Himachal Pradesh High Court
Jeewana Devi vs Sarwani Devi And Ors on 4 March, 2025
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 81 of 2011 Reserved on: 27.02.2025 Date of Decision: 04.03.2025.
Jeewana Devi ..Appellant
Versus
Sarwani Devi and ors. ...Respondents
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Janesh Mahajan, Advocate. For Respondents No. 1 to 5 : Mr. Chaman Negi, Advocate. For Respondent No.6/State : Mr. Gautam Sood, Deputy Advocate General.
Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 17.02.2011 passed by learned Sessions Judge, Hamirpur (learned Appellate Court), vide which the appeal filed by the respondents No. 1 to 5 (accused before learned Trial Court) was allowed and they were acquitted of the charged offences. (For convenience, the parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court.) 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused for the commission of offences punishable under Sections 325, 504, 506 and 34 of the Indian Penal Code (in short 'IPC'). It was asserted that the victim/informant-Jeewana Devi (PW1) went to the police station on 09.04.2008 and stated that she was erecting a fence near her house. Sarwani Devi, her daughters-in-law and her sons gave beatings to the victim, but she (the victim) did not know the names of Sarwani's sons and daughters-in-law. One son of Sarwani Devi had a stick with him, and he caused injuries on the right hand and arm of the victim with the stick. The victim also sustained injuries on other parts of her body. She shouted for help. Hemraj (PW10) reached the spot and rescued the victim from the accused. The accused threatened to cut the victim into various pieces. The police recorded an entry (Ext. PW9/A). An application was filed to conduct the medical examination of the victim. Dr. Mohan Thakur (PW6) conducted the medical examination and found a restriction of movement in the little finger of the left hand. He advised X-rays. A fracture was detected after the X-ray and the nature of the injury was stated to be grievous, which could have been caused within 1 to 6 hours 3 before the examination. He issued the MLC (Ext. PW6/A). FIR (Ext. PW11/A) was registered in the police station. HC Rajesh Kumar (PW11) conducted the investigation. He visited the spot and prepared the site plan (Ext. PW11/B). The victim produced a stick (Ext.P1) which was seized vide memo (Ext. PW1/A). HC Rajesh Kumar recorded the statements of witnesses as per their version. The challan was filed before the Court after the completion of the investigation.
3. Learned Trial Court charged the accused with the commission of offences punishable under Sections 325, 504 and 506 of IPC. Subsequently, an application under Section 319 of Cr.P.C. was filed, which was allowed by the learned Trial Court vide order dated 11.05.2009. The charges were framed against the accused for the commission of offences punishable under Sections 325, 504 and 506, read with Section 149 of IPC.
4. The prosecution examined ten witnesses to establish its case. Jeewana Devi (PW1) is the victim. Hemraj (PW2 and PW10) is the eye-witness. Shanti Devi (PW3) is the Ward Panch, who saw that the victim had sustained injuries and also witnessed the production of the stick. Sanjay Kumar (PW4) is the victim's husband to whom the incident was narrated. Prithvi 4 Singh (PW5) is Pradhan, who was told about the quarrel, and he sent Ward Panch to verify the incident. Dr. Mohan Thakur (PW6) conducted the medical examination of the victim. Jeewan Kumar (PW7) took the X-ray. Sunil Kumar (PW8) is the witness to the recovery of the stick. Constable Dhaneshwar (PW9) proved the entry in the daily diary. HC Rajesh Kumar (PW11) conducted the investigation.
5. The accused in their statements recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. They stated that a false case was made against them. Their plants were uprooted and the informant/victim quarrelled with them. The witnesses were related to the victim. However, no defence was sought to be adduced by the accused.
6. Learned Trial Court held that the statement of the victim was duly corroborated by the medical evidence and by the statement of Hemraj. The plea of the defence regarding the improvement of the prosecution case was not acceptable as the victim had stated in her supplementary statement that accused Sapna Devi had twisted the finger of her left hand which was duly corroborated by the report of the Medical Officer; hence, the accused were convicted of the commission of offences 5 punishable under Sections 325 and 506 read with Section 149 of IPC and sentenced as under:
Under Section 325 read To undergo rigorous imprisonment with Section 149 of IPC. for two years with a fine of ₹ 500/-
and in default of payment of fine to further undergo simple imprisonment for two months each.
Under Section 506 read To undergo rigorous imprisonment with Section 149 of IPC. for two years
7. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused preferred an appeal which was decided by learned Sessions Judge, Hamirpur (learned Appellate Court). Learned Appellate Court held that the victim had initially stated before the police that she was beaten by a stick. This version was changed in the Court to say that her finger was twisted. This was a material improvement, which would make the prosecution case suspect. She also claimed that she had suffered several injuries by a stick, however, no corresponding injuries were found by the Medical Officer while conducting the medical examination of the victim. The stick produced in the Court had some nails, and the victim would have suffered injuries from the nails had she been beaten with the stick produced in the Court. However, no such injuries were noticed and this would 6 make the prosecution case suspect. The presence of Hemraj was highly doubtful. He was a chance witness and related to the victim and his presence at the spot was not established satisfactorily. There was a discrepancy regarding the production of the stick. These circumstances made the prosecution case highly suspect; hence, the accused were acquitted.
8. Being aggrieved from the judgment passed by the learned Appellate Court, the victim has preferred the present appeal asserting that the judgment passed by the learned Appellate Court is perverse. There was reliable evidence on record to establish the commission of the offence by the accused. The learned Appellate Court erred in reversing the well-reasoned judgment of the learned Trial Court. The victim's version that she had suffered injuries by twisting her little finger was duly corroborated by the medical evidence. The testimony of Hemraj could not have been rejected because he was on visiting terms with the victim. Minor discrepancies were not sufficient to discard the prosecution case, therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside.
7
9. I have heard Mr Janesh Mahajan, learned counsel for the appellant, Mr Chaman Negi, learned counsel for respondents No.1 to 5 and Mr Gautam Sood, learned Deputy Advocate General, for respondent No.6/State.
10. Mr Janesh Mahajan, learned counsel for the petitioner submitted that the learned Appellate Court erred in acquitting the accused. The victim had mentioned in her supplementary statement recorded by the police that her little finger was twisted by Sapna Devi and learned Appellate Court ignored this statement. The victim's testimony was duly corroborated by the testimony of Hemraj and Up-Pardhan who had visited the spot after the incident. Learned Appellate Court ignored their testimonies. Minor discrepancies were not sufficient to discard the prosecution case; hence, he prayed that the present appeal be allowed, the judgment passed by the learned Appellate Court be set aside and the judgment of the learned Trial Court be restored.
11. Mr. Chaman Negi, learned counsel for respondents No.1 to 5/accused submitted that the learned Appellate Court had taken a reasonable view based on the evidence led before the learned Trial Court. This Court should not interfere with a reasonable view of the learned Appellate Court merely because an 8 alternate view is possible. The victim had not mentioned the fact that her finger was twisted by Sapna Devi and her version in the Court regarding this fact was a major improvement. The presence of Hemraj (PW10) was not established. He and the victim had concealed their relationship. Learned Appellate Court had rightly held that he was a chance witness and the testimony of a chance witness was required to be seen with due care and caution. Learned Appellate Court had rightly discarded his testimony after evaluating it. There is no infirmity in the judgment passed by the learned Appellate Court; hence, he prayed that the present appeal be dismissed.
12. Mr. Gautam Sood, learned Deputy Advocate General for respondent No.6/State adopted the submissions made by Mr. Janesh Mahajan, learned counsel for the appellant.
13. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
14. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon'ble Supreme Court in Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine SC 130 that while deciding an appeal against acquittal, the High Court should see whether the evidence was properly appreciated 9 on record or not; second whether the finding of the Court is illegal or affected by the error of law or fact and thirdly; whether the view taken by the Trial Court was a possible view, which could have been taken based on the material on record. The Court will not lightly interfere with the judgment of acquittal. It was observed:
"25. We may first discuss the position of law regarding the scope of intervention in a criminal appeal. For that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretised when the case ends in acquittal. It is so because once the trial court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened, and a higher threshold is expected to rebut the same in appeal.
26. No doubt, an order of acquittal is open to appeal, and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to reappreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the trial court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the trial court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the trial court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere 10 difference of opinion. What is required is an illegality or perversity.
27. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The "two-views theory" has been judicially recognised by the courts, and it comes into play when the appreciation of evidence results in two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of the innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. Therefore, when two views are possible, following the one in favour of the innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the trial court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eye of the law.
28. In Selvaraj v. State of Karnataka [Selvaraj v. State of Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19]: (SCC pp. 236-37, para 13) "13. Considering the reasons given by the trial court and on an appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [Jagan M. Seshadri v. State of T.N., (2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus: (SCC p. 643, para 9) '9. ... We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those 11 grounds. It has not done so. Salutary principles while dealing with appeals against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view, and even if by any stretch of the imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal.'"
29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6 SCC 294: (2022) 2 SCC (Cri) 522], the Hon'ble Supreme Court analysed the relevant decisions and summarised the approach of the appellate court while deciding an appeal from the order of acquittal. It observed thus: (SCC p. 297, para 7) "7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 :
(2019) 2 SCC (Cri) 586] and Anwar Ali v. State of H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 : (2021) 1 SCC (Cri) 395] ).
7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P. [Atley v. State of U.P., 1955 SCC OnLine SC 51: AIR 1955 SC 807]).
7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320])." 12
15. This position was reiterated in Ramesh v. State of Karnataka, (2024) 9 SCC 169: 2024 SCC OnLine SC 2581, wherein it was observed at page 175:
"20. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa v. State of Karnataka [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325], regarding the power of the appellate court while dealing with an appeal against a judgment of acquittal. The principles read thus: (SCC p. 432, para 42) "42. ... (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law.
(3) Various expressions, such as "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc., are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption 13 of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
21. In Rajendra Prasad v. State of Bihar [Rajendra Prasad v. State of Bihar, (1977) 2 SCC 205: 1977 SCC (Cri) 308], a three- judge Bench of this Court pointed out that it would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the trial court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses, and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the trial court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice."
16. The present appeal has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
17. The initial version narrated to the police did not mention that the victim's finger was twisted by any person. On the other hand, it was stated that the sons of Sarwani Devi gave beatings to the victim. One son had a stick and he inflicted injury on the right hand and the arm. The victim sustained multiple injuries. The victim was medically examined on 09.04.2008 at 1:15 am and restricted movement was detected on the left little finger. She was referred for radiological examination and as per 14 the report dated 10.04.2008 the X-ray showed a fracture of the Distal Phalanx of the little finger of the left hand. Subsequently, the victim made the statement on 14.04.2008 stating that Sapna Devi had twisted the finger of the victim. Hence, it is apparent that the victim had introduced the version of twisting her finger after receipt of the report of the medical examination. It was laid down by the Hon'ble Supreme Court in Badri v. State of Rajasthan, (1976) 1 SCC 442: 1976 SCC (Cri) 60 that where a witness can modulate his version to suit the prosecution case, his testimony is suspect. It was observed at page 448:
"19.... The trial court has noted that Patram was "compelled to change his version a little" because of the doctor's opinion after the post-mortem examination was held on the spot the following morning. If a witness, who is the only witness against the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction, such a witness cannot be considered a reliable person and no conviction can be based on his sole testimony."
18. The victim had specifically stated in the entry recorded in the daily diary that she was beaten with a stick. No corresponding injuries were found on her person rather a fracture was found on the Distal Phalanx of the left little finger. The victim changed her version from she was beaten with the stick to her finger was twisted by Sapna Devi, which fact was not 15 mentioned in the entry in the daily diary. Learned Appellate Court had rightly held that omission of this fact would affect the prosecution version adversely. It was laid down by this Court in Nirmal Singh v. State of Himachal Pradesh, 1986 SCC OnLine HP 27:
1987 Cri LJ 1644 that where the prosecution tries to introduce a new version during the trial, the Court should be reluctant to accept it at its face value. It was observed at page 1647:
"9. Before we advert to the evidence we would like to point out that in case where the prosecution endeavours to introduce at the trial a new version or a version which is materially different from the original, as narrated in the first information report, the Court, as a rule of prudence, is required to act with utmost care and circumspection in scrutinising the evidence and normally it should be reluctant to accept the prosecution evidence at its face value unless a satisfactory and cogent explanation is given for the deviations and improvements made. This rule of prudence was completely ignored by the trial Court in the instant case, though it was fully applicable."
19. It was held by the Hon'ble Supreme Court in Ram Kumar Pandey v. State of M.P., (1975) 3 SCC 815: 1975 SCC (Cri) 225 that omission to state an important fact in the FIR will affect the probabilities of the prosecution's case. It was observed at page 818:
"9. No doubt, an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important 16 facts of the occurrence, so far as they were known up to 9- 15 p.m. on March 23, 1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the FIR We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case."
20. It was held in State of M.P. v. Dhirendra Kumar, (1997) 1 SCC 93: 1997 SCC (Cri) 54 that when the material facts not mentioned in the FIR are narrated by a witness, the substratum of the prosecution case gets altered and would cause a dent to the edifice on which the prosecution case is built. It was observed at page 96:
"11. It was very emphatically contended by Shri Gambhir that as in the first information report (FIR), there is no mention of the dying declaration, we should discard the evidence of PW 1 and PW 2 regarding the dying declaration, because of what has been pointed out by this Court in Ram Kumar Pandey v. State of M.P. [(1975) 3 SCC 815: 1975 SCC (Cri) 225: AIR 1975 SC 1026] We do not, however, agree with Shri Gambhir, for the reason that what was observed in Ram Kumar case [(1975) 3 SCC 815:
1975 SCC (Cri) 225: AIR 1975 SC 1026] after noting the broad facts, was that material omission in the FIR would cast doubt on the veracity of the prosecution case, despite the general law being that statements made in the FIR can be used to corroborate or contradict its maker. This view owes its origin to the thinking that if there be a material departure in the prosecution case as unfolded in the FIR, which would be so if material facts not mentioned in the FIR are deposed to by prosecution witnesses in the court, the same would cause a dent to the edifice on which the prosecution case is built, as 17 the substratum of the prosecution case then gets altered. It is apparent that the prosecution cannot project two entirely different versions of a case. This is entirely different from thinking that some omission in the FIR would require disbelieving of the witnesses who depose about the fact not mentioned in the FIR. Evidence of witnesses has to be tested on its own strength or weakness. While doing so, if the fact deposed be a material part of the prosecution case, about which, however, no mention was made in the FIR, the same would be borne in mind while deciding about the credibility of the evidence given by the witness in question."
21. It was held in Sujit Biswas v. State of Assam, (2013) 12 SCC 406: (2014) 1 SCC (Cri) 677: 2013 SCC OnLine SC 488 that omission to narrate important facts is an important fact under Section 11 of Indian Evidence Act. It was observed at page 416:
"24. Undoubtedly, the FIR lodged has disclosed the previous statement of the informant which can only be used to either corroborate or contradict the maker of such statement. However, in the event that the informant is a person who claims to know the facts, and is also closely related to the victim, it is expected that he would have certainly mentioned in the FIR, all such relevant facts. The omission of important facts affecting the probability of the case is a relevant factor under Section 11 of the Evidence Act to judge the veracity of the case of the prosecution. (Vide Ram Kumar Pandey v. State of M.P. [(1975) 3 SCC 815: 1975 SCC (Cri) 225: AIR 1975 SC 1026])"
22. In the present case, the learned Trial Court had ignored this material improvement in the prosecution case, and 18 the learned Appellate Court had rightly reversed the judgment of the learned Trial Court.
23. A heavy reliance was placed by the learned Trial Court on the testimony of Hemraj (PW2). Learned Appellate Court held that he was related to the victim and was a chance witness. Shanti Devi (PW3) stated in her cross-examination that Hemraj was related to the victim. The victim and Hemraj denied the relationship in their cross-examination, which means that they are concealing a material fact from the Court. Hemraj stated that he belongs to a different village and does not have any residence in village Changer, the place of the incident. He explained that he had visited the village to extend an invitation for marriage; however, no material was placed on record to show that any marriage was being solemnized around the date of the incident. It was laid down by the Hon'ble Supreme Court in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200: 2022 SCC OnLine SC 150 that the testimony of a chance witness is to be seen with due care and caution and his presence on the spot should be satisfactorily established. It was observed:
"Chance witness
29. A chance witness is one who happens to be at the place of occurrence of an offence by chance, and therefore, not 19 as a matter of course. In other words, he is not expected to be in the said place. A person walking on a street witnessing the commission of an offence can be a chance witness. Merely because a witness happens to see an occurrence by chance, his testimony cannot be eschewed though a little more scrutiny may be required at times. This again is an aspect which is to be looked into in a given case by the court. We do not wish to reiterate the aforesaid position of law which has been clearly laid down by this Court in State of A.P. v. K. Srinivasulu Reddy [State of A.P. v. K. Srinivasulu Reddy, (2003) 12 SCC 660: 2005 SCC (Cri) 817]: (SCC pp. 665-66, paras 12-13) "12. Criticism was levelled against the evidence of PWs 4 and 9 who are independent witnesses by labelling them as chance witnesses. The criticism about PWs 4 and 9 being chance witnesses is also without any foundation. They have clearly explained as to how they happened to be at the spot of occurrence and the trial court and the High Court have accepted the same.
13. Coming to the plea of the accused that PWs 4 and 9 were "chance witnesses" who have not explained how they happened to be at the alleged place of occurrence, it has to be noted that the said witnesses were independent witnesses. There was not even a suggestion to the witnesses that they had any animosity towards any of the accused. In a murder trial by describing the independent witnesses as "chance witnesses" it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an 20 explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."
30. The principle was reiterated by this Court in Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2009) 9 SCC 719: (2010) 1 SCC (Cri) 107]: (SCC p. 725, paras 21-23) "21. In Sachchey Lal Tiwari v. State of U.P. [Sachchey Lal Tiwari v. State of U.P., (2004) 11 SCC 410: 2004 SCC (Cri) Supp 105] this Court while considering the evidentiary value of the chance witness in a case of murder which had taken place in a street and a passer-by had deposed that he had witnessed the incident, observed as under:
If the offence is committed in a street only a passer-by will be the witness. His evidence cannot be brushed aside lightly or viewed with suspicion on the ground that he was a mere chance witness. However, there must be an explanation for his presence there.
The Court further explained that the expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country like India where people are less formal and more casual, at any rate in the matter of explaining their presence.
22. The evidence of a chance witness requires very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh [Satbir v. Surat Singh, (1997) 4 SCC 192: 1997 SCC (Cri) 538], Harjinder Singh v. State of Punjab [Harjinder Singh v. State of Punjab, (2004) 11 SCC 253: 2004 SCC (Cri) Supp 28], Acharaparambath Pradeepan v. State of Kerala [Acharaparambath Pradeepan v. State of 21 Kerala, (2006) 13 SCC 643 : (2008) 1 SCC (Cri) 241] and Sarvesh Narain Shukla v. Daroga Singh [Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360 :
(2009) 1 SCC (Cri) 188] ). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan [Shankarlal v. State of Rajasthan, (2004) 10 SCC 632: 2005 SCC (Cri) 579] ).
23. Conduct of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident (vide Thangaiya v. State of T.N. [Thangaiya v. State of T.N., (2005) 9 SCC 650:
2005 SCC (Cri) 1284]). Gurcharan Singh (PW 18) met the informant Darshan Singh (PW 4) before lodging the FIR and the fact of conspiracy was not disclosed by Gurcharan Singh (PW 18) and Darshan Singh (PW 4). The fact of conspiracy has not been mentioned in the FIR. Hakam Singh, the other witness on this issue has not been examined by the prosecution. Thus, the High Court was justified in discarding the part of the prosecution case relating to conspiracy. However, in the fact situation of the present case, the acquittal of the said two co-accused has no bearing, so far as the present appeal is concerned."
24. Therefore, the presence of Hemraj and the fact that he was an eyewitness was required to be established satisfactorily. However, no wedding card was placed on record and no witness stated that Hem Raj distributed the cards on the date of the 22 incident. Hence, his presence has not been established and the learned Appellate Court had rightly rejected his testimony.
25. The entry in the daily diary mentions that the victim shouted for help on which, Hemraj visited the spot and rescued her from the accused. It means that the incident was complete before the arrival of Hemraj. Hemraj while appearing as PW2 stated that he saw 2 or 3 women and two men having a scuffle with Jeewana Devi. They ran away after seeing him (Hemraj) which means that he had not witnessed the incident. When he appeared as PW10 after the addition of the other accused and alteration of the charge, he claimed that Jeewana Devi was erecting the fence. Jai Chand removed the stick from the fence and inflicted a blow on the victim's left hand. Thus, he has tried to show himself as the witness to the incident from its commencement. This shows that Hemraj is prone to improvements and learned Appellate Court had rightly discarded his testimony.
26. Heavy reliance was placed upon the statement of Shanti Devi; however, she is not an eyewitness to the incident. She came to the spot after the incident and was told about the incident by the victim. Hence, her statement is hearsay. Section 6 23 of the Indian Evidence Act makes the statement of a person admissible if it is made during a transaction. It was laid down by the Hon'ble Supreme Court in Sukhar v. State of U.P., (1999) 9 SCC 507: 2000 SCC (Cri) 419: 1999 SCC OnLine SC 1005 that the statement under Section 6 can be admitted if the statement is contemporaneous with the transaction. It was observed at page 511:
"6. Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore's Evidence Act reads thus:
"Under the present exception [to hearsay] and utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued."
7. Sarkar on Evidence (15th Edn.) summarises the law relating to the applicability of Section 6 of the Evidence Act thus:
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"1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover, the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.
2. The declarations must be substantially contemporaneous with the facts and not merely the narrative of a past.
3. The declaration and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and bystanders. In conspiracy, riot & c the declarations of all concerned in the common object are admissible.
4. Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters stated."
8. This Court in Gentela Vijayavardhan Rao v. State of A.P. [(1996) 6 SCC 241: 1996 SCC (Cri) 1290] considering the law embodied in Section 6 of the Evidence Act held thus:
(SCC pp. 246-47, para 15) "15. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue 'as to form part of the same transaction' that it becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statements or facts admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such a fact or statement must be a part of the same transaction. In other words, such a statement must have been made contemporaneous with the acts which 25 constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae."
9. In another recent judgment of this Court in Rattan Singh v. State of H.P. [(1997) 4 SCC 161: 1997 SCC (Cri) 525] this Court examined the applicability of Section 6 of the Evidence Act to the statement of the deceased and held thus: (SCC p. 167, para 16) "[T]he aforesaid statement of Kanta Devi can be admitted under Section 6 of the Evidence Act on account of its proximity of time to the act of murder. Illustration 'A' to Section 6 makes it clear. It reads thus:
'(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.' (emphasis supplied) Here the act of the assailant intruding into the courtyard during the dead of the night, the victim's identification of the assailant, her pronouncement that the appellant was standing with a gun and his firing the gun at her, are all circumstances so intertwined with each other by proximity of time and space that the statement of the deceased became part of the same transaction. Hence it is admissible under Section 6 of the Evidence Act."
27. In the present case, the statement was not made at or about the time of the incident, and it was not part of the same transaction. Hence, the statement is inadmissible.
28. Sanjay Kumar (PW4) was told about the incident on the mobile phone by the victim. He has not stated that the call 26 was made at or about the time when the incident had taken place.
Hence, his statement also cannot be admitted.
29. Prithvi Singh stated that Hemraj told him about the scuffle. It is not shown that Hemraj had made the statement at or about the time of the incident and the statement made by Hemraj to Prithvi Singh cannot be admitted as part of the same transaction.
30. There is no other evidence in support of the incident, and the learned Appellate Court had taken a reasonable view, which could have been taken based on the evidence led before the learned Trial Court. This Court will not interfere with the reasonable view of the learned Appellate Court even if the other view is possible.
31. No other point was urged.
32. Therefore, the present appeal fails and the same is dismissed.
33. In view of the provisions of Section 437-A of the Code of Criminal Procedure [Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)], the respondents/accused are directed to furnish their personal bond in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the 27 learned Registrar (Judicial) of this Court/learned Trial Court, within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondents/accused, on receipt of notice(s) thereof, shall appear before the Hon'ble Supreme Court.
34. A copy of this judgment, along with the records of the learned Trial Court, be sent back forthwith. Pending miscellaneous application(s), if any, also stand(s) disposed of.
(Rakesh Kainthla) Judge 4th March, 2025 (saurav pathania)