A DIGEST ON CRIMINAL TRAIL

K.V.S.S.PRABHAKAR RAO advocate, Rajahmundry

INTRUDCTION ;- Depending on the gravity of the offences and the

punishment prescribed there for, criminal trial under the Code of Criminal Procedure, 1973 (Cr.P.C for short) has been classified into two viz., Magisterial trial and Sessions trial. The first schedule to the Cr.P.C. is divided into two parts namely, Part I and Part II. Column I of the first part of the first schedule enumerates the list of offences punishable under the Indian Penal Code and Column 6 thereof indicates the court by which those offences are triable. Those courts are either the Magistrates courts or the courts of Session. The second part of the first schedule deals with offences punishable under other laws. In the absence of any specific provision under such other laws regarding investigation, inquiry or trial, the procedure prescribed under the Cr.P.C. for the same shall be applicable by virtue of Sec.4 (2) of Cr.P.C. If under the special law the offence is punishable with imprisonment for life or imprisonment for more than 7 years, then by virtue of the second part of the I schedule to Cr.P.C. the offence shall be triable by a Court of Session. Abatement of appeal - Death of accused' = Sec 394-(1) Every appeal under Sec 377 or 378 shall finally abate on the death of accused Sec 394-(2) Provided that when the appeal against conviction of death

sentence or imprisonment and appellant has dies during the pendancy of appeal any near relatives with in 30 days of the death of appellant , apply to leave to continue to appellate court. A short question that arises for our consideration in this appeal is whether the husband of the deceased appellant is entitled to continue the appeal and, if so, whether leave to continue the appeal could have been granted by the Registrar of this Court. .. we are of the opinion that: (a) where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate ( Jugal kishore khetawat V State of West Bengal 2011 AIR SC 1358 = 2011 (11) SCC 502, = 2011 CRL.LJ 2170 = 2011 SCC (CrL) (3) 387 and Khedu Mohton and others vs. State of Bihar 1971 CrLJ 20 : 1971 AIR (SC) 66 : 1971(1) SCR 839 : 1970(2) SCC 450 :

1971 Mad LW (Cri)153 : 1970 Pat LJR 715 : 1971(1) An LT 288 and Bondada Gajapathi

Rao Vs. State of A.P ) 1964(2) CrLJ 598 : 1964 AIR (SC) 1645 : 1964 (7) SCR 251

ACCOMPLICE - Evidence of An Accomplice - Held that the deposition of an accomplice in a crime who has not been made an accused/put to trial, can be relied upon, however, the evidence is required to be considered with care and caution - An accomplice who has not been put on trial is a competent witness as he deposes in the court after taking oath and there is no prohibition in any law not to act upon his deposition without corroboration. Prithipal Singh Etc. Appellants v. State of Punjab & Anr. Etc. Respondents) (2011 STPL(LL) 8640 SC = JT 2011 (12) SC 584 = 2011(12) SCALE 411 = (2012) 1 SCC 10 = 2012 AIR(SCW) 594 Accomplice A mute spectator of crime - A person witnessing crime but not

passing on the information to Police cannot be termed as accomplice even though testimony of such person should be treated with caution. What the law requires is that there should be such corroboration of the material part of the story connecting the accused with the crime as will satisfy reasonable minds that the man can be regarded as a truthful witness.( Vomireddy Satyanarayana Reddy Vs, State of Hyderabad , 1956 AIR (SC) 379 : 1956 CrLJ 777 : 1956 SCR 247 : 1956 All LJ 389

ACCOMPLICE= evidence of an accomplice not put on trial: 1) An accomplice is a competent witness and conviction can lawfully rests upon his uncorroborated testimony, yet the court is entitled to presume and may indeed, be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless the evidence is corroborated in material particulars, which means that there has to be some independent witness tending to incriminate the particular accused in the commission of the crime. ( Rameshswar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54; and Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637). 2) The Supreme Court examined the issue while taking into consideration the provisions of Section 133 read with Section 114 Illustration(b) of the Evidence Act and held that the provision of Section 114 Illustration (b) embodies a rule of prudence cautioning the court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. The legislature in its wisdom used the word may and not must and, therefore, the court does not have a right to interpret the word may contained therein as must. The court has to appreciate the evidence with caution and take a view as to the credibility

of the evidence tendered by an accomplice. In case evidence of an accomplice is found credible and cogent, the court can record the conviction based thereon even if uncorroborated. The Court further explained that the word corroboration means not mere evidence tending to confirm other evidence. Firstly, it is not necessary that there should be an independent corroboration of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the accomplice, should in itself be sufficient to sustain conviction. All that is required is that, there must be some additional evidence rendering it probable that the case of the accomplice is true and it is reasonably safe to act upon it. Secondly, the evidence on record must reasonably connect or tend to connect the case with the crime by confirming in some material particular the testimony of an accomplice. Thirdly, the circumstances involved in the case must be such as to make it safe to dispense with the necessity of corroboration, though, such evidence may be merely circumstantial evidence to show connection of the case with the crime In K. Hasim v. State of Tamil Nadu, AIR 2005 SC 128. (See also: Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420). 3) The issue was again considered by this Court in Chandran alias Manichan alias Maniyan & Ors. v. State of Kerala, ( AIR 2011 SC 1594 =2011 5 SCC 161,) wherein the Court had an occasion to appreciate the evidence of a person who had not been put on trial, but could have been tried jointly with accused and found his evidence reliable in view of the law laid down by this Court in Laxmipat Choraria & Ors. v. State of Maharashtra, AIR 1968 SC 938.
ACCUSED IS OF UNSOUND MIND- Supposing an accused person who is of unsound

mind is committed to the court of Session, it is an illegal committal because it is for the committal Magistrate himself toconduct an enquiry under Sec. 328 Cr.P.C. In a case of wrong committal the SessionsJudge does not have the power to set aside the committal and send it back to the committal court. He can only refer the matter to the High Court by invoking the power under Sec. 395 (2) Cr.P.C.The ordinary presumption about a witness is that every witness testifying on oathbefore a court of law is a truthful witness unless he is shown to be unreliable oruntruthful on any particular aspect. Witnesses solemnly deposing on oath in the witnessbox during a trial upon a grave charge of murder must be presumed to act with a fullsense of responsibility of the consequence of what they state
Punjab v.Hari Singh- AIR 1984 SC 1168)
( State of

ACCUSED NAMED FIRST TIME IN THE COURT: The Supreme Court considered the issue at length and held that in case the witness does not involve a particular accused in a crime at the time of recording his statement under Section 161 Cr.P.C., and names he first time in his deposition in the court, the accused becomes entitled to benefit of doubt. ( Rudrappa Ramappa Jainpur & Ors. v. State of Karnataka, AIR 2004 SC 4148 A similar view has been re-iterated in Staterepresented by Inspector of Police, Tamil Nadu v. Sait alias Krishnakumar, (2008) 15 SCC 440.

Accused Named in first time in Court =In case the witness does not involve a

particular accused in a crime at the time of recording his statement under Section 161 Cr.P.C., and names him first time in his deposition in the court, the accused becomes entitled to benefit of doubt . Prithipal Singh Etc.
Appellants v. State of Punjab & Anr. Etc. Respondents) (2011 STPL(LL) 8640 SC = JT 2011 (12) SC 584 = 2011(12) SCALE 411 = (2012) 1 SCC 10 = 2012 AIR(SCW) 594 Abscondence of accused - Does not lead to an inference of culpability in the commission of crime - However, abscondence, as a circumstance, if duly proved, could be utilized to fortify the conclusion of guilt arrived at on the basis of other cogent and reliable evidence. (Arun Dharma Chavhan Vs State of Maharashtra) 2002(1) Criminal Court Cases 162 (Bom.) Accused can be convicted on the sole testimony of a witness provided he is found wholly reliable. (Ramesh & Ors. Vs State of U.P.) 2005(2) Criminal Court Cases 156 (Allahabad) - Accused cannot be convicted for failure to explain as to why he is falsely implicated. (Alim Ullah Vs State of U.P.) 2003(3) Criminal Court Cases 407 (Allahabad) Accused sold gold chain after few hours of occurrence - Gold chain recovered only after 4 days at the instance of accused, who had no explanation to offer as to how he came in possession of the gold chain belonging to the deceased Presumption arises that accused was the culprit who removed the gold chain from the person of the deceased. (Gilbert Pereira Vs State of Karnataka) AIR 2004 SC 4454 ( Note :- same was Cited in Defence; below kindly see ) Sec 114 of Evidence Act Presumption of committing offence Acquaintance or friendship - Evidence of eye witness cannot be discarded for the reason of acquaintance or friendship with the deceased if it is proved by other satisfactory evidence that the witness was very much present at the time of incident. (Ram Kishan & Ors. Vs State of Uttar Pradesh) AIR 2004 SC 4676 Additional evidence - The necessity for additional evidence arises when Court feels that some evidence which ought to have been before it is not there or that some evidence has been left out or erroneously brought in - In all cases it cannot be laid down as a rule of universal application that the Court has to first find out whether the evidence already on record is sufficient. (Zahira Habibulla H.Sheikh &

Anr. Vs State of Gujarat & Ors.) 2004(4) SCC 158-2004(3) Criminal Court Cases 195 (S.C.) Crl. Appeal No 446-449 /2004 date 12-4-2004( Best bakery case) Adverse inference on accused ;- When a document being in possession of a public functionary, who is under a statutory obligation to produce the same before the court of law, fails and/or neglects to produce the same, an adverse inference may be drawn against him. The Special Judge was enjoined with a duty to draw an adverse inference. He did not consider the question from the point of view of statutory requirements, but took into consideration irrelevant factors. State
Inspector of Police, Visakhapatnam Vs Surya Sankaram Kurri (2006(5)Suppl.SCR229 ,

2006(7 )SCC172) Adverse inference on accused;- No person can be compelled to give sample

of blood for analysis against his or her will and no adverse inference can be drawn for such refusal. Courts is India cannot order blood group test as a matter
of course. Unlike the English law* in India there is no special statute governing this. Neither the Criminal Procedure Code nor the Evidence Act empowers the court-; to direct such a test, Goutam Kundu vs. State of West Bengal, (1993) 3 SCC
418 1993 AIR 2295, 1993 SCR (3) 917 Kamti Devi v Poshi Ram AIR 2003 SC 2226

Adverse inference can drawn on accused :-It was held that the refusal to paternity (DNA) test would bar a party from challenging the paternity of the child it was also stated that an adverse inference can be drawn if a party refuses to undergo a DNA test. This seems to be a preferable interpretation and strikes a balance where although the court does not have the power to direct the giving of sample, it may draw an adverse inference if it is not given. (Dwarika Prasad Satpatty v. Bidyut Parva Dixit ) 2000Cri LJ 1: AIR 1999 SC 3348 and K. Salvaraj v P. Jayakumari (2000 Cri LJ 1 :AIR 1999 SC 3348 Adverse inference on accused - refusal participate in identification parade or refusal to give finger or foot prints - Adverse inference can be drawn against the accused. ( Mulkh Raj Sikka Vs Delhi Administration )1974 CrLJ 1171 : 1974 AIR (SC) 1723 : 1974 CAR 226 : 1975 (3) SCC 2

Affidavit - Tendered in evidence - Witness not brought in Court for cross examination - The only inference is that prosecution had something to hide. (Rambir Vs State of Haryana) 2004(4) Criminal Court Cases 396 (P&H) Age - Ascertainment - Radiological examination - Margin of error is two years on either side - However, in case radiological examination is in respect of multiple joints, margin of error could be reduced to six months on either side. (Lal Bahadur Vs The State) 2004(4) Criminal Court Cases 372 (Delhi)

Alibi ;- The plea of alibi. The word 'alibi', a Latin expression means and implies in common acceptation 'elsewhere': It is a defence based on the physical impossibility of participation of a crime by an accused in placing the latter in a location other than the scene of crime at the relevant time, shortly put the presence of the accused elsewhere when an offence was committed. The Supreme Court in Dudh Nath Pandey v. State of U.P [1981 AIR AC 911, 1981 SCR (2) 771=1981 SCC (2) 166 =1981 SCALE (1)285 )has the following to state in regard to the plea of alibi:

Alibi :-The

plea of alibi postulates the physical impossibility of the presence of

the accused at the scene of offence by reason of his presence at other place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed..( Munshi Prasad And Ors. vs State Of Bihar ( AIR 2001 SC 3031, 2001 (2) ALD Cri 882

=2002(1)ALT(Cri)157,

2001CriLJ4708, JT2001(8)SC406,

2001(7)SCALE114, (2002)1SCC351 Alibi - A distance of 15/20 minutes' walk from the place of occurrence cannot be said to be presence elsewhere to establish a plea of alibi. (Arun Das Vs State of West Bengal) 2004(3) Criminal Court Cases 566 (Calcutta) Alibi - Even when plea of alibi is raised, burden of proof is on prosecution. (Narendra Singh & Anr. Vs State of M.P.) 2004 AIR 3249, 2004(3 )SCR1148, 2004(10 ) SCC699 , 2004(4 )SCALE543 , 2004(1 )Suppl.JT29 Appeal (Crl) No 298.1997 date 124-2004 Appeal - Accused who has not preferred an appeal or even if his SLP is dismissed - If relief granted to remaining accused and case of accused who has not appealed stands on the same footing, he should not be denied the benefit which is extended to the other accused. (Gurucharan Kumar & Anr. Vs State of Rajasthan) AIR2003 SC 992 (
Crl Appeal No 1988 / 1996 Dated 8-1-2003

Appeal against acquittal (A) An order of acquittal cannot be interfered with when findings are not perverse and a reasonably possible view has been taken which is fortified with evidence, in the absence of error of law or miscarriage of justice. (State of Kerala Vs Arun Valenchery) 2002(1) Criminal Court Cases 355 (Kerala) (B) If a view taken by the Court recording verdict of acquittal is

reasonable, Supreme Court would not substitute its own view and reverse the

verdict of acquittal into conviction - Criminal jurisprudence no doubt requires a high standard of proof for imposing punishment on an accused, but it is equally important that on hypothetical grounds and surmises prosecution evidence of a sterling character should not be brushed aside and disbelieved to give undue benefit of doubt to the accused. (State of Uttar Pradesh Vs Ram Sewak & Ors.) AIR 2003 SC 2141 = 2003(10 ALT (Crl) 370= 2003 CRL. L.J 4226 (C ) Power of the High Court while hearing appeal against acquittal is as wide as an appeal against conviction. (Dhruvendra Singh & Ors. Vs State of Rajasthan) 2002(2) Criminal Court Cases 307 (Raj.) Appeal against conviction (A) Committal of accused to prison - Not proper without recording reasons - It is duty of trial Court to enlarge accused on bail on appropriate conditions during pendency of appeal or to pass order for continuance of his detention in judicial custody for reason to be recorded in writing - His continued detention even after completion of sentence of imprisonment for three years, in absence of order either for enlargement on bail or for committing him to prison during pendency of appeal, held, illegal. (State Vs Gurappa alias Gurava) 2002(3) Criminal Court Cases 706 (Karnataka) (B) Counsel of appellant absent - Appellate Court pronounced judgment after hearing arguments from the public prosecutor - Held, if the appellate Court did not think it proper to issue notice to the appellant to appear and argue, at least, appellate Court could have requested some senior counsel from the local Bar to address the Court as amicus curiae - Order amounts to an illegality and the same set aside. (Pichharu Satnami Vs State of Orissa) 2002(2) Criminal Court Cases 5 (Ori.) (C ) In a concurring judgment of conviction, Apex Court is not to scrutinise evidence again unless there has been total miscarriage of justice. (Jai Narain Vs State of U.P.) 96 (2003) CLT 75 SC, JT 2002 (8) SC 513 2003(1) Apex Court Judgments 90 (S.C.)

Approver:-

( Sec 306 Cr. P.C). The Question that arose for consideration

was whether an approver could be forced to give evidence. The petitioner and others were accused in connection with several explosions that killed many people in Delhi. Of the several accused the petitioner and another, in the course of the investigation turned in favour of the prosecution and therefore the prosecution made them approvers and they were granted pardon by the

lower court. Subsequently they retracted from their earlier statements and refused to give evidence. It was held by the Supreme Court that, once he turned an approver and a pardon is granted to him he ceases to be an accused and he turns a witness for the prosecution. Therefore, S 306 of the Criminal Procedure Code requires him to make a full and true disclosure of the entire circumstances in his knowledge. Therefore he is legally bound to make the disclosure even if it is incriminatory. Therefore, the argument under 20(3) cannot be sustained.( State of Delhi Administration v. Jagjit Singh, AIR 1989 SC 598, 1989 CriLJ 986,)

Absence of Counsel for accused in Trail. Constitution of India Art.

21, Art. 22(1) : Criminal P.C. (2 of 1974) S. 303 - CRIMINAL CASE - Absence of Counsel Criminal case - Absence of Counsel - Right of accused to have a Counsel - Held that a criminal case should not be decided against the accused in the absence of a counsel - If a criminal case whether trial or appeal/revision is decided against the accused in the absence of a counsel, there will be violation of Article 21 of the Constitution - In the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practicing on the criminal side as amicus curiae and decide the case after fixing another dated and hearing him. (Paras 8, 12 and 22) Sukur Ali SCC(Cri) 481 Appreciation of evidence 1 ) Bullet injuries - Clothes of witnesses who took deceased to hospital not stained with blood - No case that deceased had profuse bleeding and even if there was bleeding, the blood may not have splashed to stain the clothes of witnesses when deceased himself was wearing clothes Presence of witnesses at the place of occurrence on this count cannot be doubted. (Hem Raj Vs Raja Ram & Ors.) AIR 2004 SC 1489 = 2004 (9) SCC 18=2004(4) Criminal Court Cases 298 (S.C.) Appeal ( Crl ) No 656/ 1997 dated 22-1-2004 2. PW1 a close relative left the dead body in hospital and went to lodged FI As many other relatives had come to the hospital as such leaving dead body of a close relative and going to lodge FI is not improbable. (Hem Raj Vs Raja Ram & Ors.) 2004 SCAIR 1489, , 2004( 9 )SCC 18, 2004( 1 )SCALE637 v. State of Assam , 2011 STPL(LL) 1952 SC = 2011(2)

SCALE 730 = JT 2011 (2) SC 527 = 2011 AIR(SCW) 1352 = (2011) 2

Arduous and lengthy cross examination of a witness - Contradictions When a witness is subjected to lengthy arduous cross examination over a lengthy period of time there is always a possibility of the witnesses committing mistakes which can be termed a as omissions, improvements and contradictions therefore those infirmities will have to be appreciated in the back ground of ground realities which makes the witness confused because of the filibustering tactics of the cross examining Counsel. (Jai Sree Yadav Vs State of U.P.) 2004(4) Criminal Court Cases 28 (S.C.) Appeal (Crl ) No 1072/ 2003, dated 12-8-2004

Arrest by magistrate: Sec 44 presence of a

When any offence is committed in the

magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrestor order any person to arrest the offender, and may thereupon, subject to the provisionsherein contained as to bail, commit the offender to custody (D.K. Basu v. State of W.B.) (1997) 1 SCC 416 (1997 AIR
SCW 233) Benefit granted in another appeal to one of the other co-accused - Held, same benefit shall be extended to earlier co-accused also albeit dismissal of his appeal on an antecedent date. (Akhil Ali Jehangir Ali Sayyed Vs State of Maharashtra) JT 2002 (2) SC 158, 2002(3) Criminal Court Cases 414 (SC) Benefit Of Doubt:- The criminal jurisprudence, no doubt, requires a high standard of proof for imposing punishment to an accused. But it is equally important that on hypothetical grounds and surmises prosecution evidence of a sterling nature should not be brushed aside and disbelieved to give undue benefit of doubt to the accused. (Vide State of U.P. v.Ram Sevak and others-2003 (1) Crimes 461 (SC). CASE NO.: Appeal (crl.) 530 of 1991 The law should not be stretched morbidly to embrace every hunch hesitancy and degree of doubt. Our jurisprudentialenthusiasm for presumed innocence must be moderated by the pragmatic need to makecriminal justice potent and realistic (Shivaji v. State of Maharashtra AIR1973 SC 2622). 1974
SCR (1) 489

Doubts must be actual and substantial as to the guilt of the accused person arising from the evidence or from the lack of it, as opposed to mere vagueapprehensions. A reasonable doubt in not an imaginary trivial or a merely possible doubt; but a fair doubt based upon reasons and common sense. Uninformed legitimization of trivialities would make a mockery of administration of criminal justice. AIR 1988 SC 2154 State of U.P. v. Krishna Gopal. 1988( 2 )
Suppl.SCR 391, 1988( 4 )SCC 302, 1988( 2 )SCALE632 , 1988( 3 )JT 544

9. The criminal law has a purpose to serve. Its object is to suppress criminalenterprise and punish the guilty. In this process it must however be

ensured that reasonable doubts alone are given to the accused. (State of Kerala v. Narayanan Bhaskaran 1991 Crl.L.J.238 Benefit of doubt 1) Prosecution is not required to meet any and every hypothesis put forward by the accused - A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense - It must grow out of the evidence in the case - Doubts would be called reasonable if they are free from a zest for abstract speculation. (State of Punjab Vs Karnail Singh) AIR 2003 SC 3609, 2003 (2) ALT Cri 273, 2003 CriLJ 3892 2) To constitute reasonable doubt, it must be free from an over emotional response - Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions - A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense - It must grow out of the evidence in the case. (Krishnan & Anr. Vs State Rep. By Inspector of Police) AIR 2003 SC 2978= 2003 (2) ALD ( Crl) 458= 2003 Crl.L J 3705 = ( Sec 506 (1) IPC 302 ) Beyond reasonable doubt Holding that the requirement in criminal cases for the prosecution to prove the case beyond doubt does not imply that the case should be proved beyond a shadow of doubt, the Supreme Court in a recent decision [Iqbal Moosa Patel v. State of Gujarat] 2011 CRL.L.J1142 2011 (2) SCC 198 ( CRIMINAL APPEAL NOS.1231-1232 OF 2009 dated 12-1-2011) quoted Lord Denning to state that "Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law". The Court also quoted its earlier decision to the effect that "One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish" The That brings us to the question whether the appellants could be given the benefit of doubt having regard to the nature of the evidence adduced by the prosecution against them. We do not think that the appellants have made out a case for grant of any such benefit. It is true that the prosecution is required to establish its case beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable style in Miller v. Minister of Pensions (1947) 2 ALL ER 272Court inter alia observed as under That degree is well settled. It need not reach certainty, but it must carry a high degree of probability Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted

fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence of course, it is possible but not in the least probable, the case is proved beyond reasonable doubt It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man Smelling doubts for the sake of giving benefit of doubt is not the law of the land. Reference may also be made to the decision of this Court in Sucha Singh & Anr. v. State of Punjab
(2003) 7 SCC 643 ( Note same

AIR 2003 SC 3617, 2003 (2) ALD Cri 506

is cited below minor discrepancies

Prabhakar Advocate) Where this Court has reiterated the principle in the following words Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh AIR 1990 SC 209) Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense, it must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial,if a case has some flaws inevitable because human beings are prone to err it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish Doubts must be actual and substantial doubt as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions - A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense - It must grow out of the evidence in the case. (State of Madhya Pradesh Vs Dharkole @ Govind Singh & Ors.) 2005 AIR SC 44 , 2004(5 SCALE149 , 2004(9 No 238-239/2004 dated 29-10-2004 (Note See Also in Eye witness found Boy of 16 years not disclosing for three days about his having seen the )Suppl.SCR780 , , 2004(9 ) )JT501 2005(1) Criminal Court Cases 796 (S.C.) Appeal (Crl )

occurrence - Witness was a young lad and accused a hardened criminal - Witness was threatened by accused - Held, silence of boy not telling others for some time is not suspicious and unnatural. (State of Uttar Pradesh 2004(3) Criminal Court Cases 123 (S.C.) BURDEN OF PROOF UNDER SECTION 106 Evidence Act
:-

Vs Devendra Singh)

:- The Court held that

=

if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for prosecution to prove certain facts particularly within the knowledge of accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference.Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. ( State of West Bengal v. Mir Mohammad Omar & Ors. etc.,) AIR 2000 SC 2988 (See also: Shambhu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404; Sucha Singh v. State of Punjab, AIR 2001 SC 1436; and Sahadevan @ Sagadevan v. State rep. by Inspector of Police, Chennai, AIR 2003 SC 215) Case and a counter case or two cases with regard to the same occurrence - Both cases to be tried together. (Alok Kumar Singh Vs State of Bihar & Ors.) 2004(3) Criminal Court Cases 521 (Patna) Case and a counter case or two cases with regard to the same occurrence - One case triable by Court of Sessions and the other triable by Magistrate - Held, both the cases can be committed to the Court of Sessions to be tried together. (Alok Kumar Singh Vs State of Bihar & Ors.) 2004(3) Criminal Court Cases 521 (Patna) Case property 1) Alienation before conclusion of trial - With the advanced technology, it is not necessary that original of the property inevitably has to be preserved for the purpose of evidence in the changed context of times - The techniques of photography and photo coping are far advanced and fully developed - Movable property of any nature can be a subject matter of photography and taking necessary photographs of all the features of the property clearly is not an impossible task in photography and photo copying.

(K.W.Ganapathy Vs State of Karnataka) 2003(1) Criminal Court Cases 350 (Karnataka) 2) Case property shifted to new bags but no explanation - FIR number

and other particulars written on bags at the time of recovery of case property But on the case property produced in Court no particulars found - Case property shifted to new bags - Prosecution failing to prove how old bags were damaged and the case property was shifted to new bags - Object of keeping the case property in safe custody is to ensure identification of the property recovered Accused is entitled to benefit of doubt - Accused acquitted. (Narcotic Drugs and Psychotropic Substances Act, 1985, Ss.52, 52-A, 57 and 15). (Channa Ram @ Maiya Vs State of Haryana) 2003(1) Criminal Court Cases 279 (P&H) 3) Link evidence that the same is not tampered with - Whenever case

property is produced in Court for identification by witnesses, Court records its observations as to the condition of the property, seal impressions and that the same are intact or not - When there are neither observations of Court nor material witnesses state as to what seal, if any, was affixed to case property and whether the case property and seal impressions were intact or not, the benefit goes to the accused - Conviction cannot be sustained. (Sandeep Kumar Vs State of H.P.) 2003(2) Criminal Court Cases 62 (H.P.) 4) Recovery of stolen car - Car financed and owner intended to sell it

to discharge its debt - Car has no evidentiary value as it is only required for the purpose of passing final orders - To ensure the recovery of its value, it is suffice only to furnish security to recover the value in the event of final order passed against him - Petitioner is allowed to sell the car in his own way subject to furnishing security. (K.W.Ganapathy Vs State of Karnataka) 2003(1) Criminal Court Cases 350 (Karnataka) 5) Weight of case property produced in Court did not tally with the

case property recovered from accused - In the absence of proper explanation a doubt arises about the case of the prosecution - Accused acquitted giving benefit of doubt. (Narcotic Drugs and Psychotropic Substances Act, 1985, Ss.52, 55-A and 15). (Kaaraka Singh Vs State of Haryana) 2003(1) Criminal Court Cases 182 (P&H) Cellular phone - Print out of calls - Calls made by some person in Dubai - Held, it is a very tenuous piece of evidence to attribute knowledge of the detenu of activities of smuggling of counterfeit currency notes their claim would be insignificant and it would be absurd to introduce such evidences in front of the court of law. Call

records are admissible in the court of law and they are considered to be authentic. This was held in State(N.C.T. of Delhi) v Navjot Sandhu AIR 2005 SC 3820; AIR SCW 4148 , where the court opined that the call records relating to cellular phones are admissible and reliable. But, this admissibility is subjected to its relevance to the case, and any evidence which would not help parties substantiating. There arise certain circumstances when a person is not able to represent himself physically in front of the court, and it would be interesting to know that it is not mandatory for a person to present himself physically in front of the court, he can a witness, accused, victim or anyone whose presence becomes a mandate to decide a case. In such a situation, he can represent himself in front of the court through Video Conferencing. This can be gathered from the verdict pronounced by the Supreme Court in State of Maharashtra v Praful B. Desai AIR 2003 SC 2053; 2003 AIR SCW 1885, where it is opined by the court that actual physical presence is not a must, and presence of the pleader would be sufficient. In other words, a person would be able to present himself through video conferencing in presence of his pleader, and the same can be considered as evidence. It was also stated by the court that the evidence can also be recorded through video conferencing, and the same would be authentic.

Tape recordingAdmissibilityEvidentiary value

Pre-con- ditions for. Hazara Singh v. State of U.P., 1969 CrLJ 1428 : 1969 AIR (SC) 951 : 1969 (2) SCC 22 : 1969 Mad LJ (Cri) 721

Chance witness 1) An independent witness who had no motive to depose against accused cannot be condemned to be chance witness. (State of Andhra Pradesh Vs K.Srinivasulu Reddy & Anr.) 2004(1) Criminal Court Cases 646 (S.C.) Appeal (Crl ) 897 /1997 dt 18-12-2003 2) As such his evidence disbelieved - Witness was resident of the

same village as the accused and deceased - Failure to mention the presence of this witness at the place of occurrence by another witness in his police statement is an irrelevant circumstance for disbelieving the witness - He was a natural witness - Nothing worthwhile could be extracted in his cross examination - He tried to intervene and save the deceased who went to the house of the deceased to inform his family members about the incident - Held, witness is a natural, truthful and creditable witness. (State of Haryana Vs Mange Ram & Ors.) 2003(1) Apex Court Judgments 135 (S.C.) : 2003(1) Criminal Court Cases 372 (S.C.) Appeal (Crl ) No 538 / 1994 Dated 11-12-2002 3) If murder is committed in a dwelling house, the inmates of the house are natural witnesses - If murder is committed in a street, only passersby will be witnesses - Their evidence cannot be brushed aside or viewed with

suspicion on the ground that they are mere 'chance witnesses'. (Sachchey Lal Tiwari Vs State of Uttar Pradesh) 2004 AIR SC 5039, 2004(5 )Suppl.SCR107 , 2004(11 ) SCC410 , 2004(8 )SCALE539 , 2004(8 )JT534 6 Oct 2004 CASE NO.: Appeal (crl.) 270 of
2001

4)

No suggestion to the witness that he had any animosity towards

any of the accused - In a murder trial by describing independent witnesses as chance witnesses it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. (Chanakya Dhibar (Dead) Vs State of West Bengal & Ors.) 2003(6 )Suppl.SCR1181, 2004(12 )SCC398 , 2003(10 ) SCALE883 , 2003(10 )JT209 19 Dec 2003 CASE NO.: Appeal (crl.) 728 of 1997 Charge sheet CONSIDERATION FOR - Charge-sheet alleging commission of offence under the Act - Court cannot discharge unless it considers all relevant provisions of the Act. The charge-sheet constitute prima facie evidence constituting the offence for proceeding further in the matter. Necessarily, therefore, the Court has to look into the relevant law and the allegations made in the charge-sheet and then consider whether any offence has been committed to frame charges for trial before discharging the accused. State of Jammu and Kashmir Vs Romesh Chnader ndothers , 1997 CrLJ 2976 : 1976 AIR (SC) 2401 : 1997 SCC (Cr) 44 : 1997 Cr LR (SC) 435 : 1996 (4) Crimes 270 : 1997(1) Rec Cr R 407 Charge sheet Default in filing charge sheet - Grant of bail - Failure of

prosecution to file charge-sheet within prescribed time under Section 167(2) Cr.P.C. - Right to be released on bail - Cannot be indefeasible right to exercise at any time. If an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge-sheet is filed. But on the other hand if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be re-arrested on the mere filing of the charge-sheet. Dr. Bipin Shantilal panchal Vs State of Gujarat , 1996 CrLJ 1652 : 1996 AIR(SC) 2897 : 1996 SCC (Cr) 200 : 1996(1) Crimes 9 (SC) : 1996(3) CCR 103

Charge sheet limitation for filing - Computation of - It is to be counted from the next day of arrest - Criminal Procedure Code, 1974 - Section 167(2), Investigating officer is enjoined to produce the accused before the Magistrate having jurisdiction within 24 hours from the date of arrest. Consequently limitation of one year would begin to run and be counted from next date of the arrest. C.B.I Vs Nazir Ahmed Sheik ( 1996 CrLJ 1876 : 1996 AIR (SC) 2980 : 1996 SCC

(Cr) 314 Charge framing of What should be considered Whether documents made available by accused during investigation can be considered Yes Non-consideration of such documents in spite of order of High Court Order framing charge liable to be set-aside. State of Madhya Pradesh Vs Mohan lal soni , 2000 Cri.L.J. 3504 (S.C.): 2000 (3) Crimes 105 : 2000 (3) Cur Cri R 86 : 2000 SCC (Cri) 1110 : 2000 (29) All Cri R 2123 : 2000 (3) Rec Cri R 452 : AIR 2000 SC 2583

Charge must be proved beyond reasonable doubt - Court cannot infer any part of the prosecution story and it must be established as a matter of fact or there should be complete chain of events based on irresistible evidence leading to or indicating towards the accused as the person who committed the crime. (Municipal Corporation, Amritsar Vs Kuldip Singh) 2003(3) Criminal Court Cases 308 (P&H) Child witness - 10 years old at the time of incident and 12 years of age at the time of recording his deposition - Trial Court should maintain a record regarding preliminary questions put to the child witness in order to determine the competency of the witness - Non maintenance of such record is not of much consequence since not only the trial Court was satisfied about the competency of the witness, but the evidence of the witness itself shows that child witness was a competent witness. (Nandeshwar Vs State of Maharashtra) 2002(1) Criminal Court Cases 441 (Bom.) Child witness - A person should not be convicted on the basis of any uncorroborated statement of a child witness - Prudence requires that some corroborations are required in order to pass a conviction order on the basis of the statement of a child witness. (Khokan Patra & Anr. Vs State) 2002(3) Criminal Court Cases 626 (Calcutta)

Child witness - Evidence of a child witness requires corroboration in some material particulars implicating the accused - Father stated that he saw his child crying over the dead body of the deceased - Held, there can be no cause for doubt that child is a reliable witness. (Prakash Vs State) 2003(1) Criminal Court Cases 37 (Karnataka) Child witness - Evidence of the child witness should be considered with caution as there is chance of tutoring the child witness but conviction can be based on the testimony of a child witness if the Court finds his evidence trustworthy. (Md.Asgar & Anr. Vs State of Bihar) 2003(3) Criminal Court Cases 111 (Patna) Child witness - Evidentiary value - Conviction can be based on the basis of testimony of a child witness - His testimony can be relied on even in the absence of oath, if he understood nature of the questions and gave rational answers thereof - While assessing evidence of a child witness Court should bear in mind that the witness must be reliable and his or her demeanour must be like any other competent witness and there is no likelihood of being tutored - Corroboration for conviction is not necessary in every case but as a rule of prudence Court always finds it desirable to have the corroboration to such evidence from other dependable evidence - Court before recording statement of a child witness has to satisfy itself that the witness is capable to depose - Testimony of a child witness cannot be rejected simply on ground of his tender age - Evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him. (Evidence Act, 1872, S.118). (Dalbir Singh Vs The State of Haryana) 2003(2) Criminal Court Cases 91 (P&H) Child witness - Father murdered wife in order to marry another woman Occurrence witnessed by son aged 10 years - Child witness deposed that on fateful evening accused twisted neck of deceased, caused injuries to her by beating which resulted in her death and deceased was clandestinely buried at night in forest and next day morning accused took him and left their village Version of child witness supported by medical evidence - Trial Court being satisfied with the competency of the witness convicted the accused - Conviction upheld. (Nandeshwar Vs State of Maharashtra) 2002(1) Criminal Court Cases 441 (Bom.) Child witness of 10 years age who was himself seriously injured - Witness

described the incidence in clear and cogent manner - No evidence that he gave tutored version - Conviction validly based on sole evidence of child. (State of Himachal Pradesh Vs Prem Chand) 2003(1) Apex Court Judgments 309 (S.C.) : 2003(1) Criminal Court Cases 680 (S.C.) 2002 Appeal (Crl ) No 290/ 1995 dated 16-12-

Circumstantial Evidence or Indirect Evidence- There is no difference

between circumstantial evidence and indirect evidence. Circumstantial Evidence attempts to prove the facts in issue by providing other facts and affords an instance as to its existence. It is that which relates to a series of other facts than the fact in issue but by experience have been found so associated with the fact in issue in relation of cause and effect that it leads to a satisfactory conclusion. In Hanumant v. State Of Madhya Pradesh (AIR 1995 SC 343), The Honble Supreme Court Observed, In dealing with circumstantial evidence there is always the danger that suspicion may take the place of legal proof. It is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. In other words there can be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In the case of Ashok Kumar v. State Of Madhya Pradesh (AIR 1989 SC 1890) the HonbleSupreme Court held(1) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. (2) Those circumstances should be of a definite tendency unerringly

pointing towards the guilt of accused. (3) The circumstances, taken cumulatively should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else
Circumstantial evidence Ingredients to rest conviction

When a case rests upon circumstantial evidence such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. Padala Veera Reddy Vs . State of Andrha Pradesh 1990 CrLJ 605 : 1990 AIR (SC) 79 : 1991 SCC (Cr) 407 : 1990 CAR 36 : 1990 CrLR (SC) Circumstantial Evidence Failure to explain incriminating circumstances Presence ofaccused at scene of crime proved in the dead of night Onus stood shifted to defence to explain what could havebrought them to spot in the dead of night Evidence Act, 1872 Ss. 101 to 103 Proof Presumptions Presumption of innocence When dispelled. State of Uttar Pradesh Vs Mohd. Iqram and Anr) ((2011) 8 SCC 800) - Circumstantial evidence - Acquittal by High Court on ground of incomplete chain of circumstances viz, recovery of blood stained earth and knife not sent to serologist as such recoveries could not be believed and no independent witness from neighbour joined but witness called from another place who was family friend for 20 years and lastly deceased suffered 30 injuries but strangely no one from neighbouring house was attracted. (State of U.P. Vs Arun Kumar Gupta) 2003 AIR 801, , 2003( 2 )SCC 202, 2003( 1 )SCALE76 , 2003( 1 )JT 49

- Circumstantial evidence - All links in the chain must be proved. (Narendra Singh & Anr. Vs State of M.P.) 2004 AIR SC 3249, 2004(3 )SCR1148, 2004(10 ) SCC699 , 2004(4 )SCALE543 , 2004(1 )Suppl.JT29

Circumstantial evidence - Alone and by itself can form basis of conviction provided there is no snap in the chain of events - Chain of events must be complete in such a way so as to point to the guilt of the accused person and to none others - Standard of proof has thus to be at a much higher degree lest an

innocent person gets the blame there for. (Gurpreet Singh Vs State of Haryana) 2002 AIR SC 3217, 2002( 2 )Suppl.SCR 337, 2002( 8 )SCC 18, 2002( 6 ) SCALE363 , 2002( 7 )JT 58 Circumstantial evidence - Benefit of doubt - Circumstances consistent either with innocence or guilt - Accused is entitled to the benefit of doubt. (Ved Prakash & Anr. Vs State of Rajasthan) 2003(3) Criminal Court Cases 429 (Rajasthan) Circumstantial evidence - Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (Prithviraj Vs State of Rajasthan) 2004(3) Criminal Court Cases 111 (Rajasthan) Circumstantial evidence - Circumstances from which conclusion of guilt is to be drawn, should be fully established and facts so established should be consistent only with the hypothesis of the guilt of accused - There must not be any reasonable ground for conclusion consistent with their innocence - Chain of circumstances should be complete in such manner as to show that in all human probability the act must have been done by the accused. (Amar Mishra Vs State of Bihar) 2005(1) Criminal Court Cases 866 (Patna) Circumstantial evidence - Conviction can be based on circumstantial evidence if - (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established - the circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of accused and they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conlcusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved and (5) there msut be a chain of evidence so complete as not to leave any reasoanble ground for the conclusion consitent with the innocence of the accused and msut show that in all human probability the act must have been done by the accused. (State of U.P. Vs Satish)

2005 AIR SC 1000, 2005(2 )SCR1132, 2005(3 )SCC114 , 2005(2 )SCALE33 , 2005(2 )JT153 (Note See Also lost seen Theory cited the decession

Prabhakar advocate )
Circumstantial evidence - Conviction for murder of wife and daughter Valuables alleged to be stolen recovered from office of accused - Wife and daughter usually remaining sick - Intention of accused to get rid of them and to remarry - Wife writing in diary that after her death which she apprehended her property should go to her daughter - One month prior to occurrence accused withdrawing entire money from wife's account - Blood stained hammer recovered from almirah of accused and hammer containing blood of same group as that of daughter - Accused calling neighbours only to establish his ignorance about incident - Presence of accused in house established and plea of alibi not established - Circumstances against accused not explained - Conviction upheld. (Ashok Raghuvanshi Vs State of Rajasthan) 2003(1) Criminal Court Cases 692 (Rajasthan) Circumstantial evidence - Court can record conviction on circumstantial evidence but it must satisfy itself that the circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but complete the chain so fully as to unerringly point only to the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused. (Gurdev Singh Vs State of H.P.) 2005(1) Criminal Court Cases 701 (H.P.) Circumstantial evidence - Doubtful recoveries - Presumption u/s 114(a) Evidence Act can be drawn only if the factum of recovery is proved beyond reasonable doubt - However when recoveries are doubtful, presumption as to the guilt of accused cannot be drawn. (Babudas Vs State of M.P.) 2003( 9 )SCC 86, 2003( 4 )SCALE389 , 2003( 4 )JT 2892003(1)) Circumstantial evidence - Each and every incriminating circumstance must be clearly, established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. (Sudama Pandey & Ors. Vs State of Bihar) 2002(1) Criminal Court Cases 384 (S.C.) Circumstantial evidence - Fact of demand of dowry and torture not disclosed to Investigating Officer - This fact disclosed in complaint for the first

time which was filed after 11 months of alleged occurrence - Held, it is not possible to place reliance upon such evidence to prove this circumstance. (Sashi Jena & Ors. Vs Khadal Swain & Anr.) 2004 AIR SC 2004(4 )SCC236 , 2004(2 )SCALE348 , 2004(2 )JT339.) Circumstantial evidence - Facts and circumstances must be fully established beyond any reasonable doubt and such circumstances must be consistent and unerringly point to the guilt of the accused and the chain of circumstances must be established by the prosecution. (Golakonda Venkateswara Rao Vs State of Andhra Pradesh) AIR 2003 SC 2846, 2003 (2) ALD Cri 452 - Circumstantial evidence Appreciation of - Conviction for murder - Accused alleged to have committed murder of wife and son who disappeared without trace - No evidence to connect accused with the crime except ascendance and recovery of blood stained clothes from dry cleaner - The stains not proved to be containing human blood - Mere existence of motive not sufficient - No evidence to prove screening of evidence by causing disappearance of dead body The circumstances not sufficient for conviction. 63 Raghava Prapanna Tripati and others Vs State of U.P , 19 (1) CrLJ 70 : 1963 AIR (SC) 74 : 1963 (3) SCR 239 Circumstantial evidence appreciation of - Evidence must exclude every hypothesis of innocence of accused - Conviction is not permissible where two views are possible. In order to base the conviction of an accused on circumstantial evidence the court must be certain that the circumstantial evidence is of such a character as is consistent only with the guilt of the accused. If, however, the circumstantial evidence admits of any other rational explanation, in such an event an element of doubt would creep in and the accused must necessarily have the benefit thereof. The circumstances relied upon should be of a conclusive character and should exclude every hypothesis other than that of the guilt of the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances must show that within all reasonable probability the impugned act must have been done by the accused. If two inferences are possible from the circumstantial evidence, one pointing to the guilt of the accused, and the other, also plausible, that the commission of the crime was the act of someone else, the circumstantial evidence would not warrant the conviction of the accused. In case the circumstantial evidence relied upon by the High Court for maintaining the 1492, 2004(2 )SCR260 ,

conviction of the accused for an offence entailing capital punishment does not satisfy the above requirement, an interference would be called for by this Court. Khashaba Maruti shalke Vs. The State of Maharastra 1973 CrLJ 1607 : 1973 AIR (SC) 2474 : 1973(2) SCC 449 : 1974 (1) SCR 266 : 1973 CrLR (SC) 546 Consistent with the hypothesis of guilt of accused excluding every hypothesis of his innocence. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.( Hanumant Govind Nargundker Vs. State of Madhya Pradesh ) 1952 AIR (SC) 343 : 1953 CrLJ 129 : 1952 SCR 1091 Circumstantial evidence Appreciation - While appreciating circumstantial

evidence court should record conviction if the links in chain are complete - If evidence relied upon reasonably capable of two inferences, one in favour of accused must be accepted - Law permits rejection of evidence on reasonable doubt not otherwise. While appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise. ( State of U.P Vs Ashok Kumar Srivastav )1992 CrLJ 1104 : 1992 AIR

(SC) 840 : 1992 SCC (Cr) 241 : 1992 CAR 101 : 1992 Cr LR (SC) 144 : 1992(1) Crimes 576 : 1992(1) CCR 602

Circumstantial evidence Benefit of doubt on basic facts is not permissible.

- Principle of grant of benefit -

Distinction between basic facts and inference of facts - Grant of benefit of doubt

Circumstantial evidence can be reasonably made the basis of an accused persons's conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt ( M.G. Agrawal Vs State of Maharashtra 1963(1) CrLJ 235 : 1963 AIR (SC) 200 : 1963(2) SCR 405 : 64 Bom LR 773 Circumstantial evidence Contradiction - The chain of events not completely establishing the guilt of accused - The motive for murder not categorically established as witness contradicting about the same in cross examination Reliance could not have been placed on the testimony of such witness - Accused entitled to acquittal ( .Shripada Sriram Kulakarni Vs State of Maharsra ), 1980 CrLJ 1292 : 1981 AIR (SC) 34 : 1980 CrLR (SC) 561 : 1980 CAR 347 : 1981 SCC (Cr) 5 Circumstantial evidence Dead body Identification - Identification of - No evidence to identify dead body allegedly taken out by the accused who was a doctor - Possibility of the deceased being already death when brought to the doctor - Circumstance cannot be relied.

The prosecution has produced evidence only to the effect that a dead body was taken out of the dispensary of Dr. Harendra Narain Singh by Ram Nath Singh and other accused persons and the same was carried on the ekka to village Dibbi. The prosecution witnesses have merely deposed that they had seen a dead body being placed on the ekka and taken to village Dibbi. None of the prosecution witnesses has, however, deposed that he had seen the face of the dead body or identified the same. In the absence of such evidence it would not be reasonable to assume that the dead body which was taken out from the dispensary and placed on the ekka was that of the deceased Jagia Devi. In the absence of identification of dead body by the witnesses, it is not legitimate to hold that the dead body which was taken out from the dispensary of Dr. Harendra Narain Singh was that of Jagia Devi. There is another vital defect in the prosecution case. The prosecution failed to produce any evidence that the deceased Jagia Devi was taken to the hospital for treatment by Ram Nath Singh and other accused persons while she was alive and that she was admitted to the dispensary of Dr. Harendra Narain Singh for treatment, at a time when she was alive. In the absence of any such evidence there are various possibilities and probabilities, one of them being that the deceased may have been brought to the dispensary for medical assistance after she was found to be strangulated by some one. ( Harendra Narian singh etc vs. State of Bihar) , 1991 CrLJ 2666 : 1991 AIR (SC) 1842 : 1991 SCC (Cr) 905 : 1991 CAR 266 : 1991 CrLR (SC) 581 : 1991(3) Crimes 297 Circumstantial evidence Corpus delicti of clinching and definite character. Discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead body is impossible. A blind adherence to this old "body" doctrine would open the door wide for many heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. Where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eye-witness, or by circumstantial evidence, or by both. Both where the fact of corpus delicti, i.e., `homicidal death is sought to be established by circumstantial evidence alone' the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. - Non recovery of dead body of

victim - The fact of homicidal death can be established by circumstantial evidence

This principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world and absolute certainty is a myth. That is why under Section 3, Evidence Act a fact is said to be "proved", if the court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned.( Ramand and others CAR 75 Circumstantial evidence Death by drowning - No direct evidence that Vs . State of Himachal Pradesh 1981 CrLJ 298 : 1981 AIR (SC) 738 : 1981 SCC (Cr) 197 : 1981

accused carried the drunk deceased and threw him in the tank - Testimony of chance witness not reliable - Conviction set aside. ( Jaganadh Vs. State of Maharastra ) 1979 CrLJ 925 : 1979 AIR (SC) 1145 : 1979 SCC (Cr) 728 : 1979 CrLR (SC) 26 : 1980 CAR 366 Circumstantial evidence Death by poisoning - Reasoning that accused

could have come in possession of Potassium Cyanide - Inference that accused must have administered the poison without any proof of death by poisoning - A hypothetical inference cannot be drawn in a case of circumstantial evidence. The entire reasoning proceeds on the footing that the accused could have come into possession of Potassium Cyanide, therefore, the inference is that the accused must have administered the same. In the absence of medical evidence establishing that the death caused was only due to Potassium Cyanide, such a hypothetical inference cannot be drawn, particularly so in a case of the circumstancial evidence. It is well-settled that in cases of circumstantial evidence, every circumstance has to be established by clinching evidence and not by mere conjectures. Ramesh Kumar Vs. State of Punjab : 1994 AIR (SC) 945 : 1994 Cr. L.J 1120=1994 SCC (Cr) 300 : 1994 (2) BLJ 320 ) Circumstantial evidence - In a case of circumstantial evidence, the chain of

circumstances must be complete and in case there is any missing link therein, the same cannot form the basis of conviction. (Anjlus Dungdung Vs State of Jharkhand) 2005(1) Criminal Court Cases 246 (S.C.) Appeal (crl.) 360 of 2004

Circumstantial

evidence

It

must

be

established

that

(1)

the

circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypotheses except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (State of Madhya Pradesh Vs Sanjay Rai) 2004 AIR SC 2174, 2004(3 )SCR560 , 2004(10 )SCC570 , 2004(4 )SCALE63 , 2004(4 )JT73 2004(3) Circumstantial evidence - It should be so overwhelming as to exclude the hypothesis of the innocence of the accused. (Rajkumar Vs State of M.P.) 2004 AIR SC 4408, , 2004(12 )SCC77 , 2004(7 )SCALE652 , 2004(7 )JT612 Circumstantial evidence - Law as to - Analysed. (Alamgir Vs State (NCT, Delhi) 2003 AIR SC 282, 2002( 4 )Suppl.SCR 88, 2003( 1 )SCC 21, 2002( 8 ) SCALE373 , 2002( 9 )JT 347 Circumstantial evidence - Married lady alongwith her daughter burnt to death and hanged - Medical report ruling out death by suicide and ascribing death to suffocation because of burns held to be ante mortem - Evidence of PW3 inspiring full confidence and also corroborated - Theory of suicide only imaginary Four circumstances as enumerated leading to guilt of accused - Missing links supplied by blunt and outright denial of every thing - Conviction upheld. (Sadhuram & Anr. Vs State of Rajasthan) 2002(1) Criminal Court Cases 390 (Raj.) Circumstantial evidence - Motive - If the circumstances relied upon by the prosecution are proved beyond doubt, then the absence of motive would not hamper a conviction. (Sahadevan @ Sagadevan Vs State) 2003 AIR 215, , 2003(

1 )SCC 534, 2002( 8 )SCALE311 , 2002( 9 )JT 366

Circumstantial evidence - Motive - In a case based on circumstantial evidence absence of motive creates reasonable doubt. (Pawan Kumar Vs State of Chhattisgarh) 2003(3) Criminal Court Cases 71 (Chhattisgarh)

Circumstantial evidence - Nature of the recovered articles, the manner of

their acquisition by the owner, the nature of the evidence about their identification, the manner in which the articles were dealt with by accused, the place and the circumstances of their recovery and the length of the intervening period and the ability or otherwise of the accused to explain the recovery are some of the circumstances. (Kalpana Mazumdar Vs State of Orissa) 2002 AIR 2826, 2002( 1 )Suppl.SCR 299, 2002( 6 )SCC 536, 2002( 5 )SCALE375 Circumstantial evidence - No complete chain of circumstances found Missing links filled by manipulated materials - Prosecution suppressing and withholding most vital materials - Courts below overlooked serious pitfalls Concurrent verdict liable to be set aside - Appeal allowed. (Ashish Batham Vs State of Madhya Pradesh) 2003(1) Apex Court Judgments 330 (S.C.) : 2003(1) Criminal Court Cases 568 (S.C.) Appeal (crl.) 148 of 2002 Appeal (crl.) 148 of 2002 -Circumstantial evidence - One circumstance cannot be culled out of the rest to give it a different meaning. (Gade Lakshmi Mangraju alias Ramesh Vs State of Andhra Pradesh) AIR 2001 SC 2677. Circumstantial evidence - Prosecution failing to adduce satisfactory evidence on motive aspect - It would not be sufficient to throw out prosecution case as unreliable. (State of Karnataka Vs M.N.Ramdas) 2002 AIR SC 3109, 2002( 2 ) Suppl.SCR 112, 2002( 7 )SCC 639, 2002( 6 )SCALE214 , 2002( 6 )JT 621 2002(3) Circumstantial evidence - Prosecution has to prove all the links in the chain of circumstances which would have to show that in all probability it is only the accused who could have committed the crime. (Subimal Sarkar Vs Sachindra Nath Mondal & Ors.) 2003 AIR SC 1108, , 2003( 2 )SCC 566, 2003( 1 )SCALE62 , 2003( 1 )JT 722003(2) - Circumstantial evidence - Prosecution must establish each circumstance firmly by cogent evidence and all these circumstances, taken together, should form a chain pointing towards the guilt of the accused and the cumulative effect of the circumstances must lead to no other inference but the guilt of the accused. (Mahesh Kumar Vs State of Rajasthan) 2004(4) Criminal Court Cases 193 (Rajasthan) Circumstantial evidence - Should be of such conclusive nature as to exclude every other possibility except the accused being guilty of the charged offence. (State of Rajasthan Vs Khuma) 2004 AIR 4677, 2004(4 )Suppl.SCR219 , 2006(11 )SCC64 , 2004(7 )SCALE669

- Circumstantial evidence - Some of the links in the chain of circumstances not established by prosecution either in accordance with law or beyond reasonable doubt - It casts serious doubts as to the correctness of the prosecution case - Order of conviction set aside. (Kantilal @ K.L.Gordhandas Soni Vs State of Gujarat) 2003 AIR SC 684 , , 2002(10 )SCC39 , 2002(9 )SCALE232 , - Circumstantial evidence - The circumstance should be fully established and all the facts so established should be consistent with the only hypothesis of the guilt of the accused - There must be a complete chain of events as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused - Circumstantial evidence must be such that it cannot be explained on any other reasonable hypothesis except the guilt of the accused. (Rohit Naik Vs State of Orissa) 2002(2) Criminal Court Cases 705 (Orissa) - Circumstantial evidence - There should be chain of circumstances showing complicity of accused with the crime and the chain should be complete. (Sashi Jena & Ors. Vs Khadal Swain & Anr.) 2004 AIR SC 1492, 2004(2 )SCR260 , 2004(4 )SCC236 , Circumstantial evidence - To record conviction in a case based on circumstantial evidence Court must satisfy itself that circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully as to unerringly point only to the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused. (Jeevan & Anr. Vs State of Chhattisgarh) 2004(4) Criminal Court Cases 771 (Chhattisgarh) - Circumstantial evidence - Weapon recovered not found connected with crime Important link stood missing - Benefit of doubt must go to accused. (Man Preet Singh & Anr. Vs State) 2004(1) Criminal Court Cases 42 (Delhi) - Circumstantial evidence - When a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused for the guilt of any other persons - Circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. (State of Haryana Vs Jagbir

Singh & Anr.) 2003 AIR SC377, 2003(4 )Suppl.SCR165 , 2003(11 )SCC261 , 2003(8 ) SCALE221 , Circumstantial evidence - When a case rests upon circumstantial evidence, such evidence must satisfy the tests viz (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (Usman Mian & Ors. Vs State of Bihar) , AIR (1987) SC 350 Circumstantial evidence - When a case rests upon circumstantial evidence, such evidence must satisfy the tests viz (1) the circumstances from which an inference of guilt is sought to be drawn, must been cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis then that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (State of Haryana Vs Jagbir Singh & Anr.) 2003 AIR SC 4377, 2003(4 )Suppl.SCR165 , 2003(11 )SCC261 , 2003(8 ) SCALE221 , 2003(2 )Suppl.JT39

Circumstantial evidence - When case rests upon circumstantial evidence, such evidence must satisfy the tests - (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the

accused but should be inconsistent with his innocence. (State of Rajasthan Vs Rajaram)) AIR 2003 SC 3601, 2003 CriLJ 3901, Circumstantial evidence - Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (Vilas Pandurang Patil Vs State of Maharashtra) 2004 AIR SC3562,

Civil case - Pendency of civil case does not affect the criminal proceedings. (Chinnamma Vs Thomas) 2002(1) Criminal Court Cases 399 (Kerala) Civil case also maintainable - Held, criminal proceedings cannot be thwarted merely because a civil case is also maintainable. (Akhileshwar Narayan Singh Vs State of Jharkhand) 2002(2) Criminal Court Cases 537 (Jharkhand) - Civil Court decree - Complaint on same facts which were adjudicated upon and attained finality in a civil suit between the parties - Same matter cannot be allowed to be adjudicated upon all over again in the criminal proceedings. (Manohar Lal Vs Ram Chander) 2003(3) Criminal Court Cases 87 (P&H) - Civil suit pending on same set of facts and circumstances - Criminal proceedings cannot be stayed - There is no applicability of doctrine of Res Judicata in criminal trials. (Shridhar Vinayak Modgi Vs Ravindra Khanderao Hajare & Anr.) 2004(1) Criminal Court Cases 403 (Bombay) Close related witness - Evidence of such a witness cannot be discarded merely for the reason that witness is close related witness. (State of Punjab Vs Karnail Singh) AIR 2003 SC 3609, 2003 (2) ALT Cri 273, 2003 CriLJ 3892 Same was Cited Earlier discussion in Benefit of doubt and Minor discrepancies in below ( Prabhakar Advocate) Cognizance by Sessions judge - whether Sessions Court can add new person to array of accused in case pending before it at stage prior to collecting any evidence - Sessions Court not powerless to deal with such situations to prevent miscarriage of justice - it is open to Session Court to send report to High Court detailing situation so that High Court can in its inherent power or revisional powers direct committing Magistrate to rectify committal order by issuing process to such left out accused but said procedure need be restored to only for rectifying or correcting such grave cognizance by sessions judge after committal :- The

Sessions Judge can take cognizance of the offence only against those accused persons who are committed to him by the Magistrate concerned. If he has to add a new accused person whose complicity discernible from the prosecution records, then the Sessions Judge will have to address the High Court for correction of the committal order or will have to wait until the stage for exercise of his power under Sec. 319 Cr.P.C. is reached ( Ranjit Song Vs State of Punjab ( AIR1998 SC 3148, 1998(2)ALD(Cri)649, 1998(2)ALT(Cri)282, 1998CriLJ4618, (1998)7SCC149,) Complaint - Amendment - There is no provision in Criminal Procedure Code for allowing amendment of complaint to change name of accused and substitute one accused with another and alleging that the substituted accused had committed the alleged offence. (Behram S.Doctor Vs State of Maharashtra) 2003(3) Criminal Court Cases 638 (Bombay) CONFESSION :- The Magistrate to record any confession or statement made to him could be exercised only in the course of investigation under Chapter XII of the Code. The section is intended to take care of confessional as well as nonconfessional statements. Confession could be made only by one who is either an accused or suspected to be an accused of a crime. Sub-sections (2), (3) and (4) are intended to cover confessions alone, de hors non-confessional statements whereas sub-section (5) is intended to cover such statements. so far as statements (other than confession) are concerned they cannot be recorded by a Magistrate unless the person (who makes such statement) was produced or sponsored by investigating officer. But the Bench has distinguished that aspect from the confession recording for which the following observations have been specifically made: There can be no doubt that a confession of the accused can be recorded by a Magistrate. An accused is a definite person against whom there would be an accusation and the Magistrate can ascertain whether he is in fact an accused person. Such a confession can be used against the maker thereof. If it is a confessional statement, the prosecution has to rely on it against the accused. A three Judge Bench of this Court in Jogendra Nahak and ors. vs. State of Orissa and ors. (1) SCC 272} has held that so far as statements
7 SCC 148 and State of UP V Singhara Singh and Ors AIR 1964 SC 358 AIR1999SC2565

{2000

Mahabir Singh Vs State of Haryana 2001

Confession FIR WITH POLICE - Admissibility - First information amounting to confessional statement is not receivable in evidence. If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of Section 25 is lifted by Section 27.( Aghnee Nagesia Vs. State of Bihar ) , 1966 CrLJ 100: 1966 AIR (SC) 119 : 1966 (1) SCR 134 : : Confession Form of - Identity of Magistrate must require to explain to accuse =Recording in utter disregard of the statutory provisions of sub-section (2) of Section 164 Cr.P.C. - Held, that High Court was not at all justified in entertaining the confession in evidence - It can not be made basis of conviction - Accused acquitted. From the confessional statement the Magistrate first disclosed his identity and told him that he was not bound to make any confession and if he did so, it might be used as evidence against him. After administering the above caution the Magistrate recorded the confession and then made the memorandum required under sub-section (4) of Section 164, Cr.P.C. In our considered view, the confession so recorded is in utter disregard of the statutory provisions of subsection (2) of Section 164, Cr.P.C. Under the above sub-section the Magistrate is first required to explain to the accused that he was not bound to make a confession and that if he did so, it might be used against him. Though this requirement has been complied with in the instant case, the other requirement which obligates the Magistrate to put questions to the accused to satisfy himself that the confession was voluntary so as to enable him to give the requisite certificate under sub-section (4), has not been fulfilled for, the learned Magistrate did not ask any question whatsoever to ascertain whether the appellant was making the confession voluntarily. In view of such flagrant omission to comply with the mandatory requirement of Section 164 (2), Cr.P.C. we must hold that the High Court was not at all justified in entertaining the confession as a piece of evidence, much less, a reliable one. Once the confession is left out of consideration - as it has got to be - the only other piece of evidence to connect the appellant with the alleged offences are the recoveries allegedly made pursuant to his statement. Even if we proceed on the assumption that the evidence led by the prosecution in this behalf is reliable, still, considering its nature, we are unable to hold that it can made the sole basis for conviction even

for the offence under Section 404, I.P.C.( Preetam Vs. State of Madhya Pradesh ) , 1996 CrLJ 4458 : 1997 AIR (SC) 445 : 1996 SCC (Cr) 1343 : 1996 (3) CCR 104 Confession Place of Recording - Effect of - Confession recorded in jail contrary to the rules framed by State Government - No exceptional reasons rendering it not possible to record confession in Court - Reliance on confession, not proper. The standing orders issued by the Government of Uttar Pradesh which are printed as Appendix 19 at page 566 of Manual of Government Orders Uttar Pradesh (1954 Edition) that confessions may ordinarily be recorded in open Court and during court hours unless for exceptional reasons it is not feasible to do so. This is a very important provision which emphasises that the Magistrate in recording confession is exercising part of his judicial function in the manner prescribed by law. One of these instructions also stated that the Magistrate should enquire the reason why the accused is making the confession knowing that it may be used against him. The Magistrate has appended the usual certificate that she was satisfied that the accused made the confession voluntarily. Quite clearly the Magistrate is an inexperienced officer. (Ram Chandra and others U.P ) 1957 AIR (SC) 381 : 1957 CrLJ 559 Confession Police custody - Artificial manipulation created by police to hand over custody - No attempt made for recording of confession by Magistrate Statement is not admissible as extra judicial confession. The court has to look into the surrounding circumstances and to find whether the extra judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it the circumstances in which it was made and finally the actual words used by the accused. Extra-judicial confession if found to be voluntary, can be relied upon by the court alongwith other evidence on record. Therefore, even the extra-judicial confession will also have to be proved like any other fact. The value of the evidence as to the confession depends upon the veracity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused. Sometimes it may not be possible to the witness to reproduce the actual words in which the confession was made. For that reason the law insists on recording the statement by a Judicial Magistrate after administering all necessary warnings to the accused that it would be used as evidence against him. ( Kishore Chand V. State of Himachal Pradesh ), 1990 CrLJ Vs. State of

2289 : 1990 AIR (SC) 2140 : 1991 SCC (Cr) 172 : 1990 CAR 348 : 1990 CrLR (SC) 608 : 1990(3) Crimes 341 Confession Pre recorded confession- Confessional statement appeared to have been pre-recorded and in violation of Rule 15 of the 1987 Rules - Absence of corroboration - Finding of Designated Court that alleged confessions devoid of voluntariness and truthfulness cannot be made basis of convicting any of the accused - No evidence to show that accused committed any terrorist act Acquittal confirmed.(State of Rajashtan Vs. Mahendra Singh and others ) 1995 CrLJ 3640 : 1995 AIR (SC) 2326 Confession Recording of - Investigation by Magistrate - The power to record the confession must be exercised in the manner laid down in the statute Magistrate recording statement can only give oral evidence to prove that the procedure laid down was followed and not that confession has been made.( State of U.P Vs. Singhara Singh and others ), 1964(1) CrLJ 263(2) : 1964 AIR (SC) 358 : 1964(4) SCR 485 : Confession Reliability - Retracted judicial confession and some other evidence in corroboration - Accused confessed about a conspiracy to commit the murder of the deceased, but did not at all confess that he was a party to the murder Confession can not be relied.( Sahabad Pulla Redy and others Vs. State of A.P) 1997 CrLJ 3753 : 1997 AIR (SC) 3087 : 1997 Cr LR (SC) 602 : 1997 (3) Crimes 240 : 1997 (8) SCC 495 : Confession confession of Co -Accused - Conviction without corroboration -

Permissibility. a case against an accused person, the court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. (Hairicheran vs. State of Bihar ), 1964(2) CrLJ 344 : 1964 AIR (SC) 1184 : 1964 (6) SCR 623 : Conflict between oral testimony and medical evidence - Can be of varied

dimensions and shapes - Factors to be taken into consideration in judging reliability of occular testimony - Analysed. (Thaman Kumar Vs State of Union Territory of Chandigarh) 2003 AIR SC 3975, Continuing offence - Continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all, that it is one of those offences which arises out of the failure to obey or comply with a rule or its requirement and which involves a penalty, liability continues till compliance, that on every occasion such disobedience or non compliance occurs, there is the offence committed. (Y.Abraham Ajith & Ors. Vs Inspector of Police, Chennai & Anr.) 2004(4) Criminal Court Cases 466 (S.C.) Appeal (crl.) 904 of 2004( Quash of Sec 498-A IP.C ) Contradictory evidence in examination-in-chief and cross-examination No reliance can be placed on evidence of such a witness. (Madari @ Dhiraj & Ors. Vs State of Chhattisgarh) 2004(1) Criminal Court Cases 487 (Chhattisgarh) Consolidation of cases - - Clubbing and consolidation of the cases not permissible. The complaint presents a different picture altogether. The prosecution case as set out in the complaint is at complete variance with that in the police challan. In our judgment, it is not permissible for the Court under Section 223 of the Code to club and consolidate the case on a police challan and the case on a complaint where the prosecution versions in the police challan case and the complaint case are materially different, contradictory and mutually exclusive.( Harjinder Singh V. State of Punjab ) 1986 CrLJ 831 : 1985 AIR (SC) 404 : 1986 CAR 26 : 1985 CrLR (SC) 66 : 1985 SCC (Cr) 93 : Conviction can be based on sole evidence of a witness if he is found trustworthy. (Munna & Ors. Vs State of Madhya Pradesh) 2003(1) Criminal Court Cases 274 (M.P.) - Conviction can be based on the testimony of sole witness provided it is wholly reliable. (Kare @ Moti Vs State of U.P.) 2003(3) Criminal Court Cases 101 (Allahabad) Conviction on basis of testimony of sole witness - Can be based even if other eye witnesses turned hostile if testimony of such sole witness is found to be reliable. (Chittar Lal Vs State of Rajasthan) AIR 2003 SC 3590, 2003 (2) ALD Cri 274,

Compounding of offence Non compoundable cases - Cross cases between parties compromised - In the special circumstances direction given to
the Trial Judge to compound the offence. This offence is not compoundable under law. The parties, however, want to treat it a special case, in view of the peculiar circumstances of the case. It is said and indeed not disputed that one of the accused is a lawyer practising in the lower court. There was a counter case arising out of the same transaction. It is said that that case has already been compromised. We gave our anxious consideration to the case and also the plea put forward for seeking permission to compound the offence. After examining the nature of the case and the circumstances under which the offence was committed, it may be proper that the trial court shall permit them to compound the offence( Mahesh Cnahd and state of State of Rajasthan , 1989 CrLJ 121 : 1988 AIR (SC) 2111 : 1991 SCC (Cr) 159 : 1991 CrLR (SC) 191 : 1989 CrLR (SC) 630 : 1988 (1) Rec CrR 498

CORPUS DELICTI Recovery of :.

The Supreme Court held that in a trial for

murder, it is neither an absolute necessity nor an essential ingredient to establish corpus delicti. The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. There are a number of possibilities where a dead body could be disposed of without any trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many a case, the accused would manage to see that the dead body is destroyed to such an extent which would afford the accused complete immunity from being held guilty or from being punished. What is, therefore, required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced. . (Mani Kumar Thapa v. State of Sikkim, AIR 2002 SC 2920, (See also: Ram Chandra & Anr. v. State of Uttar Pradesh, AIR 1957 SC 381; Ashok Laxman Sohoni & Anr. v. The State of Maharashtra, AIR 1977 SC 1319; and Rama Nand & Ors. v. The State of Himachal Pradesh, AIR 1981 SC 738) Therefore, in a murder case, it is not necessary that the dead body of the victim should be found and identified, i.e. conviction for offence of murder does not necessarily depend upon corpus delicti being found. The corpus delicti in a murder case has two components - death as result, and criminal agency of

another as the means. Where there is a direct proof of one, the other may be established by circumstantial evidence. CRIME SCENE MAP = The map had been prepared by the Sub-Inspector. It is no doubt true that in the absence of the witnesses who gave the information the remark of the Sub-Inspector would be hearsay; but in the present case we are not concerned with the Sub-Inspector's site sketch but with the plan prepared by a draftsman who derived information from the eye-witnesses about the places 1 and 2 and his evidence read with the map he prepared means that he measured the distance between the two places and made a note of it on the map. It is not unusual to have a plan drawn up by a draftsman and this is not done to evade the provisions of Section 162 of the Criminal Procedure Code. Singh v The State of Punjab AIR 1956 SC 526, 1956 CriLJ 930

( Santa

CRIME SCENE MAP =Investigating officer who made a map in a criminal case

ought not to pat anything more than what he had seen himself. where if was held
that any information derived from witnesses during police investigation, and recorded in the index to a map must be proved by the witnesses concerned and not by the investigating officer, and that if such information is sought to be proved by the evidence of the investigating officer, it would manifestly offend against s. 162 of the Code of Criminal Procedure. Tori Singh vs The State Of Uttar Pradesh ( 1962 AIR 399, 1962 SCR (3) 589 Criminal appeal by special leave to Supreme Court - Governing principles are: (1) No interference with concurrent finding of fact based on pure appreciation of evidence even if it were to take a different view on the evidence; (2) No reappraisement or review of the evidence, unless the assessment of the High Court is vitiated by an error of law or procedure or is based on error of record, misreading of evidence or is inconsistent with the evidence; (3) Own view cannot be substituted with that of the High Court; (4) That the Court would interfere where the High Court has arrived at a finding of fact in disregard of a judicial process, principles of natural justice or a fair hearing or has acted in violation of a mandatory provision of law or procedure resulting in serious prejudice or injustice to the accused; (5) the Court might also interfere where on the proved facts wrong inferences of law have been drawn or where the conclusions of the High Court are manifestly perverse and based on no evidence. (State of Orissa Vs Dibakar Naik & Ors.) 2002 AIR SC 2148 Cross cases - Each case to be decided on the basis of evidence which is placed

on record in that particular case without being influenced in any manner by evidence or the arguments urged in cross case - However, judgment must be pronounced by the same Judge. (Dilip & Anr. Vs State of Maharashtra) 2004(1) Criminal Court Cases 810 (Bombay) Currency notes - Identification - Recovered currency notes having special features as to existence of chits on the bundles bearing the seal of the firm and signatures of PW 16 - Held, currency notes duly identified. (Lal Singh & Ors. Vs State of Uttar Pradesh) 2004(1) Criminal Court Cases 606 (S.C. Appeal (Crl ) 631/ 2001 Dated 4-11-2003, Note Citaiton Not found other journals . But it found in Manupatra ( Prabhakar Advocate ) Custodial death - Compensation - Recovery from Officers concerned - Depends on the fact whether the alleged misdeeds by the officer concerned is committed in the course of the discharge of his lawful duties, beyond or in excess of the same which has to be determined in a proper enquiry. (State of Maharashtra Vs Christian Community Welfare Council of India & Anr.) AIR 2004 SC 7, 2004 (1) ALD Cri 11, 2004 CriLJ 14 GUIDELINES FOR ARREST

.
1.

K.V.S.SPRABHAKAR RAO ADVOCATE

An entry shall be required to be made in the diary as to who was

informed of the arrest. These protections from power must be held to flow from Articles 21 and 22 (1) and enforced strictly. It shall be the duty of the Magistrate, before whom the Arrested person is produced, to satisfy himself that these requirements have been complied with.( Reiterating again for this topic, If knows kindly ignore this , Prabhakar Advocate ) .

( Joginder Kumar vs State of U.P. and Others *1994 Cr.L.J. 1981 / (1994) 4SCC 260 AIR 1994 SC 1349 ) .. Every third day, the detainee should be medically examined and such medical reports should be entered in the Station House Diary; .. The Officer in charge of the concerned police Station should provide paper and pen to the detainee if so demanded for writing complaint and the Officer in charge of the concerned police Station should open the complaint is found in the complaint box, the officer in charge of the police Station should' produce such complaining detainee to the Magistrate immediately along with his complaint and the concerned Magistrate would pass appropriate orders in the light of the complaint made for medical examination, treatment, aid or assistance, as the case may warrant;

FEMALE ARREST (vii) No female person shall be detained or Arrested without the PRESENCE of

lady constable and in no case, after sun-set and before sun-rise; (Christian Community Welfare Council of India and another vs Government of Maharastra & another* 1995 Cr.L.J. 4223 Bombay)) Hand cuffing The Supreme Court on handcuffing of prisoners issued the following, directions: We declare, direct and lay down as a rule that handcuffs or other fetters shall not be forced on a prisoner - convicted or under trial - while lodged in a jail anywhere in the country or while transporting or in transit from one jail to another or from jail to Court and back. The police and the jail authorities, on their own shall have no authority to direct the handcuffing of any inmate of a jail in the country or during transport from one jail to another or from jail to Court and back Any violation of any of the directions issued by us by any rank of police in the country or member of the jail establishment shall be summarily punishable under the contempt of Courts Act apart from other penal consequences under law. (In re: M.P. Dwivedi and others (1996 Cr.L.J. 1670 ) The Arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any, High Court of the country, having territorial jurisdiction over the matter. "The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family. (D.K. Basu vs State of W.B.)1997) 1 SCC 426) See also Sec 498-A IPC

COGNISANCE AND ARREST.:- A poor lady was taken by railway employee to a railway guest house (Yatri Niwas) and was raped. Holding the Union of India vicariously liable, this Court held that for an act of Railway Authorities, a direction can be issued to the authorities to pay compensation to the victim and, accordingly, compensation was awarded.( Chairman, Railway Board v. Chandrima Das, (2002) SCC 465) Public Interest Litigation Under Sec 375 IPC Guidlens in rapes case The detention in POLICE custody is generally disfavoured by law. .. There cannot be any detention in the POLICE custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage.( C.B.I. vs Anupam J. Kulkarni ) 1992 AIR SC 1768, (1992) 3SCC 141 ) ..Magistrate can intervene only when POLICE officer decides not to investigate. .. The meaning of the expression II reason to suspect" has to be governed and dictated by the facts and, circumstances of each case and at that stage the question of adequate proof of facts alleged in the first information report does not arise. (State of Haryana and Others vs Bhajan Lal and Others. AIR 1993 SC 1348, 1993 CriLJ 1042 Death of two witnesses during trial - Their legal heirs cannot be relevant witnesses in the case. (Laveti Kamala Vs State of A.P.) 2002(2) Criminal Court Cases 96 (A.P.) Death suicidal or homicidal - Opinion of doctor in post mortem report that death was suicidal in nature - Opinion appeared to be perverse as doctor exceeded his jurisdiction - It is not within the competence of doctor to opine as to the nature of the death whether it is suicidal or not - No importance could be given to such opinion. (Khokan Patra & Anr. Vs State) 2002(3) Criminal Court Cases 626 (Calcutta) Defect in investigation - Does not corrode the evidentiary value of the eye witnesses. (Surendra Paswan Vs State of Jharkhand) 2004 SC AIR 742 Defective investigation - Acquittal solely on account of defect - Not sustainable - In case of defective investigation Court has to be circumspect in evaluating the evidence. (Ram Bali Vs State of Uttar Pradesh) 2004 AIR 2329, 2004(1 )Suppl.SCR195 ,
2004(10 )SCC598 , 2004(4 )SCALE611 ,

Relied the judgment reported in

1)Pattipati Venkaiah v. State of A.P., AIR

(1985) SC 1715, 2) Nihal Singh v. State of Punjab, AIR (1965) SC 26, relied on.
Defective investigation - Court has to be circumspect in evaluating the evidence Accused cannot be acquitted solely on account of the defect. (Dhanaj Singh @ Shera & Ors. Vs State of Punjab) 2004 AIR SC 1920, 2004(2 )SCR938 , 2004(3 )

SCC654 , 2004(3 )SCALE93 , 2004(3 )JT380

RELIED ON
Karan Singh v. State of M.P., 1995 AIR SC 2472, 1995( 5 )SCC 518, 1995( 4 ) SCALE752 , 1995( 6 )JT 437 Paras Yadav v. State of Bihar, 1999 AIR SC 644, 1999( 1 )SCR 55, 1999( 2 )SCC 126,

1999( 1 )SCALE26 , 1999( 1 )JT 25

Ram Bihari Yadav v. State of Bihar, 1998 AIR SC1850, [1998] 4 SCC 517,

Even if the investigation is defective that pales into insignificance when ocular testimony is found credible and cogent. [943-C] Amar Singh v. Balwinder Singh
2003 AIR SC 1164, [2003] 2 SCC 518

Defective investigation - If ocular evidence is truthful and inspires confidence, lapse in investigation if properly explained cannot cast doubts - In the instant case conviction upheld despite lapse of non lifting of blood stained earth. (Malhu Yadav Vs State of Bihar) 2002 AIR 2137, 2002( 3 )SCR 676, 2002( 5 )SCC 724, 2002( 4 )SCALE285 , Defective investigation - Not a ground to acquit the accused - The only requirement in a defective investigation is that Court should be extra cautious in evaluating evidence - Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. (Visveswaran Vs State Rep. By S.D.M.) 2003 AIR SC 2471 Defective investigation - Solely not a ground for acquittal - To do so would tantamount to playing into the hands of Investigating Officer. (Zahira Habibulla H.Sheikh & Anr. Vs State of Gujarat & Ors.) 2004 AIR SC 3114, 2004(3 )SCR1050, 2004(4 )SCC158 , 2004(4 ) Defective investigation by itself cannot be made a ground for acquitting the accused. (Allarakha K.Mansuri Vs State of Gujarat) 2002 SC AIR 1051, 2002( 1 )
SCR1011, 2002( 3 )SCC 57

Defence - Once rejected then presumption under S.114 Evidence Act can also be drawn. (Gilbert Pereira Vs State of Karnataka) 2004 AIR SC 4454, ( Note Same was discussed earlier in Abscondance of accused . Presumption of culprit established)

Defence side getting affidavits of prosecution witnesses in advance Held, practice adopted by the defence side in getting the affidavits of prosecution witnesses in advance is to be deprecated - It amounts to an attempt aimed at dissuading the witnesses from speaking truth before the court - Trial Judge as well as High Court rightly rejected the defence contention. (Rachapalli Abbulu & Ors. Vs State of A.P.) 2002 AIR SC1805, , 2002( 4 )SCC 208, -Defence witness - Evidence of defence witnesses not to be looked at with suspicion merely because they are defence witnesses - They are entitled to be judged with the same yardstick which is applied for judging the prosecution witnesses - Minor inconsistencies cannot be highlighted to jettison the evidence of otherwise truthful witnesses. (Shri Wilson Fernandes Vs Shri Nitin Pandurang & Anr.) 2004(4) Criminal Court Cases 433 (Bombay) - Defence witnesses - Accused cannot claim a right to examine any number of defence witnesses - If Court is satisfied that a witness is cited for the purpose of vexation or delay or for defeating the ends of justice then Court is entitled to refuse to issue process after recording reasons. (Dharamarajan Vs State) 2002(3) Criminal Court Cases 266 (Kerala) - Defence witnesses - Credibility and trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution. (State of Haryana Vs Ram Singh) AIR 2002 SC 620, 2002 (1) ALT Cri 123 - Deficiency in investigation - Court can act on evidence brought before it and acquit the accused. (State of Haryana Vs Jagbir Singh & Anr.) 2003 AIR SC 4377 2004(1) Criminal Court Cases 296 (S.C.) Deficiency in investigation - Not a ground to discard the prosecution version which is authentic, credible and cogent. (State of Madhya Pradesh Vs Mansingh & Ors.)
2003(2 )Suppl.SCR460 , 2003(10 )SCC414 , 2003(6 )SCALE429 , 2003(1 )Suppl.JT252 Criminal Appeal No. 825 of 1996.Dated 13-8-2003

- Delay in sending dead body for post mortem - Dead body sent for post mortem at 11-12 in the night and reached hospital next day morning at 9.30 a.m. - Jeep broke down on the way at a distance of 13-14 kms. - Jeep repaired in the morning and then dead body taken for post mortem - Explanation given in regard to delay in delivery of dead bodies for post mortem cannot be rejected. (Jai Sree Yadav Vs State of U.P.) 2004(4) Criminal Court Cases 28 (S.C.) Appeal (crl.) 1072 of

2003
- Delay of 2 days in questioning eye witnesses by I.O. - No proper explanation given - This is a serious mistake on the part of the prosecution - Held, High Court rightly disbelieved these witnesses. (Vijaybhai Bhanabhai Patel Vs Navnitbhai Nathubhai Patel & Ors.) 2004 AIR SC 4607, , 2004(10 )SCC583 , 2004(3 )SCALE704 , 2004(4
)JT80

- Delayed examination of witnesses - Unless I.O. is specifically asked as to why there was delay in examiantion of witnesses, defence cannot gain any advantage therefrom - If explanation offered for the delayed examination is plausible and acceptable then no adverse inference can be drawn - If explanation offered is found implausible then Court can consider it to be one of the factors to affect credibility of the witness who were examined belatedly - It has no effect on the credibility of prosecution's evidence tendered by other witnesses. (State of U.P. Vs Satish) 2005 AIR 1000, 2005(2 )SCR1132, 2005(3 )SCC114 , 2005(2 )SCALE33 ,
2005(2 )JT153

D.N. A. DNA Test of rapeaccused Necessity Sec 53-A .

After

incorporation of Sec 53-A in Cr.P.C. from 23-6-2006it has become necessary for prosecution to go in for DNA test in such cases , facilitating prosecution to prove its case against accused - Prior to 2006 even with out afore said specific provision in Cr.P.C prosecution could still have resorted to this procedure of getting DNA test or analysis done and matching of sermon of accused with that found on undergarments of prosecutrix, to make it a foolproof case. Krishna Kumar Malik Vs State of Haryana ,( AIR 2011 SC 2877, SCC 2011 (7) 130 . SCC (Crl) 2011 61 It was held that the refusal to paternity (DNA) test would bar a party from challenging the paternity of the child it was also stated that an adverse inference can be drawn if a party refuses to undergo a DNA test. This seems to be a preferable interpretation and strikes a balance where although the court does not have the power to direct the giving of sample, it may draw an adverse inference if it is not given. (Dwarika Prasad Satpatty v. Bidyut Parva Dixit ) 2000Cri LJ 1: AIR 1999 SC 3348 and K. Salvaraj vP. Jayakumari (2000 Cri LJ 1:AIR 1999 SC 3348)

- Departmental witness - Uncorroborated testimony of the officials of the department concerned does not inspire confidence. (Bhanwar Lal Vs State of Rajasthan) 2002(3) Criminal Court Cases 433 (Rajasthan)

- Directions issued for compliance - (i) All criminal courts shall ensure that appearance of the accused in all cases before them is completed as expeditiously as possible after commencement of proceedings; (ii) Once appearance is completely, parties shall immediate be heard and appropriate orders on charge shall be passed - Charge/particulars of offence shall be read over and explained expeditiously after appearance; (iii) There after the case shall be listed for trial day-to-day and summons shall be issued to the witnesses; (iv) If for any reasons such posting for trial cannot be given within one year the case shall be adjourned to a date (however distant) on which day a posting for day-to-day trial on a specified date/dates can be made; (v) There shall be no unnecessary formal posting of the case to any date; (vi) The presence of the accused/complainant shall not be ordinarily insisted on days when his presence is not required for the progress of the case - On all such dates the complainant/accused shall be permitted to be represented by his counsel even without an application; (vii) If there is no such presence/representation by counsel, appropriate consequence can certainly follow-again in the judicious discretion of the court; (viii) Specific direction shall be made in advance (while adjourning the case) by the court to the complainant/accused through their counsel if their personal presence is necessary on the next date of posting; (ix) The above directions shall not in any way affect the discretion of the court to direct personal appearance of the accused generally (or on any specific date of posting) for any particular purpose; (x) No application under Sections 205/317 Cr.P.C. shall ever be rejected unless there are specific and compelling reasons; (xi) As far as possible in summons issued to witnesses specific time for appearance shall be mentioned - Hereafter witnesses will at least be told in such summons whether they are expected to be present in the forenoon (10.30 a.m.) or afternoon (1 p.m.) session; (xii) Cases posted for recording plea or Section 313 questioning of the accused shall not be adjourned for the reason that the co-accused are not present - Such work in respect of the available accused shall be completed and the case adjourned for such work in respect of the nonavailable accused without insisting on the personal appearance of the available accused on such days; (xiii) When the court commences its work for the day all accused who want to surrender before court shall be permitted to do so, and their applications for bail shall, unless it be impossible for any reason, be disposed of by the court on the same day before the court rises for the day; (xiv) The Chief Judicial Magistrates/Sessions Judges shall ensure that these directions are complied with by the sub-ordinate courts and shall specifically advert to this aspect in the course of their inspections of subordinate courts. (Alice George Vs Deputy Superintendent of Police) 2003(2) Criminal Court Cases 111 (Kerala) - Discrepancies - Minor discrepancies cannot be termed as contradictions unless

it affects the credibility of the evidence tendered by a witness. (Shashidhar Purandhar Hegde & Anr. Vs State of Karnataka) 2004 AIR SC
Suppl.SCR536 , 2004(12 )SCC492 , 2004(8 )SCALE843 , 2004(9 )JT177 5075, 2004(5 )

- Discrepancy between Medical and Ocular evidence regarding number of injuries suffered by deceased - Medical report that there were 3 injuries but according to eye witnesses five injuries were inflicted - Two injuries might have escaped notice of Autopsy surgeon - Prosecution case not rejected as prosecution otherwise established its case. (Yunis @ Kariya Vs State of Madhya Pradesh) 2003 AIR SC 539,
, 2003( 1 )SCC 425, 2002( 9 )SCALE245

Note See Joint Liability discussed below Scope of Sec 149 / 34 IPC - Distance - Statement of the witness with respect to distance cannot be considered as exact or precise - It is always based on general impression and due allowance must be given keeping in view the intelligence, power of observation and retentive memory of the witness. (Jeeva @ Khema Vs State of Rajasthan) 2005(1) Criminal Court Cases 90 (Rajasthan)

Discharge U/s 239 CrPC: Section 227 of the Code of Criminal Procedure, 1973
provides that if upon consideration of the record of the case and the documents submitted therewith, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused for which he is required to record his reasons for so doing. No reasons are required to be recorded when the charges are framed against the accused persons. Omwati and Anr Vs. State 2001 AIR 1507, 2001( 2 )SCR 482, 2001( 4 )SCC 333, 2001( 2 ) SCALE505 , 2001( 3 )JT 585 At the stage of passing the order in terms of Section 227 of the Code, the Court has merely to peruse the evidence in order to find out whether or not there is a sufficient ground for proceeding against the accused. If upon consideration, the court is satisfied that a prima facie case is made out against the accused, the Judge must proceed to frame charge in terms of Section 228 of the Code. Only in a case where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defense evidence cannot show that the accused committed the crime, then and then alone the court can discharge the accused. The court is not required to enter into meticulous consideration of evidence and material placed before it at this stage Kami Bhadra Shah and Anr. v. State of West Bengal, AIR 2000 SC 522, 2000 (1) ALD Cri 421 [2000] 1 SCC 722, referred to. Stree Atyachar Virodhi Parishad v. Dilip Nethuma Chordia [1989] 1 SCC 716; State of Bihar v. Ramesh Singh, AIR (1977) SC 2018; Supdt. & Remembrancer

of Legal Affairs, West Bengal v. Anil Kumar Bhunja, AIR (1980) SC 52 and Satish Mehra v. Delhi Administration, [1996] 9 SCC 766, referred . Doli incapaxOffence by child Presumption that the child has not reached the age of discretionThe presumption is rebuttable by evidence. When a teenager, tensed by his elders or provoked by the stone-hit on the head of his father, avenges with dangerous sticks or swords, copying his brothers, we cannot altogether ignore his impaired understanding, his tender age and blinding environs and motivations causatory of his crime. At common law in England, as noticed by Archbold in Criminal Pleading, Evidence and Practice, a child under 14 years is presumed not to have reached the age of discretion and to be doli incapax; but this presumption may be rebutted by strong and pregnant evidence of a mischievous discretion..... for the capacity to commit crime, do evil and contract guilt, is not so much measured by years and days as by the strength of the delinquent's understanding and judgment. Adult intent, automatically attributed to infant means, is itself an adult error. It is every day experience that little boy as a class have less responsible appreciation of dangers to themselves or others by injurious acts and so it is that the new penology in many countries immunises crimes committed by children of and below ten years of age and those between the ages of 10 and 14 are `in a twilight zone in which they are morally responsible not as a class, but as individuals when they know their act to be wrong'. The Indian Penal Code, which needs updating in many portions, extends total immunity upto the age of seven (Section 82) and partial absolution upto the age of twelve (Section 83). No evidence as to whether he was under twelve, as conditioned by Section 83, I.P.C. is adduced; no attention to feeble understanding or youthful frolic is addressed. And we are past the judicial decks where factual questions like this can be investigated. The prima facie inference of intent to endanger the life of the deceased with a sharp weapon stands unrebutted. Indeed, robust realism easily imputes doli capax to a twelver who cuts on the neck of another with a sword; for, if he does not know this to be wrong or likely to rip open a vital part he must be very abnormal and in greater need of judicial intervention for normalisation. The conviction under Section 326, I.P.C. therefore, must be reluctantly sustained. When such is the law, we cannot innovate to attenuate, submit to spasmodic sentiment, or ride an unregulated benevolence.( Hiralal Mallick Vs State of Bihar ) 1977 CrLJ 1921 : 1977 AIR (SC) 2236 : 1977 SCC (Cr) 538 :

Double Jeopardy Simultaneous proceedings under sec 138-A Negotiable

Instruments Act and Sec 420 I.P.C judgment in G. Sagar Suri & Anr. v. State of U.P. & Ors., 2000 (1) ALD Cri 362= 2000 AIR 754, 2000( 1 )SCR 417, 2000( 2 )SCC 636,
2000( 1 )SCALE271 , 2000( 1 )JT 360 wherein during the pendency of the proceedings

under Section 138 N.I. Act, prosecution under Sections 406/420 IPC had been launched. This Court quashed the criminal proceedings under Sections 406/420 IPC, observing that it would amount to abuse of process of law. In fact, the issue as to whether the ingredients of both the offences were same, had neither been

raised

nor

decided.

Therefore,

the

ratio

of

that

judgment

does

not

haveapplication on the facts of this case. Same remained the position so far as the judgment in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao & Anr., (2011) 2 SCC 703,( Full Text Judgment High Court of Andhra Pradesh SET ASIDE REPORTED in 2005 (2) ALD Cri 840, I (2007) BC 446, 2006 CriLJ 1 ) is concerned. It has been held therein that once the conviction under Section 138 of N.I. Act has been recorded, the question of trying a same person under Section 420 IPC or any other provision of IPC or any other statute is not permissible being hit by Article 20(2) of the Constitution and Section 300(1) Cr.P.C. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary. Recent Judgment in Supreme Court in Sangeetaben Mahendrabhai Patel Vs. State of Gujarat Double Jeopardy - Dishonor of Cheque 2012 STPL(Web) 245 SC ( Yet to be reported in Other journals)kvssprabhakr advocate) Criminal Appeal No. 645 of 2012 High Court has dismissed the application filed by the present appellant under Section 482 of Criminal Procedure Code, 1973 (hereinafter referred as `Cr.P.C.) for quashing the I.CR No. 18 of 2004 and Criminal Case No. 5 of 2004 pending before the Chief Judicial Magistrate, Patan, on the plea of double jeopardy for the reason that the appellant has already been tried and dealt with under the provisions of Section 138 of Negotiable Instruments Act, 1881 (hereinafter

referred as `N.I. Act) for the same offence. .. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed .. There may be some overlapping of facts in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions. The appeal is devoid of any merit and accordingly dismissed. - Doctrine of Autrefois acquit - Accused arrested while in possession of arms and ammunition in notified area and was prosecuted under TADA - He separately prosecuted for offence of kidnapping for ransom being the master mind - Acquittal of that offence by Competent Court - Doctrine of Autrefois acquit attracted and Designated Court was wrong to proceed on the allegations in that case. (Mukhtiar Ahmed Anshari Vs State (N.C.T. of Delhi)) 2005 AIR SC 2804, 2005(3 )SCR797 , 2005(5 )
SCC258 , 2005(4 )SCALE269 , 2005(4 )JT503

Dying declarationAdmissibilityNecessity of strict scrutiny and closest circumspection by Court before acting upon the dying declarationThe Court must be satisfied about the fit state of mind of the deceased making declaration before relying on the sameOmission of Magistrate recording declaration to put direct question about mental condition of injured may render it unsafe to be relied. The dying declaration is undoubtedly admissible under Section 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring prompting or a product of his imagination. The Court must be satisfied the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. The person who recorded the dying declaration to question the deceased regarding his state of mind to make the statement was considered to be a very serious one and in our opinion in the instant case the omission of the Judicial Magistrate who knew the law well throws a good deal of doubt on the fact whether the deceased was really in a fit state of mind to make a statement. The Sessions Judge has rightly pointed out that even though the deceased might have been conscious in the strict sense of the term, there must be reliable evidence to show, in view of his intense suffering and serious injuries, that he was in a fit state of mind to make a statement regarding the occurrence. Having regard, therefore, to the surrounding circumstances mentioned above, which have not been fully considered by the High Court, we find it extremely unsafe to place any reliance on Ext, P-2 particularly in

view of the conduct of the deceased in not making any disclosure regarding the occurrence on the three previous occasions when he had a full and complete opportunity to name his assailants.( K.Ramachandra Reddy and another V, The Public Prosecutor) (1976 CrLJ 1548 : 1976 AIR (SC) 1994 : 1976 CrLR (SC) 286 : 1976(3) SCC 618 : 1976 (2) APLJ 39 DYING DECLARATION By The Victim ; Dying declaration by victim was

emphasised by the Supreme Court in where it was held by the court that just because the dying declaration was not recorded by a magistrate cannot be a ground to disbelieve the entire prosecution case. It was further held by the court that when a statement of an injured is recorded, in the event of her death, the same may also be treated to be a First Information Report. Section 32 (1) of the Indian Evidence Act states that a state made by a person explaining the cause of his death should be considered as relevant and important in the cases where his death comes into questions. In such circumstances, dying declaration made by the victim would become important so as to arrive at a correct decision. It should not be necessarily made in front of a magistrate. Balbir Singh v State of Punjab : AIR 2009 SC 3221,= 2006 AIR SCW 4950) Dying declarationFIRThe deceased after making statement to police succumbed to his injuries and diedThe contents of FIR can be treated as dying declaration.( Mannu Raja and another V. The state of Madya Pradesh) 1976 Cr.L.J 1718 : 1976 AIR (SC) 2199 : 1976 SCC (Cr) 376 : 1976 CrLR (SC) 54 : 1976 Jab LJ 599

Dying declarationrecording by police officerThe mental fitness of deceased not questioned from the officer during his cross-examinationThe statement is admissible. A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, becomes admissible under Section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. In the instant case, the dying declaration has been properly proved. It is significant to note that in the course of cross-examination of the witness proving the dying declaration, no questions were put as to the state of health of the deceased and no suggestion was made that the

deceased was not in a fit state of health to make any such statement. The doctor's evidence also clearly indicates that it was possible for the deceased to make the statement attributed to her in the dying declaration in which her thumb impression had also been affixed.( Ramawati Devi. Vs. State of Bihar )( 1983 CrLJ 221 : 1983 AIR (SC) 164 : Dying declarationappreciation of Material diversions relating to commission of crime cannot be ignored by the Court. The High Court has sidelined such a noticeable discrepancy looming large as between the two different statements made by the same person. When the sphere of scrutiny of dying declaration is a restricted area, the Court cannot afford to sideline such a material divergence relating to the very occasion of the crime. Either the context spoken to one was wrong or that in the other was wrong. Both could be reconciled with each other only with much strain as it relates to the opportunity for the culprit to commit the offence. Adopting such a strain to the detriment of the accused in a criminal case is not a feasible course.( Dandu Lakshmi Reddy V. State of A.P ,)( 1999 CrLJ 4287 : 1999 AIR (SC) 3255 : 1999 SCC (Cr) 1176 ) Dying declaration improvement in subsequent dying declaration does not affect the validity of earlier dying declaration.( Sreema Murhy V. State of A.P )1998 CrLJ 4063 : 1998 AIR (SC) 3040 : 1998 SCC (Cr) 1432 : Dying declarationimprovements Two dying declarationsFirst recorded by police immediately after deceased regained consciousness after attack, second recorded by MagistrateNames of all accused stated in second dying declaration Dying declarations corroborated by eye-witnessesTreating second dying declaration as improvement over first one High Court acquitted the accused personsOrder of acquittal passed by High Court set aside and conviction and sentence passed by Sessions Court restored.( Pratapaneni Ravi kumar alias Ravi and another V. State of A.P )1997 CrLJ 3505 : 1997 AIR (SC) 2810 : 1997 SCC (Cr) 1198 : 1997(2) Crimes 32 : 1997 (35) All Cr C 254 : 1997 (3) CCR 5
DYING DECLARATION ;-The principle on which dying declaration is admitted in

evidence indicated in legalmaxim "nemo moriturus proesumitur mentiri a man will not meet his maker with a liein his mouth.Supreme Court has laid down in several judgments the principles dyingdeclaration, which could be summed up as under as indicated in (Smt. Paniben v. Stateof Gujarat (AIR 1992 SC 1817): (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja & Anr. v. The State of Madhya Pradesh(1976) 2 SCR 764) (ii) ](ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See State

of Uttar Pradesh v. Ram Sagar Yadavand Ors. (AIR 1985 SC 416) and Ramavati Devi v. State of Bihar (AIR 1983 SC 164)](iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K. Ramachandra Reddy and Anr. v. The Public Prosecutor (AIR 1976 SC1994)](iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC264)](v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See Kaka Singh v State of M.P. (AIR 1982SC 1021)](vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath and Ors. v. State of U.P. (1981 (2) SCC 654)(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR1981 SC 617)](viii) Equally, merely because it is a brief statement, it is not to be discarded. On thecontrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza andOrs. v. State of Bihar (AIR 1979 SC 1505).(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram and Anr. v. State of Madhya Pradesh (AIR 1988 SC 912)].(x) Where the prosecution version differs from the version as given in the dyingdeclaration, the said declaration cannot be acted upon. [See State of U.P. v. MadanMohan and Ors. (AIR 1989 SC 1519)].(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See MohanlalGangaram Gehani v.State of Maharashtra (AIR 1982 SC 839)]."

Disposal of propertyPower of Magistrate Articles seized by police not produced before the MagistrateQuestion of release of property has to be decided in the facts and circumstances of the caseIf released it may prejudice the case, it should be rejected.

The fact that the court has power to dispose of property seized by the police but not yet produced before the court does not mean that the Special Judge must always release such property to the person from whom the property has been recovered, especially when the stage of the case is in suspicion, the investigation is not over and charge-sheet has not yet been laid. The court has to be circumspect in such a situation before releasing the property. While we reverse the decision of the courts below that the Special Judge had no power to release the seized property, we should not be taken to mean that whenever the claimant asks for the property back, he should be given back the said property. That has to be decided on its own merits in each case and the discretion of the court has to be exercised after due consideration of the interests of justice including the prospective necessity of the production of these seized will, in any manner, affect or prejudice the course of justice at the time of the trial, it will be a wise discretion to reject the claim for return. Ram Prakash Sharam V. State of Haryana ) 1978 CrLJ 1120 : 1978 AIR (SC) 1282 : 1978 SCC (Cr) 309 : Disposal of propertyRight of owner Entrustment of case property to Receiver which was not traceableRightful claimant/owner of the case property who already had a decree of civil court declaring his ownership, seeking possession Receiver denying that it had possession of case propertyIt was duty of Magistrate to enquire into the matter to trace the property or to compensate the owner. When the rightful claimant applied to the Court for possession of the buses the Court could not simply shrug its shoulders and direct him to go to a Civil Court because both the Official Receivers disclaimed that they were in possession of the buses. In such a situation it was the duty of the Court to probe into the matter, make a full enquiry, and trace the whereabouts of the buses. If the buses could not be delivered to the owner for any reason the Court should direct the culpable party to pay the value of the vehicles to the appellant. It is elementary that no one shall be prejudiced for the act of the Court `actus curiae neminem gravabit' (the act of the Court harms no one).Inter Continental Agencies Pvt Ltd V Amin Chand and another, 1980 CrLJ 689 : 1980 AIR (SC) 951 : 1980 SCC (Cr) 544 : 1980 CrLR (SC) 175 : 1980 CAR 188 : 1980 All CrR 275 : 1980 Sim LC 277

- Earliest version of two child witnesses suppressed by prosecution - That makes the entire prosecution case vulnerable and doubtful. (Orsu Venkat Rao Vs State of Andhra Pradesh) AIR 2004 SC 4961, 2004 (2) ALD Cri 1029 - Every person is innocent till proved guilty and further Court presumes a human being to behave normally and this presumption continues till such time some concrete material, like antecedents of an individual, is brought on record to show that he shall not behave in normal fashion. (Naginder Singh Rana Vs State of Punjab) 2004(4) Criminal Court Cases 295 (P&H) - Evidence - If two views are possible, one which is favourable to the accused has to be accepted. (State of Haryana Vs Inder Singh) JT 2002 (2) SC 169, (2002) 9 SCC
537 2002(2) Criminal Court Cases 464 (S.C.) Sec 304-B and Sec 498-A IP.C

- Evidence - Minor discrepancies - Should be ignored - When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and therefore minor discrepancies have to be ignored - Some discrepancy is bound to be there and the same should not weigh with the Court so long it does not materially affect the prosecution case. (Krishna Mochi Vs State of Bihar) 2002 AIR 1965, 2002( 3 )SCR 1, 2002( 6 )SCC 81, 2002( 3 )SCALE602 , 2002( 4 )JT 186.) Note See also Material Discrepancies same was cited (Prabhakar advocate) - Evidence - Ocular evidence not in consonance with medical evidence - If evidence of eye witnesses is of unimpeachable character and is reliable and credible, even if it is not in consonance with medical evidence and is at slight variation, then the same should not be ignored as medical evidence is just an opinion of an expert and the Court is the best expert. (Ram Kishun & Ors. Vs State of U.P.) 2002(2) Criminal Court Cases 101 (All.) - Evidence - Unless a piece of evidence is tendered in evidence by any witness, the same cannot be taken into consideration. (Munnalal Vs State of Rajasthan) 2004(3) Criminal Court Cases 686 (Rajasthan)
- Evidence by affidavit - Evidence of a formal character - Can be given by way of

affidavit - If any party to the lis wishes to examine or cross-examine the deponent he can move application u/s 296 (2) Cr.P.C. and when such an application is made it is the duty of the Court to call such person to the Court for the purpose of being examined. (State of Punjab Vs Naib Din)
SCC 578, 2001( 6 )SCALE532 , 2001( 8 )JT 189 2001 AIR SC3955, 2001( 3 )Suppl.SCR 396, 2001( 8 )

- Evidence of a witness cannot be rejected on the ground that he did not reacted in a particular manner - Human behaviour varies from person to person and different people behave and react differently in different situations. (State of Uttar Pradesh Vs Devendra Singh) 2004(3) Criminal Court Cases 123 (S.C.) - Evidence of a witness who has got a criminal background - To be viewed with caution - If such an evidence gets sufficient corroboration from evidence of other witnesses, there is nothing wrong in accepting such evidence. (State of Uttar Pradesh Vs Farid Khan & Ors.) 2005(1) Criminal Court Cases 220 (S.C.) Appeal (crl.)
1863-64 of 1996

- Evidence of eye witnesses corroborated by medical evidence proved prosecution case - Trial Court recording acquittal relying on circumstances or aspects not based upon legal evidence - Held, High Court was justified in convicting accused by reversing acquittal. (Allarakha K.Mansuri Vs State of Gujarat) 2002 AIR SC 1051,

2002( 1 )SCR1011, 2002( 3 )SCC 57, 2002( 2 )SCALE131 , 2002( 2 )JT 63)

- Evidence of injured persons and eye witnesses to the occurrence not consistent with each other on material particulars such as the manner of appearance of the accused persons at the scene, their chasing and surrounding the informant party before the assault, and the utterings of the accused persons hurling abusive words and threatening to kill the informant party - Not safe to rely upon their evidence. (Pramod Kumar Khadamsingh Vs State of Orissa) 2002(3) Criminal Court Cases 244 (Orissa) - Evidence of victim clear and cogent - In the absence of any material to show as to why he would falsely implicate the accused, his evidence is to be relied upon. (Mathai Vs State of Kerala 2005 AIR SC710 , 2005(1 )SCR450 , 2005(3 )SCC260 , 2005(1 )SCALE293 , 2005(2 )JT365 - Exactly identical deposition of two witnesses - It is one of the grounds for doubting the credibility of the witness. (Shri Wilson Fernandes Vs Shri Nitin Pandurang & Anr.) 2004(4) Criminal Court Cases 433 (Bombay)

Expert Witness- An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusion so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data furnished which form the basis of his conclusions (State Of Himanchal Pradesh v. Jai Lal (AIR 1999 SC 3318)
Extra-judicial confession, if true and voluntary can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. [Gura Singh v. State of Rajasthan)(2001 AIR SC 330, 2000( 5 )Suppl.SCR 408, 2001( 2 )SCC 205, 2000( 8 )SCALE147 , 2000( 3 ) Suppl.JT 528 Extra-Judicial Confession- An unambiguous extra-judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence pro- vided it is free from suspicion and

suggestion of its falsi- ty. But in the process of the proof of the alleged confession the court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged under s. 24 of the Evidence Act or was brought about in suspicious circumstances to circum- vent ss, 25 and 26 of the Evidence Act. For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and final- ly the actual words used by the accused. Section 25 of the Evidence Act provides that no confession made to a police officer shall be proved as against a person accused of any offence. Section 26 provides that no confession made by any person while he is under custody of the police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against such person.( Kishore Chand v. State of H.P.) 1990 AIR SC 2140 1990 SCR Supl. (1) 105=1991 SCC (1) 286 JT 1990 (3) 662=1990 SCALE (2)369 ( Refe= Piara Singh v. State of Punjab, AIR (1977) SC 2274 Extra-judicial confession= Extra Judicial Confession is admissible if it inspired

confidence and made voluntarily. The High Court's reasoning that the accused has made a confession statement before a stranger is totally perverse State of Andhra Pradesh: Vs Kanda Gopaludu (2005 AIR 3616, 2005(3 )Suppl.SCR643 , 2005(13 ) SCC116 , 2005(7 )SCALE677 , 2006(2 )JT412 Extra-judicial confession - Extra-judicial confession is a weak evidence by itself and it has to be examined by the court with greater care and caution; that it should be made voluntarily and should be truthful; that it should inspire confidence; that an extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence; that for an extra- judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; and that such statement essentially has to be proved like any other fact and in accordance with law.( Sahadevan & Another v. State of Tamil Nadu, 2012 AIR SCW 3206 referring to the rulings in Sk. Yusuf v. State of W.B. (2011) 11 SCC 754 and Pancho v. State of Haryana, (2011) 10 SCC 165 : AIR 2012 SC 523:))

- Eye witness - Corroboration - Not required in every case - It is however required when evidence of eye witness though ex facie acceptable but is not of such a character upon which implicit reliance can be placed. (Jeeva @ Khema Vs State of Rajasthan) 2005(1) Criminal Court Cases 90 (Rajasthan)

- Eye witness - Discrepancies in evidence - No true witness can possibly escape from making some discrepant details - A tutored witness can only successfully make his testimony totally non discrepant. (Bhanwari & Ors. Vs State of Rajasthan) 2002(2) Criminal Court Cases 114 (Raj.) - Eye witness - Evidence of sole eye witness found to be clear trust worthy and unassailed during cross-examination - No evidence that he is enemically disposed of towards the accused - Sufficient to base an order of conviction. (Kanista Barik Vs State of Orissa) 2002(2) Criminal Court Cases 148 (Ori.) - Eye witness - Non disclosure of occurrence to any person in the village - Not a ground to discard his evidence if his testimony is otherwise found to be credible. (Ramia Gaudo & Anr. Vs State) 2002(2) Criminal Court Cases 402 (Orissa) - Eye witness - Reaction - Court should not expect a set reaction from an eye witness on seeing an incident like murder - Different type of reaction is expected from different type of persons - Unless the reaction demonstrated by an eye witness is so improbable or so unconscionable from any human being pitted in such situation, it is unfair to his reactions as unnatural. (Ramdev, Dharamraj & Rampal Vs The State of Rajasthan) 2003(3) Criminal Court Cases 347 (Rajasthan) - Eye witness - Son of deceased - Simply because an eye witness happens to be the son of the deceased, his evidence cannot be discarded if his testimony is otherwise acceptable. (Jeeva @ Khema Vs State of Rajasthan) 2005(1) Criminal Court Cases 90 (Rajasthan) - Eye witness - 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 to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbablise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a court would attach to their evidence. (Jeeva @ Khema Vs State of Rajasthan) 2005(1) Criminal Court Cases 90 (Rajasthan) - Eye witness partly reliable - Court to rely on his testimony has to look for corroboration in material particulars. (Amrita @ Amritlal Vs State of M.P.) , , 2004(12 )SCC224 , 2004(2 )SCALE343 , 2004(2 )JT295 2004(3) Criminal Court

Cases 511 (S.C.) Appeal (crl.) 987 of 2003 - Eye witnesses - Evidence of eye witnesses not corroborated by medical evidence and their evidence did not inspire confidence so as to be wholly reliable Conviction on such evidence cannot be sustained. (Sheo Prasad Tiwari & Ors. Vs State of Uttar Pradesh) 2004(2) Criminal Court Cases 743 (Allahabad) - Eye witnesses - Some of the eye witnesses examined and some not examined Does not make prosecution version suspect and the position is not changed when the witnesses examined are relatives. (Surinder Singh Vs State of U.P.) AIR 2003
SC 3811, 2003 CriLJ 4446

- Eye witnesses - When FIR is doubtful then eye witnesses whose names are mentioned in FIR cannot be relied upon. (Gabbu & Ors. Vs State of M.P.) 2004 CriLJ
2001 =2004(1) Criminal Court Cases 335 (M.P.)

- Eye witnesses account when found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. (State of Madhya Pradesh Vs Dharkole @ Govind Singh & Ors.) 2005 AIR 44 , 2004(5 Suppl.SCR780 , , 2004(9 )SCALE149 , 2004(9 Cases 796 (S.C.)( Discussed in earlier in benefit of doubt Prabhakar Advocate) - Eye witnesses examined by investigating officer after 14 days of occurrence Their evidence cannot be relied on to base conviction. (Shiv Yadav @ Sheo Raut & Ors. Vs State of Bihar) 2005(1) Criminal Court Cases 06(Patna) - Failure to examine all witnesses who witnessed the occurrence - If witnesses examined by prosecution are found to be truthful and reliable then there cannot be outright rejection of prosecution case. (Birendra Rai & Ors. Vs State of Bihar) ) )JT501 2005(1) Criminal Court

2005 (1) ALD Cri 333 2005(1) Criminal Court Cases 725 (S.C.)
False Defence - Existence of other material against accused - Plea of false 1974 CrLJ 800 : 1974 AIR (SC) 1144 :

defence can be taken into consideration to bring home the guilt of accused.( Mohana Lal pangasa Vs. State of U.P ( 1974(4) SCC 607 : 1974 Cr LR (SC) 415)

FIRST INFOR MATION REPORT:

FIR is not an encyclopedia. It is only to set

the law in motion. It need not elaborate but should contain necessary allegations to constitute cognizable offences.

(a). Evidentiary Value:

Section 154, Cr.P.C Use of FIR - FIR is not a substantial piece of evidence - It can only be used for corroborating or contradicting its maker It cannot be used to corroborate or contradict other witnesses Baldev Sings vs. State of Punjab (1990) 4 SCC 692 State ofGujarat vs. Anirudhsing (1997) 6 SCC 514. Section 154, Cr.P.C. FIR Evidentiary value Corroboration of its maker is permissible But the first information report cannot be used as substantive evidence orcorroborating a statement of third party State of M.P. vs. Surbhan AIR 1996 SC 3345
- False defence plea - It is an additional link in the chain of circumstances. (Araque Lutifi @ Dazy Vs State of Orissa) 2003(1) Criminal Court Cases 508 (Orissa) - False defence plea - Not enough to bring home accusations - However, it provides additional link to substantiate prosecution's accusations. (Usman Mian & Ors. Vs State of Bihar 2005 AIR 1288, 2004(5 )Suppl.SCR21 , 2004(10 )SCC786 ,

2004(8 )SCALE456 , 2004(9 )JT235

False implication - In the case of a single accused story of false implication is not known to criminal law - It is not possible that victim would give go-bye to real culprit and falsely implicate another person. (Surjeet Vs State of Haryana) 2005(2) Criminal Court Cases 277 (P&H) - Fire shots - Deceased wearing a sweater, ganji and carrying a chadar - Plea that blackening of skin around wound not possible - Held, blackening of skin was found only on the margin of the wounds, that is on the skin around the wound When firing takes place from a close range, blackening of margin of wounds appears to be only normal. (Birendra Rai & Ors. Vs State of Bihar) 2005(1) 2005

(1) ALD Cri 333 Criminal Court Cases 725 (S.C.)

- Fire shots - Plea that appellants standing on a higher level and deceased standing on road at lower level - In normal course wound would show a downward trajectory but report disclosed otherwise - Held, after receiving first injury on the chin deceased fell down - Other injuries were suffered when he was lying on the ground - Not much significance is to be attached to the fact that some wounds showed an upward trajectory - A bullet may possibly be deflected if it hits a hard

surface. (Birendra Rai & Ors. Vs State of Bihar) 2005 (1) ALD Cri 333 2005(1) Criminal Court Cases 725 (S.C.) Framing of chargeAlteration of charge at appellate court Permissibility Amendment of charge in appeal is permissibleRemand of case to give opportunity to accused to recall witnesses and to adduce any evidenceNo prejudice caused to accused by amendment of charge. ( Kantilal Chandulal Mehta Vs. State of Maharashtra and another) 1970 CrLJ 510 : 1970 AIR (SC) 359: 1970(2) SCR 742 : 1969(3) SCC 166 : 1970 MLJ 610 : 73 Bom LR 36

- Firing a gun - Distance - Inconsistency - Medical evidence that gun shot was fired from a distance of about 3-4 ft. and according to PW-1 distance was about 20-25 ft. - Held, where direct evidence of the eyewitness is that the accused committed the murder by firing a gun, some inconsistency relating to distance based on medical opinion offered, is of no significance whatsoever. (Janak Singh & Anr. Vs State of Uttar Pradesh) 2004 AIR 2495, 2004(1 )Suppl.SCR378 , 2004(11 )SCC385 , 2004(4 )SCALE670 - Fundamental right or civil right cannot be curtailed only if a criminal case is pending. (Naginder Singh Rana Vs State of Punjab) 2004(4) Criminal Court Cases 295 (P&H) - Grievous injury on person of accused - Not explained - Conviction set aside. (Khursid & Ors. Vs State of Haryana) 2004(3) Criminal Court Cases 610 (S.C.)

- Gun not sent for forensic test - Accused cannot be acquitted solely on this ground. (Ram Bali Vs State of Uttar Pradesh) 2004(1) Apex Court Judgments 590 (S.C.) Appeal (crl.) 204 of 2003

- Hostile Witness- Sec

154 Evidence Act The witness who makes statements

adverse to the party calling and examining him and who may with the permission of the court, be cross examined by that party This is not a very good -definition

of a hostile witness and the Indian Evidence Act is most careful in Section 154 not to restrict the right of cross-examination even by committing itself to the word hostile. that merely because the Court gave permission to the Public Prosecutor to cross- examine his own witness describing him as hostile witness does not completely efface his evidence Supreme Court in Bhagwan Singh v. State of Haryana [AIR 1976 SC 202]. The evidence remains

admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In State of U.P. v, Ramesh Prasad Misra AIR 1996
SC 2766 the Supreme Court held that the evidence of a hostile witness would

not be totally rejected if spoken in favour of the prosecution or accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defense may be accepted. In Balu Sonba Shinde v. State of Maharashtra 2002 AIR SC 3137, 2002( 2 ) Suppl.SCR 135, 2002( 7 )SCC 543, 2002( 6 )SCALE281 , 2002( 6 )JT 611 2003 SCC (Crl.) 112 the Supreme Court held that the declaration of a witness to be hostile does not ipso facto reject the evidence.

- I.O. - Failure or omission or negligence - When direct testimony of the eyewitnesses corroborated by medical evidence fully establishes the prosecution version failure or omission or negligence on part of the IO cannot affect credibility of the prosecution version. (Dhanaj Singh @ Shera & Ors. Vs State of Punjab) 2004
AIR SC 1920, 2004(2 )SCR938 , 2004(3 )SCC654 , 2004(3 )SCALE93 , 2004(3 )JT380)

- I.O. - Non examination - After going through the evidence of witnesses and other material on record, held, no prejudice has been caused to the defence by non examination of I.O. (Birendra Rai & Ors. Vs State of Bihar) 2005 (1) ALD Cri 333 2005(1) Criminal Court Cases 725 (S.C.) - Identification - Identification parade not held - Identification of the accused for the first time in Court is valueless. (State of Punjab Vs Sudama) 2004(1) Criminal Court Cases 453 (P&H) - Identification - In the light of fire - Accused known to members of the prosecution party - Identification of accused cannot be doubted. (Shankar Mahto & Anr. Vs State of Bihar) 2002(3) Criminal Court Cases 550 (S.C.) AIR 2002 SC 2857, 2002

(2) ALD Cri 388

Identification Identification of accused at night / darkness Source of night Identification of accused There were minimum three torches flashed simultaneously on persons who were scaling down walland were being chased by witnesses Failure of electricity supply does not become fatal Witnesses identifiedrespondents being persons who were scaling down wall and had been apprehended upon an immediate chase Held, High Court erred in recording finding that identification was doubtful. State of Uttar Pradesh Vs Mohd. Iqram and Anr) ((2011) 8 SCC 800)

- Identification - Murder and dacoity at night time - Accused known to PWs Identification is possible in gas light when accused are already known to PWs Omission to indicate location of gas light in site plan is not fatal when FIR is lodged without unreasonable delay. (Indian Penal Code, 1860, Ss.395, 302). (State of U.P. Vs Babu & Ors.) 2003 AIR 3408, 2004 (1) ALD Cri 15, 2003 CriLJ 4982 ,

- identification - Murder and dacoity at night time - Accused known to PWs - When accused are known, identification is possible from the manner of speech, manner of walking and gesticulating and special features of a person like the physical attributes. (State of U.P. Vs Babu & Ors.) 2003 AIR 3408, 2004 (1) ALD Cri 15,

2003 CriLJ 4982

- Identification - Murder at mid night - Accused already known to PW who also suffered injuries - Held, P.W. had abundant opportunity to identify even if there was no light. (Chittarmal Vs State of Rajasthan) 2003 AIR 796 , 2003(1 )SCR49 , 2003(2 )SCC266 , 2003(1 )SCALE55 , 2003(1 )JT91. - Identification - Offence at mid night - No electricity in village - Accused persons set house on fire - Held, it was possible for eye witness to identify the accused. (Krishna Mochi & Ors. Vs State of Bihar) 2002 AIR
2002( 6 )SCC 81, 2002( 3 )SCALE602 , 2002( 4 )JT 186 SC 1965, 2002( 3 )SCR 1,

- Identification - Showing photographs - During the course of investigation, if witness gives identifying features of the assailants, the same can be confirmed by the Investigating Officer by showing the photographs of the suspect - More than one photographs, if available, should be shown - If suspect is available for identification or for video identification, photographs shall never be shown to the witness in advance. (D.Gopalakrishnan Vs Sadanand Naik & Ors.) 2004 AIR 4965, 2004(5 )Suppl.SCR520 , 2005(1 )SCC85 , 2004(8 )SCALE840 , 2004(9 ) .. - Identification - Threat at the point of revolver and demand of ransom Identification parade held in police station building - Possibility of identifying without seeing the appellant before identification parade, not ruled out Prosecution had failed to establish that the appellant was one of those persons who gave threats and demanded ransom - Conviction of appellant set aside. (Anthony @ Tony William Rosario Vs State of Maharashtra) 2004(1) Criminal Court Cases 344 (Bombay)

- Identification - Victim had sufficient opportunity to see accused before commission of crime - Evidence of identification of accused in absence of test identification parade cannot be rejected. (Ramesh @ Tillu Vs State) 2004(2) Criminal Court Cases 600 (Delhi) - Identification by tattoo marks - Body recovered from the river - Tattoo marks may disappear if pigment used is vermilion or ultra-marine and if it has not penetrated deep into the skin. (Shankar Mahto & Anr. Vs State of Bihar) AIR 2002
SC 2857, 2002 (2) ALD Cri 388

- Identification by torch light - Dark night - Accused running - It is very difficult to identify a person who is running and showing only his back. (Reddi Appalnaidu & Ors. Vs State of A.P.) 2002(1) Criminal Court Cases 589 (A.P.) - Identification by voice - Possible only if person is known very well and he alone speaks - When all the accused were talking with each other simultaneously it is not possible to identify all of them however one or two persons can still be identified - Identification by voice is a very weak piece of evidence and it is not safe to convict the accused on that score. (Reddi Appalnaidu & Ors. Vs State of A.P.) 2002(1) Criminal Court Cases 589 (A.P.) - Identification of a stranger by victim - Possible only if victim get sufficient time and opportunity of seeing the culprit and thereafter impressing his features, identification marks, in his memory so as to allow him to collect it at the time of test identification parade - It is not possible when incident takes place suddenly, in a surprising way and victims were frightened as it is difficult to maintain a balance and become alert to grasp the features of the culprit as surprizedness in which the victim has been caught, coupled with frightedness are the factors which go against capacity of such witness identifying said person, after gap of even couple of days. (Rajeshkumar Babulal Sharma Vs State of Maharashtra) 2002(1) Criminal Court Cases 610 (Bom.) - Identification of accused and recovered articles - Not proved - Conviction set aside. (Pappu & Anr. Vs The State of Rajasthan) 2003(2) Criminal Court Cases 44 (Rajasthan) - Identification parade - Law as to - (i) Identification tests do not constitute substantive evidence - They can only be used as corroborative of the statement in court - (ii) The main object of holding an identification parade during the investigation stage, is to test the memory of the witnesses based upon first

impression and also to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the crime - (iii) In order to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade and it is desirable that a test identification parade should be conducted as soon as after the arrest of the accused - (iv) Appreciation of such evidence would depend upon the strength and trustworthiness of witnesses. (Vinod Kumar & Ors. Vs State of Rajasthan) 2004(1) Criminal Court Cases 254 (Rajasthan) - Identification parade - When accused was specifically named in the FIR then it was not necessary to hold test identification parade. (Bir Chand Vs State of Haryana) 2003(3) Criminal Court Cases 131 (P&H) - Identity of accused in crime - Accused disputing he is not involved in the alleged incident and no article was found from him then such endorsement be taken on the photograph. (Sunderbhai Ambalal Desai Vs State of Gujarat) AIR
2003 SC 638, 2003 (1) ALD Cri 8, 2003(1) Apex Court Judgments 273 (S.C.) :

2003(1) Criminal Court Cases 689 (S.C.) - Identity of deceased - Skeletal remains recovered from well after two months of murder - Identity of deceased tested by super-imposition of skeletal remains of deceased with reference to photograph of deceased - Post mortem report opined that age of deceased was between 15-16 years - Forensic expert also opined that skull belonged to a human being of female aged 15 or 16 years - Identity of deceased stood established. (Golakonda Venkateswara Rao Vs State of Andhra Pradesh) AIR 2003 SC 2846, 2003 (2) ALD Cri 452, 2003(2) Apex Court Judgments 153 (S.C.) Note : Cited in Circumstantial Evidence Prabhakar Advocate ) - Identity of vehicle - There may not be any necessity of producing the vehicle before the Court - Seizure report may be sufficient. (Sunderbhai Ambalal Desai Vs State of Gujarat) AIR 2003 SC 638, 2003 (1) ALD Cri 8, Cited in Identify of accused in Crime ( Prabhakar Advocate) - If a person undertakes to do a particular act, Court should presume that he shall do so unless there be reasons available from which it could be gathered that he shall not abide by the undertaking given by him. (Naginder Singh Rana Vs State of Punjab) 2004(4) Criminal Court Cases 295 (P&H) - If offender is ill it is duty of Police Officer to take him to hospital and to make efforts for saving his life instead of engaging in technicalities. (Babasaheb

Dadasaheb Koli Vs State of Maharashtra) 2004(2) Criminal Court Cases 57 (Bombay) - If on same evidence two views are reasonably possible, the one in favour of the accused must be preferred. (State of U.P. Vs Gambhir Singh & Ors.) 2005 AIR SC 2439, , 2005(11 )SCC271 , 2005(1) Apex Court Judgments 677 (S.C.) - If testimony of a witness is not reliable an accused can not be convicted simply because there was no ground for his false implication. (Lalla alias Raj Kumar Singh Vs State of U.P.) 2004(2) Criminal Court Cases 626 (Allahabad) - If two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. (Shashidhar Purandhar Hegde & Anr. Vs State of Karnataka) 2004 AIR SC 5075, 2004(5 )Suppl.SCR536 , 2004(12 )SCC492 ,
2004(8 )SCALE843 , 2004(9 )JT177

- If two views are reasonably possible, one supporting acquittal and other indicating conviction then appellate Court should prefer the former one. (State of Kerala Vs Ramachandran) 2002(3) Criminal Court Cases 534 (Kerala) - If two views are reasonably possible on the basis of evidence on record, the view which favours the accused must be preferred. (Ram Swaroop & Ors. Vs State of Rajasthan) 2005 CriLJ 1066, 2004(3) Criminal Court Cases 359 (S.C.) - In case of direct evidence, lack of motive is no ground to cast suspicion on oral testimony of the witness. (Mohinder Singh & Anr. Vs State of Punjab) 2005(1) Criminal Court Cases 393 (P&H) - In fardbeyan only six persons named - In evidence names of three more persons added - Witnesses also did not say with respect to other three persons Conviction of three added persons cannot be held to be legal. (Mojai Sharma & Ors. Vs State of Bihar) 2005(1) Criminal Court Cases 263(Patna) - Inconsistencies - Of minor nature - Can be regarded as natural - Giving more details while deposing before Court cannot be regarded as improvements. (Karbasappa & Ors. Vs State Through Narona Police Station) 2004(4) Criminal Court Cases 332 (Karnataka) - Independent witness - Family feud - In a family feud it is rarely an independent witness would come forward to give evidence. (Balram Singh & Anr.

Vs State of Punjab) 2003 AIR 2213, , 2003(11 )SCC286 , 2003(4 )SCALE561 , - Independent witness - Given up being won over - Trial Court finding no justified reason to give up such witness - No other independent witness joined though recovery effected at a busy thoroughfare - The findings recorded by the trial Court are possible findings and do not suffer from any perversity. (State of Punjab Vs Jagjit Singh) 2002(3) Criminal Court Cases 595 (P&H) - Independent witness - Joined at the time of search but not examined as a witness - It is a serious infirmity. (State of Punjab Vs Nikku Singh) 2004(1) Criminal Court Cases 48 (P&H) - Independent witness - One independent witness joined but he not examined and no reason assigned as to why he was not examined - The only presumption is that if he had been produced, he would not have supported the prosecution version. (Hukmi Vs State of Haryana) 2004(2) Criminal Court Cases 512 (P&H) - Independent witnesses - Non joining of - Conviction u/s 326/324/34 IPC Occurrence took place in a cattle fair where there was a large crowd but none of the independent witnesses associated - Conviction set aside. (Mohan Vs State of Punjab) 2003(2) Criminal Court Cases 640 (P&H) - Independent witnesses - Raid by Drug Inspector - Independent witnesses not joined - Two doctors from his own department joined - They cannot be said to be independent witnesses - Conviction under Drugs and Cosmetics Act set aside. (Mukhtiar Singh Vs State) 2003(3) Criminal Court Cases 220 (P&H) - Inimical witnesses - If witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses - A duty is cast upon the Court to examine the testimony of inimical witnesses with due caution and diligence. (Rama Shish Rai Vs Jagdish Singh) AIR 2005 SC 335, 2005 (1)
ALD Cri 61,

- Injured witness - Evidence of injured witnesses have greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (State of Madhya Pradesh Vs Mansingh & Ors.) 2003(2 )Suppl.SCR460 ,
2003(10 )SCC414 , 2003(6 )SCALE429 , 2003(1 )Suppl.JT252

- Injured witness - Merely because a witness is injured intrinsic value of his evidence is not enhanced by this fact alone. (Jagatpal & Ors. Vs State of U.P.)

2005(1) Criminal Court Cases 24(Allahabad) - Injured witness - Testimony of an injured witness has its own relevance and efficacy - The fact that the witnesses sustained injuries at the time and place of occurrence lends support to their testimony that the witnesses were present during the occurrence. (State of U.P. Vs Kishan Chand & Ors.) 2004 AIRSC 4671, 2004(3 )Suppl.SCR640 , 2004(7 )SCC629 , 2004(7 )SCALE75 , 2004(6 )JT535. - Injuries by Bhala - Incised wound and piercing wound - Bhala will cause piercing and punctured wound only when it is used as Bhala - Bhala can also cause incised wound when the assault is by the side portion of the Bhala and it is used in a slanting fashion - Wounds on the person of victim found by doctor to be incised wound - Evidence of prosecution witnesses that Bhala was used as a Bhala is used and there is nothing to show that Bhala was used in a different manner - Finding of incised wound casts a doubt over the prosecution story. (Parmanand Singh & Ors. Vs State of Bihar) 2005(1) Criminal Court Cases 749 (Patna) - Injuries on person of accused - Failure to explain - Injuries suffered few abrasions and minor lacerated wounds - Held, prosecution case cannot be disbelieved merely by its failure to explain minor injuries suffered by accused. (Mangu Khan & Ors. Vs State of Rajasthan) 2005 AIR 1912, 2005(2 )SCR368 , ,
2005(2 )SCALE365 , 2005(2 )JT575

- Injuries on person of accused - Non explanation - Does not vitiate the trial, if the prosecution evidence against the accused is so strong on the basis of which alone the conviction can be recorded. (State of U.P. Vs Kishan Chand & Ors.) 2004 AIR SC 4671, 2004(3 )Suppl.SCR640 , 2004(7 )SCC629 , 2004(7 )SCALE75 , 2004(6 ) JT535. 2004(4) Criminal Court Cases 337 (S.C.) - Injuries on person of accused - Non explanation - Effect - Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. (Shriram Vs State of Madhya Pradesh) 2003(9 )JT293 .,2004(1) Criminal Court Cases 619 (S.C.) - - Injuries on person of accused - Omission to explain - Will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so 2004 AIR SC 491 , 2003(6 )Suppl.SCR129 , 2004(9 )SCC292 , 2003(10 )SCALE312 ,

probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. (Sucha Singh & Anr. Vs State of Punjab) AIR 2003 SC 3617, 2003 (2) ALD Cri 506

- Injuries on person of accused persons - Non explanation - Not a ground to discard the prosecution version - That per se cannot be a ground to totally discard the prosecution version - This is a factor which has to be weighed along with other materials to see whether the prosecution version is reliable, cogent and trustworthy - When the case of the prosecution is supported by an eye witness who is found to be truthful, as well, mere non-explanation of the injuries on the accused persons cannot be a foundation for discarding the prosecution version. (Chacko @ Aniyan Kunju & Ors. Vs State of Kerala) 2004 AIR SC2688, 2004(1 ) SCR900 , 2004(12 )SCC269 , 2004(1 )SCALE625 , 2004(1 )JT358 - Interested or partisan witness - Evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or both, if otherwise the same is found to be credible. (Ashok Kumar Pandey Vs State of Delhi) 2002
AIR 1468, , 2002( 4 )SCC 76, 2002( 2 )SCALE647 , 2002( 3 )JT 103

- Interested witness - A witness can be called interested only when he derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused punished - A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be interested. (Jeeva @ Khema Vs State of Rajasthan) 2005(1) Criminal Court Cases 90(Rajasthan) - Interested witness - Court has to sift the evidence to find truth after excluding the exaggerations and embellishments. (Raghunathan Vs State of Kerala) 2002(1) Criminal Court Cases 493 (Kerala) - Interested witness - Evidence of an interested witness by itself not to be rejected - Test of creditworthiness or acceptability is the guiding factor - The evidence must inspire confidence and in the event of unshaken creditability, there is no justifiable reason to reject the same. (Alamgir Vs State (NCT, Delhi) 347 ... - Interested witness - Testimony of cousin and of friend of deceased - Not to be discarded outrightly but to be scrutinised carefully. (Anwar Hussain Vs The State of Rajasthan) 2003(1) Criminal Court Cases 599 (Rajasthan) - Interested witness - When a incident happens in a dwelling house or nearby the 2003 AIR 282, 2002( 4 )Suppl.SCR 88, 2003( 1 )SCC 21, 2002( 8 )SCALE373 , 2002( 9 )JT

most natural witnesses would be the inmates of that house - Merely on surmises Court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses as prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also. (Sucha Singh & Anr. Vs State of Punjab) AIR 2003 SC 3617, 2003 (2) ALD Cri 506 ( Note ;- See also

Person injured accused earlier discussed )

- Interested witnesses - All disclosures, discoveries and even arrests made in presence of three specific persons - These atleast create a doubt or suspicion Held, when there is such a doubt, the benefit must and ought to be transposed to the accused persons. (State of Haryana Vs Ram Singh) AIR 2002 SC 620, 2002 (1)
ALT Cri 123 2002(1) Criminal Court Cases 571 (S.C.)

- Interested witnesses - Not a suspect witness - However, his evidence has to be considered with proper scrutiny. (State of Haryana Vs Ram Singh) AIR 2002 SC
620, 2002 (1) ALT Cri 123 2002(1) Criminal Court Cases 571 (S.C.)

- Interested witnesses - Testimony of all material prosecution witnesses interested in the prosecution case requires close scrutiny and when there are many infirmities, contradictions, appearing in the evidence of the prosecution witnesses, it is extremely hazardous to convict the accused in the absence of corroboration in all material particulars. (Debi Prasad Panda Vs State of Orissa) 2003(1) Criminal Court Cases 409 (Orissa) - Interested witnesses - Their testimony not to be discredited simply because they are related to the informant - It is the circumstance of the case which would render their testimony untrustworthy. (Shiv Kumar Yadav & Ors. Vs State of Bihar) 2004(1) Criminal Court Cases 21 (Patna) - Investigation by police official who was the complainant - Investigation can be assailed only if it is biased. (S.Jeevanantham Vs State through Inspector of Police, TN) 2004 (1) ALD Cri 1015, 2004 CriLJ 3834 - Investigation by same police official who lodged complaint - In absence of independent corroboration, conviction cannot be recorded in such a case. (Mukhtiar Ahmed Anshari Vs State (N.C.T. of Delhi) 2005 AIR 2804, 2005(3 )SCR797 ,
2005(5 )SCC258 , 2005(4 )SCALE269 , 2005(4 )JT503

- Investigation lapses - Ballistic expert not examined to elicit the fact that empty cartridges recovered and pellets recovered from the body of victim were

fired from a particular sten gun - Bloodstained earth and shirt of accused not sent for chemical analysis and the reports obtained - Held, these lapses do not affect the veracity of the most natural eye witnesses who have given a consistent version and who came forward with this version at the earliest opportunity. (Gyasuddin Khan @ Md.Gyasuddin Khan Vs State of Bihar) 2004 AIR 210 , 2003(5 ),
2004 CriLJ 395 , Suppl.SCR367 , 2003(12 )SCC516 , 2003(9 )SCALE401 , 2003(9 )JT1

Joint liability of members of unlawful assembly Scope and applicability Sec 149 IPC

(i) When the charge is under section 149, the presence of the accused as part of unlawful assembly is sufficient for conviction even if no overt act is imputed to him; Yunis alias Kariya v. State of Madhya Pradesh, AIR 2003 SC 539. (ii) Conviction by taking recourse to section 149 cannot be made out unless five specified objects enumerated in section 141 are not proved; Ramashish v. State of Bihar, 1999 (6) JT 560: 1999 (2) JCC (SC) 471. (iii) Even if no overt act is imputed to a particular person, when the charge is under section 149, the presence of the accused as part of unlawful assembly is sufficient for conviction; Yunis alias Kariya v. State of Madhya Pradesh, AIR 2003 SC 539. Joint liability of members of unlawful assembly (i) It is well settled that once a membership of an unlawful assembly is established, it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. Mere membership of the unlawful assembly is sufficient; State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom). (ii) Every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed; State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom).

Section 34. Acts done by several persons in furtherance of common intention

1

34. Acts done by several persons in furtherance of common intention.- When a

criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. COMMENTS

Common intention (i) The burden lies on prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concert; State of Orissa v. Arjun Das, AIR 1999 SC 3229: 1999 (8) SCC 154: 1999 (6) JT 14: 1999 (4) Crimes 78 (SC). (ii) Where the evidence did not establish that particular accused has dealt blow the liability would devolve on others also who were involved with common intention and as such conviction not sustainable; State v. T.K. Sadashivaiah Din Kodimallappa, 1999 (1) CCR 152 (Kant). (iii) When the accused rushed with sword drawn itself showed that he shared the common intention hence liable for conviction under section 300, read with section 34; Abdulla Kunhi v. State of Kerala, AIR 1991 SC 452. 1991 CriLJ 525 a (iv) The contention that the appellant was physically not in a position because of the sixty per cent. disability due to polio on his lower limbs, to hold the hand of the deceased cannot be accepted. The fact that the accused held the hand of one of the deceased to facilitate assailants to assault deceased, is said to have shared common intention of committing murder of deceased; Major Singh v. State of Punjab, AIR 2003 SC 342. Distinction between common intention and common object A clear distinction is made out between common intention and common object is that common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or pre-concert. Though there is a substantial difference between the two sections namely 34 and 149, they also to some extent overlap and it is a question to be determined on the facts of each case; Chittarmal v. State of Rajasthan, AIR 2003 SC 796. Difference in operation of section 34 and section 149 (i) Both sections 149 and 34 deal with a combination of persons who become liable to be punished as sharers in the commission of offences. The non-applicability of section is, therefore, no bar in convicting the accused under substantive section read with section 34 if the evidence discloses commission of an offence in furtherance of the common intention of them all; Nethala Pothuraju v. State of Andhra Pradesh, (1991) Cr LJ 3133 (SC). 1991 AIR SC 2214, 1991 SCR Supl. (1) 4

(ii) In order to convict a person vicariously liable under section 34 or section 149 it is not necessary to prove that each and everyone of them had indulged in overts acts; Ram Blias Singh v. State of Bihar, (1989) Cr LJ 1782: AIR 1989 SC 1593.

Hearsay evidence - Hearsay evidence is not acceptable as legal evidence in view of the implied prohibition under Sec. 60 of the Evidence Act. Ram Chandra v. State of Haryana

(1981 AIR 1036, 1981 SCR (3) 12)

Ingredients (i) When an offence is sought to be proved only on circumstantial evidence, the allegations of common intention under section 34 normally cannot be established in absence of meeting of mind, the overt act of the accused, by their conduct, by using the weapons by their utterance of words; Santosh Desai v. State of Goa, (1997) 2 Crimes 666 (Bom). (ii) In order to bring a case under section 34 it is not necessary that there must be a prior conspiracy or pre-meditation, the common intention can be formed in the course of occurrence; Hari Om v. State of Uttar Pradesh, 1993 CriLJ 1383 (1993) 1 Crimes 294 (SC). (iii) Mere surrender by appellant along with accused before police does not show meeting of minds as to bring the case within ambit of Section 34; Rangaswami v. State of Tamil Nadu, (1989) Cr LJ 875: AIR 1989 SC 1137. (iv) It has been held that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing from the scene cannot absolve the accused; Lallan Bhai v. State of Bihar, AIR 2003 SC 333.

Judges power to put questions or order production: The judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the court, to cross examine any witness upon any answer given in reply to any such question. (Ram Chander v. State of Haryana,)1981 AIR 1036, 1981 SCR (3) 12 see Also 1981 SCC (Cri.) 683,
Vincent v. State of Kerala

Local Inspection Section-310. (1) Any judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after new notice to the parties, visit and inspect any place in

which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection.( State of Himachal Pradesh v. Mast Ram ) [2004] 8 SCC 660 2004 AIR 5056, 2004(4 2004(7 )SCALE637 , 2004(7 )JT617 Judicial proceedings Sec 40 Evidence recorded in one criminal case cannot be used in the cross case even with the consent of accused..( Mitthulal and another V. The State of Madhya Pradesh (1975 CrLJ 236 : AIR 1975 (SC) 149 : 1974 CrLR (SC) 702 : 1975(3) SCC 529 : ) - Judicial order - Use of cyclostyled form - Held, every judicial act contemplates a judicial performance and it cannot be achieved by mechanical process by utilising a cyclostyled form - Magistrate has to apply his mind and has to write the judicial order himself or has to be got typewritten under his supervision - If order is typewritten the same should be at his dictation - Order overall should show the application of judicial mind and a judicial performance. (Prakash B.Paranjape Vs K.G.Patil) 2003(3) Criminal Court Cases 651 (Bombay) - Katar blow inflicted on thigh of deceased - FIR not stating that first blow was attempted on chest - Omission not sufficient to raise doubt about evidence of person making FIR. (Anwar Hussain Vs The State of Rajasthan) 2003(1) Criminal Court Cases 599 (Rajasthan) - Laches on part of prosecution - Simply for this reason a criminal case cannot end in acquittal. (Union of India Vs Md.Abdul Hassan, Tax Assistant) 2003(3) Criminal Court Cases 301 (Gauhati) )Suppl.SCR269 , 2004(8 )SCC660 ,

Last Seen Together 1) The theory of last seen together is one where two persons are seen

together alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption as to the person alive being the author of death of the other can be drawn. Time gap should be such as to rule out possibility of somebody else committing the

crime. Last seen together principle is one of the latest principles which is taken into consideration in establishing the guilt of the accused. In the absence of eye-witnesses and tangible evidence, it is the last resort of the prosecution in a murder case the person last seen with the victim is presumed to be the murderer, thus, shifting the onus onto the accused to prove otherwise or come up with an alibi( Yuvaraj Ambar Mohite vs State of Maharashtra (, 2006(7 SCALE369 ) 2) The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime? There must be something more establishing connectivity between the accused and the crime! There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. Mohibur Rahman and anr. v. State of Assam AIR 2002 SC 3064, 2002 (2) ALT Cri 318 )Suppl.SCR677 , 2006(12 )SCC512 , 2006(10 )

3)

Deceased was taken away from the convent by the appellant

under a false pretext and she was last seen alive only in his company. On the information furnished by the appellant, the jewels of the deceased which were sold by the appellant, were seized. The
Court had convicted the accused for the offence of murder basing on the last seen together principle but gave the benefit of doubt to the accused for the offence under S. 376 as there was no other incriminating evidence to prove the offence of rape. Joseph s/o Kooveli Poulo v. State of Kerala, 2000 AIR 1608, 2000( 3 )SCR 729, 2000( 5 )SCC 197, 2000( 4 )SCALE92 , 2000( 6 )JT 195 4) In the absence of any other links in the chain of circumstantial

evidence, it was not possible to convict the appellant solely on the basis of the last-seen evidence. Jaswant Gir v. Punjab (2005) 12 SCC 438 5) The deceased couple arrived in Goa from Mumbai for their honeymoon

and stayed in a hotel. the couple went for sight-seeing at Ozran, Vagator with P.W.13-Vincent, who was the car driver. He had also taken them for the sightseeing trip a day earlier as well. However, in the light of the factors that

evidence regarding the recovery of the incriminating materials from the accused persons has been discarded; that there has been sufficient time gap between the instances when the accused persons were last seen together with the deceased persons; and in the absence of any other corroborative piece of evidence to complete the chain of circumstances to fasten the guilt on the accused couple, the Apex Court was of the opinion that the accused have been rightly given the benefit of doubt by the courts below ( State of Goa v. Sanjay Thakran ) , 2007(3 )SCR507 , 2007(3 )SCC755 , , 2007(5 ) JT146
6) A1, A2 and the deceased were last seen together going on a scooter by PW confession, knives

9. Later the deceased was found dead. In pursuance of A1s

were recovered from the house of A-3 apart from seizing the Bajaj scooter from the house of A-1 and A-3. Pursuant to the confession of A-2, shirt and gold chain were recovered. There was also evidence that the accused had purchased the two knives used for the offence. The trial Court found the evidence of PW-9 to be cogent and credible and applying the principles of last seen found A-1 and A-2 guilty. The High Court acquitted the accused but the Supreme Court restored the judgment of the Trial Court as there was additional evidence besides the

evidence of last seen together. Ravindra Reddy v. Shaik Masthan and ors=2008 (11) SCR 873=2008 (11) SCALE 128=2009 (3) SCC(Cr) 767
Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79) Eradu And Ors. vs State Of Hyderabad ( : AIR 1956 SC 316, 1956 CriLJ 559 ) Padala

7)

The Sessions Court relying primarily on the evidence of P W.2 (P W.1

having turned hostile) and P W.3 the Doctor and the recovery of the murder weapon, a knife, at the instance of the appellant, and the fact that the deceased and the appellant had been last seen together in the van, convicted the appellant. The conviction was affirmed by the High Court. But, the Apex Court held that the Lower Courts conviction could not be sustained as the medical evidence far from supporting the prosecution story destroys its very substratum. 2011 (1) SCC(Cr) 1084=2009 (17) SCC 537 8) It was held that where there is a long time-gap between last seen

together and the crime, and there is the possibility of other persons intervening, it is hazardous to rely on the theory of last seen together

Bodhraj v. Jammu & Kashmir

CriLJ 46642003 S.C.C. (Crim) 20:

AIR 2002 SC 3164, 2002 (2) ALT Cri 268, 2002

9)

Even if time gap is less and there is no possibility of others intervening, Ram Reddy Rajesh Khanna Reddy v. )SCR348 , 2006(10 )SCC172 , followed in Sirima Narasimha Rao

it is safer to look for corroboration 2006(3 )SCALE452 , 2006(4 )JT16

Andhra Pradesh, 2006 AIR 1656, 2006(3

v.Andhra Pradesh, ELIED ON Pattipati Venkaiah vs State Of Andhra Pradesh :

AIR 1985 SC 1715, 1985 CriLJ 2012 10)

By the adoption of the last seen together, there has been the tendency

of the Courts, especially the Apex Court has been going perhaps towards ..adjusting the balance of justice and ensuring that there will be no excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma(Krishnaiyer, V.R. Shivaji Sahebrao Bobade & Anr v. State of Maharashtraon ( 1973 AIR 2622, 1974 SCR (1) 489)
11)

The latest tendency of the Court thus, is to take the aid of Sections

106 of the Indian Evidence Act, in addition to the last seen together principle to hold an accused person guilty whenever there is no evidence available See Prithipal Singh & Ors v. State of Punjab 2012 (1) SCC 10. = 2012
AIR(SCW) 594 - Last seen theory - Comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime become impossible. (State of U.P. Vs Satish)
2005 AIR 1000, 2005(2 )SCR1132, 2005(3 )SCC114 , 2005(2 )SCALE33 , 2005(2 )JT153

( Note same was cited in Circumstantial evidence Prabhakar Advocate )

- Last seen together - A person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. (Sahadevan @ Sagadevan Vs State) 2003 AIR 215, , 2003( 1 )SCC 534, 2002( 8 )SCALE311 , 2002( 9 )JT 366 - Last seen together - Last seen circumstance is a very weak type of evidence - It should be corroborated by some other independent material evidence. (Pawan @ Ratan Mandal Vs State of Chhattisgarh) 2003(3) Criminal Court Cases 460

(Chhattisgarh) - Last seen together - Prosecution has to prove that the time gap between the last seen and murder is so proximate and so close that there is no possibility of drawing any inference of innocence of the accused persons and there was no possibility of meeting of anyone else with the deceased in between. (Pawan @ Ratan Mandal Vs State of Chhattisgarh) 2003(3) Criminal Court Cases 460 (Chhattisgarh) - Link evidence - Affidavit not bearing seal of Court which had attested it Affidavit is inadmissible in evidence and cannot be read into evidence - Accused acquitted. (Gurmail Singh Vs State of Punjab) 2003(3) Criminal Court Cases 43 (P&H) - Link evidence - Proof by way of affidavit - Verification of affidavit found to be defective - Affidavit not admissible in evidence - There being no link evidence, accused is entitled to benefit of doubt. (Santokh Singh @ Sokha Vs The State of Punjab) 2003(1) Criminal Court Cases 563 (P&H) - Link evidence - Recovery of charas - Affidavit of two police officials who took sample to chemical examiner tendered in evidence but these officials not produced for cross examination - Affidavits not put to accused during his statement u/s 313 Cr.P.C. - Report of Chemical Examiner cannot be acted upon as possibility cannot be ruled out that after the seizure and before the analysis the sample was not tampered with - Accused acquitted. (Kapil Dev Vs State of Punjab) 2004(3) Criminal Court Cases 125 (P&H) - Link evidence - Witness who tested the illicit liquor and re-sealed the same not examined - No doubt his report was tendered in evidence but report was required to be proved by examining him in the Court - Accused acquitted. (State of Punjab Vs Nikku Singh) 2004(1) Criminal Court Cases 48 (P&H) - Loss of Court file - Reconstructing the records - It is justifiable not to go into merits of the case only when reconstruction of file is impossible or the reconstructed file is scant and incomplete lacking in material documents of which no extracts are to be found in the judgment of the trial Court. (Kunwar Bahadur Singh Vs Sheo Baran Singh) 2003 AIR 2066, 2000( 5 )Suppl.SCR 171, 2001( 9 ) SCC 149, 2001( 7 )SCALE1 May have been and Must be - When there is absence of evidence to cover the distance between May have been and Must be it is not safe to sustain the

conviction. (Prithvi Raj Vs State of Rajasthan) 2004 Cr.LJ. 2190 (Rajasthan) - Material discrepancies - Material discrepancies are those which are not normal, and not expected of a normal person - Courts have to label the category to which a discrepancy may be categorized - While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. (Krishna Mochi & Ors. Vs State of Bihar) 2002 AIR 1965, 2002( 3 )SCR 1, 2002( 6 )SCC 81,
2002( 3 )SCALE602 , 2002( 4 )JT 186 Note Same discussed above in Evidecne Minor

Discripences - Material discrepancies - Quantity of sample purchased 700 gms. whereas in complaint this quantity mentioned as 900 gms. - PW1 stated that sample was made homogeneous on a piece of paper whereas in cross examination this witness stated that sample was made homogeneous on a piece of newspaper These are not material discrepancies as with passage of time, memory of witnesses is likely to fade regarding the minute details of what had happened in their presence. (Suraj Pal Vs State of Haryana) 2004(1) Criminal Court Cases 433 (P&H) - Medical evidence and ocular evidence - Doctor said that injuries appeared to be on one side of the body and the witnesses said that attacks were from different sides - It is too trifle an aspect - It is only when the medical evidence totally improbabilises the ocular evidence, that the Court starts suspecting the veracity of the evidence and not otherwise. (Surinder Singh Vs State of U.P.) AIR
2003 SC 3811, 2003 CriLJ 4446,

- Medical evidence and ocular evidence - Minor variations - Do not take away the primacy of the latter unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses the testimony of eyewitness cannot be thrown out. (Kamaljit Singh Vs State of Punjab) 2004 AIR 69 , 2004 (1) ALD Cri 83, 2004 CriLJ 28. 2003(4 )Suppl.SCR785 , 2003(12 )SCC155 , 2003(8 )SCALE683 , 2003(8 )JT95 ... - Medical evidence and ocular evidence - When there is inconsistency between the ocular testimony and medical evidence, then the ocular evidence should not be discarded unless it is found that the medical evidence totally improbabilises the ocular evidence. (State of Karnataka Vs Papanaika & Ors.) 2004 AIR SC 4967, 2005(1) Criminal Court Cases 629 (S.C.) - Medical evidence and ocular evidence - Where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative

possibilities is not accepted as conclusive. (Ramakant Rai Vs Madan Rai & Ors.)
AIR 2004 SC 77, 2004 (1) ALD Cri 75, 2004 CriLJ 36 2004(3) Criminal Court Cases

690 (S.C.) 2003(4 )Suppl.SCR17 , 2003(12 )SCC395 , 2003(8 )SCALE243 , 2003(2 )

Suppl.JT34

- Medical evidence and ocular version - When there is a minor contradiction between ocular version and medical evidence, the ocular version will prevail but when medical evidence is totally contradictory to the ocular version, the ocular version is to be discarded. (Naresh Vs State of Haryana) 2005(2) Criminal Court Cases 726 (P&H) Medical Jurisprudence / Evidence Postmortem examination / report Admissibility and probative value of, distinguished and explained In present case, though postmortem report had been proved by doctor who prepared it, he made no mention of sexual assault on deceased in his chief examination, and nor was this issue put to him in cross-examination Nor was it put to accused under S. 313 CrPC Held, in such circumstances those part of post-mortem report indicating assault and rape prior to murder of deceased, could not be relied upon Penal Code, 1860 Ss. 376 and 302 Rape Medical evidence Criminal Procedure Code, 1973, 313. ( State of Uttar Pradesh Vs Mohd. Iqram and Anr) ((2011) 8 SCC 800) - Medical jurisprudence - Fracture of cornue of hyoid bone - Hyoid bone can be fractured only if it is pressed with great force or hit by hard substance with great force - Hyoid bone is not a bone which can be easily fractured. (State of Karnataka Vs K.Gopalakrishna) 2005 AIR 1014, , 2005(9 )SCC291 , 2005(1 )SCALE643 , - Medical jurisprudence - Death by strangulation - Features available in case of death by strangulation are not always available in a case where body is burnt after killing. (State of Karnataka Vs K.Gopalakrishna) 2005 AIR 1014, , 2005(9 ) SCC291 , 2005(1 )SCALE643 , - Minor contradictions - When an incident is watched by number of persons, everyone has his own way of narration - Too much cannot be made out of minor contradictions. (Ganga Paswan & Anr. Vs State of Bihar) 2003(1) Apex Court Judgments 593 (S.C.) - Minor discrepancies - Minor, trivial and inconsequential discrepancies do not affect the basic credibility of the witness and they do not come in the way of Court in accepting that evidence. (State of Karnataka Vs Daya @ Dayananda) 2003(3) Criminal Court Cases 555 (Karnataka)

- Minor discrepancies - While appreciating the evidence of a witness, the approach of Court should be whether the evidence of the witness read as a whole appears to have a ring of truth and if such an impression is formed, then minor discrepancies on trivial matters not touching the core of the case would not entail the rejection of the evidence. (Ian Roylance Stillman Vs State of H.P.) 2002(3) Criminal Court Cases 417 (H.P) - Minor omissions - Evidence recorded years after occurrence - Minor omissions are natural - There cannot be exact and precise reproduction in any mathematical manner - What needs to be seen is whether the version presented in the court was substantially similar to what was stated during investigation - It is only when exaggerations fundamentally change the nature of the case, the court has to consider whether the witness was telling the truth or not. (Sunil Kumar Vs The State Govt. of NCT of Delhi) 2004 AIR 552 2004 CriLJ 819,

2003(4 )

Suppl.SCR767 , 2003(11 )SCC367 , 2003(8 )SCALE633 , 2003(2 )Suppl.JT42

- Motive - Becomes insignificant when there is direct evidence - However, when prosecution comes with a motive against the culprit, it is required to be tested on the anvil of probabilities. (Ram Jatan Vs State of U.P.) 2004(4) Criminal Court Cases 403 (Allahabad) - Motive - By itself is not sufficient to base conviction. (Subimal Sarkar Vs Sachindra Nath Mondal & Ors.) 2003 AIR 1108, , 2003( 2 )SCC 566, 2003( 1 )

SCALE62 , 2003( 1 )JT 72

- Motive - Failure of prosecution to prove motive, is of no consequence where direct evidence has been led. (Randhir Singh Vs State of J&K) 2004(3) Criminal Court Cases 700 (J&K) - Motive - If incident as projected by prosecution is accepted then presence or absence of motive or strength of motive by itself will not make prosecution case weak. (Balram Singh & Anr. Vs State of Punjab) 2003 AIR 2213, , 2003(11 SCC286 , 2003(4 )SCALE561 , 2003(4 )JT569 Motive Proof of Generally difficult Reiterated, motive for doing a criminal act isgenerally a difficult area for prosecution to prove since one cannot normally see into mind of another Motive is emotion which impels a man to do a particular act instant case, where two persons were killed and one sustained injuries due to firearms, even in absence of specific evidence as to motive case of prosecution )

cannot be thrown out on this ground Penal Code, 1860, Ss. 302/34 and 307/34.

(State of Rajasthan Vs Arjun Singh and Ors ) 2011) 9 SCC 115 )

- Motive - Murder - Disappointment and failure in love - Not a cause for murder unless it is substantiated by credible evidence that the affair had broken beyond redemption. (Ashish Batham Vs State of Madhya Pradesh) 2002 AIR 3206, 2002( 2 )Suppl.SCR 146, 2002( 7 )SCC 317, 2002( 6 )SCALE289 , 2002( 6 )JT 593 - Motive - Plays an important role in direct as well as circumstantial evidence However, in a case based on circumstantial evidence, motive assumes much importance. (Prithviraj Vs State of Rajasthan) 2004(3) Criminal Court Cases 111 (Rajasthan) - Motive - Possibility of some ire or ill will or even ill-feeling between accused and deceased - It can be a motive for the offence. (Karbasappa & Ors. Vs State Through Narona Police Station) 2004(4) Criminal Court Cases 332 (Karnataka) - Motive - Presence of motive is only circumstance against accused and by itself is not sufficient for conviction - Motive is a psychological phenomenon and the mere fact that the prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the accused. (Jinnappa Pareesh Hulakund Vs State of Karnataka) 2002(1) Criminal Court Cases 95 (Kant.) - Motive - Weakness or absence of motive - Not material when prosecution relies on testimony of eye witnesses. (Ram Rattan Vs State of U.P.) 2002(2) Criminal Court Cases 391 (All.) - Motive - When evidence of eye witnesses is found trustworthy and acceptable then absence of proof of motive becomes immaterial. (Rajesh @ Khanna Vs State of Maharashtra) 2004(3) Criminal Court Cases 156 (Bombay) - Motive - When prosecution evidence is so strong and positive then motive becomes inconsequential. (Rama Shish Rai Vs Jagdish Singh) AIR 2005 SC 335,
2005 (1) ALD Cri 61,

- Motive - Where occular evidence is trustworthy and reliable and finds corroboration from medical evidence, finding of guilt can safely be recorded even if motive for the commission of crime has not been proved. (Thaman Kumar Vs State of Union Territory of Chandigarh) 2003 AIR 3975, 2003(3 )SCR1190,

2003(6 )SCC380 , 2003(4 )SCALE531 , 2003(4 )JT478

- Multiple offence - Some requiring special procedure - Where a transaction of crime involves multiple offences some of which require special procedure, prosecution has to be by special procedure. (S.G.Mallikarjun & Ors. Vs Smt.Asha) 2004(4) Criminal Court Cases 167 (Karnataka) - Murder - Injuries sustained by accused - Non explanation - Court can draw inference (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who had denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defense version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. (Indian Penal Code, 1860, Ss.302, 97 to 99). (Rajesh Kumar Vs State of Haryana) 2004(1) Criminal Court Cases 384 (P&H) - Murder - Motive - Question of motive is of no consequence, if the evidence against the accused persons is clear and cogent, but the absence of proof of motive would put the Court on its guard to examine the evidence bearing on the guilt of the accused persons with care before its acceptance. (Debi Prasad Panda Vs State of Orissa) 2003(1) Criminal Court Cases 409 (Orissa) - Murder of father - Son not touching the body of his father - Held, different people react differently to a given situation and from the fact that this witness did not chose to fall on the body of his father or carry his dead body from where it was lying, by itself cannot be a ground to reject his evidence. (Jai Sree Yadav Vs State of U.P.) 2004 AIR SC 4443, , 2005(9 JT519 - Names of eye witnesses not appearing in First Information Report - That by itself not a ground to doubt their evidence - There is no requirement of mentioning the names of all witnesses in the first information report. (State of Madhya Pradesh Vs Dharkole @ Govind Singh & Ors.) 2005(1) Criminal Court Cases 796 (S.C.) Note Cited earlier - Near relation witness - Would not depose falsely against innocent persons so as to allow the real culprit to escape unpunished, rather the witness would always try to secure conviction of the real culprit and there is no reason as to why he should depose falsely. (State of Punjab Vs Hardan Singh & Ors.) AIR 2003 SC 4343,
2003 CriLJ 5048,)

)SCC788 , 2004(6

)SCALE587 , 2004(6

- Non appealing accused - Conviction of any accused not possible - Benefit of acquittal also goes to non-appealing accused. (Suresh Chaudhary etc. Vs State of Bihar) 2003 AIR SC 1981, , 2003( 4 )SCC 128, 2003( 2 )SCALE648 , 2003( 3 )JT 239) - Non disclosure of names of assailants to doctor - Is of no consequence. (Bhargavan & Ors. Vs State of Kerala) 2004 AIR SC 1058, 2003(5 Suppl.SCR535 , 2004(12 )SCC414 , 2003(9 )SCALE627 , - Non examination of certain witnesses - Per se does not corrode vitality of prosecution version, particularly when the witnesses examined have withstood incisive cross-examination and pointed to the accused as the perpetrators of the crime. (State of Madhya Pradesh Vs Dharkole @ Govind Singh & Ors.) 2005 AIR SC 44 , 2004(5 )Suppl.SCR780 , , 2004(9 )SCALE149 , 2004(9 )JT501 ( Note Same was cited in Beyond reasonable doubt Prabhakar Advocate ) - Non examination of I.O. - Rest of evidence does not get totally destroyed Prosecution can still be sustained on its own credibility. (State of Karnataka Vs Jagadisha) 2003(2) Criminal Court Cases 125 (Karnataka) - Non examination of independent witnesses who had gathered at the scene of offence when victim was assaulted - That by itself is not sufficient to discard the testimony of related witnesses if their testimony is found to be trustworthy and acceptable. (Rajesh @ Khanna Vs State of Maharashtra) 2004(3) Criminal Court Cases 156 (Bombay) - Non explanation of injuries on the person of accused - No such specific questions put to eye witnesses about the injuries sustained by accused in the same incident - Accused suffered superficial injuries which are not required necessarily to be explained by witnesses especially when on the spot more than 15 persons were present and witnesses themselves were also assaulted - Burden was on the accused to prove that they received injuries in the same incident - Accused did not lodge any report at the police station nor complained to authorities - Held, non explanation of injuries on person of accused not fatal to prosecution case. (Babukhan & Anr. Vs State of M.P.) 2005(2) Criminal Court Cases 228 (M.P.) - Non explanation of injuries on the person of accused - Where prosecution evidence is clear, cogent and credit worthy, mere fact that injuries are not explained by the prosecution cannot by itself be a sole basis to reject such )

evidence. (Ram Avtar & Ors. Vs The State of U.P.)2003(1) Apex Court Judgments 274 (S.C.) , 2002(4 2002(9 )JT615 - Non explanation of injuries sustained by accused in a murder case - Court can draw the inferences viz. (i) (i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable; (iii) that in case there is defence version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case.(Debi Prasad Panda Vs State of Orissa) 2003(1) Criminal Court Cases 409 (Orissa) - Non production of case property during trial - It cannot be said that what was seized from the accused was sent to the Chemical Examiner. (Madan Vs The State of Rajasthan) 2002(2) Criminal Court Cases 28 (Raj.) - Non recovery of weapon of offence during investigation - Assault with knife - Eye witnesses described the knife and knife not recovered during investigation - Not a factor to discard evidence of eye witnesses - Wounds noticed by doctor throw considerable light in this aspect - Doctor's opinion about weapon, though theoretical, cannot be totally wiped out. (Anwarul Haq Vs The State of Uttar Pradesh) 2005 AIR 2382, 2005(3 )SCR917 , , 2005(4 )SCALE442 , 2005(5 )JT9 2005(1) Apex Court Judgments 654 (S.C.) : 2005(2) Criminal Court Cases 752 (S.C.) - Normal discrepancies & Material discrepancies - Normal discrepancies are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be - Material discrepancies are those which are not normal, and not expected of a normal person - Courts have to label the category to which a discrepancy may be categorized - Normal discrepancies do not corrode the creditibility of a party's case, material discrepancies do so. (State of Punjab Vs Karnail Singh) AIR 2003 SC 3609, 2003 (2) ALT Cri 273, 2003 CriLJ 3892 ( Note same cited in Close related witness earlier (Prabhakar Advocate ) - Normal discrepancies and Material discrepancies - Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and )Suppl.SCR247 , 2002(10 )SCC52 , 2002(8 )SCALE503 ,

horror at the time of occurrence and those are always there however honest and truthful a witness may be - Material discrepancies are those which are not normal, and not expected of a normal person - While normal discrepancies do not corrode the credibility of party's case, material discrepancies do so. (Sucha Singh & Anr. Vs State of Punjab) AIR 2003 SC 3617, 2003 (2) ALD Cri 506) Note cited above beyond reasonable doubt) - Not examining other persons of the locality as prosecution witnesses - If Court has discerned from evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against non examination of such person as prosecution witness - Otherwise, merely on surmises the Court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses - Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighborhood may be replete with other residents also. (Hari Ram Vs State of U.P.) 2004(2)ALD(Cri)607, JT2004(6)SC331, 2004(6)SCALE499, (2004)8SCC146 - Number of injuries - Not always determinative of the offence - It depends on the weapon used, place where injuries were inflicted and the nature of the injuries. (Adu Ram Vs Mukna & Ors.) 2004 AIR SC 5064, 2004(5 )Suppl.SCR314 , , 2004(8 )SCALE591 , 2004(8 )JT545 - Number of injuries is not always a safe criterion for determining who was the aggressor. (Shriram Vs State of Madhya Pradesh) 2004 AIR SC Suppl.SCR129 , 2004(9 )SCC292 , 2003(10 )SCALE312 , . - Observations against person not party to the proceedings - Court should not make observation in judgments, unless the person in respect of whom comments and criticisms are made is party to the proceedings and further is granted an opportunity of having his say in the matter, unmindful of the serious repercussions they may entail on such persons - Apart from that, when there is no relevance to the subject matter of adjudication, it is certainly not desirable for the Courts to make any comments or observations reflecting on the bonafides or credibility of any person or their actions. (Tessta Setalvad & Anr. Vs State of Gujarat & Ors.) 2004 AIR SC 491 , 2003(6 )Suppl.SCR129 , 2004(9 )SCC292 , 2003(10 ) SCALE312 , 2003(9 )JT293 ... - Occurrence took place in moonlight - Witnesses standing at a respectable distance for fear of being assaulted - It is doubtful whether they were in a position 491 , 2003(6 )

to observe each and every detail of the alleged occurrence, that too in the moonlight. (Harjinder Singh @ Bhola Vs State of Punjab) 2004 AIR 3962, , 2004(11 ) SCC253 , 2004(6 )SCALE289 , 2004(6 )JT23 - Ocular evidence and medical evidence - Acceptable ocular evidence cannot be dislodged on hypothetical bases for which no proper grounds were laid. (Mangu Khan & Ors. Vs State of Rajasthan) 2005 AIR 1912, 2005(2 )SCR368 , , 2005(2 ) SCALE365 ... - Ocular evidence and medical evidence - Ocular evidence has to be given importance over medical evidence - Where medical evidence totally improbablies the ocular version that can be taken to be a factor to effect credibility of prosecution version. (State of Rajasthan Vs Bhanwar Singh) 2004 AIR SC 4660, 2004(4 )Suppl.SCR409 , , 2004(7 )SCALE676 - Ocular testimony - If reliable cannot be discarded even when there is no sufficient corroboration by medical evidence. (Ashok Kumar & Ors. Vs State rep. by Inspector of Police) 2005(1) Criminal Court Cases 458 (Madras) - Omissions - Every omission is not a contradiction - Minor details which are not indicated in the first information report and later on elaborated in court do not justify a criticism that the case originally presented has been abandoned to be substituted by another one. (Sunil Kumar Vs The State Govt. of NCT of Delhi) 2004
AIR 552 , 2004 CriLJ 819, 2003(4 )Suppl.SCR767 , 2003(11 )SCC367 , 2003(8 ) SCALE633

- Order passed on concession of Advocate without authority or competence Recall of order - Court does not become functus officio - No need to approach higher forum for annulment of the order - Court can recall or vary the order for ends of justice. (Hemanta Kumar Kar Vs Srimanta Kumar Kar) 2002(3) Criminal Court Cases 268 (Orissa) - Original record brought by witness at the time of his examination-in-chief and on that day no cross examination took place - Original record not brought when witness was cross examined - Documents exhibited have to be taken as true copies in absence of request for producing original record once again. Singh & Ors. Vs State of Punjab) 2005(1) Criminal Court Cases 729 (P&H)
Participation in the Criminal Act (i) To apply section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, section 34 will be attracted as essentially it

(Surjit

involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, section 34 cannot be invoked; Jai Bhagwan v. State of Haryana, AIR 1999 SC 1083. 1999 (1) ALD Cri 484 (ii) It requires a pre-arranged plan and pre-supposes prior concert therefore there must be prior meeting of mind. It can also be developed at the spur of moment but there must be pre-arrangement or premeditated concert: Ramashish Yadav v. State of Bihar, AIR 1999 SC 3830, 1999 (2) ALD Cri 704 1999 (8) SCC 555: 1999(6) JT 560: 1999 (2) JCC (SC) 471. (iii) If some act is done by the accused person in furtherance of common intention of his co-accused, he is equally liable like his co-accused; State of Punjab v. Fauja Singh, (1997) 3 Crimes 170 (P&H). (iv) In the instant case, there was a long standing enmity between two rival factions in a village, and proceedings under the Criminal Procedure Code were pending against members of both factions. On the day fixed for a hearing in the Magistrates Court in a neighbouring town, members of both factions left their village armed with sticks and lathis. While one faction was waiting on the roadside for a bus, the other faction arrived and a fight ensued in which severe injuries were caused on both sides, as a result of which one man died. The members of the opposite faction were charged and convicted under sections 302/34 I.P.C. It was held that the mere presence of a person armed with a deadly weapon at the spot of a crime does not necessarily make him a participator in a joint crime in every case, because for the purpose of section 34 only such presence makes a man a participant in a joint crime as is established to be with the intention of lending weight to the commission of a joint crime; Jamun v. State of Punjab, AIR 1957 SC 469.

- Part of evidence of a witness when not accepted - Does not mean that entire evidence of that witness should be scored through or disbelieved. (Kali Charan Basra Vs State of Orissa) 2003(2) Criminal Court Cases 413 (Orissa) - Part of statement when found to be correct - If two parts are severable and they can be looked into and appreciated by Court then it will not be appropriate to reject or disbelieve the entire testimony of a witness. (Tehal Singh Vs The State of Punjab) 2003(2) Criminal Court Cases 406 (P&H) - Part of testimony of PW found to be trustworthy and part of his testimony whereby he sought to make an improvement by naming the other accused persons found to be not true - Part of evidence of PW believed to convict the witness. (Chittarmal Vs State of Rajasthan) 2003 AIR SC 796 , 2003(1 )SCR49 ,

2003(2 )SCC266 , 2003(1 )SCALE55 , 2003(1 )JT91. - Partisan or interested witness - Evidence of such a witness cannot be discarded on the ground that it is the evidence of a partisan or interested witness - All that is required is to analyse evidence of such a witness with due caution and particularly in the light of medical evidence available on record. (Gopal & Ors. Vs State of Madhya Pradesh) 2003(2) Criminal Court Cases 266 (M.P.) - Pendency of civil suit between parties is not a ground for quashing of criminal proceedings alleging forgery of documents and cheating etc. (Bimal Kanti Ghosh Dastidar Vs Sri Sukhen Roy & Anr.) 2004(2) Criminal Court Cases 359 (Calcutta) - Physically challenged person since birth - As of necessity improvise their own methods of doing things very much in the same manner as a normal person does. (Gilbert Pereira Vs State of Karnataka) 2005(1) Criminal Court Cases 470 (S.C.) Discussed in earlier - Place of occurrence - Fire shots - Pellets not found at the place of occurrence Held, in the absence of such evidence one has to rely upon the ocular evidence which if found reliable, may be acted upon. (Birendra Rai & Ors. Vs State of Bihar) 2005(1) Criminal Court Cases 725 (S.C.) - Place of occurrence - IO not examined - No suggestion put to witnesses that occurrence did not take place at the alleged place of occurrence - Attention of witnesses also not drawn to any material point to show that witnesses have deposed falsely in the Court - Held, there is no substance in the submission of accused that place of occurrence is not proved. (Mojai Sharma & Ors. Vs State of Bihar) 2005(1) Criminal Court Cases 263(Patna) - Place of occurrence - Mentioning of Door No.58 in death intimation and accident register is of no use when there is substantive evidence of occurrence taking place at Door No.55. (Ramesh & Ors. Vs State) 2004(2) Criminal Court Cases 405 (Madras) - Place of occurrence - No conviction can be made if prosecution fails to prove the place of occurrence by unimpeachable evidence. (Bande Lal Sah & Anr. Vs State of Bihar) 2003(1) Criminal Court Cases 589 (Patna) - Plea of alibi - Failure of defence to prove - Does not make the accused liable for conviction unless prosecution is able to prove that he is guilty of the crime as

alleged beyond reasonable doubt. (Raghunathan Vs State of Kerala) 2002(1) Criminal Court Cases 493 (Kerala) - Plea of alibi - Plea that accused was at his service place - Duty Certificate marked for 'identification' but was never exhibited - On the other hand all the eye witnesses claimed to have seen the accused actively participating in the occurrence - Defence thus produced meagre and unsatisfactory evidence in support of plea of alibi and can be termed to be tainted. (Padarath Dhanuk & Ors. Vs Upendra Dhanuk & Anr.) 2004(4) Criminal Court Cases 326 (Patna) - Plea of alibi - Should be established by the person who is pleading it - Strict proof of alibi is necessary and plea of alibi should be proved with absolute certainty completely excluding the possibility of the accused at the time and place of occurrence. (Raghunathan Vs State of Kerala) 2002(1) Criminal Court Cases 493 (Kerala) - Plea of false implication - Burden to prove is upon accused and accused should discharge the burden with cogent and reasonable evidence and establish a case based on probabilities may not be beyond shadow of any reasonable doubt like the prosecution. (Mohan Singh Vs State of Punjab) 2005(2) Criminal Court Cases 623 (P&H) - Plea taken in defence - Not established - On the weakness of defence, case of prosecution is not proved - Prosecution has to prove its case beyond reasonable doubt. (Major Singh & Ors. Vs State of Punjab) 2004(2) Criminal Court Cases 776 (P&H) - Police Officer cannot be compelled to disclose name of informant. (Babasaheb Dadasaheb Koli Vs State of Maharashtra) 2004(2) Criminal Court Cases 57 (Bombay) - Postmortem report - By itself not a substantive piece of evidence - However, evidence of doctor conducting post-mortem is significant as to injuries appearing on the body of the deceased and likely use of weapons therefor - It is then prosecution's duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses. (State of Haryana Vs Ram Singh) AIR 2002 SC 620, 2002 (1) ALT Cri 123. -Presumption of innocence: One of the cardinal principles which should always be kept in our system of administration of justice in criminal cases is that a

person arraigned as an accused is presumed to be innocent unless and until proved otherwise. Another golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case- one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused is to be accepted Kaliram v. The State of H.P.-AIR 1973 SC 2773, Sheo Nandan Paswan v. State of Bihar- 1987 AIR 877, 1987 SCR (1) 702 AIR 1983 SC 194-

Nishar Ali v. State of U.P.- AIR 1957 SC 366).

Even in an appeal against acquittal, the presumption of innocence in favour of the accused is not weakened and in considering an appeal against acquittal, the High Court has to keep this presumption in mind. (S.A.A.Biyabani v. State of MadrasAIR 1954 SC-645,) and Ram Jog v. State of U.P.-AIR 1974 SC 606; Rajendra Rai v. State of Bihar AIR 1974 SC 2145, Autar Singh v. State of Punjab- AIR 1979 SC 1188, State of A.P. v. Anjaneulau AIR 1982 SC 1598, Babu v. State of U.P.- AIR 1983 SC 308, Ramji Surjiya v. State of Maharashtra-AIR 1983 SC 810 and Chandra Kanta Deb v. Stateof Tripura- AIR 1986 SC 606). In paragraph 40 of the Constitution Bench decision of the Apex Court in B.R.Kapur v. State of T.N. 2001 (7) SCC 231 it has been observed that when a lower court convicts an accused and sentences him, the presumption that he is innocent comes to an end. - Presence at scene of occurrence - Absence of finger impression is not guarantee of absence of the person concerned at the scene. (Gade Lakshmi Mangraju alias Ramesh Vs State of Andhra Pradesh) 2002(2) Criminal Court Cases 715 (S.C.) - Presence of I.O. during trial - Investigating Officer should be present during trial unless compelling reasons exist for a departure. (Zahira Habibulla H.Sheikh & Anr. Vs State of Gujarat & Ors.) 2004(3) Criminal Court Cases 195 (S.C.) AIR 2004 SC
3467, 2004 (2) ALD Cri 1, 2004 CriLJ 2855

- Prosecution cannot be permitted to lead evidence contrary to complaint. (R.G.Srivastava Vs State of Punjab) 2003(2) Criminal Court Cases 176 (P&H) - Prosecution cannot take advantage of the weakness in defence case Prosecution can succeed by substantially proving the version it alleges. (Suchand Pal Vs Phani Pal & Anr.) 2004 CriLJ 628, 2004 AIR 973,2004(2) Criminal Court Cases 292 (S.C.) - Prosecution evidence - Relief sought to close evidence of prosecution on ground

that time fixed by Supreme Court for completion of trial is over - Held, it is open to Court to consider whether evidence should be closed or further time should be granted to prosecution to complete evidence. (Udayakumar Vs Superintendent of Police) 2002(1) Criminal Court Cases 455 (Kerala) - Prosecution led evidence - The same remained unchallenged - Held, it is open to accused to rely upon same for defence. (Kajal Sen Vs State of Assam) AIR 2002
SC 617, 2002 (1) ALD Cri 310

- Prosecution must establish its case on its own merits and not on the weakness of the defence. (Sukhdev Bhimrao Hastapure Vs State of Maharashtra) 2002(3) Criminal Court Cases 183 (Bombay) - Prosecution not examining certain witnesses - If defence feels importance of evidence of witnesses not examined by prosecution, defence could have called them in defence - No such steps taken - Held, defence has raised such objection only for the sake of arguments. (Babukhan & Anr. Vs State of M.P.) 2005(2) Criminal Court Cases 228 (M.P.) - PW changing his version - His evidence does not get totally wiped out - A part of it which is reliable can be taken note of by the court. (Sunil Kumar Vs The State Govt. of NCT of Delhi) 2004 AIR 552 , , 2003(11 )SCC367 , 2003(8 )SCALE633 , 2004
CriLJ 819,

- PW on seeing six accused persons felt panicky and hid herself - She was thus not in a position to observe each of the accused carrying a particular weapon - Her evidence to that effect not believed. (Shiva Shankar Pandey & Ors. Vs State of Bihar) 2002 AIR SC 3151, 2002( 2 )Suppl.SCR 166, 2002( 7 )SCC 229, 2002( 6 )
SCALE306 , 2002( 6 )JT 570 2003(1) Apex Court Judgments 240 (S.C.)

- Radio transmission of the incident to higher authorities - Message transmitted to higher authorities of an incident is only an information sent about a crime that has occurred which does not require all the particulars of the crime to be stated. (Jai Sree Yadav Vs State of U.P.) 2004(4) Criminal Court Cases 28 (S.C.) - Reaction of a witness - There is no set rule of natural reaction - Everyone reacts in his own special way and in what way the witness should react cannot be predicted. (State of Punjab Vs Hardan Singh & Ors.) AIR 2003 SC 4343, 2003 CriLJ
5048,

- Rebuttal evidence - Not to be conclusively established but such evidence must be adduced before the Court in support of the defence that Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'. (Shri Wilson Fernandes Vs Shri Nitin Pandurang & Anr.) 2004(4) Criminal Court Cases 433 (Bombay) - Recall of witness for further cross examination - Ground that during earlier cross examination certain points left out from being asked - Application rejected being vague. (Haribabu Vs State of U.P. & Anr.) 2002(1) Criminal Court Cases 605 (All.) - Recovery - Independent witnesses - None ready to be a witness - Explanation of IO does not appear to be plausible as it does not appear from record that he made efforts to procure independent witnesses and the witnesses declined to come forward - Evidence of I.O. is worthy of ejection and no reliance can be placed on his testimony. (Pappu & Anr. Vs The State of Rajasthan) 2003(2) Criminal Court Cases 44 (Rajasthan) - Recovery of contraband from house - Joining of neighbours - Explanation given that neighbours did not join on the plea that accused is a person of bad character - This is a plausible explanation. (Rohtas alias Bunder Vs State of Haryana) 2003(2) Criminal Court Cases 367 (P&H) Reference to books of accounts 159 and Sec 160 - PermissibilityDeposition relating to large number of transactionThe witness rightly permitted to refer books of account to refresh his memory. The State of Andhra Pradesh V. Cheemalapati Ganeswara 1850 : 1964 (3) SCR 297 Rao and another 1963(2) CrLJ 671 : 1963 AIR (SC)

- Related, interested or inimical witness - Evidence of a witness cannot be discredited simply for the reason that he is a victim or is related to or interested in the victim/complainant or is inimical towards the accused - As a rule of prudence evidence of such witness must be read with care and caution if found confidence inspiring, trustworthy and finds corroboration from some other independent evidence on material particular, a conviction can be based on such evidence - In case on scrutiny of evidence of an interested witness, keeping in view the probability and the attendant circumstances, the evidence is found unnatural, improbable and non-confidence inspiring, no conviction can be based on such evidence - While appreciating evidence of interested witnesses, the attendant

circumstances must always be kept in view as a human being may lie but not the circumstances. (Dorje Ram Vs State of H.P.) 2005(2) Criminal Court Cases 890 (H.P.) - Related or interested witness - By itself not sufficient to discard their evidence unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the Court. (Jeeva @ Khema Vs State of Rajasthan) 2005(1) Criminal Court Cases 90(Rajasthan) - Related or interested witness - Evidence of such a witness not to be rejected merely because he is related to or interested in the parties on either side - If the presence of such a witness at the time of occurrence is proved or considered to be natural and the evidence tendered by such witness is found in the light of the surrounding circumstances and probabilities of the case to be true, it can provide a good and sound basis for conviction of the accused - Where it is shown that there is enmity and the witnesses are near relatives too, the Court has a duty to scrutinize their evidence with great care, caution and circumspection and very careful too in weighing such evidence. (Harijana Narayana & Ors. Vs State of A.P.) 2004(1) Criminal Court Cases 370 (S.C.) - Related or interested witnesses - Evidence of eye witnesses if otherwise reliable cannot be rejected on the ground that deceased was related to the eye witnesses or previously there was some dispute in between the prosecution and the accused side. (Padarath Dhanuk & Ors. Vs Upendra Dhanuk & Anr.) 2004(4) Criminal Court Cases 326 (Patna) - Related witness - Credibility - (i) Merely a related witness is not a ground to reject the testimony of a witness if otherwise found to be trustworthy and reliable; (ii) 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; (iii) If for the plea of false implication proper foundation is laid, Court, by adopting a cautious approach, will analyse the evidence to find its credibility; (iv) A related witness normally to be considered independent unless he or she springs from sources which are likely to be tainted; (v) There is no general rule in regard to appreciation of testimony of related witnesses. Each case must be limited to and governed by its own facts. (Lotan & Anr. Vs State of Rajasthan) 2003(3) Criminal Court Cases 51 (Rajasthan) - Related witness - Daughter of deceased - Presence of daughter of deceased proved at the time of incident and her evidence inspire confidence - Conviction not interfered inspite of the fact that other eye witness and relative witnesses of

deceased turned hostile. (Ramesh & Ors. Vs State) 2004(2) Criminal Court Cases 405 (Madras) - Related witness - Evidence of eye witnesses cannot be rejected merely because they are related. (Ravi Vs State Rep. by Inspector of Police) 2004(11 )SCC266 2005(1) Apex Court Judgments 16 (S.C.) - Related witness - Evidence of eye witnesses cannot be rejected merely because they are related. (Ravi Vs State Rep. by Inspector of Police) 2004(11 )SCC266 2005(2) Criminal Court Cases 679 (S.C.) - Related witness - Evidence of such a witness cannot be thrown out - Court should approach such evidence with care and caution in order to exclude the possibility of false implication. (Basu Harijan Vs State of Orissa) 2003(3) Criminal Court Cases 170 (Orissa) - Related witness - Ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. (Surinder Singh Vs State of U.P.) AIR2003SC3811, 2003CriLJ4446, JT2003(Suppl1)SC226, 2003(7)SCALE184, (2003)10SCC26, 2004(1)UJ197(SC) 2003(2) Apex Court Judgments 679 (S.C.) : 2004(1) Criminal Court Cases 72 (S.C.) - Related witness - It does not render per se their evidence suspect - All that is required to be done in such case is to carefully analyse the evidence and if after deeper scrutiny it is found acceptable, to act on it. (Shriram Vs State of Madhya Pradesh) 2004 AIR SC 491 , 2003(6 )Suppl.SCR129 , 2004(9 )SCC292 , 2003(10 ) SCALE312 , 2003(9 )JT293 ... (S.C.) - Related witness - Just because the witnesses are related to the deceased is not a ground to discard their testimony, if otherwise their testimony inspires confidence. (State of U.P. Vs Kishan Chand & Ors.) 2004 AIR SC 4671, 2004(3 ) Suppl.SCR640 , 2004(7 )SCC629 , - Related witness - Kith and kin of deceased, if they had seen the occurrence, would not absolve the real offenders and involve innocent persons. (Babulal Vs The State of Rajasthan) 2002(3) Criminal Court Cases 340 (Raj.) - Related witness - Merely on account of the witnesses being closely related to the victim their evidence cannot be thrown out, if the same otherwise appears to be truthful. (Karbasappa & Ors. Vs State Through Narona Police Station) 2004(4)

Criminal Court Cases 332 (Karnataka) - Related witness - No ground to reject the testimony of the witness who otherwise is found to be trustworthy and reliable. (Bijoy Singh Vs State of Bihar)

2002 AIR SC 1949, 2002( 3 )SCR 179, 2002( 9 )SCC 147, 2002( 3 )
- Related witness - Not a ground to discard their evidence - Careful scrutiny has to be done of their evidence. (Banti @ Guddu Vs State of Madhya Pradesh) AIR 2004
SC 261, 2004 (1) ALD Cri 94, 2004 CriLJ 372

- Related witness - Not a ground to reject their evidence as untrustworthy - In law, what is expected is to analyse and scrutinise the same due care and caution before accepting or acting upon the same. (Malhu Yadav Vs State of Bihar) 2002 AIR SC 2137, 2002( 3 )SCR 676, 2002( 5 )SCC 724, 2002( 4 )SCALE285 , 2002(2) Criminal Court Cases 694 (S.C.) - Related witness - On account of relationship with the deceased credibility of a witness cannot be questioned. (Kailash Kumar @ Kalji & Ors. Vs State of Rajasthan) 2004(3) Criminal Court Cases 310 (Rajasthan) - Related witness - Relationship is not a factor to affect credibility of a witness - It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person - Foundation has to be laid if plea of false implication is made - In such cases, court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. (Surinder Singh Vs State of U.P.) DISCUSSED EARLIER IN RELATED WITNESS {
PRABHAKAR Advocate}

- Related witness - Relationship is not a factor to affect credibility of a witness - A relation would not conceal actual culprit and make allegations against an innocent person - Foundation has to be laid if plea of false implication is made and court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. (Sucha Singh & Anr. Vs State of Punjab) AIR 2003 SC 3617,
2003 (2) ALD Cri 506

- Related witness - Relationship is not a factor to affect credibility of a witness - It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person - Foundation has to be laid if plea of false implication is made - In such cases, court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. ( Surinder
U.P.)see Singh Vs State of

Discussed earlier related witness

(Prabhakar advocate

- Related witness - Relationship is not a factor to affect credibility of a witness - It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person - Foundation has to be laid if plea of false implication is made. (Hari Ram Vs State of U.P.) , 2004(3 (S.C.) - Related witness - Relationship is not a factor to affect credibility of a witness - It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. (Gangadhar Behera & Ors. Vs State of Orissa) , 2002( 3 2002( 8 )JT 135 )Suppl.SCR 183, 2002( 8 )SCC 381, 2002( 7 )SCALE402 ,
( Appeal ( Crl ) 1282/2001 dated 1-10-2002 ( Prabakar advocate)

)Suppl.SCR379 , 2004(8

)SCC146 , 2004(6 )SCALE499 , 2004(6 )JT331 2004(4) Criminal Court Cases 198

- Related witness - Relationship is not a factor to affect the credibility of a witness - It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person - Foundation has to be laid if a plea of false implication is made - In such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible. (State of Karnataka Vs Papanaika & Ors.) 2004 AIR SC4967, 2005(1) Criminal Court Cases 629 (S.C.) - Related witness - Relationship is not a factor to attract credibility of a witness Court has to adopt a careful approach to find out whether evidence is cogent and credible. (Bhargavan & Ors. Vs State of Kerala) 2004 AIR SC 1058, 2003(5 Suppl.SCR535 , 2004(12 )SCC414 , 2003(9 )SCALE627 , 2003(9 )JT513 - Related witness - Testimony of a witness cannot be discarded merely for the reason that he is related to the deceased or that his name does not find place in the first information report. (Sher Singh Criminal Court Cases 18 (Rajasthan) - Related witness - Testimony of eye witnesses if found to be trustworthy cannot be discarded merely because they are closely related to the deceased. (Rajesh @ Khanna Vs State of Maharashtra) 2004(3) Criminal Court Cases 156 (Bombay) - Related witness - The testimony of relative witness cannot be disbelieved on the ground of relationship - The only requirement is to examine their testimony with caution. (State of Himachal Pradesh Vs Mast Ram) 2004 AIR SC 5056, 2004(4 ) Suppl.SCR269 , 2004(8 )SCC660 , 2004(7 )SCALE637 , Vs The State of Rajasthan) 2004(2) )

- Related witness - There is no proposition in law that relatives are to be treated as untruthful witnesses - 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. (Harbans Kaur & Anr. Vs State of Haryana) 2005 AIR 2989, 2005(2 )SCR450 , 2005(9 )SCC195 , 2005(2 )SCALE457 , 2005(3 )JT233 Related witness and witness having criminal antecedents - Evidence which is found truthful and credible otherwise cannot be discarded on the ground that witness is related with deceased and their criminal antecedents. (Anil Sharma & Ors. Vs State of Jharkhand) 2004 AIR SC 2294, 2004(1 )Suppl.SCR907 , 2004(5 )SCC679 , 2004(5 )SCALE289 , 2004(1 )Suppl.JT559 - Related witnesses - Evidence of two sons of deceased rightly believed as they were natural witnesses and their evidence was consistent. (Rajinder Vs State of Haryana) 2005(1) Criminal Court Cases 274 (S.C.) - Related witnesses - Their evidence has to be appreciated with greater care and caution and evidence of such witnesses is not to be disbelieved merely because they are related to the deceased. (Ram Shanker & Ors. Vs State) 2004(4) Criminal Court Cases 663 (Allahabad) - Relationship of witness with deceased is no ground to disbelieve his evidence. (Ram Rattan Vs State of U.P.) 2002(2) Criminal Court Cases 391 (All.) - Relative or interested witness - Related is not equivalent to interested - A witness may be called interested only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused punished - A witness who is a natural one and is the possible eye witness in the circumstances of case cannot be said to be interested. (Saka Rajasthan) 2004(3) Criminal Court Cases 188 (Rajasthan) - Relative or interested witness - By itself not sufficient to discard their evidence straightaway unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. (Saka Rajasthan) 2004(3) Criminal Court Cases 188 (Rajasthan) - Relatives - Evidence of eye witnesses cannot be over thrown above board simply because they are close relatives of the deceased - The only caution is that evidence of such witnesses is to be scrutinized with greater care and caution. (Shiv Ram @ Shiva Lal & Anr. Vs State of Rajasthan) 2004(4) Criminal Court Cases 584 (Rajasthan) Vs State of Vs State of

- Requisition to doctor for post mortem - Though it is necessary to give the gist of the information collected during the course of inquest proceedings and from the material available in the FIR to the doctor conducting the post mortem, it is not necessary to give all the particulars as contained in either of the above said documents. (Jai Sree Yadav Vs State of U.P.) 2004(4) Criminal Court Cases 28 (S.C.) - Res gestae evidence can be used in corroboration of primary evidence. (Rudal Shahi & Ors. Vs State) 2005(2) Criminal Court Cases 129 (Allahabad) - Residents of other villages cannot be said to be natural witnesses. (Radhey Shyam Gupta (In Jail) Vs State of U.P.) 2002(3) Criminal Court Cases 614 (All.) - Resiling from statement made in Court by filing an affidavit that he had deposed at the instance of police - Once the witness is examined he cannot be allowed to resile from the testimony given in Court on oath. (Yakub Ismailbhai Patel Vs State of Gujarat) 2004 AIR SC 4209, 2004(3 )Suppl.SCR978 , 2004(12 )SCC229 , 2004(7 ) SCALE374 , 2004(7 ) . - Right to go abroad during Pendency of corruption case - Petitioner on bail Application for cancellation of bail pending - State not able to secure any interim adverse order against the petitioner - While moving application for cancellation of bail it is not the case of State that petitioner would run away from law - Held, fundamental right or civil right cannot be curtailed only if a criminal case is pending against a person and surely, to go abroad to see his children or grand children is a right of an individual. (Naginder Singh Rana Vs State of Punjab) 2004(4) Criminal Court Cases 295 (P&H)

ROLE OF THE JUDGE IN A CRIMINAL TRIAL:- Section 165 of the

Evidence Act, 1872 confers vast and unrestricted powers on the trial court to put "any question he pleases, inany form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant" in order to discover relevant facts. The saidsection was framed by lavishly studding it with the word "any" which could only have been inspired by the legislative intent to confer unbridled power on the trial court to use the power whenever he deems it necessary to elicit truth. Even if any such question crosses into irrelevance the same would not transgress beyond the contours of powers of the court. This is clear from the words "relevant or irrelevant" in Section 165. Neither of the parties has any right to raise objection to any such question.

Reticence may be good in many circumstances, but a judge remaining mute during trial is not an ideal situation, A taciturn Judge may be the model caricatured in public mind. But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved. Criminal trial should not turn out to be a bout or combat between two rival sides with the judge performing the role only of spectator or even an umpire to pronounce finally who won the race. A judges expected to actively participate in the trial, elicit necessary materials from witnesses at the appropriate contest, which he feels necessary for reaching the correct conclusion. There is nothing, which inhibits his power to put questions to the witnesses, either during chief examination or cross-examination or even during re-examination to elicit truth. The corollary of it is that if a judge felt that a witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so, for, to err is human and the chances of erring may accelerate under stress of nervousness during cross-examination. Criminal justice is not to be founded on erroneous answers spelled out by witnesses during evidence collecting process. It is a useful exercise for trial judge to remain active and alert so that errors can be minimized ( State of Rajasthan vs. Ani @ hanif and others: (1997 AIR SC 1023, 1997(1)SCR 199,
RELID ON

1997(6)SCC 162, 1997(1)SCALE287 , 1997( 1 )JT 460) State of Haryana, AIR (1981) SC 1036,

Ram Chander v.

- Running away when police raided the spot - Not sufficient for basing conviction. (Rajeshkumar Babulal Sharma Vs State of Maharashtra) 2002(1) Criminal Court Cases 610 (Bom.) - Rustic villagers - Testimony - There are bound to occur certain discrepancies - It is difficult to expect them to remember the events with mathematical precision after a lapse of more than two years - It is common knowledge that ordinarily human memories are apt to blur with the passage of time - They are unexposed to the technicalities of urban life and they speak plainly what they saw and did They are straightforward looking people, truthful and trustworthy. (State of Karnataka Vs M.V.Manjunathegowda & Anr.) 2003 AIR SC 809, - Seal - No evidence that seal with which the sample was sealed was put in safe custody and that at no stage the same was not available to the police - It cannot be held that there was no scope of tampering of the sample or of the recovered item. (Balbir Singh Vs State of Punjab) 2003(1) Criminal Court Cases 505 (P&H) - Search - Independent witnesses - Failure to join local, independent and respectable witnesses may be an irregularity which, by itself, will not vitiate the

trial - However, Court while appreciating evidence should keep in mind that provision of S.100(4) Cr.P.C. is not complied with. (Sandeep Kumar Vs State of H.P.) 2003(2) Criminal Court Cases 62 (H.P.) - Search and seizure - I.O. remained for more than two hours at a crowded place but still no independent witness joined - This casts doubt in the veracity of the prosecution case. (Shambhu Ram Vs The State of Haryana) 2003(2) Criminal Court Cases 342 (P&H) - Search of bag in the hand of accused - Amounts to search of person of accused. (Bhanwar Lal Vs State of Rajasthan) 2002(3) Criminal Court Cases 433 (Rajasthan) - Second complaint on same facts - Previous complaint dismissed in default and no reasons given for the second complaint - Second complaint dismissed. (Om Parkash Bhatia Vs State of Punjab) 2002(1) Criminal Court Cases 632 (P&H) - Seizure memo - I.O. not examined - Seizure witness turned hostile - Seizure not proved - Ignoring seizures decision based on other evidence and evidence of two eye witnesses reliable - Conviction - No interference. (Birendra Rai & Ors. Vs State of Bihar) 2005(1) Criminal Court Cases 725 (S.C.) - Sentence - In awarding sentence the facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. (State of Madhya Pradesh Vs Ghanshyam Singh) AIR 2003 SC 3191, 2003 (2) ALT Cri 380, 2003 CriLJ 4339 2004(1) Criminal Court Cases 286 (S.C.) - Sentence - Long pendency of a matter by itself cannot justify lesser sentence. (State of Madhya Pradesh Vs Ghanshyam Singh) SEE NOTED Court Cases 286 (S.C.) - Single eye witness - Conviction can be based on evidence of single eye witness provided Court is totally and completely satisfied about not only the truth and credibility but about the reliability with regard to every aspect of that evidence. (State of Karnataka Vs Daya @ Dayananda) 2003(3) Criminal Court Cases 555 (Karnataka) - Single witness - Conviction can be based on the testimony of a single witness if
ABOVE

2004(1) Criminal

he is wholly reliable - Corroboration may be necessary when he is only partially reliable - If evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained. (Evidence Act, 1872, S.134). (Chacko @ Aniyan Kunju & Ors. Vs State of Kerala) 2004 AIR SC 2688, 2004(1 )SCR900 , 2004(12 )SCC269 , 2004(1 )SCALE625 , 2004(1 )JT358 ... 2004(3) Criminal Court Cases 48 (S.C.) - Single witness - If neither wholly reliable nor wholly unreliable Court to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. (Lallu Manjhi Vs State of Jharkhand) 2003 AIR SC 854, 2003( 1 )SCR 1, 2003( 2 )SCC 401, 2003(

1 )SCALE14
- Single witness - Partly reliable and partly unreliable - It is hazardous to base conviction upon the uncorroborated testimony of a single witness who has been found to be partly reliable and partly unreliable. (Qamruddin Vs State of U.P.) 2002(2) Criminal Court Cases 527 (All.) - Site plan - Merely because name of PW-2 did not appear at the site plan that does not render his presence at the place of occurrence improbable. (Surinder Singh Vs State of U.P.) AIR 2003 SC 3811, 2003 CriLJ 4446, Sitting other witness in Court while trail ;- The court has, under the proviso to Sec. 327 (1) Cr.P.C., the power to order that any particular person, witness or police officer not under examination shall not remain in the court room. A general direction can be given to the Public Prosecutor that occurrence witnesses to be examined are not allowed to remain in the court hall till their turn arrives. When the accused objects to the presence of a police officer or other person inside the court hall, the trial judge has to consider his objections, having regard to the intelligence and the susceptibilities of the class to which he belongs and such other relevant circumstances ( State v. Charulata Joshi - AIR 1999 SC 1373; - Sketch - Murder and dacoity at night time - Omission to indicate location of gas light in site plan is not fatal when FIR is lodged without unreasonable delay. (State of U.P. Vs Babu & Ors.) AIR 2003 SC 3408, 2004 (1) ALD Cri 15, 2003 CriLJ 4982 - Sketch map - Prepared by I.O. - No evidence adduced with reference to the sketch by the witnesses - Sketch is not of much use unless some of the witnesses state as to the state of affairs at the scene. (State of Himachal Pradesh Vs Prem

Chand) 2003 AIRSC 708 , , 2002(10 Criminal Court Cases 680 (S.C.)

)SCC518 , 2002(9

)SCALE328 , 2003(1)

- Sole child witness - Conviction not sustainable solely upon testimony of a solitary child witness when there is a serious doubt as to whether she knew the accused at all when the occurrence took place. (Jagjit Singh @ Jagga Vs State of Punjab) AIR 2005 SC 913, 2005 (1) ALD Cri 741, 2005 CriLJ 955 - Sole eye witness - If his testimony does not suffer from any infirmity it can form basis of conviction - Conviction can be based on the sole testimony of a witness if Court is fully satisfied that such witness is truthful witness and his presence at the time of occurrence has been proved beyond reasonable doubt. (Nisar Vs State of Rajasthan) 2003(1) Criminal Court Cases 109 (Rajasthan) - Sole testimony - Conviction can be based on the sole testimony of a witness provided it finds corroboration from other physical factors and circumstances - It is also of no consequence that the sole witness is the police personnel. (Alim Ullah Vs State of U.P.) 2003(3) Criminal Court Cases 407 (Allahabad) - Sole witness Court can and may act on the testimony of a single witness

provided he is wholly reliable - If there are doubts about the testimony the courts will insist for corroboration - It is not the number, the quantity, but the quality that is material - Evidence has to be weighed and not counted. (Evidence Act, 1872, S.134). (Sunil Kumar Vs The State Govt. of NCT of Delhi) )Suppl.SCR767 , 2003(11 )SCC367 , 2003(8 2004(1) Criminal Court Cases 524 (S.C.) - Sole witness - When a case is based upon the testimony of the only witness, his statement must be confident and inspiring, leaving no doubt in the mind of the court being above from all suspicions. (State of Haryana Vs Inder Singh) (2002) 9 2004 AIR 552 , 2003(4 )Suppl.JT426 )SCALE633 , 2003(2

SCC 537 2002(2) Criminal Court Cases 464 (S.C.)

- Solitary witness - Conviction can be based on his evidence provided the witness is wholly reliable and his evidence is unimpeachable. (Ashok Kumar Gupta Vs State of Bihar) 2004(3) Criminal Court Cases 508 (Patna) - Solitary witness - Conviction can be based on the evidence of a solitary witness if it is found reliable and trustworthy and inspires confidence. (Surendra Prasad Vs State of Bihar) 2004(1) Criminal Court Cases 408 (Patna)

- Some of the accused acquitted - Same direct evidence against all - Does not lead as a necessary corollary that those who have been convicted must also be acquitted - It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (Krishna Mochi & Ors. Vs State of Bihar)
2002 AIR SC 1965, 2002( 3 )SCR 1, 2002( 6 )SCC 81, 2002( 3 )

- Specific names of children PW2 and PW4 not mentioned in fard beyan as well as in statement before police but stated that at the relevant time children of her family were also at the place of occurrence - It will not negative the presence of PW2 and PW4 at the place of occurrence. (Shankar Mahto & Anr. Vs State of Bihar) AIR 2002 SC 2857, 2002 (2) ALD Cri 388 - Speedy trial - No time limit can be prescribed for conclusion of trial - Each case has to be judged on its own special features - Court to see whether delayed trial become oppressive and unwarranted. (State through CBI Vs Dr.Narayan Waman Nerukar) 2002 AIR SC2977, 2002( 1 )Suppl.SCR 676, 2002( 7 )SCC 6, 2002( 6 ) SCALE95 = 2003(1) Criminal Court Cases 07 (S.C.) - Spot witness wrongly identifying accused in cross examination - Mistake indicate that witness is not telling the truth and his presence at the time of occurrence is doubtful and that he had not witnessed the occurrence otherwise he would have rightly identified the accused person who had actually shot the deceased. (Ramesh & Ors. Vs State of U.P.) 2005(2) Criminal Court Cases 156 (Allahabad) - Statement of witness recorded 10 days after occurrence despite his availability Before giving statement to police, witness did not divulge incident to anybody in village - It is dangerous and immensely risky to act upon such evidence to sustain conviction. (Santosh Kumar Bhukta Vs State of Orissa) 2004(2) Criminal Court Cases 517 (Orissa) - Statutory provision - Requirement of statutory provision cannot be dispensed with as a result of agreement between the parties. (Kamal Prasad Singh Vs State of Bihar) 2003(3) Criminal Court Cases 506 (Patna) - Stock witness - Appearance as a witness in two prosecution cases - Not a stock witness in absence of any other evidence to show he is a stock witness. (Ramesh Kumar Vs State of Himachal Pradesh) 2002(3) Criminal Court Cases 504 (H.P.) - Stock witness - Recovery of opium - Eye witness to recovery was a stock witness who had been cited as a witness in ten other cases u/s 15 of NDPS Act - These

cases relating to the year 1995 (1 case), 1997(1 case) and 1998 (8 cases) - This witness not examined at trial and given up having been won over - Character of this witness cannot be impeached unless he had appeared as a witness and cross examined - Fact remains that police invariably had this witness as a recovery witness - This brings a sort of taint to the whole investigation - Conviction set aside. (Narcotic Drugs and Psychotropic Substances Act, 1985, S.18). (Raj Kumar Vs State of Punjab) 2005(1) Criminal Court Cases 368 (P&H) - Suspicion - Circumstances appearing from record creating suspicion that accused might have killed the deceased considering his past conduct and relationship with the deceased - However, suspicion cannot take place of proof. (Bigan Prajapat Vs State of Bihar) 2004(3) Criminal Court Cases 680 (Patna) - Suspicion - However strong it may be cannot take the place of proof. (Anjlus Dungdung Vs State of Jharkhand) 2005 AIR SC 1394, , 2005(9 )SCC765 , 2004(8 )SCALE452 , 2004(8 )JT583 2005(1) Criminal Court Cases 246 (S.C.) - Sworn affidavits of witnesses Ex.DB & DC that injuries were caused by some other persons and the same were not attributable to the accused - Two witnesses examined and both related to the injured - Occurrence took place in a cattle fair where there was a large crowd but independent witnesses not joined State of Punjab) 2003(2) Criminal Court Cases 640 (P&H) - T.I. parade - P.W.1 failed to identify in T.I. parade held 4-1/2 months after the occurrence - Evidence identifying in Court about one year after the date of occurrence - Not to be accepted. (Nimai Bhandari @ Barik & Anr. Vs State) 2003(1) Criminal Court Cases 690 (Orissa) Surrender Refusal to grant bail to accused who did not appear before the Magistrate but staying the arrest to enable the accused to move to Sessions court without surrendering to PoliceThe conduct is contrary to mandatory provision of Section 439 Criminal Procedure Code, 1973.( Niranjan Singh and another V. Prabhakr Rajaram Kharote and others 1980 CrLJ 426 : 1980 AIR (SC) 785 : - Telephonic message by Sarpanch at 11.00 P.M. of cognizable offence - A note of it not made in station diary - Place of occurrence 4 kms. from police station Police reached place of occurrence at 6.30 A.M. next morning - It leads to doubt that Sarpanch reported the matter to police at 11.00 P.M. (State of Andhra Pradesh Vs Patnam Anandam) 2005 AIR SC 764 , , 2005(9 )SCC237 , , 2005(11 )JT461 2005(1) Criminal Court Cases 851 (S.C.) Held, prosecution failed to prove the guilt of accused - Conviction set aside. (Mohan Vs

- Test identification parade - Train robbery - Test identification parade held after 36 days - Eye witnesses travelled for seven hours in same compartment - Had ample opportunity of noticing facial features of accused in light in compartment Accused proved to be kept 'baparda' right from day of their arrest - Held, in such circumstances delay in holding parade is of no consequence. (Lal Singh & Ors. Vs State of Uttar Pradesh) 2004 AIR SC 299 , , 2003(12 )SCC554 , 2003(9 ) SCALE256 , 2003(8 )JT488 2004(1) Criminal Court Cases 606 (S.C.) - Test identification parade - Conducted after 35 days of arrest - Nothing to show that prosecution had taken care to ensure that identity of appellant was not revealed when they were produced in Court - It would be unsafe to place implicit reliance on evidence of identification. (Shyam Singh & Anr. Vs State of U.P.) 2003(2) Criminal Court Cases 128 (Allahabad) - Test identification parade - Delay - It is desirable to hold test identification parade at the earliest possible opportunity - However, no hard and fast rule can be laid down in this regard - If delay is inordinate and there is evidence probabilising the possibility of the accused having been shown to the witnesses, Court may not act on the basis of such evidence - Moreover, cases where conviction is based not solely on the basis of identification in Court, but on the basis of other corroborative evidence, such as recovery of looted articles, case stand on a different footing and the Court has to consider the evidence in its entirety. (Lal Singh & Ors. Vs State of Uttar Pradesh)SEE NOTED S IDENTIFICATION 2004(1) Criminal Court Cases 606 (S.C.) - Test Identification Parade-Effect of mistake Large number of accused persons involved in murder chargeWitness identifying nine persons out of forty-six making three correct identification and six mistakeReliance on such witness is not possible.( Vaikuntam Chndrappa and others V. State of A.P 1960 AIR (SC) 1340 : 1960 CrLJ 1681 - Test identification parade - Law as to - Enumerated. (Dana Yadav @ Dahu & Ors. Vs State of Bihar) AIR 2002 SC 3325, 2002 (2) ALD Cri 729 - Test identification parade - Non holding of - By itself does not disprove the prosecution case - To what extent and if at all the same would adversely affect the prosecution case, depends upon the facts and circumstances of each case. (Dastagir Sab & Anr. Vs State of Karnataka) 2004 AIR 2884, 2004(1 )SCR952 , 2004(3 )SCC106 , 2004(2 )SCALE8 2004(2) Criminal Court Cases 399 (S.C.) - Test identification parade - Not held - Accused identified for the first time during
ABOVE TEST OF

trial - Evidence of eye witnesses identifying the accused for the first time during trial does not become inadmissible or totally useless - Evidence whether deserves any credence or not depends on the facts and circumstances of each case. (Chandresh Paswan Vs State of U.P.) 2002(2) Criminal Court Cases 132 (All.) - Test identification parade - Rape of girl aged 8 years - No identification parade held - Accused too did not apply for test identification parade - Accused cannot take advantage that he was not put to test identification parade. (Bhupinder Vs State of Haryana) 2002(1) Criminal Court Cases 639 (P&H) - Test identification parade - Should not be held in police station buildings and separate rooms should be reserved for holding identification parades in separate buildings from the police station. (Anthony @ Tony William Rosario Vs State of Maharashtra) 2004(1) Criminal Court Cases 344 (Bombay) - Testimony of a witness can be rejected qua some accused and can be believed qua some other accused. (Sher Singh Criminal Court Cases 18 (Rajasthan) - There is no hard and fast rule that the names of all witnesses more particularly eye-witnesses should be indicated in the FIR. (State of Madhya Pradesh Mansingh & Ors.) 2003 (2) ALT Cri 368, JT 2003 (1) SC 252 SCC414 , 2003(6) - Three accused - Conviction - Appeal by two - Conviction based solely on evidence of identification - Evidence of identification found not reliable to sustain conviction - Case of third accused who had not appealed was not distinguished His conviction also liable to be set aside. (Nirmal Pasi & Anr. Vs State of Bihar) Vs Vs The State of Rajasthan) 2004(2)

2003 (1) ALD Cri 628, JT 2002 (6) SC 28

- Three eye witnesses - Patent inconsistency between one eye witness on one side and two on the other side - If one set is to be accepted, other set has necessarily to be rejected as they are mutually destructive and it is impossible to reconcile two sets - When it is impossible to hold with certainty as to which of two sets represents the truth, it is unsafe to rely on either of two for conviction - In such a situation there is no option except to afford the benefit of doubt to the accused. (State Vs Vaijinath) 2003(1) Criminal Court Cases 84 (Karnataka) - Three eye witnesses examined - Their testimony cannot be discarded on the ground that other persons who may have collected at the spot were not examined - It would have been better if some more persons who may have collected at the spot at the time of incident had been examined but their non examination will not

as such erode the credibility of the testimony of the witnesses examined. (Dhanraj & Ors. Vs State of Maharashtra) 2002 AIR 3302, , 2002( 7 )SCC 425, 2002( 6 ) SCALE474 , 2002( 7 )JT 160 2003(2) - Time - Villagers do not have a mathematical idea of the actual time. (Jeeva @ Khema Vs State of Rajasthan) 2005(1) Criminal Court Cases 90 (Rajasthan)

- Time of death -

Medical science is not yet so perfect as to determine exact

time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second. (Ram Bali Vs State of Uttar Pradesh) 2004 AIR 2329, 2004(1 )Suppl.SCR195 ,
2004(10 )SCC598
=
RELIED
ON

Pattipati Venkaiah v. State of A.P., AIR (1985) SC

CAN TREAT AND REPORT IN

1715 =1985 CriLJ 2012 (PRIVATE DOCTORS

MLC CASES

Andhra High Court

: 2002 (2) ALD Cri 476, 2002 (5) ALT 129

Bandi Narendra Kumar vs State Of A.P. on 4 September, 2002

LEGAL DUTIES OF A MEDICAL PRACTITIONER IN DEALING WITH POISONING CASES During his professional career, every general medical practitioner comes across many cases of poisoning. In our country, a majority of the cases of poisoning are suicidal/ accidental in nature. Rarely do we come across a case of homicidal poisoning. Whenever a victim of poisoning is brought to a medical practitioner, even though it is a medico-legal case, medical responsibilities of the doctor assume first importance i.e. saving the life of the patient. Legal duties, i.e. informing the legal authorities and other related procedures always take a back seat in such instances. Therefore the legal duties of the medical practitioner are likely to be missed during the management of the poisoned patient. * As soon as the doctor agrees to treat a patient, the doctor-patient relationship is established. It then becomes the duty of a doctor to treat the patient. *A doctor working in a government hospital can never refuse treatment to a patient of poisoning. *On the other hand, a private practitioner has the right to choose a patient and hence, can refuse to treat a case of poisoning. *Though every doctor has a right to choose a patient (i.e. he can refuse to treat any patient), as per the Supreme Court Ruling (Parmananda Katara Vs Union of India) 1989 AIR SC 2039, 1989 SCR (3) 997,) no doctor shall

refuse to treat a patient in emergency. In the same case, the MCI filed an affidavit stating that the MCI expects that all registered medical practitioners must attend to the sick and the injured immediately and it is the duty of the medical practitioner to make immediate and timely medical care available to every injured person, whether he is injured in an accident or otherwise..Life of a person is far more important than the legal formalities. However, in such cases, the doctor-patient relationship is not established till the patient has been given first-aid treatment and is in a position to give consent for further treatment or medico-legal examination. All legal formalities stand suspended till the patients life is out of danger. The duty of the doctor to provide medical aid, even in MLCs, has been extended to the private doctors also as exemplified by the High Court of Andhra Pradesh in Pattipati Venkaiah Vs State of AP. CITED
ABOVE

)Therefore,

it is unethical to refuse any case of emergency like poisoning. *A medical practitioner must remember that he is protected against any harm done in good faith to a patient in an emergency situation ethically as well as legally as per Section 92 IPC. *In order to avoid any legal or medical complications, it is always advisable to consult a senior colleague in cases of doubt or otherwise. *In the absence of tell-tale signs and symptoms of poisoning, observation of the patient for at least 24 hours is a good practice and can help medical practitioners avoid a lot of suits of negligence being filed against them. *If working in a government hospital, a doctor is bound to inform the legal authorities of all the cases of poisoning regardless of their manner, either suicidal/accidental/homicidal. *A private medical practitioner, on the other hand, is not legally bound to inform the legal authorities of all the cases of poisoning. He only has a legal obligation to inform in homicidal cases of poisoning as per Section 39 CrPC. He is not bound to inform the legal authorities if he is sure the case is suicidal/ accidental in nature. However, as doctor is not an investigating officer and can never be sure about the manner of poisoning, to be on the safer side, he should always inform the legal authorities about any case of poisoning. *Failure to inform the police in a case of homicidal poisoning makes the doctor liable for prosecution under Section 176 IPC [punishment is simple imprisonment of 1 month or fine of Rs. 500/- or both]. *In circumstance of death in a case of poisoning (irrespective of whether the police was informed of the case or not due to any reason), death certificate should not be issued and the body should be handed over to the legal authorities for a medico-legal postmortem examination.

*If an investigating officer inquires about a case of poisoning, regardless of its nature, the medical practitioner is expected to report all details to him (without taking excuse of professional secrecy) failing which he can be penalized under Sections 193 IPC [punishment is imprisonment of either description upto 7 years with fine] and 202 IPC [punishment is imprisonment of either description upto 6 months or fine or both]. *If the doctor provides false information, then he is liable to be punished under Section 177 IPC [punishment is of simple imprisonment for 6 months or fine of Rs. 1000 or both]. It is the duty of a medical practitioner to collect and preserve any evidence suggestive of ( Courtesy= Medical Council Of India ,KV.S.S. Prabhakar Rao Advocate Rajahmundry) - Time of occurrence - 7.00 p.m. or 10.00 p.m. - PW4 stated it to be 7.00 p.m. whereas PW3 has given time of occurrence in between 9.00 and 10.00 p.m. - It is a great variation and it cannot be attributed merely to the inability of the witnesses hailing from the village to give correct time - PW3 signed in Hindi and he is a 'Lambardar' and PW4 signed in English - Held, witnesses are not illiterate persons though living in a village - It is difficult to assume that they will not have the idea of time - PW3 has come forward with the story that the incident happened between 9.00 and 10.00 p.m. to cover up the delay as report to police was given at 11.20 p.m. (Harjinder Singh @ Bhola Vs State of Punjab)
3962, , 2004(11 )SCC253 , 2004(6 )SCALE289 , 2004(6 )JT23 2004 AIR

- Time of occurrence - Variance between oral evidence and medical evidence Witnesses when rustic villagers who have no sense of time, slight variance in time cannot be reason to discard their evidence which otherwise conforms to probability in testimony already delivered. (Karbasappa & Ors. Vs State Through Narona Police Station) 2004(4) Criminal Court Cases 332 (Karnataka) - Transfer of investigation - Body abducted - Not recovered for one year Investigation not yet complete - None of accused arrested, nor FIR submitted Investigation not prompt - Case transferred for investigation by CBI. (Prem Chand Vs State of Rajasthan & Ors.) 2002(1) Criminal Court Cases 259 (Raj.) - Two or more offences - If one offence is cognizable then case shall be deemed to be a cognizable case notwithstanding that the other offences are non-cognizable. (Vaman Narayan Ghiya Vs State of Rajasthan) 2004(3) Criminal Court Cases 08 (Rajasthan) - Two views - In the event of there being two possible views, the one supporting

the accused should be upheld. (Narendra Singh & Anr. Vs State of M.P.) 2004 AIR 3249, 2004(3 )SCR1148, 2004(10 )SCC699 , 2004(4 )SCALE543 , 2004(1 ) Suppl.JT29 2004(3) Criminal Court Cases 705 (S.C.) - Version given in FIR changed subsequently while giving evidence to suit medical evidence - Erodes credibility of prosecution version. (Debi Prasad Panda Vs State of Orissa) 2003(1) Criminal Court Cases 409 (Orissa) VE MAR GAYE - Expression Ve cannot be said definitely to be used for husband - Ve though is often used by ladies as a respectful term while referring to the husbands but it is not possible to say definitely that the said expression was used not in the normal plural sense but with reference to her husband. (Rajkumar Vs State of M.P.) 2004 AIR SC 4408, , 2004(12 )SCC77 , )
14-9-2004 Crl. Appeal NO 120 /2004, Dt

( Sec. 304- Part II, 498- A , IP.C. )

- Weapon of offence - Non recovery - Sticks used in commission of offence not recovered - Not a ground to throw out the prosecution case when the same has been otherwise found to be truthful by credible evidence. (Rajinder Vs State of Haryana) 2005(1) Criminal Court Cases 274 (S.C.) - When there are contradictions and omissions of serious nature casting doubt on prosecution case, conviction of accused cannot be sustained. (State of H.P. Vs Sukhvinder Singh) 2004 AIR SC 2834, , 2004(12 )SCC101 , 2004(2 2004(2 )JT194 - While assessing evidence one has to keep realities in view and not adopt a hyper sensitive approach. (Damodar Vs State of Rajasthan) AIR 2003 SC 4414, 2003 (2)
ALD Cri 969, 2003 CriLJ 5014

)SCALE210 ,

- Witness - An adverse inference would be drawn in respect of a matter for which no explanation is sought for from the relevant witnesses. (State of Punjab Vs Pohla Singh & Anr.) AIR 2003 SC 4407, 2003 CriLJ 5010 - Witness - Can be believed and disbelieved in part. (Gopal & Ors. Vs State of M.P.) 2003(2) Criminal Court Cases 266 (M.P.) - Witness - Credibility - Contradiction with statement u/s 161 - Omission to state a fact - Omission must be a significant one and relevant - An omission to be significant must depend upon whether the specific question, the answer to which is omitted, was asked of the witness by the police officer during investigation. (Sadhuram & Anr. Vs State of Rajasthan) 2002(1) Criminal Court Cases 390 (Raj.)

- Witness - Evidence of witnesses cannot be discarded merely because their statements were recorded under Section 164 Cr.P.C. - All that is required as a matter of caution is a careful analysis of the evidence. (State of Madhya Pradesh Vs Mansingh & Ors.) , 2003(2 SCALE429 , 2003(1 )Suppl.SCR460 , 2003(10 )SCC414 , 2003(6 ) )Suppl.JT252 2003 (2) ALT Cri 368, 2003(2) Apex Court

Judgments 277 (S.C.) : 2003(3) Criminal Court Cases 559 (S.C.) - Witness - Intending to change his earlier testimony - Held, if a witness who deposed one way earlier comes before the appellate Court with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, Court can consider the genuineness of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case accept it. (Zahira Habibulla H.Sheikh & Anr. Vs State of Gujarat & Ors.) 2006 AIR 1367, 2006(2 )SCR1081, 2006(3 )SCC374 , 2006(3 )SCALE104 , 2006(3 )JT399 ( Best Bakery Case k.v.s.s.prabhakar advocate )

WitnessRe-examinationSec 138 Considerations for exercise of power for re-examination of witnessThe re-examination cannot be limited to one or two questions and any number of questions can be asked. There is no warrant that re-examination should be limited to one or two questions. If the exigency requires any number of questions can be asked in re-examination. ( Rammi alias Rameswhwar V. State of Madhya Pradesh )
1999 CrLJ 4561 : 1999 AIR (SC) 3544 : 1999(8) SCC 649 : 1999 (2) Jab LJ 354 : 1999(4) Rec CrR 246 : 1999(39) All CrR 762 and AIR 1995 SC 1601

- Witness - Won over - Prosecution cannot be compelled to examine a witness who has been won over and no adverse inference can be drawn for non-examination of such witness. (Tunai Sharma Vs State of Bihar) 2003(2) Criminal Court Cases 223 (Patna) - Witness belonged to a different area and had no business to be near the place of occurrence - Not a ground to disbelieve his evidence. (State of Uttar Pradesh Vs Farid Khan & Ors.) 2004 AIR 5050, , 2005(9 2004(8 )JT322 )SCC103 , 2004(8 )SCALE139 ,

- Witness closely connected with the deceased in view of the fact that he was a teacher in the School of which deceased was the Manager - By this it cannot be presumed that this witness has volunteered to be a false witness. (Jai Sree Yadav Vs State of U.P.) 2004 AIR 4443, , 2005(9 )SCC788 , 2004(6 )SCALE587 , 2004(6 )JT519 - Witness examined earlier when wants to change his stand - Court not to readily accede to such request - If the witness gives reasons for the earlier lapse, only then Court can consider the genuineness of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case accept it. (Anil Sharma & Ors. Vs State of Jharkhand) 2004 AIR 2294, 2004(1 )Suppl.SCR907 , 2004(5 )SCC679 , 2004(5 )SCALE289 , 2004(1 )Suppl.JT559 - Witness not available to police for 10 days after the incident - Plausible explanation given that he was afraid for his safety hence he went to his in-laws' place and remained there and it is only when things settled down he decided to come out and give a statement to the police - I.O. stated that there was tension in the village at the time of funeral of the deceased, which proves the apprehension of the witness for his non availability to the investigating agency. (Jai Sree Yadav Vs State of U.P.) 2004 AIR 4443, , 2005(9 )SCC788 , 2004(6 )SCALE587 , 2004(6 )JT519

- Witness reaching spot after occurrence - Evidence of such witness is of no value. (Vijay Kumar Vs The State of Rajasthan) 2002(3) Criminal Court Cases 325 (Rajasthan) - Witnesses - Minor contradictions - Instead of discarding their testimony strengthens the case of the prosecution as witnesses are truthful and have not made parrot like statement. (Allarakha K.Mansuri Vs State of Gujarat) 2002 AIR 1051, 2002( 1 )SCR1011, 2002( 3 )SCC 57, 2002( 2 )SCALE131 , 2002( 2 )JT 63 - Witnesses gathered at the spot and put on guard of the dead body not examined - Witness given up as being unnecessary - Evidence of persons who gathered immediately after the occurrence would have been valuable piece of evidence to serve as corroboration of the account given by the direct witnesses, especially when presence of the alleged eye witnesses at the spot was too much of coincidence - This is a serious lapse which casts a doubt on the prosecution case. (Harjinder Singh @ Bhola Vs State of Punjab) 2004 AIR 3962, , 2004(11 )SCC253 ,

2004(6 )SCALE289 , 2004(6 )JT23

Noted Time of occurrence kvssprabhakar advocate)

- Witnesses partly not trustworthy - Simply because the statements of the witnesses are partly not trustworthy that does not mean that the whole of the testimony of the witnesses should be discarded. (State of Karnataka Vs Papanaika & Ors.) 2004 AIR 4967, , , 2004(8 )SCALE774 , 2004(9 )JT161