Pappi Mohammad vs State Of H.P on 16 October, 2024

Himachal Pradesh High Court

Pappi Mohammad vs State Of H.P on 16 October, 2024

( 2024:HHC:9774 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 419 of 2019
Reserved on: 27.08.2024
Date of Decision: 16.10.2024.

[

Pappi Mohammad ...Petitioner

Versus

State of H.P. ...Respondent

Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes

For the Petitioner : Mr. A.S. Rana, Advocate.
For the Respondent : Mr. Jitender Sharma, Additional
Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present revision petition

against the judgment dated 01.10.2019 passed by learned

Sessions Judge Chamba, District Chamba (learned Appellate

Court) vide which the appeal filed by the respondent (accused

before the learned Trial Court) was dismissed and the judgment

and order dated 01.08.2019 passed by learned Chief Judicial

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Magistrate, Chamba, District Chamba (learned Trial Court) were

upheld. (The parties shall hereinafter be referred to in the same

manner as they were arrayed before the learned Trial Court for

convenience.)

2. Briefly stated, the facts giving rise to the present

revision are that the police presented a challan against the

accused before the learned Trial Court for the commission of an

offence punishable under Section 380 of the Indian Penal Code

(hereinafter referred to as IPC). It was asserted that the

informant Avtar Singh made a complaint (Mark A) to the police

stating that he and his wife Pinki Jaswal and daughter-in-law

Komal Jaswal (PW-3) had gone to attend a dinner on 25.07.2010.

Komal Jaswal put her four gold rings, one pair of gold earrings,

one Nokia Mobile Phone 3110 and a ladies' make-up kit near her

bed and slept. She forgot to bolt the door. Somebody entered the

house and removed the articles lying in the room. Efforts were

made to trace these articles but they could not be found. The

police registered the FIR (Ext. PW-8/A). The mobile number was

put on the location tracing and was found to be used by Sunny

(PW-7). He disclosed that the mobile phone was handed over to

him by the accused person. This phone was identified by Vinod
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Jaswal (PW-5) as his own. SI Sher Singh (PW-8) conducted the

investigation. He visited the spot and prepared a site plan (Ext.

PW-8/C). The accused was arrested in case FIR No. 195 of 2010.

His custody was transferred. He made a disclosure statement

that he had concealed the gold ornaments near his residence

after tying them in a handkerchief and he could get them

recovered. Memo (Ext. PW-1/A) was prepared. The accused led

the police to his house and took out a handkerchief concealed

beneath the stones of the retaining wall near his house. It

contained three rings, and one pair of earrings which were

identified by Komal Jaswal. These were put in a cloth parcel and

the parcel was sealed with 12 seals of impression "T". Seal

impression (Ext. PW-8/D) was taken on a separate piece of cloth

and the seal was handed over to Ram Kishan. The parcel was

seized vide memo (Ext. PW-3/A). A site plan of the place of

recovery (Ext. PW-8/E) was prepared. The statements of the

remaining witnesses were recorded as per their version and after

the completion of the investigation, the challan was prepared

and presented before the learned Trial Court.
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3. The learned Trial Court charged the accused with the

commission of an offence punishable under Section 380 of IPC.

The accused pleaded not guilty and claimed to be tried.

4. The prosecution examined 8 witnesses to prove its

case. HC Pardeep Kumar (PW-1) is the witness to the disclosure

statement. HC Hakam Chand (PW-2) is the witness to the

recovery of the mobile phone from Sunny and the disclosure

statement made by the accused. Komal Jaswal (PW-3) is the

owner of the ornaments. HHC Soni Mohammad (PW-4) proved

the entry in the daily diary. Vinod Jaswal (PW-5) is the witness

to the recovery of the mobile phone. Deepak Jaiswal (PW-6) is

the witness to the recovery of the ornaments. Sunny (PW-7)

produced the mobile phone. SI Sher Singh (PW-8) conducted the

investigation.

5. The accused in his statement recorded under Section

313 of Cr. P.C. denied the prosecution case in its entirety. He

stated that the witnesses deposed against him falsely. He was

falsely implicated in this case. Nothing was recovered from him

and the mobile phone was also recovered from accused Sunny.

No defence was sought to be adduced by the accused.
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6. The learned Trial Court held that the disclosure

statement made by the accused and the consequent recovery of

the ornaments based on the disclosure statement were duly

proved. The ornaments were identified by Komal Jaswal. Thus,

the accused was found in possession of the stolen property. The

chain of circumstances was complete. Hence, the accused was

convicted of the commission of an offence punishable under

Section 380 of IPC and was sentenced to undergo rigorous

imprisonment for five years and pay a fine of ₹10,000/- and in

default of payment of the fine to undergo simple imprisonment

for one month for the commission of an offence punishable

under Section 380 of IPC.

7. Being aggrieved from the judgment and order passed

by the learned Trial Court, the accused filed the appeal which

was decided by learned Sessions Judge, Chamba (learned

Appellate Court). The learned Appellate Court held that the

accused made a disclosure statement and got the stolen

ornaments recovered. These circumstances pointed towards the

guilt of the accused. The possession of the stolen article

immediately after the theft leads to an inference that the

accused had committed the theft. Therefore, the accused was
6
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rightly convicted. However, the sentence imposed by the learned

Trial Court was on the higher side. Hence, it was reduced to a

period of three years.

8. Being aggrieved from the judgment passed by the

learned Appellate Court, the accused has filed a present petition

asserting that the learned Courts below erred in appreciating the

evidence. There was no legal evidence against the accused. There

were material contradictions in the statements of Komal Jaswal,

Vinod Jaswal and Deepak Jaswal. The recovered articles were not

properly identified by the witnesses. Independent witnesses

were not joined while recording the statement of the accused

under Section 27 of the Indian Evidence Act and the consequent

recovery, even though independent witnesses were available.

Therefore, it was prayed that the present revision be allowed and

the judgments and order passed by learned Courts below be set

aside.

9. I have heard Mr A.S. Rana, learned counsel for the

petitioner/accused and Mr Jitender Sharma, learned Additional

Advocate General for the respondent/State.
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10. Mr. A.S. Rana, learned counsel for the

petitioner/accused submitted that the learned Courts below

erred in appreciating the material on record. It was wrongly held

that the accused had committed the theft. It was admitted by the

prosecution witnesses that independent witnesses were

available in the vicinity of the police station where the statement

was made by the accused and in the vicinity of the house of the

accused from where the recovery was stated to have been

effected. The police had not joined the independent witnesses

and an adverse inference has to be drawn against the

prosecution. There is a discrepancy in the colour of the

handkerchief which was used to tie the ornaments and this

discrepancy is fatal; therefore, he prayed that the present

revision be allowed and judgments and the order passed by

learned Courts below be set aside.

11. Mr. Jitender Sharma, learned Additional Advocate

General for the respondent/State supported the judgments and

order passed by learned Courts below and submitted that no

interference is required with them.
8
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12. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

13. It was laid down by the Hon'ble Supreme Court in

Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:

(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional

court is not an appellate jurisdiction and it can only rectify the

patent defect, errors of jurisdiction or the law. It was observed

on page 207: -

"10. Before adverting to the merits of the contentions, at
the outset, it is apt to mention that there are concurrent
findings of conviction arrived at by two courts after a
detailed appreciation of the material and evidence
brought on record. The High Court in criminal revision
against conviction is not supposed to exercise the
jurisdiction like to the appellate court and the scope of
interference in revision is extremely narrow. Section 397
of the Criminal Procedure Code (in short "CrPC") vests
jurisdiction to satisfy itself or himself as to the
correctness, legality or propriety of any finding, sentence
or order, recorded or passed, and as to the regularity of
any proceedings of such inferior court. The object of the
provision is to set right a patent defect or an error of
jurisdiction or law. There has to be a well-founded error
which is to be determined on the merits of individual
cases. It is also well settled that while considering the
same, the Revisional Court does not dwell at length upon
the facts and evidence of the case to reverse those
findings.
9
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14. This position was reiterated in State of Gujarat v.

Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294 wherein it was

observed:

"13. The power and jurisdiction of the Higher Court under
Section 397 Cr. P.C. which vests the court with the power
to call for and examine records of an inferior court is for
the purposes of satisfying itself as to the legality and
regularities of any proceeding or order made in a case.
The object of this provision is to set right a patent defect
or an error of jurisdiction or law or the perversity which
has crept into such proceedings. It would be apposite to
refer to the judgment of this court in Amit
Kapoor v. Ramesh Chandra, (2012) 9 SCC 460 where the
scope of Section 397 has been considered and succinctly
explained as under:
"12. Section 397 of the Code vests the court with the
power to call for and examine the records of an inferior
court for the purposes of satisfying itself as to the legality
and regularity of any proceedings or order made in a case.
The object of this provision is to set right a patent defect
or an error of jurisdiction or law. There has to be a well-
founded error and it may not be appropriate for the court
to scrutinise the orders, which upon the face of it bear a
token of careful consideration and appear to be in
accordance with the law. If one looks into the various
judgments of this Court, it emerges that the revisional
jurisdiction can be invoked where the decisions under
challenge are grossly erroneous, there is no compliance
with the provisions of law, the finding recorded is based
on no evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely. These are
not exhaustive classes but are merely indicative. Each
case would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one and
10
( 2024:HHC:9774 )

cannot be exercised in a routine manner. One of the
inbuilt restrictions is that it should not be against an
interim or interlocutory order. The Court has to keep in
mind that the exercise of revisional jurisdiction itself
should not lead to injustice ex-facie. Where the Court is
dealing with the question as to whether the charge has
been framed properly and in accordance with law in a
given case, it may be reluctant to interfere in the exercise
of its revisional jurisdiction unless the case substantially
falls within the categories aforestated. Even framing of
charge is a much-advanced stage in the proceedings
under the CrPC."

15. The present revision has to be decided as per the

parameters laid down by the Hon'ble Supreme Court.

16. Before adverting to the merits of the petition, some

facts in the present case need to be noticed. First, there is a

discrepancy between the original judgment of the learned Trial

Court and its certified copy inasmuch as paragraph 12 of the

judgment on page 5 is incomplete in the original judgment

whereas, it is complete in the certified copy. Consequently, the

paragraphs appearing on pages 5, 6, 7, 8, 9, 10, and 11 are

different inasmuch as extra lines appeared in the certified copy

and not in the original. Secondly, the statement of the accused

recorded under Section 313 Cr.P.C. by the learned Trial Court is

highly perfunctory. Learned Trial Court only put one question to

the accused to the effect that he had committed the theft of four
11
( 2024:HHC:9774 )

gold rings, one pair of earrings, a Nokia Mobile 3110 and one

ladies' makeup kit belonging to Pinki Jaswal and Komal Jaswal

by entering into the house of Avtar Singh and used as a home

dwelling. The learned Trial Court had not put any question

regarding the recovery of the Mobile Phone from Sunny. The

statement made by him that a Mobile Phone was exchanged with

the accused, the disclosure statement made by the accused and

consequent recovery effected pursuant to the disclosure

statement. Thus, the incriminating circumstances appearing on

record were not put to the accused and only one question

regarding the theft was put. However, the accused has not raised

any grievance regarding his defective examination and the

defective examination under Section 313 Cr.P.C. is only material

if the question of prejudice is raised by the accused. It was laid

down by the Hon'ble Supreme Court in Sunil v. State (NCT of

Delhi), 2023 SCC OnLine SC 1203 that the defective compliance

with Section 313 of CrPC is not fatal in the absence of any

prejudice. It was observed:

"41. In Tara Singh v. State 1951 SCC 903: AIR 1951 SC 441,
this Court had the occasion to deal with the object of
Section 342 of the Criminal Procedure Code, 1898 which is
in pari materia Section 313 CrPC. In that context, speaking
for the Bench, Vivian Bose, J. observed:
12
( 2024:HHC:9774 )

"38. The whole object of the section is to afford the
accused a fair and proper opportunity of explaining
circumstances which appear against him. The
questioning must therefore be fair and must be
couched in a form which an ignorant or illiterate
person will be able to appreciate and understand. Even
when an accused person is not illiterate, his mind is
apt to be perturbed when he is facing a charge of
murder. He is therefore in no fit position to
understand the significance of a complex question.
Fairness therefore requires that each material
circumstance should be put simply and separately in a
way that an illiterate mind, or one which is perturbed
or confused, can readily appreciate and understand. I
do not suggest that every error or omission in this
behalf would necessarily vitiate a trial because I am of
the opinion that errors of this type fall within the
category of curable irregularities. Therefore, the
question in each case depends upon the degree of the
error and upon whether prejudice has been occasioned
or is likely to have been occasioned." (Emphasis
supplied)

42. In Alister Anthony Pareira v. State of Maharashtra
(2012) 2 SCC 648, summarising the law relating to the
examination of an accused under Section 313 CrPC, this
Court observed:

"61. From the above, the legal position appears to be
this: the accused must be apprised of incriminating
evidence and materials brought in by the prosecution
against him to enable him to explain and respond to
such evidence and material. Failure in not drawing the
attention of the accused to the incriminating evidence and
inculpatory materials brought in by the prosecution
specifically, distinctly and separately may not by itself
render the trial against the accused void and bad in law;
firstly, if having regard to all the questions put to him, he
was afforded an opportunity to explain what he wanted to
say in respect of prosecution case against him and
13
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secondly, such omission has not caused prejudice to him
resulting in failure of justice. The burden is on the accused
to establish that by not apprising him of the incriminating
evidence and the inculpatory materials that had come in
the prosecution evidence against him, prejudice has been
caused resulting in miscarriage of justice." (Emphasis
supplied)

43. In Nar Singh (2015) 1 SCC 496, this Court had the
occasion to review a series of decisions and summarise
the law as to the courses available whenever a plea is
raised before an appellate court that there has been a
failure in putting certain incriminating circumstances to
the accused while recording his statement under
Section 313 CrPC. In that context, it was observed:

"30. Whenever a plea of omission to put a question to
the accused on a vital piece of evidence is raised in the
appellate court, courses available to the appellate
court can be briefly summarised as under:

30.1 Whenever a plea of non-compliance of Section
313 CrPC is raised, it is within the powers of the
appellate court to examine and further examine the
convict or the counsel appearing for the accused and
the said answers shall be taken into consideration for
deciding the matter. If the accused is unable to offer
the appellate court any reasonable explanation of such
circumstance, the court may assume that the accused
has no acceptable explanation to offer.

30.2 In the facts and circumstances of the case, if the
appellate court comes to the conclusion that no prejudice
was caused or no failure of justice was occasioned, the
appellate court will hear and decide the matter upon
merits.

30.3 If the appellate court is of the opinion that non-
compliance with the provisions of Section 313 CrPC has
occasioned or is likely to have occasioned prejudice to
the accused, the appellate court may direct retrial from
the stage of recording the statements of the accused
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from the point where the irregularity occurred, that is,
from the stage of questioning the accused
under Section 313 CrPC and the trial Judge may be
directed to examine the accused afresh and defence
witness, if any, and dispose of the matter afresh.

30.4 The appellate court may decline to remit the
matter to the trial court for retrial on account of the
long-time already spent in the trial of the case and the
period of sentence already undergone by the convict
and the facts and circumstances of the case, may
decide the appeal on its own merits, keeping in view
the prejudice caused to the accused." (Emphasis
supplied)

44. In Shobhit Chamar v. State of Bihar (1998) 3 SCC 455,
this Court, after examining a series of decisions, held that
a challenge to the conviction based on non-compliance of
Section 313 CrPC first time in the appeal before the
Supreme Court cannot be entertained unless the
appellants demonstrate that prejudice has been caused to
them. The relevant observations, as contained in
paragraph 24, are extracted below:

"24. We have perused all these reported decisions
relied upon by the learned advocates for the parties
and we see no hesitation in concluding that the challenge
to the conviction based on non-compliance of
Section 313 CrPC first time in this appeal cannot be
entertained unless the appellants demonstrate that the
prejudice has been caused to them. In the present case as
indicated earlier, the prosecution strongly relied upon
the ocular evidence of the eyewitnesses and relevant
questions with reference to this evidence were put to
the appellants. If the evidence of these witnesses is
found acceptable, the conviction can be sustained
unless it is shown by the appellants that a prejudice
has been caused to them. No such prejudice was
demonstrated before us and, therefore, we are unable
15
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to accept the contention raised on behalf of the
appellants." (Emphasis supplied)

45. Building on the observations of this Court in Shobhit
Chamar (2012) 2 SCC 648, which have been extracted
above, in Satyavir Singh Rathi, AC (2011) 6 SCC 1, it was
observed:

"77. ... These observations proceed on the principle that if
an objection as to the Section 313 statement is taken at the
earliest stage, the court can make good the defect and
record an additional statement as that would be in the
interest of all but if the matter is allowed to linger on and
the objections are taken belatedly it would be a difficult
situation for the prosecution as well as the accused.

78. In the case before us, as already indicated, the
objection as to the defective 313 statements had not been
raised in the trial court. We must assume therefore that no
prejudice had been felt by the appellants even assuming
that some incriminating circumstances in the prosecution
story had been left out. We also accept that most of the
fifteen questions that have been put before us by Mr.
Sharan are inferences drawn by the trial court on the
evidence. The challenge on this aspect made by the
learned counsel for the appellants is also repelled."

(Emphasis supplied)

46. From the decisions noticed above, the legal position
that emerges, inter-alia, is that to enable an accused to
explain the circumstances appearing in the evidence
against him, all the incriminating circumstances
appearing against him in the evidence must be put to him.
But where there has been a failure in putting those
circumstances to the accused, the same would not ipso
facto vitiate the trial unless it is shown that its non-
compliance has prejudiced the accused. Where there is a
delay in raising the plea, or the plea is raised for the first
time in this Court, it could be assumed that no prejudice
had been felt by the accused.
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17. In the present case, no plea of prejudice was raised

and in the absence of any plea of prejudice having been raised by

the accused, it is not competent for this Court to go into this

question.

18. Sunny (PW-7) stated that the accused had exchanged

his phone with him. He produced the phone before the police on

07.08.2010 which was seized by the police. Vinod Jaswal

identified the phone as belonging to him. He stated in his cross-

examination that the accused had handed over the mobile phone

to him at Dargeti. The mobile phone was not exchanged in the

presence of any person. He used the phone for one month and

thereafter handed over the phone to the ASI Sher Singh. The

phone was identified by Jaswal. He denied that the phone was

not exchanged.

19. It was submitted that he was found in possession of

the stolen property and he was not arrayed as an accused. It was

impermissible for the prosecution to associate him as a witness

without tendering pardon to him. This submission is not

acceptable. It was laid down by the Hon'ble Supreme Court in

Chandran v. State of Kerala, (2011) 5 SCC 161: (2011) 2 SCC (Cri)
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551: 2011 SCC OnLine SC 558 that the prosecution can cite an

accomplice as a witness without tendering pardon to him but his

testimony is subjected to usual caution regarding the testimony

of an accomplice. It was observed at page 196:

"78. The argument raised was that this evidence could
not be taken into consideration and it would be
inadmissible because this witness, though an accomplice
was neither granted pardon under Section 306 CrPC nor
was he prosecuted and the prosecution unfairly presented
him as a witness for the prosecution. The contention is
clearly incorrect in view of the decision of this Court
in Laxmipat Choraria v. State of Maharashtra [AIR 1968 SC
938: 1968 Cri LJ 1124]. While commenting on this aspect,
Hidayatullah, J. observed in AIR para 13 that there were a
number of decisions in the High Courts in which the
examination of one of the suspects as the witness was not
held to be legal and accomplice evidence was received
subject to safeguards as admissible evidence in the case.
The Court in Laxmipat Choraria [AIR 1968 SC 938: 1968 Cri
LJ 1124] held: (AIR p. 944)
"13. On the side of the State many cases were cited
from the High Courts in India in which the
examination of one of the suspects as a witness was
not held to be illegal and accomplice evidence was
received subject to safeguards as admissible evidence
in the case. In those cases, Section 342 of the Code and
Section 5 of the Oaths Act were considered and the
word 'accused' as used in those sections was held to
denote a person actually on trial before a court and not
a person who could have been so tried. The witness
was, of course, treated as an accomplice. The evidence
of such an accomplice was received with necessary
caution in those cases. These cases have all been
mentioned in Kandaswami Gounder, In re [AIR 1957
Mad 727], and it is not necessary to refer to them in
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detail here. The leading cases are Queen Empress v.
Mona Puna [ILR (1892) 16 Bom 661], Banu Singh v.
Emperor [ILR (1906) 33 Cal 1353], Keshav Vasudeo
Kortikar v. Emperor [AIR 1935 Bom 186], Empress v.
Durant [ILR (1899) 23 Bom 213], Akhoy Kumar Mukerjee
v. Emperor [AIR 1919 Cal 1021], A.V. Joseph v. Emperor
[AIR 1925 Rang 122], Amdumiyan v. Emperor [AIR 1937
Nag 17], Gallagher v. Emperor [AIR 1927 Cal 307] and
Emperor v Har Prasad Bhargava [AIR 1923 All 91]. In
these cases (and several others cited and relied upon in
them) it has been consistently held that the evidence
of an accomplice may be read although he could have
been tried jointly with the accused. In some of these
cases, the evidence was received although the
procedure of Section 337 of the Criminal Procedure
Code was applicable but was not followed. It is not
necessary to deal with this question any further
because the consensus of opinion in India is that the
competency of an accomplice is not destroyed because
he could have been tried jointly with the accused but
was not and was instead made to give evidence in the
case. Section 5 of the Oaths Act and Section 342 of the
Code of Criminal Procedure do not stand in the way of
such a procedure."
The Court finally observed: (Laxmipat Choraria case [AIR
1968 SC 938: 1968 Cri LJ 1124], p. 944, para 13)
"13. ... It is not necessary to deal with this question any
further because the consensus of opinion in India is
that the competency of an accomplice is not destroyed
because he could have been tried jointly with the
accused but was not and was instead made to give
evidence in the case."
79. The Court has also observed in para 11: (AIR pp. 943-
44)
"11. The position that emerges is this:
No pardon could be tendered to Ethyl Wong
because the pertinent provisions did not
apply. Nor could she be prevented from
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making a disclosure, if she was so
minded. The prosecution was not bound to
prosecute her if they thought that her evidence
was necessary to break a smugglers' ring. Ethyl
Wong was protected by Section 132 (proviso)
of the Evidence Act even if she gave evidence
incriminating herself. She was a competent
witness although her evidence could only be
received with the caution necessary in all
accomplice evidence. The expression
'criminal proceeding' in the exclusionary
clause of Section 5 of the Oaths Act cannot be
used to widen the meaning of the word
accused. The same expression is used in the
proviso to Section 132 of the Evidence Act and
there it means a criminal trial and not
investigation. The same meaning must be
given to the exclusionary clause of Section 5
of the Oaths Act to make it conform to the
provisions in pari materia to be found in
Sections 342, 342-A of the Code and Section
132 of the Evidence Act. The expression is also
not rendered superfluous because if given the
meaning accepted by us it limits the
operation of the exclusionary clause to
criminal prosecutions as opposed to
investigations and civil proceedings. It is to
be noticed that although the English Criminal
Evidence Act, 1898, which (omitting the
immaterial words) provides that 'every
person charged with an offence ... shall be a
competent witness for the defence at every
stage of the proceedings' was not interpreted
as conferring a right on the prisoner of giving
evidence on his own behalf before the grand
jury or in other words, it received a limited
meaning; see R. v. Rhodes [(1899) 1 QB 77] ."
(emphasis supplied)
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80. This case would bring about the legal position that
even if the prosecution did not prosecute PW 53 and used
his evidence only as an accomplice, it was perfectly legal.
The evidence of such witness subject to the usual caution
was admissible evidence. The contention of Shri
Radhakrishnan that his evidence would be inadmissible
because he was not granted a pardon or he was not made
accused would, thus, be of no consequence and is
rejected. Against this backdrop, after considering the
whole material and the findings of the trial court and the
appellate court, we have no hesitation to hold that the
trial court and the appellate court were right in convicting
A-7."

20. Thus, there is no prohibition in examining an

accomplice as a witness without making him an approver but

the Court has to be careful about his status while dealing with

his testimony.

21. Section 114, Illustration (b) provides that the Court

may presume that an accomplice is unworthy of credit unless he

is corroborated in material particulars. It was laid down by the

Hon'ble Supreme Court in Mrinal Das v. State of Tripura, (2011) 9

SCC 479 : (2011) 3 SCC (Cri) 810: 2011 SCC OnLine SC 1208 that the

testimony of an accomplice is unworthy of credit and his

testimony should be corroborated in material particulars. It was

observed at page 489:

"17. Though a conviction is not illegal merely because it
proceeds on the uncorroborated testimony of an
21
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approver, yet the universal practice is not to convict upon
the testimony of an accomplice unless it is corroborated
in material particulars. The evidence of an approver does
not differ from the evidence of any other witness save in
one particular aspect, namely, that the evidence of an
accomplice is regarded ab initio as open to grave
suspicion. If the suspicion which attaches to the evidence
of an accomplice be not removed, that evidence should
not be acted upon unless corroborated in some material
particulars; but if the suspicion attaching to the
accomplice's evidence be removed, then that evidence
may be acted upon even though uncorroborated, and the
guilt of the accused may be established upon the evidence
alone.
18. In order to understand the correct meaning and
application of this term, it is desirable to mention Section
133 of the Evidence Act, 1872 along with Illustration (b) to
Section 114 which read as under:
"133.Accomplice. --An accomplice shall be a competent
witness against an accused person, and a conviction is
not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice."
Illustration (b) to Section 114
"The court may presume--
***
(b) that an accomplice is unworthy of credit unless
he is corroborated in material particulars;"
19. Dealing with the scope and ambit of the abovenoted
two provisions, this Court, in Bhiva Doulu Patil v. State of
Maharashtra [AIR 1963 SC 599: (1963) 1 Cri LJ 489: (1963) 3
SCR 830], has held that both the sections are part of one
subject and have to be considered together. It has further
been held: (AIR p. 601, para 7)
"7. The combined effect of Sections 133 and 114,
Illustration (b) may be stated as follows: according to
the former, which is a rule of law, an accomplice is
competent to give evidence and according to the latter
which is a rule of practice it is almost always unsafe to
22
( 2024:HHC:9774 )

convict upon his testimony alone. Therefore, though
the conviction of an accused on the testimony of an
accomplice cannot be said to be illegal yet the courts
will, as a matter of practice, not accept the evidence of
such a witness without corroboration in material
particulars."
20. The very same principle was reiterated in Mohd.
Husain Umar Kochra v. K.S. Dalipsinghji [(1969) 3 SCC 429:
1970 SCC (Cri) 99] and it was held: (SCC p. 438, para 21)
"21. ... The combined effect of Sections 133 and 114,
Illustration (b) is that though a conviction based upon
accomplice evidence is legal the court will not accept
such evidence unless it is corroborated in material
particulars. The corroboration must connect the
accused with the crime. It may be direct or
circumstantial. It is not necessary that the
corroboration should confirm all the circumstances of
the crime. It is sufficient if the corroboration is in
material particulars. The corroboration must be from
an independent source. One accomplice cannot
corroborate another...."
21. While considering the validity of the approver's
testimony and tests of credibility, this Court, in Sarwan
Singh v. State of Punjab [AIR 1957 SC 637: 1957 Cri LJ 1014:
1957 SCR 953] has held as under: (AIR pp. 640-42, paras 7
& 8)
"7. ... An accomplice is undoubtedly a competent
witness under the Evidence Act, 1872. There can be,
however, no doubt that the very fact that he has
participated in the commission of the offence
introduces a serious stain in his evidence and courts
are naturally reluctant to act on such tainted evidence
unless it is corroborated in material particulars by
other independent evidence.
It would not be right to expect that such independent
corroboration should cover the whole of the
prosecution story or even all the material particulars.
If such a view is adopted it would render the evidence
23
( 2024:HHC:9774 )

of the accomplice wholly superfluous. On the other
hand, it would not be safe to act upon such evidence
merely because it is corroborated in minor particulars
or incidental details because, in such a case,
corroboration does not afford the necessary assurance
that the main story disclosed by the approver can be
reasonably and safely accepted as true.
But it must never be forgotten that before the court
reaches the stage of considering the question of
corroboration and its adequacy or otherwise, the first
initial and essential question to consider is whether
even as an accomplice the approver is a reliable
witness. If the answer to this question is against the
approver, then there is an end of the matter, and no
question as to whether his evidence is corroborated or
not falls to be considered.
In other words, the appreciation of an approver's
evidence has to satisfy a double test. His evidence must
show that he is a reliable witness and that is a test
which is common to all witnesses. If this test is
satisfied the second test which still remains to be
applied is that the approver's evidence must receive
sufficient corroboration. This test is special for cases
of weak or tainted evidence like that of the approver.
***
8. ... Every person who is a competent witness is not a
reliable witness and the test of reliability has to be
satisfied by an approver all the more before the
question of corroboration of his evidence is considered
by criminal courts."
22. Further, in Ravinder Singh v. State of Haryana [(1975) 3
SCC 742: 1975 SCC (Cri) 202], this Court, while considering
the approver's testimony within the meaning of Section
133 of the Evidence Act, 1872 has observed: (SCC pp. 747-
48, para 12)
"12. An approver is a most unworthy friend, if at all,
and he, having bargained for his immunity, must
prove his worthiness for credibility in court. This test
24
( 2024:HHC:9774 )

is fulfilled, firstly, if the story he relates involves him
in the crime and appears intrinsically to be a natural
and probable catalogue of events that had taken place.
... Secondly, once that hurdle is crossed, the story
given by an approver so far as the accused on trial is
concerned, must implicate him in such a manner as to
give rise to a conclusion of guilt beyond reasonable
doubt. In a rare case taking into consideration all the
factors, circumstances and situations governing a
particular case, conviction based on the
uncorroborated evidence of an approver confidently
held to be true and reliable by the court may be
permissible. Ordinarily, however, an approver's
statement has to be corroborated in material
particulars bridging closely the distance between the
crime and the criminal. Certain clinching features of
involvement disclosed by an approver appertaining
directly to an accused, if reliable, by the touchstone of
other independent credible evidence, would give the
needed assurance for acceptance of his testimony on
which a conviction may be based."
23. In Abdul Sattar v. UT, Chandigarh [1985 Supp SCC 599:
1985 SCC (Cri) 505] where the prosecution had sought to
prove its case by relying upon the evidence of the
approver, it was held that: (SCC p. 602, para 6)
"6. ... The approver is a competent witness but the
position in law is fairly well settled that on the
uncorroborated testimony of the approver, it would be
risky to base the conviction, particularly in respect of a
serious charge like murder."
Once the evidence of the approver is found to be not
reliable, the worth of his evidence is lost and such
evidence, even by seeking corroboration, cannot be made
the foundation of a conviction. The abovesaid ratio has
been reaffirmed and reiterated by this Court in Suresh
Chandra Bahri v. State of Bihar [1995 Supp (1) SCC 80: 1995
SCC (Cri) 60], Ramprasad v. State of Maharashtra [(1999) 5
SCC 30: 1999 SCC (Cri) 651: AIR 1999 SC 1969: 1999 Cri LJ
25
( 2024:HHC:9774 )

2889] and Narayan Chetanram Chaudhary v. State of
Maharashtra [(2000) 8 SCC 457: 2000 SCC (Cri) 1546].
24. In Narayan Chetanram Chaudhary [(2000) 8 SCC 457:
2000 SCC (Cri) 1546] it was further held that: (SCC p. 479,
para 37)
"37. For corroborative evidence, the court must look at
the broad spectrum of the approver's version and then
find out whether there is other evidence to corroborate
and lend assurance to that version. The nature and
extent of such corroboration may depend upon the
facts of different cases. Corroboration need not be in
the form of ocular testimony of witnesses and may
even be in the form of circumstantial evidence.
Corroborative evidence must be independent and not
vague or unreliable."
25. Similar question again came up for consideration
before this Court in K. Hashim v. State of T.N. [(2005) 1 SCC
237: 2005 SCC (Cri) 292: 2005 Cri LJ 143] and Sitaram
Sao v. State of Jharkhand [(2007) 12 SCC 630 : (2008) 3 SCC
(Cri) 319], wherein this Court has held that: (K. Hashim
case [(2005) 1 SCC 237: 2005 SCC (Cri) 292: 2005 Cri LJ 143] ,
SCC p. 247, para 26)
"26. Section 133 of the Evidence Act expressly provides
that an accomplice is a competent witness and the
conviction is not illegal merely because it proceeds on
an uncorroborated testimony of an accomplice. In
other words, this section renders admissible such
uncorroborated testimony. But this section has to be
read along with Section 114 Illustration (b). The latter
section empowers the court to presume the existence
of certain facts and the illustration elucidates what the
court may presume and makes clear by means of
examples as to what facts the court shall have regard
to in considering whether or not the maxims
illustrated apply to a given case. Illustration (b) in
express terms says that an accomplice is unworthy of
credit unless he is corroborated in material particulars.
The statute permits the conviction of an accused on
26
( 2024:HHC:9774 )

the basis of uncorroborated testimony of an
accomplice but the rule of prudence embodied in
Illustration (b) to Section 114 of the Evidence Act
strikes a note of warning cautioning the court that an
accomplice does not generally deserve to be believed
unless corroborated in material particulars. In other
words, the rule is that the necessity of corroboration is
a matter of prudence except when it is safe to dispense
with such corroboration must be clearly present in the
mind of the Judge."
26. In Sheshanna Bhumanna Yadav v. State of
Maharashtra [(1970) 2 SCC 122: 1970 SCC (Cri) 337] the test
of reliability of the approver's evidence and rule as to
corroboration was discussed. The following discussion
and conclusion are relevant which read as under: (SCC pp.
125-26, paras 12 & 13)
"12. The law with regard to appreciation of the
approver's evidence is based on the effect of Sections
133 and 114, Illustration (b) of the Evidence Act,
namely, that an accomplice is competent to depose but
as a rule of caution it will be unsafe to convict upon his
testimony alone. The warning of the danger of
convicting on uncorroborated evidence is therefore
given when the evidence is that of an accomplice. The
primary meaning of accomplice is any party to the
crime charged and someone who aids and abets the
commission of crime. The nature of corroboration is
that it is confirmatory evidence and it may consist of
the evidence of second witness or of circumstances
like the conduct of the person against whom it is
required. Corroboration must connect or tend to
connect the accused with the crime. When it is said
that the corroborative evidence must implicate the
accused in material particulars it means that it is not
enough that a piece of evidence tends to confirm the
truth of a part of the testimony to be corroborated.
That evidence must confirm that part of the testimony
which suggests that the crime was committed by the
accused. If a witness says that the accused and he stole
27
( 2024:HHC:9774 )

the sheep and he put the skins in a certain place, the
discovery of the skins in that place would not
corroborate the evidence of the witness against the
accused. But if the skins were found in the accused's
house, this would corroborate because it would tend to
confirm the statement that the accused had some hand
in the theft.
13. This Court stated the law of corroboration of
accomplice evidence in several decisions. One of the
earlier decisions is Sarwan Singh v. State of Punjab [AIR
1957 SC 637: 1957 Cri LJ 1014: 1957 SCR 953] and the
recent decision is Lachhi Ram v. State of Punjab [AIR
1967 SC 792: 1967 Cri LJ 671: (1967) 1 SCR 243].
In Sarwan Singh case [AIR 1957 SC 637: 1957 Cri LJ 1014:
1957 SCR 953] this Court laid down that before the
court would look into the corroborative evidence it was
necessary to find out whether the approver or
accomplice was a reliable witness. This Court in Lachhi
Ram case [AIR 1967 SC 792: 1967 Cri LJ 671: (1967) 1 SCR
243] said that the first test of the reliability of approver
and accomplice evidence was for the court to be
satisfied that there was nothing inherently impossible
in evidence. After that conclusion is reached as to
reliability, corroboration is required. The rule as to
corroboration is based on the reasoning that there
must be sufficient corroborative evidence in material
particulars to connect the accused with the crime."
27. In Dagdu v. State of Maharashtra [(1977) 3 SCC 68: 1977
SCC (Cri) 421] the scope of Section 133 and Illustration (b)
to Section 114 of the Evidence Act, 1872 and nature of the
rule of corroboration of accomplice evidence was
explained by a three-Judge Bench of this Court in the
following manner: (SCC p. 76, paras 24-25)
"24. In Bhuboni Sahu v. R. [(1948-49) 76 IA 147] the
Privy Council after noticing Section 133 and
Illustration (b) to Section 114 of the Evidence Act
observed that whilst it is not illegal to act on the
uncorroborated evidence of an accomplice, it is a rule
28
( 2024:HHC:9774 )

of prudence so universally followed as to amount
almost to a rule of law that it is unsafe to act on the
evidence of an accomplice unless it is corroborated in
material respects so as to implicate the accused; and
further that the evidence of one accomplice cannot be
used to corroborate the evidence of another
accomplice. The rule of prudence was based on the
interpretation of the phrase 'corroborated in material
particulars' in Illustration (b). Delivering the judgment
of the Judicial Committee, Sir John Beaumont observed
that the danger of acting on accomplice evidence is not
merely that the accomplice is on his own admission a
man of bad character who took part in the offence and
afterwards to save himself betrayed his former
associates, and who has placed himself in a position in
which he can hardly fail to have a strong bias in favour
of the prosecution; the real danger is that he is telling
a story which in its general outline is true, and it is
easy for him to work into the story matter which is
untrue. He may implicate ten people in an offence and
the story may be true in all its details as to eight of
them but untrue as to the other two whose names may
have been introduced because they are enemies of the
approver. The only real safeguard therefore against
the risk of condemning the innocent with the guilty
lies in insisting on independent evidence which in
some measure implicates each accused.
25. This Court has in a series of cases expressed the
same view as regards accomplice evidence. (See State
of Bihar v. Basawan Singh [AIR 1958 SC 500: 1958 Cri LJ
976] ; Haricharan Kurmi v. State of Bihar [AIR 1964 SC
1184 : (1964) 2 Cri LJ 344]; Haroon Haji Abdulla v. State
of Maharashtra [AIR 1968 SC 832: 1968 Cri LJ 1017]
and Ravinder Singh v. State of Haryana [(1975) 3 SCC 742
: 1975 SCC (Cri) 202] .) In Haricharan [AIR 1964 SC 1184:
(1964) 2 Cri LJ 344] Gajendragadkar, C.J., speaking for a
five-judge Bench observed that the testimony of an
accomplice is evidence under Section 3 of the Evidence
Act and has to be dealt with as such. The evidence is of
29
( 2024:HHC:9774 )

a tainted character and as such is very weak; but,
nevertheless, it is evidence and may be acted upon,
subject to the requirement which has now become
virtually a part of the law that it is corroborated in
material particulars."
28. In Rampal Pithwa Rahidas v. State of
Maharashtra [1994 Supp (2) SCC 73: 1994 SCC (Cri) 851],
while considering the very same provisions, this Court
has held that the approver's evidence must be
corroborated in material particulars by direct or
circumstantial evidence. This Court further held that
while considering the credibility of the approver and the
weight to be attached to his statement, the statement
made in the bail application of the approver can be looked
into by the court.
29. It is clear that once the evidence of the approver is
held to be trustworthy, it must be shown that the story
given by him so far as an accused is concerned, must
implicate him in such a manner as to give rise to a
conclusion of guilt beyond reasonable doubt. Insistence
upon corroboration is based on the rule of caution and is
not merely a rule of law. Corroboration need not be in the
form of ocular testimony of witnesses and may even be in
the form of circumstantial evidence.

22. This position was reiterated in Somasundaram v.

State, (2020) 7 SCC 722: (2020) 3 SCC (Cri) 465: 2020 SCC OnLine

SC 480 wherein it was observed at page 763:

"Accomplice evidence
71. Section 133 of the Evidence Act declares that an
accomplice is a competent witness and further that a
conviction based on the uncorroborated testimony of an
accomplice is not illegal only on account of it being so.
Section 133 reads as follows:
"133. Accomplice. --An accomplice shall be a
competent witness against an accused person, and a
30
( 2024:HHC:9774 )

conviction is not illegal merely because it proceeds
upon the uncorroborated testimony of an accomplice."
72. It is apposite to notice Section 114 of the Evidence Act,
Illustration (b), the court may presume:
"(b) that an accomplice is unworthy of credit, unless
he is corroborated in material particulars."
73. Thus, there appears to be a contradiction between
these provisions. The matter is no longer res integra. We
may notice the following statement of the law contained
in an early judgment of this Court in Sarwan Singh v. State
of Punjab [Sarwan Singh v. State of Punjab, AIR 1957 SC
637 : 1957 Cri LJ 1014] : (AIR pp. 640-41, para 7)
"7. ... It is hardly necessary to deal at length with the
true legal position in this matter. An accomplice is
undoubtedly a competent witness under the Evidence
Act. There can be, however, no doubt that the very fact
that he has participated in the commission of the
offence introduces a serious stain in his evidence and
courts are naturally reluctant to act on such tainted
evidence unless it is corroborated in material
particulars by other independent evidence.
It would not be right to expect that such independent
corroboration should cover the whole of the prosecution
story or even all the material particulars. If such a view is
adopted it would render the evidence of the accomplice
wholly superfluous. On the other hand, it would not be
safe to act upon such evidence merely because it is
corroborated in minor particulars or incidental details
because, in such a case, corroboration does not afford the
necessary assurance that the main story disclosed by the
approver can be reasonably and safely accepted as true.
But it must never be forgotten that before the court
reaches the stage of considering the question of
corroboration and its adequacy or otherwise, the first
initial and essential question to consider is whether even
as an accomplice the approver is a reliable witness. If the
answer to this question is against the approver then there
31
( 2024:HHC:9774 )

is an end of the matter, and no question as to whether his
evidence is corroborated or not falls to be considered.
In other words, the appreciation of an approver's evidence
has to satisfy a double test. His evidence must show that
he is a reliable witness and that is a test which is common
to all witnesses. If this test is satisfied the second test
which still remains to be applied is that the approver's
evidence must receive sufficient corroboration. This test is
special to the cases of weak or tainted evidence like that of
the approver." (emphasis supplied)
74. We may profitably also refer to the views expressed
in Haroon Haji Abdulla v. State of Maharashtra [Haroon
Haji Abdulla v. State of Maharashtra, AIR 1968 SC 832 : 1968
Cri LJ 1017] : (AIR pp. 835-36, para 8)
"8. ... The law as to accomplice evidence is well settled.
The Evidence Act in Section 133 provides that an
accomplice is a competent witness against an accused
person and that a conviction is not illegal merely
because it proceeds upon the uncorroborated
testimony of an accomplice. The effect of this
provision is that the court trying an accused may
legally convict him on the single evidence, of an
accomplice. To this there is a rider in Illustration (b) to
Section 114 of the Act which provides that the court
may presume that an accomplice is unworthy of credit
unless he is corroborated in material particulars. This
cautionary provision incorporates a rule of prudence
because an accomplice, who betrays his associates, is not
a fair witness and it is possible that he may, to please the
prosecution, weave false details into those which are true
and his whole story appearing true, there may be no
means at hand to sever the false from that which is true. It
is for this reason that courts, before they act on accomplice
evidence, insist on corroboration in material respects as to
the offence itself and also implicating in some satisfactory
way, however small, each accused named by the
accomplice. In this way the commission of the offence
is confirmed by some competent evidence other than
32
( 2024:HHC:9774 )

the single or unconfirmed testimony of the accomplice
and the inclusion by the accomplice of an innocent
person is defeated. This rule of caution or prudence has
become so ingrained in the consideration of accomplice
evidence as to have almost the standing of a rule of law."
(emphasis supplied)
75. The dichotomy between the mandate of Section 133
and Illustration (b) to Section 114 of the Evidence Act has
been explained as follows in Sheshanna Bhumanna
Yadav v. State of Maharashtra [Sheshanna Bhumanna
Yadav v. State of Maharashtra, (1970) 2 SCC 122 : 1970 SCC
(Cri) 337] : (SCC pp. 125-26, para 12)
"12. The law with regard to appreciation of approver's
evidence is based on the effect of Sections 133 and 114,
Illustration (b) of the Evidence Act, namely, that an
accomplice is competent to depose but as a rule of
caution it will be unsafe to convict upon his testimony
alone. The warning of the danger of convicting on
uncorroborated evidence is therefore given when the
evidence is that of an accomplice. The primary
meaning of accomplice is any party to the crime
charged and someone who aids and abets the
commission of crime. The nature of corroboration is
that it is confirmatory evidence and it may consist of
the evidence of second witness or of circumstances
like the conduct of the person against whom it is
required. Corroboration must connect or tend to
connect the accused with the crime. When it is said
that the corroborative evidence must implicate the
accused in material particulars it means that it is not
enough that a piece of evidence tends to confirm the
truth of a part of the testimony to be corroborated.
That evidence must confirm that part of the testimony
which suggests that the crime was committed by the
accused. If a witness says that the accused and he stole
the sheep and he put the skins in a certain place, the
discovery of the skins in that place would not corroborate
the evidence of the witness as against the accused. But if
33
( 2024:HHC:9774 )

the skins were found in the accused's house, this would
corroborate because it would tend to confirm the
statement that the accused had some hand in the theft."
(emphasis supplied)
76. We may finally advert to a recent pronouncement of
this Court in K. Hashim v. State of T.N. [K. Hashim v. State
of T.N., (2005) 1 SCC 237 : 2005 SCC (Cri) 292] : (SCC pp.
250-51, paras 38-42)
"38. First, it is not necessary that there should be
independent confirmation of every material circumstance
in the sense that the independent evidence in the case,
apart from the testimony of the complainant or the
accomplice, should in itself be sufficient to sustain a
conviction. As Lord Reading says:
'Indeed, if it were required that the accomplice
should be confirmed in every detail of the crime, his
evidence would not be essential to the case; it
would be merely confirmatory of other and
independent testimony.' (Baskerville
case [R. v. Baskerville, (1916) 2 KB 658 : (1916-17) All
ER Rep 38 (CCA)] , KB p. 664 : All ER p. 42 B-C)
39. All that is required is that there must be some
additional evidence rendering it probable that the story of
the accomplice (or complainant) is true and that it is
reasonably safe to act upon it.
40. Secondly, the independent evidence must not only
make it safe to believe that the crime was committed
but must in some way reasonably connect or tend to
connect the accused with it by confirming in some
material particular the testimony of the accomplice or
complainant that the accused committed the
crime. This does not mean that the corroboration as to
identification must extend to all the circumstances
necessary to identify the accused with the offence. Again,
all that is necessary is that there should be
independent evidence which will make it reasonably
safe to believe the witness's story that the accused was
34
( 2024:HHC:9774 )

the one, or among those, who committed the offence.
The reason for this part of the rule is that:
'A man who has been guilty of a crime himself will
always be able to relate the facts of the case, and if
the confirmation be only on the truth of that
history, without identifying the persons, that is
really no corroboration at all.... It would not at all
tend to show that the party accused participated in
it.'
41. Thirdly, the corroboration must come from
independent sources and thus ordinarily the testimony of
one accomplice would not be sufficient to corroborate that
of another. But of course, the circumstances may be such
as to make it safe to dispense with the necessity of
corroboration and in those special circumstances a
conviction so based would not be illegal. I say this because
it was contended that the mother in this case was not
an independent source.
42. Fourthly, the corroboration need not be direct
evidence that the accused committed the crime. It is
sufficient if it is merely circumstantial evidence of his
connection with the crime. Were it otherwise, 'many
crimes which are usually committed between
accomplices in secret, such as incest, offences with
females' (or unnatural offences) 'could never be
brought to justice'. (See M.O. Shamsudhin v. State of
Kerala [M.O. Shamsudhin v. State of Kerala, (1995) 3 SCC
351: 1995 SCC (Cri) 509] .)"
(emphasis supplied)
77. To summarise, by way of culling out the principles
which emerge on a conspectus of the aforesaid decisions,
we would hold as follows: the combined result of Section
133 read with Illustration (b) to Section 114 of the
Evidence Act is that the courts have evolved, as a rule of
prudence, the requirement that it would be unsafe to
convict an accused solely based on uncorroborated
testimony of an accomplice. The corroboration must be in
relation to the material particulars of the testimony of an
35
( 2024:HHC:9774 )

accomplice. It is clear that an accomplice would be
familiar with the general outline of the crime as he would
be one who has participated in the same and therefore,
indeed, be familiar with the matter in general terms. The
connecting link between a particular accused and the
crime is where corroboration of the testimony of an
accomplice would assume crucial significance. The
evidence of an accomplice must point to the involvement
of a particular accused. It would, no doubt, be sufficient if
his testimony in conjunction with other relevant evidence
unmistakably makes out the case for convicting an
accused.
78. As laid down by this Court, every material
circumstance against the accused need not be
independently confirmed. Corroboration must be such
that it renders the testimony of the approver believable in
the facts and circumstances of each case. The testimony
of one accomplice cannot be, ordinarily, be supported by
the testimony of another approver. We have used the
word "ordinarily" inspired by the statement of the law in
para 4 in K. Hashim [K. Hashim v. State of T.N., (2005) 1
SCC 237: 2005 SCC (Cri) 292] wherein this Court did
contemplate special and extraordinary cases where the
principle embedded in Section 133 would literally apply.
In other words, in the common run of cases, the rule of
prudence which has evolved into a principle of law is that
an accomplice, to be believed, he must be corroborated in
material particulars of his testimony. The evidence which
is used to corroborate an accomplice need not be a direct
evidence and can be in the form of circumstantial
evidence.

23. This position was reiterated in A. Srinivasulu v. State,

2023 SCC OnLine SC 900 wherein it was observed:

"83. As rightly contended by Shri Huzefa Ahmadi, learned
senior counsel, this Court has laid down two tests
in Sarwan Singh v. State of Punjab 1957 SCR 953, to be
36
( 2024:HHC:9774 )

satisfied before accepting the evidence of an approver.
The first is that the approver is a reliable witness and
the second is that his statement should be corroborated
with sufficient evidence. Again, in Ravinder Singh v. State
of Haryana(1975) 3 SCC 742 this Court pointed out that,
"an approver is a most unworthy friend" and that he
having bargained for his immunity, must prove his
worthiness for credibility in court. The test to be fulfilled
was pithily put in paragraph 12 of the Report by this Court
as follows: --

"12. ... This test is fulfilled, firstly, if the story he
relates involves him in the crime and appears
intrinsically to be a natural and probable catalogue of
events that had taken place. The story if given of
minute details according with reality is likely to save it
from being rejected brevi manu. Secondly, once that
hurdle is crossed, the story given by an approver so far
as the accused on trial is concerned, must implicate
him in such a manner as to give rise to a conclusion of
guilt beyond reasonable doubt. In a rare case taking
into consideration all the factors, circumstances and
situations governing a particular case, conviction
based on the uncorroborated evidence of an approver
confidently held to be true and reliable by the Court
may be permissible. Ordinarily, however, an
approver's statement has to be corroborated in
material particulars bridging closely the distance
between the crime and the criminal. Certain clinching
features of involvement disclosed by an approver
appertaining directly to an accused, if reliable, by the
touchstone of other independent credible evidence,
would give the needed assurance for acceptance of his
testimony on which a conviction may be based."

84. Section 133 of the Indian Evidence Act, 1872 declares
an accomplice to be a competent witness and that a
conviction is not illegal merely because it proceeds upon
the uncorroborated testimony of an accomplice. However,
while considering the import of Section 133. this Court
37
( 2024:HHC:9774 )

held in M.O. Shamsudhin v. State of Kerala (1995) 3 SCC
351 that the court is bound to take note of a precautionary
provision contained in Illustration (b) to Section 114 of the
Evidence Act, which provides that an accomplice is unworthy
of credit unless he is corroborated in material particulars."

24. Therefore, an accomplice is not considered a witness

worthy of credit upon whose testimony the conviction can be

based unless it is corroborated in material particulars. In the

present case, there is no corroboration to the testimony of

Sunny (PW-7) that the accused had exchanged his mobile phone

with him. Hence, his testimony cannot be considered as

evidence against the accused.

25. HC Pradeep Kumar (PW-1) stated that the accused

made the disclosure statement on 10.08.2010 in his presence and

in the presence of HC Hakam Chand that he had tied the

ornaments in a handkerchief and concealed them in a

handkerchief in the retaining wall which could be got recovered

by him. He and Hakam Chand signed the memo as witnesses and

the accused also put his signatures. He stated in his cross-

examination that the police station is located at Pucca Talla.

There are 150-200 houses in the vicinity. About 1500-2000

persons are residing in the vicinity. There were shops outside
38
( 2024:HHC:9774 )

the police station. He denied that no disclosure statement was

made.

26. It was submitted that the testimony of this witness

shows that the independent witnesses were available but they

were not associated; hence the prosecution case is suspect. This

submission cannot be accepted. The question regarding the

association of independent witnesses during the disclosure

statement was considered by the Hon'ble Supreme Court in State

Versus Sunil 2001 (1) SCC 652. In the said case the recovery was

discarded by the High Court on the ground that no independent

witness had signed the memo and it was signed only by the

highly interested person. It was held by the Hon'ble Supreme

Court that there is no requirement under Section 27 of the

Indian Evidence Act or Section 161 of Cr.P.C. to obtain the

signatures of independent witnesses. The requirement of

independent witnesses is when the recovery is effected under

Section 100(4) of Cr.PC and not when the recovery is effected

pursuant to the disclosure statement. It was further observed

that the statements of police officials cannot be doubted because

they are official witnesses. It was observed: -
39
( 2024:HHC:9774 )

"17. Recovery of the nicker is evidenced by the seizure
memo Ext. PW-10/G. It was signed by PWlO-Sharda
beside its author PW17-Investigating Officer. The
Division Bench of the High Court declined to place any
weight on the said circumstance purely on the ground
that no other independent witness had signed the
memo but it was signed only by "highly interested
persons". The observation of the Division Bench in that
regard is extracted below:
"It need hardly be said that in order to lend
assurance that the investigation has been
proceeding in a fair and honest manner, it would
be necessary for the Investigating Officer to take
independent witnesses to the discovery under
Section 27 of the Indian Evidence Act; and without
taking independent witnesses and taking highly
interested persons and the police officers as the
witnesses to the discovery would render the
discovery, at least, not free from doubt."
18. In this context we may point out that there is no
requirement either under Section 27 of the Evidence
Act or under Section 161 of the Code of Criminal
Procedure, to obtain the signature of independent
witnesses on the record in which the statement of an
accused is written. The legal obligation to call
Independent and respectable inhabitants of the locality
to attend and witness the exercise made by the police is
cast on the police officer when searches are made under
Chapter VII of the Code. Section 100(5) of the Code
requires that such search shall be made in their
presence and a list of all things seized in the course of
such search and of the places in which they are
respectively found shall be prepared by such officer or
another person "and signed by such witnesses". It
must be remembered that a search is made to find out a
thing or document which the searching officer has no
prior idea where the thing or document is kept. He
prowls for it either on reasonable suspicion or some
40
( 2024:HHC:9774 )

guesswork that it could possibly be ferreted out in such
prowling. It is a stark reality that during searches the
team which conducts the search would have to meddle
with lots of other articles and documents also and in
such a process, many such articles or documents are
likely to be displaced or even strewn helter-skelter. The
legislative idea in insisting on such searches to be made
in the presence of two independent inhabitants of the
locality is to ensure the safety of all such articles
meddled with and to protect the rights of the persons
entitled thereto. But the recovery of an object pursuant
to the information supplied by an accused in custody is
different from the searching endeavour envisaged in
Chapter VII of the Code. This Court has indicated the
difference between the two processes in the Transport
Commissioner, Andhra Pradesh, Hyderabad & Anr. v. S.
Sardar Ali & Ors.1. Following observations of Chlnnappa
Reddy, J. can be used to support the said legal
proposition :
"Section 100 of the Criminal Procedure Code to
which reference was made by the counsel deals
with searches and not seizures. In the very nature
of things when the property is seized and not
recovered during a search, it is not possible to
comply with the provisions of subsection (4) and
(5) of Section 100 of the Criminal Procedure Code.
In the case of a seizure (under the Motor Vehicles
Act), there is no provision for preparing a list of
the things seized in the course of the seizure for
the obvious reason that all those things are seized
not separately but as part of the vehicle itself."
19. Hence it is a fallacious impression that when
recovery is effected pursuant to any statement made by
the accused the document prepared by the
Investigating Officer contemporaneous with such
recovery must necessarily be attested by independent
witnesses. Of course, if any such statement leads to the
recovery of any article it is open to the Investigating
41
( 2024:HHC:9774 )

Officer to take the signature of any person present at
that time, on the document prepared for such recovery.
But if no witness was present or if no person had agreed
to affix his signature on the document, it is difficult to
lay down, as a proposition of law, that the document so
prepared by the police officer must be treated as tainted
and the recovery evidence unreliable. The court has to
consider the evidence of the Investigating Officer who
deposed to the fact of recovery based on the statement
elicited from the accused on its own worth.
20. We feel that it is an archaic notion that the actions
of the police officer should be approached with initial
distrust. We are aware that such a notion was lavishly
entertained during the British period and policemen
also knew about it. Its hangover persisted during post-
independent years but it is time now to start placing at
least initial trust on the actions and the documents
made by the police. At any rate, the court cannot start
with the presumption that the police records are
untrustworthy. As a proposition of law, the
presumption should be the other way around. That
official acts of the police have been regularly performed
is a wise principle of presumption and recognised even
by the legislature. Hence when a police officer gives
evidence in court that a certain article was recovered by
him on the strength of the statement made by the
accused it is open to the court to believe the version to
be correct if it is not otherwise shown to be unreliable.
It is for the accused, through cross-examination of
witnesses or through any other materials, to show that
the evidence of the police officer is either unreliable or
at least unsafe to be acted upon in a particular case. If
the court has any good reason to suspect the
truthfulness of such records of the police the court
could certainly take into account the fact that no other
independent person was present at the time of
recovery. But it is not a legally approvable procedure to
presume the police action as unreliable to start with,
42
( 2024:HHC:9774 )

nor to jettison such action merely for the reason that
police did not collect signatures of independent
persons in the documents made contemporaneous with
such actions."

27. This question was also considered by Hon'ble

Supreme Court in Praveen Kumar Versus State of Karnataka

(2003) 12 SCC 199 in which a contention was raised that the

statement recorded by the police under Section 27 of the Indian

Evidence Act was not witnessed by any independent witness and

the same should be rejected. It was held that there is no

requirement to associate independent witnesses at the time of

the disclosure statement. It was observed: -

"20. The learned counsel for the appellant, however,
contended that the alleged statement, Ext. P-35 was
made to PW 33, not in the presence of any independent
witness hence the same should be rejected. He also
contended that the said statement was made on 2-3-
1994 but the recovery was made only on 3-3-1994,
therefore, the said recovery cannot be correlated to the
statement, if any, made by the accused on 2-3-1994.
He also challenged the fact of recovery stating that the
panch witnesses for the said recovery cannot be
believed.
21. Section 27 does not lay down that the statement
made to a police officer should always be in the
presence of independent witnesses. Normally, in cases
where the evidence led by the prosecution as to a fact
depends solely on the police witnesses, the courts seek
corroboration as a matter of caution and not as a
matter of rule. Thus, it is only a rule of prudence which
makes the court to seek corroboration from an
43
( 2024:HHC:9774 )

independent source, in such cases while assessing the
evidence of the police. But in cases where the court is
satisfied that the evidence of the police can be
independently relied upon then in such cases, there is
no prohibition in law that the same cannot be accepted
without independent corroboration. In the instant case,
nothing is brought on record to show why the evidence
of PW 33 10 should be disbelieved in regard to the
statement made by the accused as per Ext. P-35.
Therefore, the argument that the statement of the
appellant as per Ext. P-35 should be rejected because
the same is not made in the presence of an independent
witness has to be rejected."

28. The Full Bench of Hon'ble Rajasthan High Court has

also considered this question in State of Rajasthan vs. Mangal

Singh AIR 2017 Raj. 68 and gave the following reasons for not

insisting upon the presence of independent witnesses during the

disclosure statements:

22. We are of the firm opinion that the insistence to
keep attesting witnesses present when the
Investigating Officer records the information supplied
by the accused under Section 27 of the Evidence Act is
absolutely unwarranted and rather amounts to a direct
infringement in the confidentiality of the investigation.
There are strong reasons behind this conclusion. We
summarize a few illustrations in order to fortify the
same:
(a) Investigation commences the moment an F.I.R.
is registered for a cognizable offence. An
Investigating Officer, having custody of the accused
cannot predict in advance the precise moment when
the accused would decide to reveal the information,
which could lead to the discovery of an
44
( 2024:HHC:9774 )

incriminating fact. Thus, if attestation of the
information by an independent witness is persisted
upon, as a direct corollary thereto, the Investigating
Officer would be required to keep the witnesses in
attendance right from the moment, the accused is
arrested till the information is elicited. This would
lead to an absolutely absurd situation and is likely
to frustrate the investigation. The very sanctity of
investigation and the privilege available to the
Investigating Officer to keep the investigation
secluded from prying eyes would be compromised.
(b) Another possible situation may be that the
accused might divulge the information under
Section 27 of the Evidence Act to the Investigating
Officer at a particular point of time when
independent witnesses are not available. For
adhering to the procedure of seeking attestation by
independent witnesses, the Investigating Officer
would then be required to summon independent
witnesses and request the accused to repeat the
information in their presence. At this point of time,
the accused may either refuse to divulge the
information given earlier or may oblige the
Investigating Officer with the information which
would then be taken down in writing in the
presence of the independent attesting witnesses.
However, there is a fundamental glitch in adopting
this procedure, which would certainly make the
information, if any received the second time around
in the presence of the witnesses inadmissible in
evidence. Law is well settled by a catena of decisions
of the Hon'ble Supreme Court including the
judgment in the case of Aher Raja Khima v. The State
of Saurashtra, reported in AIR 1956 SC 217 that
information of a fact already known to the
Investigating Officer is inadmissible in evidence.
Thus, in case the Investigating Officer, while
making an investigation from the accused in his
45
( 2024:HHC:9774 )

custody is provided information under Section 27 of
the Evidence Act and soon thereafter, calls the
Panchas and records the same in their presence,
then he would be recording the memorandum of
information already known to him. Such
information would be inadmissible at the outset
and thus, the entire endeavour would become
nothing short of an exercise in futility.
(c) There is yet another risk involved, which could
severely prejudice the accused if the information
provided by the accused under Section 27 is
recorded in the presence of independent witnesses.
The information under Section 27 of the Evidence
Act often comprises of two parts; one being
confessional which has to be excluded and the other
which leads to the discovery of an incriminating
fact and is admissible in evidence to the extent of
the discovery made in pursuance thereof. In case,
independent witnesses are kept present when the
information is given by the accused, the
prosecution may make an endeavour to prove even
the confessional part of the information as being an
extra-judicial confession made in the presence of
independent witnesses. There may even arise a
situation where the independent witness present to
attest to the memorandum prepared under Section
27 of the Evidence Act is a Magistrate. In such a
case, the confessional part of the information under
Section 27 of the Evidence Act would almost assume
the character of a confession under Section 26 of
the Evidence Act thereby condemning the accused
to face severe consequences. There is a high
probability of this situation arising in cases
involving the recovery of narcotics where the
Investigating Officer gives an option to the accused
that can be searched in the presence of a Magistrate
or a Gazetted Officer. Contemplating that option to
be searched in the presence of a Magistrate is given
46
( 2024:HHC:9774 )

and a search of the accused is conducted and during
the process, he is also questioned in the presence of
the Magistrate. At this time, the accused may
provide information under Section 27 of the
Evidence Act to the Investigating Officer which is
partly confessional in nature and is taken down in
writing and got witnessed by the Magistrate by
adhering to the requirement of attestation. In such
a situation, the accused would be faced with severe
consequences because the prosecution would then,
by lifting the prohibition contained in Section 26 of
the Evidence Act insist to prove the whole of the
information as amounting to a confession made in
the presence of a Magistrate. Thus, the requirement
seeking attestation of the memorandum prepared
under Section 27 of the Evidence Act does not have
any logic or rationale behind it."

29. Therefore, the disclosure statement cannot be

discarded on the ground that independent witnesses were not

associated.

30. HC Hakam Chand (PW-2) corroborated the

proseuction's version. He stated that accused made a disclosure

statement that he had concealed the gold ornaments in red,

yellow and blue handkerchiefs beneath the stone in the

retaining wall which could be got recovered by him. He and

Pradeep Kumar (PW-1) signed the memo as witnesses. He stated

in his cross-examination that the police Station Sadar was

located in Mohalla Pucca Talla which had a population of around
47
( 2024:HHC:9774 )

one thousand. He admitted that there are shops near the police

station. He admitted that people visit the Police Station. He did

not remember the number of people present in the Police

Station at the time of making a disclosure statement by the

accused. He denied that no statement was made by the accused

and he was making a false statement.

31. The statement of this witness does not show that

they have any motive to depose falsely against the accused.

Nothing was suggested to this witness in the cross-examination

to show any enmity or any interest, therefore their testimonies

were rightly accepted by the learned Trial Court.

32. SI Sher Singh (PW-8) stated that he got the custody

of the accused transferred. The accused made a statement under

Section 27 of the Indian Evidence Act that he had concealed the

ornaments by tying them in a handkerchief which could be

recovered. A memo was prepared. The signatures of the

witnesses HC Hakam Chand and HC Pardeep were obtained as

witnesses. He stated in his cross-examination that he had

arrested the accused in FIR No. 195 of 2010 dated 07.08.2010.

Sunny was also arrested with the accused. The statement of the
48
( 2024:HHC:9774 )

accused was recorded for 10 minutes. The accused had made a

statement in Hindi. He denied that the accused did not know the

Hindi language. The accused was taken out of the lock-up in the

evening. He admitted that Sunny is residing in Mohala Pucca

Talla located near the Police Station. HC Hakam Chand and HC

Pardeep were present at the time of making the disclosure

statement. Thereafter, they left towards the spot.

33. He stated in his examination-in-chief that the

accused led the police to his house and got recovered a

handkerchief containing three rings and one pair of gold

earrings. These were identified by Komal Jaswal. These were put

in cloth parcels and the parcel was sealed with 12 seals of

impression 'T'. These were seized vide memo (Ext. PW-3/A) and

the sample seal (Ext. PW-8/D) was taken on a separate piece of

cloth. The seal was handed over to Ram Kishan after its use. He

stated in his cross-examination that they left the Police Station

at 5:10 PM. Vinod Jaswal, Komal Jaswal, Hakam and HC Pradeep

accompanied him. They reached the spot before 6:00 PM. The

place of recovery is located at a distance of 5 minutes from the

Police Station. He could not tell the weight of the earrings and

the rings. He had not obtained any bills regarding the stolen
49
( 2024:HHC:9774 )

articles. He did not get the articles checked by any jeweller to

verify whether they were made of gold or were artificial.

Pradhan and Gram Panchayat Members were not associated. He

volunteered to say that Deepak Jaswal was called. He did not

know about the ownership of the retaining wall. He denied that

no statement was made by the accused and no recovery was

effected by him.

34. Komal Jaswal (PW-3) stated that the police had

apprehended the accused. The police interrogated the accused

and he led the police party to a retaining wall from where the

handkerchief was recovered. It contained ornaments. She

identified the ornaments as her own. The police seized them.

She had brought them to the Court as these were got released by

her. She produced the ornaments in the Court. She stated in her

cross-examination that she was not aware that the complaint of

theft of four earrings was made. Her statement was recorded on

10.08.2010. She, her husband, police officials and the accused

were present on the spot. She admitted that her ring was not

broken from the side. The jewellery is kept carefully in the

house. She had told the police that the ornaments were kept by
50
( 2024:HHC:9774 )

her in an Almirah. She and her husband were sleeping in the

room where the theft was committed.

35. Her testimony regarding the identification was not

challenged. It was laid by Hon'ble Supreme in Earabhadrappa

Versus State of Karnataka (1983) 2 SCC 330 that the ladies have an

uncanny sense of identifying the articles of personal use in the

family and their testimonies cannot be discarded on the ground

that such articles were not mixed with similar articles in a test

identification parade. It was observed:

"12. Our attention was drawn to the testimony of P. W. 13
Narayanareddy who, during his cross-examination,
stated that ornaments similar to the gold rope chain and
the pair of gold bangles were available everywhere and
that other ornaments were also in his house. From this, it
is sought to be argued that the seized ornaments cannot
be treated to be stolen property as they are ordinary
ornaments in common use. Nothing turns on this because
P.W. 2 Smt. Bayamma, mother-in-law of the deceased,
her husband P. W. 3 Makarappa and son P. W. 4 G. M.
Prakash have categorically stated that the seized
ornaments belonged to the deceased Smt. Bachamma.
There is no reason why the testimony of these witnesses
should not be relied upon particularly when P. W. 2 Smt.
Bayamma was not cross-examined at all as regards her
identification of the seized ornaments and clothes as
belonging to the deceased. Even if the seized ornaments
could be treated to be ornaments in common use, this
witness could never make a mistake in identifying the
seized six silk sarees (M. Os. 10 to 15). It is a matter of
common knowledge that ladies have an uncanny sense of
51
( 2024:HHC:9774 )

identifying their belongings, particularly articles of personal
use in the family. That apart, the description of the silk
sarees in question shows that they were expensive sarees
with distinctive designs. There is no merit in the
contention that the testimony of these witnesses as
regards the identity of the seized articles to be stolen
property cannot be relied upon for want of prior test
identification. There is no such legal requirement".
(Emphasis supplied)

36. Therefore, her identification of the ornaments

cannot be doubted. Her statement shows that the articles

recovered at the instance of the accused belonged to her and

were the stolen property.

37. Deepak Jaswal (PW-6) stated that he boarded the

police vehicle in which Komal Jaswal, Vinod Jaswal and the

accused were present. They went to the village of the accused.

He removed one stone from the retaining wall. A red

handkerchief was recovered which had 2-3 earrings and other

ornaments which were identified by Komal Jaswal. The police

seized them. He stated in his cross-examination that Vinod

Jaswal was his cousin and Komal Jaswal was Vinod's wife. They

travelled in the vehicle for some distance and thereafter they

went on foot. He did not remember the description of the

vehicle. He did not know the name of the village. 15-20 houses

were situated in the village. 2-4 people gathered at the spot. The
52
( 2024:HHC:9774 )

retaining wall was constructed in an open place. He did not

remember whether any person was called from the village or

not. He denied that the memo was not prepared on the spot and

that he was making a false statement.

38. His testimony corroborates the statement of Komal

Jaswal and the statement of the Investigation Officer. It was

suggested to him in the cross-examination that he is a cousin of

Vinod Jaswal but this will not make any difference because being

related cannot be equated to an interested witness. An interested

witness is the one who has an interest to see that the accused is

convicted somehow. It was laid down by the Hon'ble Supreme

Court in Laltu Ghosh v. State of W.B., (2019) 15 SCC 344: (2020) 1

SCC (Cri) 275: 2019 SCC OnLine SC 2 that there is a distinction

between an interested witness and related witness. The

interested witness is the one who derives some benefits from the

litigation. It was observed:

12. As regards the contention that the eyewitnesses are
close relatives of the deceased, it is by now well-settled
that a related witness cannot be said to be an "interested"
witness merely by virtue of being a relative of the victim.
This Court has elucidated the difference between
"interested" and "related" witnesses in a plethora of
cases, stating that a witness may be called interested only
when he or she derives some benefit from the result of
53
( 2024:HHC:9774 )

litigation, which in the context of a criminal case would
mean that the witness has a direct or indirect interest in
seeing the accused punished due to prior enmity or other
reasons, and thus has a motive to falsely implicate the
accused (for instance, see State of Rajasthan v. Kalki [State
of Rajasthan v. Kalki, (1981) 2 SCC 752: 1981 SCC (Cri)
593]; Amit v. State of U.P. [Amit v. State of U.P., (2012) 4 SCC
107 : (2012) 2 SCC (Cri) 590] and Gangabhavani v. Rayapati
Venkat Reddy [Gangabhavani v. Rayapati Venkat Reddy,
(2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182] ).
13. Recently, this difference was reiterated in
Ganapathi v. State of T.N. [Ganapathi v. State of T.N.,
(2018) 5 SCC 549 : (2018) 2 SCC (Cri) 793], in the
following terms, by referring to the three-Judge
Bench decision in State of Rajasthan v. Kalki [State of
Rajasthan v. Kalki, (1981) 2 SCC 752: 1981 SCC (Cri)
593] : (Ganapathi case [Ganapathi v. State of T.N.,
(2018) 5 SCC 549 : (2018) 2 SCC (Cri) 793], SCC p. 555,
para 14)
"14. "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 person punished. A witness
who is a natural one and is the only possible
eyewitness in the circumstances of a case cannot
be said to be "interested"...."
14. In criminal cases, it is often the case that the
offence is witnessed by a close relative of the
victim, whose presence on the scene of the offence
would be natural. The evidence of such a witness
cannot automatically be discarded by labelling the
witness as interested. Indeed, one of the earliest
statements with respect to interested witnesses in
criminal cases was made by this Court in Dalip
Singh v. State of Punjab [Dalip Singh v. State of
Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ
54
( 2024:HHC:9774 )

1465], wherein this Court observed : (AIR p. 366,
para 26)
"26. A witness is normally to be considered
independent unless he or she springs from
sources which are likely to be tainted and that
usually means unless the witness has cause,
such as enmity against the accused, to wish to
implicate him falsely. Ordinarily, a close relative
would be the last to screen the real culprit and
falsely implicate an innocent person."
15. In the case of a related witness, the Court may
not treat his or her testimony as inherently tainted
and needs to ensure only that the evidence is
inherently reliable, probable, cogent and
consistent. We may refer to the observations of this
Court in Jayabalan v. State (UT of Pondicherry)
[Jayabalan v. State (UT of Pondicherry), (2010) 1 SCC
199: (2010) 2 SCC (Cri) 966] : (SCC p. 213, para 23)
"23. We are of the considered view that in cases
where the court is called upon to deal with the
evidence of the interested witnesses, the
approach of the court while appreciating the
evidence of such witnesses must not be pedantic.
The court must be cautious in appreciating and
accepting the evidence given by the interested
witnesses but the court must not be suspicious
of such evidence. The primary endeavour of the
court must be to look for consistency. The
evidence of a witness cannot be ignored or
thrown out solely because it comes from the
mouth of a person who is closely related to the
victim."

39. It was laid down by the Hon'ble Supreme Court in

Thoti Manohar vs State of Andhra Pradesh (2012) 7 SCC 723 that
55
( 2024:HHC:9774 )

the court cannot discard the testimony of a witness on the

ground of a relationship. It was observed:

31. In this context, we may refer with profit the decision
of this Court in Dalip Singh v. State of Punjab AIR 1953 SC
364, wherein Vivian Bose, J., speaking for the Court,
observed as follows: -
"We are unable to agree with the learned Judges of
the High Court that the testimony of the two eye-
witnesses requires corroboration. If the foundation
for such an observation is based on the fact that the
witnesses are women and that the fate of seven
men hangs on their testimony, we know of no such
rule. If it is grounded on the reason that they are
closely related to the deceased we are unable to
concur. This is a fallacy common to many criminal
cases and one which another Bench of this Court
endeavoured to dispel in Rameshwar v. The State of
Rajasthan (1952) SCR 377 at p. 390 = (AIR 1952 SC 54
at page 59)."
32. In the said case, it was further observed that:
"A witness is normally to be considered
independent unless he or she springs from sources
which are likely to be tainted and that usually
means unless the witness has a cause, such as an
enmity against the accused, to wish to implicate
him falsely. Ordinarily, a close relative would be the
last to screen the real culprit and falsely implicate
an innocent person. It is true that when feelings run
high and there is a personal cause for enmity, there
is a tendency to drag in an innocent person against
whom a witness has a grudge along with the guilty,
but the foundation must be laid for such criticism
and the mere fact of relationship far from being a
foundation is often a sure guarantee of truth."
56
( 2024:HHC:9774 )

33. In Masalti v. State of U.P. AIR 1965 SC 202, it has been
ruled that normally close relatives of the deceased would
not be considered to be interested witnesses who would
also mention the names of the other persons as
responsible for causing injuries to the deceased.
34. In Hari Obula Reddi and others v. The State of Andhra
Pradesh AIR 1981 SC 82, a three-judge Bench has held that
evidence of interested witnesses is not necessarily
unreliable evidence. Even partisanship by itself is not a
valid ground for discrediting or rejecting sworn
testimony. It can be laid down as an invariable rule that
interested evidence can never form the basis of conviction
unless corroborated to a material extent in material
particulars by independent evidence. All that is necessary
is that the evidence of interested witnesses should be
subjected to careful scrutiny and accepted with caution. If
on such scrutiny, the interested testimony is found to be
intrinsically reliable or inherently probable, it may, by
itself, be sufficient, in the circumstances of the particular
case, to base a conviction thereon.
35. In Kartik Malhar v. State of Bihar (1996) 1 SCC 614, it has
been opined that a close relative who is a natural witness
cannot be regarded as an interested witness, for the term
'interested' postulates that the witness must have some
interest in having the accused, somehow or the other,
convicted for some animus or some other reason.
36. In Pulicherla Nagaraju alias Nagaraja Reddy v. State of
Andhra Pradesh AIR 2006 SC 3010, while dealing with the
liability of interested witnesses who are relatives, a two-
judge Bench observed that:
"it is well settled that evidence of a witness cannot
be discarded merely on the ground that he is either
partisan or interested or close relative to the
deceased if it is otherwise found to be trustworthy
and credible."
The said evidence only requires scrutiny with more care
and caution, so that neither the guilty escapes nor the
57
( 2024:HHC:9774 )

innocent is wrongly convicted. If on such careful scrutiny,
the evidence is found to be reliable and probable, then it
can be acted upon.
"If it is found to be improbable or suspicious, it
ought to be rejected. Where the witness has a
motive to falsely implicate the accused, his
testimony should have corroboration in regard to
material particulars before it is accepted."

40. This position was reiterated in Rajesh Yadav vs. State

of Bihar 2022 Cr.L.J. 2986 (SC) as under:

28. A related witness cannot be termed as an interested
witness per se. One has to see the place of occurrence
along with other circumstances. A related witness can
also be a natural witness. If an offence is committed
within the precincts of the deceased, the presence of his
family members cannot be ruled out, as they assume the
position of natural witnesses. When their evidence is
clear, cogent and withstands the rigour of cross-
examination, it becomes sterling, not requiring further
corroboration. A related witness would become an
interested witness, only when he is desirous of
implicating the accused in rendering a conviction, on
purpose.
29. When the court is convinced with the quality of the
evidence produced, notwithstanding the classification as
quoted above, it becomes the best evidence. Such
testimony being natural, adding to the degree of
probability, the court has to make reliance upon it in
proving a fact. The aforesaid position of law has been well
laid down in Bhaskarrao v. State of Maharashtra, (2018) 6
SCC 591:
"32. Coming back to the appreciation of the
evidence at hand, at the outset, our attention is
drawn to the fact that the witnesses were
interrelated, and this Court should be cautious in
58
( 2024:HHC:9774 )

accepting their statements. It would be beneficial to
recapitulate the law concerning the appreciation of
evidence of a related witness. In Dalip Singh v. State
of Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ
1465, Vivian Bose, J. for the Bench observed the law
as under (AIR p. 366, para 26)
"26. A witness is normally to be considered
independent unless he or she springs from
sources which are likely to be tainted and that
usually means unless the witness has a cause,
such as an enmity against the accused, to
wish to implicate him falsely. Ordinarily, a
close relative would be the last to screen the
real culprit and falsely implicate an innocent
person. It is true when feelings run high and
there is a personal cause for enmity, that
there is a tendency to drag in an innocent
person against whom a witness has a grudge
along with the guilty, but the foundation
must be laid for such a criticism and the mere
fact of relationship far from being a
foundation is often a sure guarantee of truth.
However, we are not attempting any
sweeping generalisation. Each case must be
judged on its own facts. Our observations are
only made to combat what is so often put
forward in cases before us as a general rule of
prudence. There is no such general rule. Each
case must be limited to and be governed by its
own facts."
33. In Masalti v. State of U.P., (1964) 8 SCR 133: AIR
1965 SC 202: (1965) 1 Cri LJ 226], a five-judge Bench
of this Court has categorically observed as under
(AIR pp. 209-210, para 14)
"14. ... There is no doubt that when a criminal
court has to appreciate evidence given by
witnesses who are partisan or interested, it
has to be very careful in weighing such
59
( 2024:HHC:9774 )

evidence. Whether or not there are
discrepancies in the evidence; whether or not
the evidence strikes the court as genuine;
whether or not the story disclosed by the
evidence is probable, are all matters which
must be taken into account. But it would, we
think, be unreasonable to contend that
evidence given by witnesses should be
discarded only on the ground that it is
evidence of partisan or interested witnesses.
Often enough, where factions prevail in
villages and murders are committed as a
result of enmity between such factions,
criminal courts have to deal with evidence of
a partisan type. The mechanical rejection of
such evidence on the sole ground that it is
partisan would invariably lead to the failure
of justice. No hard-and-fast rule can be laid
down as to how much evidence should be
appreciated. The 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."
34. In Darya Singh v. State of Punjab [(1964) 3 SCR
397: AIR 1965 SC 328: (1965) 1 Cri LJ 350], this Court
held that evidence of an eyewitness who is a near
relative of the victim should be closely scrutinised
but no corroboration is necessary for acceptance of
his evidence. In Harbans Kaur v. State of Haryana
[(2005) 9 SCC 195: 2005 SCC (Cri) 1213: 2005 Cri LJ
2199], this Court observed that: (SCC p. 227, para 6)
"6. There is no proposition in law that
relatives are to be treated as untruthful
witnesses. On the contrary, reason has to be
shown when a plea of partiality is raised to
show that the witnesses had reason to shield
60
( 2024:HHC:9774 )

the actual culprit and falsely implicate the
accused."
35. The last case we need to concern ourselves with
is Namdeo v. State of Maharashtra [(2007) 14 SCC 150
: (2009) 1 SCC (Cri) 773], wherein this Court after
observing previous precedents has summarised the
law in the following manner: : (SCC p. 164, para 38)
"38. ... it is clear that a close relative cannot
be characterised as an "interested" witness.
He is a "natural" witness. His evidence,
however, must be scrutinised carefully. If on
such scrutiny, his evidence is found to be
intrinsically reliable, inherently probable and
wholly trustworthy, a conviction can be based
on the "sole" testimony of such witness. A
close relationship of the witness with the
deceased or the victim is no grounds to reject
his evidence. On the contrary, a close relative
of the deceased would normally be most
reluctant to spare the real culprit and falsely
implicate an innocent one."
36. From the study of the aforesaid precedents of
this Court, we may note that whoever has been a
witness before the court of law, having a strong
interest in the result, if allowed to be weighed in the
same scales with those who do not have any
interest in the result, would be to open the doors of
the court for perverted truth. This sound rule which
remains the bulwark of this system, and which
determines the value of evidence derived from such
sources, needs to be cautiously and carefully
observed and enforced. There is no dispute about
the fact that the interest of the witness must affect
his testimony is a universal truth. Moreover, under
the influence of bias, a man may not be in a position
to judge correctly, even if they earnestly desire to
do so. Similarly, he may not be in a position to
provide evidence in an impartial manner, when it
61
( 2024:HHC:9774 )

involves his interest. Under such influences, man
will, even though not consciously, suppress some
facts, soften or modify others, and provide
favourable colour. These are most controlling
considerations in respect to the credibility of
human testimony, and should never be overlooked
in applying the rules of evidence and determining
its weight in the scale of truth under the facts and
circumstances of each case."
30. Once again, we reiterate with a word of caution,
the trial court is the best court to decide on the
aforesaid aspect as no mathematical calculation or
straightjacket formula can be made on the
assessment of a witness, as the journey towards the
truth can be seen better through the eyes of the trial
judge. In fact, this is the real objective behind the
enactment itself which extends the maximum
discretion to the court."

41. Similar is the judgment in M Nageswara Reddy vs.

State of Andhra Pradesh 2022 (5) SCC 791 wherein it was

observed:

10. Having gone through the deposition of the relevant
witnesses -eye-witnesses/injured eye-witnesses, we are
of the opinion that there are no major/material
contradictions in the deposition of the eye-witnesses and
injured eye-witnesses. All are consistent insofar as
accused Nos. 1 to 3 are concerned. As observed
hereinabove, PW6 has identified Accused Nos. 1 to 3. The
High Court has observed that PW1, PW3 & PW5 were
planted witnesses merely on the ground that they were all
interested witnesses being relatives of the deceased.
Merely because the witnesses were the relatives of the
deceased, their evidence cannot be discarded solely on the
aforesaid ground. Therefore, in the facts and
circumstances of the case, the High Court has materially
62
( 2024:HHC:9774 )

erred in discarding the deposition/evidence of PW1, PW3,
PW5 & PW6 and even PW7.

42. No such interest was brought in his cross-

examination and his testimony cannot be discarded because of

the relationship alone.

43. It was submitted that the recovery was effected from

an open place and it is not sufficient to implicate the accused.

This submission is not acceptable. It was laid down by Hon'ble

Supreme Court in Limbaji v. State of Maharashtra, (2001) 10 SCC

340: 2001 SCC OnLine SC 1460, that merely because the recovery

was effected from an open place is not sufficient to discard the

recovery and the statement that accused had hidden the articles

could be relied upon to show the possession of the accused. It

was observed:

"IV(b). [14] We are left with the evidence of recovery of
the ornaments of the deceased on the basis of the
confessional statement of the accused under Section 27 of
the Evidence Act if the discoveries are to be believed --
which ought to be. The next two questions are, whether
the accused shall be deemed to be in possession of the
articles concealed at various spots and whether such
possession could be said to be recent possession. But for
the decision of this Court in Trimbak v. State of M.P. [AIR
1954 SC 39: 1954 Cri LJ 335] the first question need not
have engaged our attention at all. That was a case in
which at the instance of the accused the stolen property
was recovered at a field belonging to a third party and the
63
( 2024:HHC:9774 )

accused gave no explanation about his knowledge of the
place from which the ornaments were taken out. The
High Court while absolving the appellant of the charge of
dacoity, convicted him under Section 411 IPC for receiving
the stolen property by applying the presumption that he
must have kept the ornaments at that place. On appeal by
the accused, this Court took the view that there was no
valid reason for convicting the appellant under Section
411 IPC. The Court pointed out that one of the ingredients
of Section 411, namely, that the stolen property was in the
possession of the accused, was not satisfied. The Court
observed thus: (AIR p. 40, para 6)
"6. When the field from which the ornaments were
recovered was an open one, and accessible to all
and sundry, it is difficult to hold positively that the
accused was in possession of these articles. The fact
of recovery by the accused is compatible with the
circumstance of somebody else having placed the
articles there and of the accused somehow
acquiring knowledge about their whereabouts and
that being so, the fact of discovery cannot be
regarded as conclusive proof that the accused was
in possession of these articles."
If this view is accepted, there is the danger of seasoned
criminals, who choose to keep the stolen property away
from their places of residence or premises, escaping from
the clutches of presumption whereas the less resourceful
accused who choose to keep the stolen property within
their house or premises would be subjected to the rigour
of presumption. The purpose and efficacy of the
presumption under Section 114(a) will be practically lost
in such an event. We are, however, relieved of the need to
invite the decision of a larger Bench on this issue in view
of the confessional statement of the accused that they had
hidden the articles at particular places and the accused
acting further and leading the investigating officer and
the panchas to the spots where they were concealed. The
memoranda of Panchnama evidencing such statements
64
( 2024:HHC:9774 )

are Exhibits 26, 28 and 30. If such a statement of the
accused insofar as the part played by him in concealing
the articles at the specified spots is admissible under
Section 27 of the Evidence Act, there can be no doubt that
the factum of possession of the articles by the accused
stands established. We have the authority of the three-
judge Bench decision of this Court in K. Chinnaswamy
Reddy v. State of A.P. [AIR 1962 SC 1788: (1963) 1 Cri LJ 8] to
hold that the statement relating to concealment is also
admissible in evidence by virtue of Section 27. In that
case, the question was formulated by Wanchoo, J.

speaking for the Court, as follows: (AIR p. 1792, para 9)
“9. Let us then turn to the question whether the
statement of the appellant to the effect that ‘he had
hidden them (the ornaments)’ and ‘would point out
the place’ where they were, is wholly admissible in
evidence under Section 27 or only that part of it is
admissible where he stated that he would point out
the place but not that part where he stated that he
had hidden the ornaments.”

After referring to the well-known case of Pulukuri
Kottaya v. Emperor [AIR 1947 PC 67: 74 IA 65] the question
was answered as follows: (AIR p. 1793, para 10)
“10. If we may respectfully say so, this case clearly
brings out what part of the statement is admissible
under Section 27. It is only that part which
distinctly relates to the discovery which is
admissible, but if any part of the statement
distinctly relates to the discovery it will be
admissible wholly and the court cannot say that it
will excise one part of the statement because it is of
a confessional nature. Section 27 makes that part of
the statement which is distinctly related to the
discovery admissible as a whole, whether it be in
the nature of confession or not. Now the statement
in this case is said to be that the appellant stated
that he would show the place where he had hidden
the ornaments. The Sessions Judge had held that
65
( 2024:HHC:9774 )

part of this statement which is to the effect ‘where
he had hidden them’ is not admissible. It is clear
that if that part of the statement is excised the
remaining statement (namely, that he would show
the place) would be completely meaningless. The
whole of this statement in our opinion relates
distinctly to the discovery of ornaments and is
admissible under Section 27 of the Indian Evidence
Act. The words ‘where he had hidden them’ are not
on par with the words ‘with which I stabbed the
deceased’ in the example given in the judgment of
the Judicial Committee. These words (namely,
where he had hidden them) have nothing to do with
the past history of the crime and are distinctly
related to the actual discovery that took place by
virtue of that statement. It is however urged that in
a case where the offence consists of possession
even the words ‘where he had hidden them’ would
be inadmissible as they would amount to an
admission by the accused that he was in possession.
There are in our opinion two answers to this
argument. In the first place, Section 27 itself says
that where the statement distinctly relates to the
discovery it will be admissible whether it amounts
to a confession or not. In the second place, these
words by themselves *though they may show
possession of the appellant would not prove the
offence, for after the articles have been recovered,
the prosecution has still to show that the articles
recovered are connected with the crime, i.e., in this
case, the prosecution will have to show that they
are stolen property. We are therefore of the opinion
that the entire statement of the appellant (as well
as of the other accused who stated that he had given
the ornament to Bada Sab and would have it
recovered from him) would be admissible in
evidence and the Sessions Judge was wrong in
ruling out part of it.” *(emphasis supplied)
66
( 2024:HHC:9774 )

In the light of this decision, we must hold that the
accused must be deemed to be in exclusive possession of
the articles concealed under the earth though the spots at
which they were concealed may be accessible to the
public. It may be mentioned that in the Trimbak case [AIR
1954 SC 39: 1954 Cri LJ 335] this Court did not refer to the
confessional statement, if any, made by the accused
falling within the purview of Section 27 and the effect
thereof on the aspect of possession.

xxxxx
V(a). [16] In the light of the above discussion, in the
instant case, the presumption under Section 114
Illustration (a) could be safely drawn and the
circumstance of recovery of the incriminating articles
within a reasonable time after the incident at the places
shown by the accused unerringly points to the
involvement of the accused. Be it noted that the
appellants who were in a position to explain how they
could lay their hands on the stolen articles or how they
had the knowledge of concealment of the stolen property,
did nothing to explain; on the other hand, they denied
knowledge of recoveries which in the light of the evidence
adduced by the prosecution must be considered to be
false. By omitting to explain, it must be inferred that
either they intended to suppress the truth or invited the
risk of presumption being drawn. Thus, the presumption
as to the commission of offence envisaged by Illustration

(a) of Section 114 is the minimum that could be drawn and
that is what the trial court did.

44. Similarly, it was held in Perumal Raja v. State, 2024

SCC OnLine SC 12, that if the accused does not tell the Criminal

Court that his knowledge of the concealment was on the basis of

the possibilities that absolves him, an inference can be drawn

that the accused had concealed those articles. It was observed:

( 2024:HHC:9774 )

32. In State of Maharashtra v. Suresh (2000) 1 SCC 471, this
Court in the facts therein held that recovery of a dead
body, which was from the place pointed out by the
accused, was a formidable incriminating circumstance.

This would, the Court held, reveal that the dead body was
concealed by the accused unless there is material and
evidence to show that somebody else had concealed it and
this fact came to the knowledge of the accused either
because he had seen that person concealing the dead body
or was told by someone else that the dead body was
concealed at the said location. Here, if the accused
declines and does not tell the criminal court that his
knowledge of the concealment was on the basis of the
possibilities that absolve him, the court can presume that
the dead body (or physical object, as the case may be) was
concealed by the accused himself. This is because the
person who can offer the explanation as to how he came
to know of such concealment is the accused. If the
accused chooses to refrain from telling the court as to
how else he came to know of it, the presumption is that
the concealment was by the accused himself.

33. The aforesaid view has been followed subsequently
and reiterated in Harivadan Babubhai Patel v. State of
Gujarat(2013) 7 SCC 45, Vasanta Sampat Dupare v. State of
Maharashtra (2015) 1 SCC 253, State of
Maharashtra v. Damu S/o Gopinath Shinde (2000) 6 SCC
269, and Rumi Bora Dutta v. State of Assam (2013) 7 SCC

417.”

45. In the present case the accused has not given any

explanation, therefore, the only inference which can be drawn is

that the accused has concealed the ornaments.

46. It was submitted that there is a discrepancy in the

colour of the handkerchief. Deepak Jaswal (PW-6) stated that
68
( 2024:HHC:9774 )

the red handkerchief was taken out by the accused whereas

Hakam Chand (PW-2) stated that the accused disclosed that he

had concealed a red, yellow, and blue handkerchief. This

discrepancy will not assist the accused. The statement was made

on 10.07.2010 whereas the statement was recorded in the Court

on 09.01.2019 after the lapse of 9 years. The discrepancy is

bound to come with time and is not sufficient to discard the

prosecution case. It was laid down by the Hon’ble Supreme

Court in Bharwada Bhoginbhai Hirji Bhai versus State of Gujarat

1983 (3) SCC 217 that the mere discrepancy in the statement of a

witness is not sufficient to discard his testimony. It was

observed:

“(1) By and large a witness cannot be expected to possess
a photographic memory and to recall the details of an
incident. It is not as if a videotape is replayed on the
mental screen.

(2) Ordinarily, it so happens that a witness is overtaken
by events, the witness could not have anticipated the
occurrence, which so often has an element of surprise.

The mental faculties, therefore, cannot be expected to be
attuned to absorb the details.

(3) The powers of observation differ from person to
person. What one may notice, another may not. An object
or movement might emboss its image on one person’s
mind, whereas it might go unnoticed on the part of
another.

(4) By and large, people cannot accurately recall a
69
( 2024:HHC:9774 )

conversation and reproduce the very words used by them
or heard by them. They can only recall the main purport
of the conversation. It is unrealistic to expect a witness to
be a human tape recorder.

(5) In regard to the exact time of an incident or the time
duration of an occurrence, usually, people make their
estimates by guesswork impulsively at the time of
interrogation. And one cannot expect people to make very
precise or reliable estimates in such matters. Again, it
depends on the time sense of individuals, which varies
from person to person.

(6) Ordinarily, a witness cannot be expected to recall
accurately the sequence of events, which take place in
rapid succession or in a short time span. A witness is
liable to get confused, or mixed up when interrogated
later on.

(7) A witness, though wholly truthful, is liable to be
overawed by the Court atmosphere and the piercing
cross-examination made by counsel and out of
nervousness mix up facts gets confused regarding the
sequence of events or fills up details from imagination on
the spur of the moment. The subconscious mind of the
witness sometimes so operates on account of the fear of
looking foolish or being disbelieved though the witness is
giving a truthful and honest account of the occurrence
witnessed by him – perhaps it is a sort of psychological
defence mechanism activated on the spur of the
moment.” (Emphasis supplied)”

47. This position was reiterated in Balu Sudam Khalde

and another Versus State of Maharashtra AIR 2023 SC 1736,

wherein it was observed as under:-

“25. The appreciation of ocular evidence is a hard task.
There is no fixed or straightjacket formula for apprecia-
tion of the ocular evidence. The judicially evolved princi-

( 2024:HHC:9774 )

ples for appreciation of ocular evidence in a criminal case
can be enumerated as under:

“I. While appreciating the evidence of a witness, the
approach must be whether the evidence of the
witness read as a whole appears to have a ring of
truth. Once that impression is formed, it is
undoubtedly necessary for the Court to scrutinize the
evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out
in the evidence as a whole and evaluate them to find
out whether it is against the general tenor of the
evidence given by the witness and whether the
earlier evaluation of the evidence is shaken as to
render it unworthy of belief.

II. If the Court before whom the witness gives
evidence had the opportunity to form the opinion
about the general tenor of evidence given by the
witness, the appellate court which did not have this
benefit will have to attach due weight to the
appreciation of evidence by the trial court and unless
there are reasons weighty and formidable it would
not be proper to reject the evidence on the ground of
minor variations or infirmities in the matter of
trivial details.

III. When an eyewitness is examined at length it is
quite possible for him to make some discrepancies.
But courts should bear in mind that it is only when
discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that
the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not
touching the core of the case, hyper-technical
approach by taking sentences torn out of context
here or there from the evidence, attaching
importance to some technical error committed by
the investigating officer not going to the root of the
matter would not ordinarily permit rejection of the
71
( 2024:HHC:9774 )

evidence as a whole.

V. Too serious a view to be adopted on mere
variations falling in the narration of an incident
(either as between the evidence of two witnesses or
as between two statements of the same witness) is
an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to
possess a photographic memory and to recall the
details of an incident. It is not as if a video tape is
replayed on the mental screen.

VII. Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence, which so often has an
element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the
details.

VIII. The powers of observation differ from person
to person. What one may notice, another may not. An
object or movement might emboss its image on one
person’s mind whereas it might go unnoticed on the
part of another.

IX. By and large people cannot accurately recall a
conversation and reproduce the very words used by
them or heard by them. They can only recall the main
purport of the conversation. It is unrealistic to expect
a witness to be a human tape recorder.
X. In regard to the exact time of an incident, or the
time duration of an occurrence, usually, people make
their estimates by guesswork on the spur of the
moment at the time of interrogation. And one cannot
expect people to make very precise or reliable
estimates in such matters. Again, it depends on the
time sense of individuals which varies from person
to person.

XI. Ordinarily a witness cannot be expected to recall
accurately the sequence of events, which take place
72
( 2024:HHC:9774 )

in rapid succession or in a short time span. A witness
is liable to get confused, or mixed up when
interrogated later on.

XII. A witness, though wholly truthful, is liable to
be overawed by the court atmosphere and the
piercing cross-examination by counsel and out of
nervousness mix up facts, get confused regarding
the sequence of events, or fill up details from
imagination on the spur of the moment. The
subconscious mind of the witness sometimes
operates on account of the fear of looking foolish or
being disbelieved though the witness is giving a
truthful and honest account of the occurrence
witnessed by him.

XIII. A former statement though seemingly
inconsistent with the evidence need not necessarily
be sufficient to amount to contradiction. Unless the
former statement has the potency to discredit the
latter statement, even if the latter statement is at
variance with the former to some extent it would not
be helpful to contradict that witness.”

[See Bharwada Bhoginbhai Hirjibhai v. State of Gu-
jarat 1983 Cri LJ 1096 : (AIR 1983 SC 753) Leela Ram v.
State of Haryana AIR 1995 SC 3717 and Tahsildar Singh
v. State of UP (AIR 1959 SC 1012)]

48. Hence, the prosecution case cannot be rejected due to

the discrepancy in the colour of the handkerchief.

49. Thus, it was duly proved that the accused had got

recovered the ornaments that belonged to Komal Jaswal and

were stolen. No explanation was provided by the accused and the

only inference which could have been drawn was that the
73
( 2024:HHC:9774 )

accused had stolen the articles and the learned Trial Court had

rightly drawn this inference.

50. It was submitted that the ornaments were not

identified by the jeweller. However, there was no necessity to do

so. Even, if the ornaments were artificial, their removal out of

possession of Komal Jaswal amounted to theft and no advantage

can be derived from the fact that the ornaments were not proved

to be made of gold.

51. It was submitted that witness Komal Jasal was

careless in dealing with the ornaments. She had not bolted the

door of the room in which she was sleeping and had kept the

ornaments near her bed. This submission does not assist the

accused. Komal Jaswal was residing in her home and her

carelessness will not give any license to the accused to commit

the theft of the ornaments by entering into her building.

Therefore, no advantage can be derived from this submission.

52. The learned Trial Court had sentenced the accused to

undergo rigorous imprisonment for five years. Learned

Appellate Court had reduced it to three years. Keeping in view

the fact that the accused had committed the theft from the
74
( 2024:HHC:9774 )

dwelling home, the sentence of three years cannot be said to be

excessive and no interference is required with the same.

53. In view of the above, there is no reason to interfere

with the judgments and order passed by learned Courts below.

Hence, the present revision is dismissed.

54. Pending application(s), if any, also stand(s) disposed

of.





Digitally signed by
                                                               (Rakesh Kainthla)
KARAN SINGH                                                          Judge
GULERIA                16th October, 2024
Date: 2024.10.16
20:05:55 IST                 (Nikita)

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Pappi Mohammad vs State Of H.P on 16 October, 2024

Himachal Pradesh High Court

Pappi Mohammad vs State Of H.P on 16 October, 2024

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