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PETITIONER:

RAMMI ALIAS RAMESHWAR

Vs.

RESPONDENT:

STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 21/09/1999

BENCH:

K.T.Thomas, A.P.Misra

JUDGMENT:

THOMAS, J.

A manslaughter in an automobile in locomotion is the

subject matter of this case. The slaughtered man was a Home

Guard personnel, by name Sardar Singh Thakur. When he

boarded the bus destined to Naseerabad on the evening of

20.7.1985, he had no foreboding that it was his last journey

alive. Before the bus could reach its terminus he was

finished by armed assailants inside the vehicle while it was

in motion. Appellants (Rammi alias Rameshwar and Bhura

alias Sajjan Kumar) were two of the three persons arraigned

before the Sessions Court. Though the Sessions Judge

acquitted all of them a Division Bench of the High Court of

Madhya Pradesh convicted the two appellants under Section

302 read with Section 34 of the IPC and sentenced them to

imprisonment for life. The third accused (Suresh alias

Chhigga) died before the appeal was decided by the High

Court. These appeals were filed by the two convicted

persons as of right under Section 379 of the Code of

Criminal Procedure (for short the Code) and under Section

2 of the Supreme Court (Enlargement of Criminal Appellate

Jurisdiction) Act, 1970.

The story of the prosecution, as revealed through

evidence, can be summarised like this: One Channa Babu

(brother of appellant Rammi and late Chhigga) was murdered

for which the police charge-sheeted Sardar Singh Thakur (the

deceased in this case) and his brother Shyam Singh (PW-3 in

this case) and a few others. From then on these accused

were thirsting for revenge for the murder of Channa Babu.

They were prowling for an opportune opportunity to strike

back. In such a background accused came to know that Sardar

Singh Thakur was travelling in a bus. Accused wanted to

avail themselves of that opportunity and boarded the bus on

the way. After the vehicle moved for some distance the

assailants mounted the attack on the deceased with chopper

and knives.

The assailants inflicted as many as 12 incised

injuries on Sardar Singh Thakur. Those who tried to

intervene were told by the assailants to mind their own

business as the attack was intended for a revenge. After

accomplishing the object all the assailants alighted from

the vehicle and escaped from the scene. The passengers of

the bus became frightened and most of them jumped out of the

vehicle and ran helter-skelter.

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The stage carriage was then driven towards the police

station by its driver (PW-12 Jabbar Khan). Ext. P-12 -

First Information Statement was lodged at the police station

by the conductor of the vehicle (PW-8 Ramashray). The

accused were arrested and after interrogation the weapons

used for the murder were recovered by PW-13 Investigating

Officer from hidden places on the basis of informations

elicited from the accused.

There is no doubt that deceased Sardar Singh Thakur

was murdered inside the said bus at about 5 P.M. while the

bus was in motion. In fact that part of the case is not

controverted by the appellants. The dispute now centers

round the identity of the assailants. PW-8 Ramashray and

PW-12 Jabbar Khan supported the case of the prosecution

regarding the identity of the assailants, besides one of the

passengers of the bus (PW-9 Ram Dulare). But the trial

court was not impressed by their evidence. Nor did the

trial court place any reliance on the evidence relating to

the recovery of weapons which the prosecution adduced as per

Section 27 of the Evidence Act. But the Division Bench of

the High Court made complete reversal of the findings of the

trial judge and made a scathing observation in the

penultimate paragraph of the judgment under appeal, as

under: Before parting with this appeal, we cannot resist

from observing that the perverse reasoning and conclusions

given by the trial judge in appreciating the evidence in the

instant case cannot be supported. Such unrealistic approach

in appreciating evidence in a criminal case shakes the

confidence of the society in the legal system itself and our

interference, therefore, is urgently called for.

Shri Uday Umesh Lalit, learned counsel for the

appellants contended that the reasoning of the trial judge

regarding different items of incriminating evidence did not

warrant interference in an appeal against acquittal as the

views expressed by the trial judge were not unreasonable.

Learned counsel dealt with the evidence almost threadbare in

his endeavour to show that the sessions judge was not

altogether wrong in acquitting the appellants.

PW-9 Ram Dulare (a passenger in the bus) in his

evidence said that he saw the appellants attacking the

deceased with chopper and knives. The trial court pointed

out that he did not inform the members of the family of the

deceased nor did he bring this matter to the notice of the

police. The Sessions Judge regarded the above as a conduct

incompatible with the normal behaviour of a person

witnessing such a crime.

Such a remark on the conduct of a person who witnessed

the murderous attack is least justified in the realm of

appreciation of evidence. This Court has said time and

again that the post event conduct of a witness varies from

person to person. It cannot be a cast-iron reaction to be

followed as a model by everyone witnessing such event.

Different persons would react differently on seeing any

violence and their behaviour and conduct would, therefore,

be different. We have not noticed anything which can be

regarded as an abnormal conduct of PW-9 Ram Dulare.

Nonetheless, there are two broad circumstances which

would bridle the court from placing full reliance on the

evidence of PW-9. First is, though his name appeared in the

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First Information Statement its author PW-8 (the conductor

of the bus) said in his evidence that Ram Dulare was not a

person known to him. Second is, PW-9 has said in

cross-examination that he did not mention anything about the

incident to anybody else at all until he was questioned by

the police.

Though the aforesaid two incongruities came on record

during cross-examination no attempt whatsoever was made by

the Additional Public Prosecutor to secure any explanation

regarding such aspects.

Regarding the recovery of weapons, the prosecution

could utilize statements attributed to the accused on the

basis of which recovery of certain weapons was effected.

Section 27 of the Evidence Act permits so much of

information which lead to the discovery of a fact to be

admitted in evidence. Here the fact discovered by the

police was that the accused had hidden the blood-stained

weapons. In that sphere what could have been admitted in

evidence is only that part of the information which accused

had furnished to the police officer and which led to the

recovery of the weapons.

True, such information is admissible in evidence under

Section 27 of the Evidence Act, but admissibility alone

would not render the evidence, pertaining to the above

information, reliable. While testing the reliability of

such evidence the court has to see whether it was

voluntarily stated by the accused.

PW-13 Investigating Officer has said in his evidence

that the accused were arrested on the succeeding day of the

occurrence from a different place and they were interrogated

by him. But PW-12 (the driver of the bus) has said in his

evidence that after he reached the police station on the

same evening he saw the three accused inside the police

station. We do not know whether it was an error which PW-12

committed during cross-examination. No doubt the Public

Prosecutor who conducted the prosecution did not choose to

put any question to PW-12 also in re- examination.

As it is, there is material discrepancy regarding the

time when police took the accused in custody. If PW-13 is

correct the accused would have been arrested only on the

succeeding day of occurrence. But if PW-12 is correct the

accused should have been interrogated on the very day of

occurrence in which case the accused would have had no

occasion to conceal the weapons.

With the above scrutiny we are unable to place any

reliance on the evidence of PW-13 regarding recovery of the

weapons at the instance of the accused. In this context we

are tempted to observe that the Additional Public Prosecutor

who conducted prosecution has not discharged his

responsibility as he avoided putting any question to those

witnesses when an opportunity for re-examination was

provided to him.

The very purpose of re-examination is to explain

matters which have been brought down in cross-examination.

Section 138 of the Evidence Act outlines the amplitude of

re-examination. It reads thus: Direction of

re-examination.- The re- examination shall be directed to

the explanation of matters referred to in cross-examination;

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and if new matter is, by permission of the Court, introduced

in re-examination, the adverse party may further

cross-examine upon that matter.

There is an erroneous impression that re-examination

should be confined to clarification of ambiguities which

have been brought down in cross-examination. No doubt,

ambiguities can be resolved through re-examination. But

that is not the only function of the re-examiner. If the

party who called the witness feels that explanation is

required for any matter referred to in cross-examination he

has the liberty to put any question in re-examination to get

the explanation. The Public Prosecutor should formulate his

questions for that purpose. Explanation may be required

either when ambiguity remains regarding any answer elicited

during cross-examination or even otherwise. If the Public

Prosecutor feels that certain answers require more

elucidation from the witness he has the freedom and the

right to put such questions as he deems necessary for that

purpose, subject of course to the control of the court in

accordance with the other provisions. But the court cannot

direct him to confine his questions to ambiguities alone

which arose in cross-examination.

Even if the Public Prosecutor feels that new matters

should be elicited from the witness he can do so, in which

case the only requirement is that he must secure permission

of the court. If the Court thinks that such new matters are

necessary for proving any material fact, courts must be

liberal in granting permission to put necessary questions.

A Public Prosecutor who is attentive during cross-

examination cannot but be sensitive to discern which answer

in cross-examination requires explanation. An efficient

Public Prosecutor would gather up such answers falling from

the mouth of a witness during cross-examination and

formulate necessary questions to be put in re-examination.

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.

But in this case the Additional Public Prosecutor in

the trial court seemed oblivious of such a right. It is

rather amazing that he did not avail himself of that right

in respect of a single witness. The defence counsel would

have had a free day as he was left totally undisturbed by

the Public Prosecutor. Be that as it may, side-stepping

above items of evidence is hardly sufficient to end the woes

of the appellant because the prosecution examined two of the

most important witnesses to the occurrence, PW-8 Ramashray -

the conductor, and PW-12 Jabbar Khan - the driver.

PW-8 had given three former statements regarding the

occurrence (Ext.P-12 the First Information Statement, and

then what the Investigating Officer recorded under Section

161 of the Code, and another statement which the magistrate

recorded under Section 164 of the Code). The defence

counsel used all those three statements to ferret out one or

two omissions therefrom for confronting PW-8. The trial

court on the strength of such answers castigated PW-8. This

was what the Sessions Judge said about their evidence:

Ramshray (PW-8) stood contradicted on material and vital

points from the first information report Ex.P.11, case diary

statement ex.D-1. Those contradictions relate to the

material and vital points. These details go to show that

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Ramshray (PW-8) is not a truthful or reliable witness. He

was made to modulate his version but to suit the prosecution

case and it is not safe to place implicit reliance on his

testimony. The evidence of this witness appears artificial,

unnatural and improbable and suffers from intrinsic

infirmities. In the circumstances, his testimony cannot be

accepted on its face value.

Shri Uday Umesah Lalit, learned counsel for the

appellant tried to support the said reasoning of the trial

court. We feel that the approach made by the trial court in

groping for discrepancies in the testimony of such important

witnesses had resulted in the unmerited acquittal.

When eye-witness is examined at length it is quite

possible for him to make some discrepancies. No true

witness can possibly escape from making some discrepant

details. Perhaps an untrue witness who is well tutored can

successfully make his testimony totally non-discrepant. But

courts should bear in mind that it is only when

discrepancies in the evidence of a witness are so

incompatible with the credibility of his version that the

court is justified in jettisoning his evidence. But too

serious a view to be adopted on mere variations falling in

the narration of an incident (either as between the evidence

of two witnesses or as between two statements of the same

witness) is an unrealistic approach for judicial scrutiny.

It is a common practice in trial courts to make out

contradictions from previous statement of a witness for

confronting him during cross-examination. Merely because

there is inconsistency in evidence it is not sufficient to

impair the credit of the witness. No doubt Section 155 of

the Evidence Act provides scope for impeaching the credit of

a witness by proof of inconsistent former statement. But a

reading of the Section would indicate that all inconsistent

statements are not sufficient to impeach the credit of the

witness. The material portion of the Section is extracted

below: 155. Impeaching credit of witness.- The credit of

a witness maybe impeached in the following ways by the

adverse party, or, with the consent of the court, by the

party who calls him

(3) by proof of former statements inconsistent with

any part of his evidence which is liable to be

contradicted.

A former statement though seemingly inconsistent with

the evidence need not necessarily be sufficient to amount to

contradiction. Only such of the inconsistent statement

which is liable to be contradicted would affect the credit

of the witness. Section 145 of the Evidence Act also

enables the cross-examiner to use any former statement of

the witness, but it cautions that if it is intended to

contradict the witness the cross-examiner is enjoined to

comply with the formality prescribed therein. Section 162

of Code also permits the cross-examiner to use the previous

statement of the witness (recorded under Section 161 of the

Code) for the only limited purpose, i.e. to contradict

the witness.

To contradict a witness, therefore, must be to

discredit the particular version of the witness. Unless the

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former statement has the potency to discredit the present

statement, even if the latter is at variance with the former

to some extent it would not be helpful to contradict that

witness, (vide Tahsildar Singh and anr. vs. State of U.P.,

AIR 1959 SC 1012).

In this case the evidence of the conductor and the

driver of the bus evinces credibility. As pointed out

earlier they are the most natural witnesses for the murder

which took place inside the bus. The minor variations which

the defence counsel discovered from their former statements

did not amount to discredit the core of their evidence. The

strained reasoning of the Sessions Judge for side-stepping

their evidence is too fragile for judicial countenance. The

Division Bench of the High Court has rightly reversed the

finding regarding the credibility of their evidence.

For the aforesaid reasons we agree with the High Court

that appellants are liable to be convicted under Section 302

of the IPC. We, therefore, dismiss this appeal.