The Supreme Court has laid down principles for appreciation of ocular evidence in a criminal case.
In this case the accused was convicted by the trail court, Mumbai, of the offence of murder punishable under Section 302 of the Indian Penal Code,1860 (IPC). The accused filed the Criminal Appeal before the High Court. The High Court dismissed the Appeal and thereby affirmed the judgment and order of conviction passed by the Trail Court. The accused then filed the Appeal before the Supreme Court, by special leave.
Brief Facts of the Case
The deceased and the appellant herein were working as labourers at various places in the Vile Parle area, Mumbai & were known to each other. The deceased along with the other labourers used to sleep underneath or on the bridge situated near the Vile Parle Railway Station. There is also one Hanuman Temple situated near the bridge of the Vile Parle Railway Station. The original first informant Nandlal Ramnihor Mishra was the priest of the Hanuman Temple. Nandlal used to reside in a hut nearby the Temple. On the day of a quarrel ensued between the appellant and the deceased
on account of money. This quarrel took place near the ticket window of the Vile Parle Railway Station. The quarrel between the two was witnessed by the Nandlal. At about 12:00 to 12:15 A.M. while the deceased , the Udaysingh and others were sleeping on the bridge near the temple, the Nandlal heard a noise .No sooner he heard the noise than he woke up and tried to see what was happening.
The Nandlal saw the appellant assaulting the deceased with a hammer on his head. The assault on the deceased by the appellant herein was also witnessed by Udaysingh who was sleeping nearby the deceased. After the assault the appellant walked away from the place of the incident holding the hammer in his hand. Nandlal is said to have asked the appellant while he was walking away whether he had killed Mahankal (deceased).
Supreme Court's Observation
The apex court observed that the only question before them is whether the High Court committed any error in passing the impugned judgment and order It is now well settled that the power of the Court under Article 136 of the Constitution of India is exercisable even in cases of concurrent findings of fact and such powers are very wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances.
The court have mentioned few cases regarding this matter –
State of Madras v. A. Vaidyanatha Iyer, (1958)
H.P. Admn. v. Om Prakash, (1972)
Balak Ram v. State of U.P., (1975)
Nain Singh v. State of U.P., (1991) .
From the aforesaid decisions of this court on the exercise of power of the Supreme Court under Article 136 of the Constitution, the following principles emerge:
(i) The powers of this Court under Article 136 of the Constitution are very wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances
(ii) It is open to this Court to interfere with the findings of fact recorded by the High Court if the High Court has acted perversely or otherwise improperly.
(iii) It is open to this Court to invoke the power under Article 136 only in very exceptional circumstances as and when a question of law of general public importance arises or a decision shocks the conscience of the Court.
(iv) When the evidence adduced by the prosecution falls short of the test of reliability and acceptability and as such it is highly unsafe to act upon it.
(v) Where the appreciation of evidence and finding is vitiated by any error of law of 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 and unsupportable from the evidence on record.
Keeping the aforesaid principles in mind, the court proceeded to scrutinize the materials on record for this case.
The court did not find anything improbable in the examination- in-chief of Nandlal (prosecution witness) more particularly considering a very scant & deficient cross-examination. The court took a
notice of the fact that except a minor contradiction in the form of an omission, nothing substantial could be elicited from the cross examination of Nandlal so as to render his entire evidence doubtful.
So far as the evidence of udaysingh ( prosecution witness ) who is an eye witness of the incident. The court pointed out that the defence has been able to bring on record a major contradiction in the
form of an omission as Udaysingh in his police statement recorded under Section 161 of the Cr.PC had not stated anything about the appellant inflicting blows with a hammer on the head of the deceased. He in his cross-examination stated that he had no idea as to why the police did not record in his police statement the factum of assault with the hammer. However, in his evidence he has
deposed that after the incident the appelant was confronted by Nandlal. Some part of the evidence of Udaysingh corroborates the oral testimony of Nandlal.
“The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence”
The court mentioned the principles for the appreciations of ocular evidence in a criminal case as under:
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to 13 form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is 14 replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court 15 atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
To put it simply, in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed by them and secondly, whether there is anything inherently improbable or unreliable
in their evidence.
The court further observed that there is nothing palpable or glaring in the evidence of the two eye- witnesses on the basis of which we can take the view that they are not true or reliable eye- witnesses. Few contradictions in the form of omissions here or there is not sufficient to discard the entire evidence of the eye-witnesses.
The court reached the conclusion that there is no merit in the present appeal. The appeal accordingly fails and is hereby dismissed.
CASE TITLE: SHAHAJA @ SHAHAJAN ISMAIL MOHD. SHAIKH vs STATE OF MAHARASHTRA
CASE DETAILS: CRIMINAL APPEAL NO. 739 OF 2017
CORAM: Justice Surya Kant and Justice J.B. Pardiwala
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