SUPREME COURT REITERATES THE FACTORS TO BE CONSIDERED WHILE APPRECIATING ORAL / OCULAR EVIDENCE OF EYE-WITNESSES

Recently, a two Judge Bench of the Supreme Court comprising of Justice Sudhanshu Dhulia and Justice J.B. Pardiwala passed a Judgment dated 29-03-2023 in the matter of Balu Sudam Khalde and Another vs The State of Maharashtra, Criminal Appeal No. 1910 of 2010 and reiterated the factors to be considered, while appreciating the oral / ocular evidence of eye-witnesses in a criminal case.

Facts

(i) In the present case, one, Asgar Shaikh, the Prosecution Witness (PW)- No.1 (Informant) was chit-chatting with his friend Abbas Baig (Deceased) on 01-04-2001 around 11.15 pm in Pune, when one, Santosh Khalde (Accused No. 2) with few other men, who were passing by, had a verbal altercation with the Deceased. Thereafter, the Appellant No. 2 left the spot and later returned to the spot, along with Balu Khalde (Accused No. 1), Raju Mohite (Accused No. 3) and Ramesh Mohite (Accused No. 4) with weapons.

(ii) The Accused No. 1 injured the Informant and then, the Accused No. 1 and 3 stabbed the Deceased with a sword and a sickle. The Accused No. 2 and 4 assisted the other two Accused in the assault. Thereafter, when neighbours started assembling near the spot, the Accused 1-4 escaped from the spot.

(iii) The injured Deceased was taken to the Lohianagar Police Station, Pune in a rickshaw driven by Nasir Khan (PW-3), and subsequently, to the nearby Sassoon Hospital, where, the Deceased was declared dead.

(iv) The Police lodged (1) a First Information Report (FIR) dated 02-04-2001 by PW-1 around 2 AM, i.e. within 3 hours of the incident; (2) prepared an inquest panchnama on the Deceased’s body and a scene of offence panchnama, (3) collected the clothes stained in blood and sent to the Forensic Science Laboratory (FSL) for chemical analysis, (4) sent the Deceased’s body for post-mortem, (5) arrested all the Accused 1-4, (6) prepared discovery panchnamas and recorded that the weapons were recovered at the instance of the Accused No. 1 and 3, on the basis of their voluntary statements given before the Panch Witnesses and (7) further, recorded statements of other witnesses as well.

(v) At the end of the investigation, a Chargesheet was filed before the Ld. Judicial Magistrate First Class, Court No. 6, Pune under Section 302 of the Indian Penal Code 1860 (IPC) (Punishment for murder) read with Section 34 of IPC (Acts done by several persons in furtherance of common intention), which was committed to the Ld. Additional Sessions Judge, Pune (Trial Court).

(vi) Based on the circumstantial evidence i.e. statement of the eye-witnesses- Asgar Shaikh (PW-1- Informant), Firoz Shaikh (PW-2- Neighbour) and Nasir Khan (PW-3-Rickshaw Driver) coupled with the corroborative oral evidence of the Panch Witnesses (PW- 4 and 5), Dr. Shrikant who conducted the post-mortem examination (PW-7) and the police officers who recovered the weapons, etc, the Ld. Trial Court passed an Order dated 12-03-2003 in Sessions Case No. 323 of 2001 and convicted the Accused No. 1 and 3, namely, Balu Khalde and Raju Mohite, under Section 302 IPC read with Section 34 IPC and sentenced them to undergo life imprisonment and imposed a fine of Rs. 1000/-, in default of payment of which, they would have to undergo rigorous imprisonment for a further period of 6 months.

(vii) Aggrieved by the Ld. Trial Court Order dated 12-03-2003 in Sessions Case No. 323 of 2001, the Accused No. 1 and 3 filed Criminal Appeal No. 637 of 2003 before the Hon’ble Bombay High Court.

(viii) A two Judge Bench of the High Court comprising of Justice Bilal Nazki and Justice A.R. Joshi, vide Judgment dated 02-03-2009, upheld the Ld. Trial Court’s Order of Conviction and Sentence dated 12-03-2003.

Supreme Court

Aggrieved by the High Court Judgment dated 02-03-2009, the Accused No. 1 and 3 filed Criminal Appeal No. 1910 of 2010 before the Hon’ble Supreme Court. The Apex Court, vide Judgment dated 29-03-2023, made the following observations:

(1) That the Prosecution has relied upon the following evidence against the Accused:

(a) Oral Evidences of the Eye-Witnesses, namely, Asgar Shaikh (PW-1- Informant), Firoz Shaikh (PW-2- Neighbour) and Nasir Khan (PW-3-Rickshaw Driver),

(b) Evidence of Dr. Shrikant Chandekar (PW-7) who conducted the post-mortem examination of the Deceased’s body and few other Witnesses.

(c) Circumstantial Evidence comprising of various Panchnamas, Post-Mortem Report, Seized Clothes of the Informant and the Deceased, etc.

(2) That in criminal cases, while appreciating ocular evidence of eye-witnesses, the Court has to take into consideration the following factors:

(a) To ascertain whether it is possible for the eye-witnesses to be present at the scene of occurrence or in such situation, as would make it possible for them to witness the facts deposed by them.

(b) To determine whether there is anything inherently unreliable in the eye-witness’s testimony and whether the evidence of such witness, read in entirety, appears to have scope of truth,

(c) To further scrutinize the evidence of the eye-witness, keeping in mind, the deficiencies, drawbacks and infirmities, if any, in such evidence.

(d) In the event that there are any discrepancies in the testimony of an eye-witness, the Court has to ascertain whether such discrepancies are so incompatible with the credibility of his version, that the Court is justified in discarding his evidence. While doing so, the Court has to take into consideration that a witness cannot be expected to possess a photographic memory and to recall the exact details and sequence of events of an incident. Hence, minor discrepancies should be disregarded.

(e) Further, the evidence of an eye-witness and more so, an injured witness, has greater evidentiary value, as an injured witness would not allow the real culprits to escape and falsely implicate the accused. Thus, their statements are not to be discarded lightly on account of some minor contradictions.

(3) That applying the aforesaid principles to the present case, the Bench observed that the Oral Evidence of all the 3 (three) Eye-Witnesses, namely, Asgar Shaikh (PW-1- Informant), Firoz Shaikh (PW-2- Neighbour) and Nasir Khan (PW-3-Rickshaw Driver), were consistent with each other and hence, their ocular version was held reliable.

(4) Further, as per the deposition of Dr. Shrikant Chandekar (PW-7) who conducted the post-mortem examination of the Deceased’s body, severe injuries were caused to the Deceased on his body with the use of a sickle and a sword. Hence, the Accused No. 1 and 3 have been rightly punished for committing murder under Section 302 IPC.

(5) Furthermore, the Appellants-Accused inflicted with as many as 9 (nine) blows using dangerous weapons, upon the Deceased who was unarmed and helpless. Thus, it implies that the Appellants had the knowledge that such intentional bodily injuries would be sufficient to cause death in the ordinary course of nature. Therefore, the said act would fall under clause (3) of Section 300 of the IPC (culpable homicide is murder- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death).

Thus, based on the aforesaid observations, the Supreme Court held that the Appellants-Accused would be liable for committing murder of the Deceased. As a result, the Impugned High Court Judgment dated 02-03-2009 was upheld and the Appeal filed by the Appellants-Accused No. 1 and 3 was dismissed.

Harini Daliparthy

Senior Associate

The Indian Lawyer