SUPREME COURT HOLDS THAT THE DEPOSITION OF A CHANCE WITNESS WHOSE PRESENCE AT THE PLACE OF INCIDENT IS DOUBTFUL, SHOULD NOT BE CONSIDERED AS EVIDENCE

A two Judge Bench of the Supreme Court comprising of Justice Hrishikesh Roy and Justice Manoj Misra passed a Judgment dated 18.05.2023 in Ravi Mandal v State Of Uttarakhand in Criminal Appeal No. 511 of 2011 and Shabbir v State Of Uttarakhand in Criminal Appeal No. 511 of 2011 and held that the deposition of a chance witness whose presence at the place of the incident is doubtful, should not be considered as evidence.

Facts

i) In the present case, one, Man Singh, father of the Deceased, Chhotu @ Surjit, lodged a Complaint on 01.11.2001 at the Lal Kuan Police Station, Nainital that his Son was murdered on 31.10.2001 by the Accused- Govind and Ravi Mandal, the Appellants herein, resulting in an F.I.R. being registered under Crime No. 686 of 2001 under Sections 302 of the Indian Penal Code 1860 (IPC) (Punishment for murder) and 201 IPC (Causing the disappearance of evidence of the offender).

ii) Thereafter, the Investigation Officer (O.) visited the place of occurrence of the offence on 01.11.2001 and collected the samples of blood-stains from the place of occurrence, and prepared (i) an Inquest on the dead body of the Deceased, (ii) a Police Form No. 13, (iii) a sketch of the dead body of the Deceased, (iv) a Letter to the Chief Medical Officer (CMO) and (iv) a site plan, and thereafter, sent the dead body for post mortem.

iii) Meanwhile, the Complainant, Man Singh made another Application on 10.11.2001, at the Police Station, stating that on 30.10.2001, his Son along with, Surjit, Ravi, Govind, and Shabbir visited the house of one, Ranjith Vishwas, and when they returned the next morning, Govind was not with them.

iv) Thereafter, an autopsy was conducted by the Medical Officer, who noted the following ante mortem injuries on the dead body of the Deceased:

a) Multiple abraded contusions, ranging from 6cm x 5 cm to 4cm x 4 cm, on the right forehead, right temporal region, and right side of the face 

b) Abraded contusions (4cm x 4cm to 2 cm x 2 cm) on the left forehead 

c) Abraded contusions (4 x 4 cm) on the front of the left shoulder 

d) A gunshot wound of entry measuring 6 cm by 6.5cm by cranial cavity depth

v) Upon investigation, the Station House Officer, P.K. Shah, arrested the Accused- Shabbir and Ravi on 24.11.2001. During the interrogation, (a) the Police recovered a country-made pistol with a 12-bore and a live cartridge from the pocket of the Accused- Shabbir and a knife from the pocket of the Accused-Ravi. (b) The Accused- Shabbir confessed his guilt and admitted that on 25.10.2001 and 26.10.2001, he killed Govind at Bareily, and on 31.10.2001, he killed the Deceased-Chotu, with the help of Accused-Ravi using a country-made pistol.

vi) Thereafter, the Investigation Officer submitted a Charge Sheet (a) under Section 4 of the Arms Act 1959 (Arms Act) (Licence for acquisition and possession of arms of specified description in certain cases), Section 25 of the Arms Act (Punishment for certain offences), and Sections 302 and 201 IPC in respect of the Accused-Shabbir and (b) under Section 25 of the Arms Act and Sections 302 and 201 IPC in respect of the Accused-Ravi, before the Ld. Additional Sessions Judge at Haldwani District, Nainital (Trial Court).

vii) The Ld. Trial Court framed the charges and convicted both the Accused, vide Order dated 28.02.2004, and awarded the sentence of (a) life imprisonment under Section 302 read with Section 34 of IPC (Acts done by several persons in furtherance of common intention) along with one year rigorous imprisonment (I.) under Section 201 IPC in Sessions Trial (S.T.) No. 93/2002; and (b) additional one year R.I. with a fine of Rs. 500/- under Section 25 of the Arms Act to the Accused- Shabbir in S.T. No. 104 of 2002.

viii) Aggrieved by the Trial Court Order dated 28.02.2004, both the Accused filed Criminal Appeals bearing No. 54 of 2004 and Crl. No. 59 of 2004 before the High Court of Uttarakhand (High Court).

ix) The High Court, vide Order dated 07.04.2010, found that the basis of the circumstances put forward by the Prosecution was consistent with the guilt of the Accused and thus, the High Court confirmed the Trial Court Order.

Supreme Court Analysis 

Aggrieved by the High Court Order dated 07.04.2010, the both the Accused filed Criminal Appeal No. 511 of 2011 and Criminal Appeal No. 2345 of 2011 before the Supreme Court. The Apex Court passed a Judgment dated 18.05.2023 and made the following observations:

1) Based on the Prosecution evidence, the Bench observed that the Deceased- Chottu was last seen alive with the Appellants-Accused, whose place of occurrence was confirmed by few Prosecution Witnesses, namely, PW-2 Chander Singh and PW-5 Mahender Khurana.

2) That PW-2 Chander Singh gave his statement on Affidavit on 18.02.2002, i.e. around 3.5 months after the incident took place, that he had noticed that the Accused’s hands and clothes were blood stained and that he was threatened by the Accused that if he informed anybody about the same, then he would kill PW-2.

3) The Bench observed that in the case of Kali Ram v. State of Himachal Pradesh (1973) 2 SCC 808, the Supreme Court had observed that “if a witness professes to know about a gravely incriminating circumstance against a person accused of the offence of murder and the witness keeps silent for over two months regarding the said incriminating circumstance against the accused, his statement relating to the incriminating circumstance, in the absence of any cogent reason, is bound to lose most of its value.” Based on the said principle, the Apex Court observed that the Appellants-Accused were arrested on 24.11.2001, and that PW-2 had not made any disclosure about the said offence until 18.02.2002. Therefore, PW-2’s statement against the Accused was held unreliable, owing to the delay in his disclosure of the offence.

4) The Supreme Court in Rajesh Yadav & Another v. State of Uttar Pradesh (2022) 12 SCC 200 (2009) 9 SCC 719 and Jarnail Singh & Others v. State of Punjab (2009) 9 SCC 719 observed that the evidence of a chance witness requires very careful and close scrutiny, and the chance witness must explain his presence at the place of occurrence. The deposition of the chance witness whose presence at the place of the incident itself remains doubtful should be discarded. Therefore, PW-5’s evidence was also held unreliable, as he had given contradictory statements before the Police and the Court.

Conclusion

Thus, based on the aforementioned observations, the Apex Court held that the Prosecution failed to establish the offence against the Appellants-Accused. As a result, the Appellants-Accused were acquitted, the Appeals were allowed and the High Court Order dated 07.04.2010 and the Trial Court Order dated 28.02.2004 were set aside.

Suneel Jaiswal

Associate

The Indian Lawyer