The division judge bench of Justice B.R Gavai and Justice Pamidighantam Sri Narasimha of the apex court in the case of Khema @ Khem Chandra ETC V. State of Uttar Pradesh held that the appreciation of evidence and findings is vitiated by any error of law or procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse, this Court would not be powerless to reappreciate the evidence.
BRIEF FACTS
The factual matrix of the case is that near the residence of the accused, where the deceased Prakash and his wife were planning to issue an invitation to their relatives, all of the suspects who had been hiding inside the residence emerged brandishing weapons. After that, they started assaulting the deceased Prakash and his sister and wife also came forward to save the life of Prakash but they were also assaulted by them. On the basis of the information provided by Omveer and Inder, the FIR was lodged and the trial court convicted the appellant. Thereafter, the appeal was filed before the high court but the high court also supported the decision of the trial court. Being aggrieved thereby, the appellant has approached this hon’ble court.
The learned counsel appearing on behalf of the appellants contended that the Omveer who is projected to be an eyewitness, it is clear from his testimony that he couldn’t have witnessed the incident. Further, Inder who is said to be an injured witness also appears to be a planted witness. It was submitted that the prosecution has tried to suppress the real genesis of the incident. Even, the wife and sister of the deceased also suffered injuries but they were also not examined. At last, it was submitted that the judgment passed by the trial court and the high court is liable to be quashed and set aside.
The counsel appearing on behalf of the appellant relied on the judgments titled, ‘Jarnail Singh and Others v. the State of Punjab’, ‘Abdul Sayeed v. the State of Madhya Pradesh’, and ‘Smt. Dalbir Kaur and Others v. the State of Punjab’.
The learned counsel appearing on behalf of the state contended that Omveer and Inder are relatives of the dead, however, it cannot be used as a reason to ignore their evidence. It was further submitted that their testimonies of them are corroborated by the recovery of incriminating material on the memorandum under section 27 of the Evidence act, 1872. Lastly, it was contended that no interference should be made in the concurrent orders passed by the trial court and the high court.
COURT’S OBSERVATION
The court while relying on the judgment titled, ‘Vadivelu Thevar v. State of Madras’ observed that-
“……. Hence, in our opinion, it is a sound and wellestablished rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable
In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness if it is found to be above reproach or suspicion of interestedness, incompetence, or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.……”
The court observed that the testimony of Inder would now fall under the “neither wholly reliable nor wholly unreliable”. As such, it will be necessary that there is some corroboration to his ocular testimony.
The top court relied on the judgments titled, ‘Himachal Pradesh Administration v. Shri OmPrakash, Arunachalam v. P.S.R. Sadhanantham and 6 (1972) 1 SCC 24918 Another, Mithilesh Kumari and Another v. Prem Behari Khare, State of U.P. v. BabulNath, and Pattakkal Kunhikoya (Dead) By LRs. v. Thoopiyakkal Koya and Another.
It is been clearly seen that the trial court and the high court have failed to take into consideration the vital discrepancies and inconsistencies in the evidence of the prosecution witnesses.
The hon’ble supreme court held that from the findings of the trial court it is being clearly depicted that the Omveer can’t be said to be an eye witness. Further, even if Inder is an injured eye-witness but there have been certain discrepancies and inconsistencies in the time at which he was medically examined and even the independent witnesses were available, the prosecution has failed to examine them. Therefore, it would not be safe to base the conviction on the sole testimony of Inder though he is an injured witness. At last, the concurrent order passed by the trial court and the high court is hereby quashed and set aside.
CASE NAME- Khema @ Khem Chandra ETC V. State of Uttar Pradesh
CITATION- CRIMINAL APPEAL NOS. 1200 1202 OF 2022
DATED- AUGUST 10, 2022.
CORUM- Justice B.R Gavai and Justice Pamidighantam Sri Narasimha
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