartial manner, when it involves his interest. Under
such influences, man will, even though not
consciously, suppress some facts, soften or modify
others, and provide favourable colour. These are most
G controlling considerations in respect to the credibility
of human testimony, and should never be overlooked
in applying the rules of evidence and determining its
weight in the scale of truth under the facts and
circumstances of each case.”
H
RAJESH YADAV & ANR v. STATE OF UP 997
[M.M. SUNDRESH, J.]
30. Once again, we reiterate with a word of caution, the trial A
court is the best court to decide on the aforesaid aspect as no mathematical
calculation or straightjacket formula can be made on the assessment of
a witness, as the journey towards the truth can be seen better through
the eyes of the trial judge. In fact, this is the real objective behind the
enactment itself which extends the maximum discretion to the court.
B
Non-examination of witness:
31. 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 the adequacy of the C
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 the party who alleges that a witness has not been
produced deliberately to prove it. The aforesaid settled principle of law D
has been laid down in Sarwan Singh v. State of Punjab, (1976) 4
SCC 369:
“13. Another circumstance which appears to have
weighed heavily with the Additional Sessions Judge
was that no independent witness of Salabatpura had E
been examined by the prosecution to prove the
prosecution case of assault on the deceased, although
the evidence shows that there were some persons
living in that locality like the ‘pakodewalla’,
hotelwalla, shopkeeper and some of the passengers F
who had alighted at Salabatpura with the deceased.
The Additional Sessions Judge has drawn an adverse
inference against the prosecution for its failure to
examine any of those witnesses. Mr Hardy has
adopted this argument. In our opinion the comments
of the Additional Sessions Judge are based on G
serious misconception of the correct legal position.
The onus of proving the prosecution case rests
entirely on the prosecution and it follows as a logical
corollary that the prosecution has complete liberty
to choose its witnesses if it is to prove its case. The H
998 SUPREME COURT REPORTS [2022] 16 S.C.R.
A court cannot compel the prosecution to examine one
witness or the other as its witness. At the most, if a
material witness is withheld, the court may draw an
adverse inference against the prosecution. But it is
not the law that the omission to examine any and
every witness even on minor points would
B
undoubtedly lead to rejection of the prosecution case
or drawing of an adverse inference against the
prosecution. The law is well-settled that the
prosecution is bound to produce only such witnesses
as are essential for unfolding of the prosecution
C narrative. In other words, before an adverse
inference against the prosecution can be drawn it
must be proved to the satisfaction of the court that
the witnesses who had been withheld were
eyewitnesses who had actually seen the occurrence
and were therefore material to prove the case. It is
D
not necessary for the prosecution to multiply
witnesses after witnesses on the same point; it is
the quality rather than the quantity of the evidence
that matters. In the instant case, the evidence of the
eyewitnesses does not suffer from any infirmity or
E any manifest defect on its intrinsic merit. Secondly,
there is nothing to show that at the time when the
deceased was assaulted a large crowd had gathered
and some of the members of the crowd had actually
seen the occurrence and were cited as witnesses
for the prosecution and then withheld. We must not
F
forget that in our country there is a general tendency
amongst the witnesses in mofussil to shun giving
evidence in courts because of the cumbersome and
dilatory procedure of our courts, the harassment to
which they are subjected by the police and the
G searching cross-examination which they have to face
before the courts. Therefore nobody wants to be a
witness in a murder or in any serious offence if he
can avoid it. Although the evidence does show that
four or five persons had alighted from the bus at the
time when the deceased and his companions got
H
RAJESH YADAV & ANR v. STATE OF UP 999
[M.M. SUNDRESH, J.]
down from the bus, yet there is no suggestion that A
any of those persons stayed on to witness the
occurrence. They may have proceeded to their
village homes…”
(Emphasis supplied)
32. This Court has reiterated the aforesaid principle in Gulam B
Sarbar v. State of Bihar, (2014) 3 SCC 401:
“19. In the matter of appreciation of evidence of
witnesses, it is not the number of witnesses but quality
of their evidence which is important, as there is no
requirement under the Law of Evidence that any C
particular number of witnesses is to be examined to
prove/disprove a fact. It is a time-honoured principle
that evidence must be weighed and not counted. The
test is whether the evidence has a ring of truth, is
cogent, credible and trustworthy or otherwise. The D
legal system has laid emphasis on value provided by
each witness, rather than the multiplicity or plurality
of witnesses. It is quality and not quantity, which
determines the adequacy of evidence as has been
provided by Section 134 of the Evidence Act. Even
in probate cases, where the law requires the E
examination of at least one attesting witness, it has
been held that production of more witnesses does
not carry any weight. Thus, conviction can even be
based on the testimony of a sole eyewitness, if the
same inspires confidence. (Vide Vadivelu F
Thevar v. State of Madras [AIR 1957 SC 614: 1957
Cri LJ 1000] , Kunju v. State of T.N. [(2008) 2 SCC
151: (2008) 1 SCC (Cri) 331] , Bipin Kumar
Mondal v. State of W.B. [(2010) 12 SCC 91: (2011)
2 SCC (Cri) 150 : AIR 2010 SC 3638]
, Mahesh v. State of M.P. [(2011) 9 SCC 626 : (2011) G
3 SCC (Cri) 783], Prithipal Singh v. State of
Punjab [(2012) 1 SCC 10 : (2012) 1 SCC (Cri) 1]
and Kishan Chand v. State of Haryana [(2013) 2
SCC 502 : (2013) 2 SCC (Cri) 807: JT (2013) 1 SC
222].)” H
1000 SUPREME COURT REPORTS [2022] 16 S.C.R.
A ON FACTS:
33. There are three eye-witnesses examined by the prosecution.
We find PWs-1 & 2 have not contradicted between themselves being
the eye-witnesses. Merely because they are related witnesses, in the
absence of any material to hold that they are interested, their testimonies
B cannot be rejected. There is also no delay in the registration of the FIR.
PW-3 though turned hostile, spoke about the incident in his chief
examination. Strangely, in the cross examination he turned turtle, while
disputing the very factum of his chief examination made before the court.
We do not wish to say anything on the credibility of the said witness in
view of the evidence of PWs -1 & 2. The view of the courts on this
C witness also deserves to be accepted.
34. The High Court has rightly set aside the conviction rendered
by the trial court for the charge under Section 307 IPC. PWs-1 & 2
have not spoken about the presence of the injured witness, Om Prakash.
The circumstances under which he could not be produced was explained
D by the prosecution. Merely because he was not produced, the entire
case of the prosecution would not become false.
35. The FSL report was placed on record. Both the courts have
considered and relied upon the said report. The entire circumstances
under which the material was collected including the cartridges, along
E with the recoveries made which were sent to the expert, have been
explained by the official witnesses. We do not find anything unnatural in
the testimony.
36. On a perusal of the evidence available we do not find any
delay in either sending the recovered arms to the expert or receiving the
F FSL report. The circumstances under which they were sent and received
were spoken about and explained. The appellants have neither shown
any prejudice being caused by the alleged delay, nor have disputed the
findings of the said report.
37. The learned counsel appearing for the appellants submitted
G that the investigating officer could not be cross examined further with
respect to the injuries and the recoveries. We find that evidence was
also let in to that extent along with the cross-examination. The High
Court has considered this aspect in the correct perspective. It is very
unfortunate that the investigating officer could not be produced despite
the best efforts made. The reason is obvious. There are three investigating
H
RAJESH YADAV & ANR v. STATE OF UP 1001
[M.M. SUNDRESH, J.]
officers. The other two investigating officers have been examined A
including for the charge under the Arms Act. PW-13, the first investigating
officer, has been examined in extenso during cross examination. It is
only for the further examination he turned turtle. That per se would not
make the entire case of the prosecution bad is law particularly when the
final report itself cannot be termed as a substantive piece of evidence
B
being nothing but a collective opinion of the investigating officer. The
trial court as well as the High court considered the evidence threadbare
in coming to the right conclusion. Similarly, the contention that there is
non-explanation for the existence of some other empty cartridge recovered
from the place of occurrence would not facilitate an acquittal for the
appellants as there are materials sufficient enough to implicate and prove C
the offence against them.
38. Thus, on the aforesaid conclusion arrived at, we are in
conformity with the well merited judgment of the High court. The appeals
stand dismissed.
39. Before we part with this case, we are constrained to record D
our anguish on the deliberate attempt to derail the quest for justice. 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. Notwithstanding the above stated directions issued by this court E
in Vinod Kumar (supra), we take judicial note of the factual scenario
that the 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 the completion of the chief examination, which only helps the
defense to win them over at times, with the passage of time. Thus, we F
deem it appropriate to reiterate that the trial courts shall endeavor to
complete the examination of the private witnesses both chief and cross
on the same day as far as possible. To further curtail this menace, we
would expect the trial courts to take up the examination of the private
witnesses first, before proceeding with that of the official witnesses. A G
copy of this judgment shall be circulated to all the trial courts, to be
facilitated through the respective High Courts.
Nidhi Jain and Anurag Bhaskar Appeals dismissed.
(Assisted by : Vrinda Singh, LCRA) H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "evidence appraisal"Sign in to search