http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: RAMMI ALIAS RAMESHWAR

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       21/09/1999

BENCH: K.T.Thomas, A.P.Misra

JUDGMENT:

THOMAS, J.

     A  manslaughter in an automobile in locomotion is  the subject matter of this case.  The slaughtered man was a Home Guard  personnel,  by  name Sardar Singh  Thakur.   When  he boarded  the  bus destined to Naseerabad on the  evening  of 20.7.1985, he had no foreboding that it was his last journey alive.   Before  the  bus could reach its  terminus  he  was finished by armed assailants inside the vehicle while it was in  motion.   Appellants  (Rammi alias Rameshwar  and  Bhura alias  Sajjan Kumar) were two of the three persons arraigned before  the  Sessions  Court.   Though  the  Sessions  Judge acquitted  all of them a Division Bench of the High Court of Madhya  Pradesh  convicted the two appellants under  Section 302  read  with Section 34 of the IPC and sentenced them  to imprisonment  for  life.   The third accused  (Suresh  alias Chhigga)  died  before  the appeal was decided by  the  High Court.   These  appeals  were  filed by  the  two  convicted persons  as  of  right  under Section 379  of  the  Code  of Criminal  Procedure (for short the Code) and under Section 2  of  the Supreme Court (Enlargement of Criminal  Appellate Jurisdiction) Act, 1970.

     The  story  of  the prosecution, as  revealed  through evidence,  can  be  summarised like this:  One  Channa  Babu (brother  of appellant Rammi and late Chhigga) was  murdered for which the police charge-sheeted Sardar Singh Thakur (the deceased  in this case) and his brother Shyam Singh (PW-3 in this  case)  and a few others.  From then on  these  accused were  thirsting  for revenge for the murder of Channa  Babu. They  were  prowling for an opportune opportunity to  strike back.  In such a background accused came to know that Sardar Singh  Thakur  was travelling in a bus.  Accused  wanted  to avail  themselves of that opportunity and boarded the bus on the  way.   After  the vehicle moved for some  distance  the assailants  mounted the attack on the deceased with  chopper and knives.

     The  assailants  inflicted  as   many  as  12  incised injuries  on  Sardar  Singh  Thakur.   Those  who  tried  to intervene  were  told  by the assailants to mind  their  own business  as  the attack was intended for a revenge.   After accomplishing  the  object all the assailants alighted  from the  vehicle and escaped from the scene.  The passengers  of the bus became frightened and most of them jumped out of the vehicle and ran helter-skelter.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

     The  stage carriage was then driven towards the police station  by  its driver (PW-12 Jabbar Khan).  Ext.   P-12  - First Information Statement was lodged at the police station by  the  conductor  of the vehicle  (PW-8  Ramashray).   The accused  were  arrested and after interrogation the  weapons used  for the murder were recovered by PW-13  Investigating Officer  from  hidden  places on the basis  of  informations elicited from the accused.

     There  is  no doubt that deceased Sardar Singh  Thakur was  murdered inside the said bus at about 5 P.M.  while the bus  was  in motion.  In fact that part of the case  is  not controverted  by  the appellants.  The dispute  now  centers round  the  identity of the assailants.  PW-8 Ramashray  and PW-12  Jabbar  Khan  supported the case of  the  prosecution regarding the identity of the assailants, besides one of the passengers  of  the  bus (PW-9 Ram Dulare).  But  the  trial court  was  not  impressed by their evidence.  Nor  did  the trial  court place any reliance on the evidence relating  to the recovery of weapons which the prosecution adduced as per Section  27 of the Evidence Act.  But the Division Bench  of the High Court made complete reversal of the findings of the trial   judge  and  made  a  scathing  observation  in   the penultimate  paragraph  of  the judgment  under  appeal,  as under:   Before parting with this appeal, we cannot  resist from  observing that the perverse reasoning and  conclusions given by the trial judge in appreciating the evidence in the instant case cannot be supported.  Such unrealistic approach in  appreciating  evidence  in a criminal  case  shakes  the confidence of the society in the legal system itself and our interference, therefore, is urgently called for.

     Shri  Uday  Umesh  Lalit,   learned  counsel  for  the appellants  contended that the reasoning of the trial  judge regarding  different items of incriminating evidence did not warrant  interference in an appeal against acquittal as  the views  expressed  by the trial judge were not  unreasonable. Learned counsel dealt with the evidence almost threadbare in his  endeavour  to  show  that the sessions  judge  was  not altogether wrong in acquitting the appellants.

     PW-9  Ram  Dulare  (a  passenger in the  bus)  in  his evidence  said  that  he saw the  appellants  attacking  the deceased  with chopper and knives.  The trial court  pointed out  that he did not inform the members of the family of the deceased  nor did he bring this matter to the notice of  the police.   The Sessions Judge regarded the above as a conduct incompatible   with  the  normal   behaviour  of  a   person witnessing such a crime.

     Such a remark on the conduct of a person who witnessed the  murderous  attack  is least justified in the  realm  of appreciation  of  evidence.   This Court has said  time  and again  that the post event conduct of a witness varies  from person  to person.  It cannot be a cast-iron reaction to  be followed  as  a  model by everyone  witnessing  such  event. Different  persons  would  react differently on  seeing  any violence  and their behaviour and conduct would,  therefore, be  different.   We have not noticed anything which  can  be regarded as an abnormal conduct of PW-9 Ram Dulare.

     Nonetheless,  there are two broad circumstances  which would  bridle  the court from placing full reliance  on  the evidence of PW-9.  First is, though his name appeared in the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

First  Information Statement its author PW-8 (the  conductor of  the bus) said in his evidence that Ram Dulare was not  a person   known  to  him.   Second   is,  PW-9  has  said  in cross-examination that he did not mention anything about the incident  to anybody else at all until he was questioned  by the police.

     Though  the aforesaid two incongruities came on record during  cross-examination no attempt whatsoever was made  by the  Additional Public Prosecutor to secure any  explanation regarding such aspects.

     Regarding  the  recovery of weapons,  the  prosecution could  utilize  statements attributed to the accused on  the basis  of  which recovery of certain weapons  was  effected. Section   27  of  the  Evidence   Act  permits  so  much  of information  which  lead  to the discovery of a fact  to  be admitted  in  evidence.   Here the fact  discovered  by  the police  was  that the accused had hidden  the  blood-stained weapons.   In  that sphere what could have been admitted  in evidence  is only that part of the information which accused had  furnished  to the police officer and which led  to  the recovery of the weapons.

     True, such information is admissible in evidence under Section  27  of  the Evidence Act, but  admissibility  alone would  not  render  the evidence, pertaining  to  the  above information,  reliable.   While testing the  reliability  of such   evidence  the  court  has  to  see  whether  it   was voluntarily stated by the accused.

     PW-13  Investigating Officer has said in his evidence that  the accused were arrested on the succeeding day of the occurrence from a different place and they were interrogated by  him.  But PW-12 (the driver of the bus) has said in  his evidence  that  after he reached the police station  on  the same  evening  he  saw the three accused inside  the  police station.  We do not know whether it was an error which PW-12 committed  during  cross-examination.  No doubt  the  Public Prosecutor  who conducted the prosecution did not choose  to put any question to PW-12 also in re- examination.

     As  it is, there is material discrepancy regarding the time  when police took the accused in custody.  If PW-13  is correct  the  accused would have been arrested only  on  the succeeding  day of occurrence.  But if PW-12 is correct  the accused  should  have been interrogated on the very  day  of occurrence  in  which  case the accused would  have  had  no occasion to conceal the weapons.

     With  the  above scrutiny we are unable to  place  any reliance  on the evidence of PW-13 regarding recovery of the weapons  at the instance of the accused.  In this context we are tempted to observe that the Additional Public Prosecutor who   conducted   prosecution  has    not   discharged   his responsibility  as he avoided putting any question to  those witnesses  when  an  opportunity   for  re-examination   was provided to him.

     The  very  purpose  of re-examination  is  to  explain matters  which have been brought down in  cross-examination. Section  138  of the Evidence Act outlines the amplitude  of re-examination.     It   reads     thus:    Direction    of re-examination.-  The  re- examination shall be directed  to the explanation of matters referred to in cross-examination;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

and if new matter is, by permission of the Court, introduced in   re-examination,   the  adverse    party   may   further cross-examine upon that matter.

     There  is an erroneous impression that  re-examination should  be  confined to clarification of  ambiguities  which have  been  brought  down in cross-examination.   No  doubt, ambiguities  can  be resolved through  re-examination.   But that  is  not the only function of the re-examiner.  If  the party  who  called  the witness feels  that  explanation  is required  for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation.  The Public Prosecutor should formulate his questions  for  that purpose.  Explanation may  be  required either  when ambiguity remains regarding any answer elicited during  cross-examination or even otherwise.  If the  Public Prosecutor   feels  that  certain   answers   require   more elucidation  from  the  witness he has the freedom  and  the right  to put such questions as he deems necessary for  that purpose,  subject  of course to the control of the court  in accordance  with the other provisions.  But the court cannot direct  him  to confine his questions to  ambiguities  alone which arose in cross-examination.

     Even  if the Public Prosecutor feels that new  matters should  be elicited from the witness he can do so, in  which case  the only requirement is that he must secure permission of the court.  If the Court thinks that such new matters are necessary  for  proving  any material fact, courts  must  be liberal in granting permission to put necessary questions.

     A  Public  Prosecutor who is attentive  during  cross- examination  cannot but be sensitive to discern which answer in  cross-examination  requires explanation.   An  efficient Public  Prosecutor would gather up such answers falling from the   mouth  of  a   witness  during  cross-examination  and formulate  necessary questions to be put in  re-examination. There is no warrant that re-examination should be limited to one  or two questions.  If the exigency requires any  number of questions can be asked in re-examination.

     But  in this case the Additional Public Prosecutor  in the  trial  court seemed oblivious of such a right.   It  is rather  amazing that he did not avail himself of that  right in  respect of a single witness.  The defence counsel  would have  had  a free day as he was left totally undisturbed  by the  Public  Prosecutor.  Be that as it  may,  side-stepping above items of evidence is hardly sufficient to end the woes of the appellant because the prosecution examined two of the most important witnesses to the occurrence, PW-8 Ramashray - the conductor, and PW-12 Jabbar Khan - the driver.

     PW-8  had given three former statements regarding  the occurrence  (Ext.P-12  the First Information Statement,  and then  what the Investigating Officer recorded under  Section 161  of the Code, and another statement which the magistrate recorded  under  Section  164  of the  Code).   The  defence counsel used all those three statements to ferret out one or two  omissions  therefrom for confronting PW-8.   The  trial court on the strength of such answers castigated PW-8.  This was  what  the  Sessions Judge said  about  their  evidence: Ramshray  (PW-8)  stood contradicted on material and  vital points from the first information report Ex.P.11, case diary statement  ex.D-1.   Those  contradictions   relate  to  the material  and  vital points.  These details go to show  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

Ramshray  (PW-8) is not a truthful or reliable witness.   He was made to modulate his version but to suit the prosecution case  and  it is not safe to place implicit reliance on  his testimony.  The evidence of this witness appears artificial, unnatural   and  improbable  and   suffers  from   intrinsic infirmities.   In the circumstances, his testimony cannot be accepted on its face value.

     Shri  Uday  Umesah  Lalit,  learned  counsel  for  the appellant  tried to support the said reasoning of the  trial court.  We feel that the approach made by the trial court in groping for discrepancies in the testimony of such important witnesses had resulted in the unmerited acquittal.

     When  eye-witness  is examined at length it  is  quite possible  for  him  to  make some  discrepancies.   No  true witness  can  possibly  escape from making  some  discrepant details.   Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant.  But courts   should   bear  in  mind   that  it  is  only   when discrepancies   in  the  evidence  of   a  witness  are   so incompatible  with  the credibility of his version that  the court  is  justified in jettisoning his evidence.   But  too serious  a view to be adopted on mere variations falling  in the narration of an incident (either as between the evidence of  two  witnesses or as between two statements of the  same witness) is an unrealistic approach for judicial scrutiny.

     It  is  a common practice in trial courts to make  out contradictions  from  previous  statement of a  witness  for confronting  him  during cross-examination.  Merely  because there  is inconsistency in evidence it is not sufficient  to impair  the credit of the witness.  No doubt Section 155  of the Evidence Act provides scope for impeaching the credit of a  witness by proof of inconsistent former statement.  But a reading  of the Section would indicate that all inconsistent statements  are not sufficient to impeach the credit of  the witness.   The material portion of the Section is  extracted below:   155.  Impeaching credit of witness.- The credit of a  witness  maybe  impeached in the following  ways  by  the adverse  party,  or, with the consent of the court,  by  the party who calls him

     (3)  by  proof of former statements inconsistent  with any   part   of  his  evidence   which  is  liable   to   be contradicted.

     A  former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction.   Only  such  of the  inconsistent  statement which is liable to be contradicted would affect the credit of  the  witness.   Section  145 of the  Evidence  Act  also enables  the  cross-examiner to use any former statement  of the  witness,  but  it cautions that if it  is  intended  to contradict  the witness the cross-examiner is enjoined  to comply  with the formality prescribed therein.  Section  162 of  Code also permits the cross-examiner to use the previous statement  of the witness (recorded under Section 161 of the Code)  for  the only limited purpose, i.e.  to  contradict the witness.

     To  contradict  a  witness,   therefore,  must  be  to discredit the particular version of the witness.  Unless the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

former  statement  has the potency to discredit the  present statement, even if the latter is at variance with the former to  some  extent it would not be helpful to contradict  that witness, (vide Tahsildar Singh and anr.  vs.  State of U.P., AIR 1959 SC 1012).

     In  this  case the evidence of the conductor  and  the driver  of  the  bus evinces credibility.   As  pointed  out earlier  they are the most natural witnesses for the  murder which took place inside the bus.  The minor variations which the  defence counsel discovered from their former statements did not amount to discredit the core of their evidence.  The strained  reasoning of the Sessions Judge for  side-stepping their evidence is too fragile for judicial countenance.  The Division  Bench  of the High Court has rightly reversed  the finding regarding the credibility of their evidence.

     For the aforesaid reasons we agree with the High Court that appellants are liable to be convicted under Section 302 of the IPC.  We, therefore, dismiss this appeal.