- Non-examination of independent witness is not a factor to cast doubt on the prosecution version.
- Merely because there was some change in time of the lodging of FIR, that does not per se render prosecution version vulnerable.
- Section 34 has no requirement that all the accused must come together.
- It is common intention of the accused which is material and not how they converge on the place of occurrence.
- Non-mention of assailants’ name in requisition memo of injury does not render prosecution case brittle.
- Injured Witnesses cannot be discarded merely for reason of their statements being recorded under Section 164 Cr.P.C.
The Supreme Court of India in State of Madhya Pradesh Vs. Mansingh, (2003) 10 SCC 414 : 2003 (2) Suppl. SCR 460 : 2003 (6) SCALE 429 : JT 2003 (1) Suppl. 252 : 2003 (3) Cri.C.C. 559 : 2003 (6) Supreme 202 : 2003 (4) SLT 927 : 2003 (8) SRJ 309 : 2003 (3) Crimes 381 : 2003 (3) CCR 158 : 2003 (3) JCC 1339 : 2003 (4) RecentCR 232 : 2003 (6) CRJ 642 held that mere non-mention of the name of an eye-witness does not render prosecution version fragile.
A bench comprising of Justice Doraiswamy Raju and Justice Arijit Pasayat observed that there is no hard and fast rule that the names of all witnesses more particularly eye- witnesses should be indicated in FIR.
Evidence of person whose name is not mentioned in FIR does not perforce become suspect. Such witnesses have greater evidentiary value, their statements cannot be discarded lightly unless compelling reasons exist.
the Court said.
Respondent-accused were charged under Section 302 r/w Section 34 and Section 324 r/w Section 34 IPC for having caused death of one person and for assaulting PWs 4 and 7, the injured eyewitnesses. During trial 10 prosecution witnesses were examined.
PW-8 was examined to substantiate the claims that oral dying declaration was made by the deceased before him implicating the accused. Accused were convicted under Section 302 r/w Section 34 and two of the accused were convicted under Section 323 r/w Section 34.
On appeal, High Court found that there was manipulation about the time of occurrence in FIR, that during investigation, though the knife was found at the spot of incident, there is no mention as to how it happened to be there; that though the accused were named in FIR but were not arrested even after four months of the incident; that the name of PW8 was not mentioned in FIR; that there was no explanation as to the need for recording statement of the injured witnesses; that provisions of Section 157 Cr.P.C. were not complied with; and that the names of the accused did not find place in the requisition for injury reports.
In view of the discrepancies in the prosecution case, accused were not found guilty and hence acquitted. In appeal to the Apex Court, respondents contended that High Court rightly acquitted the accused; that an independent witness who, according to PW8, was present was not examined; that there is no explanation as to why the statement made by the deceased before Tehsildar, was not brought on record; that Section 34 was not applicable as all the four accused did not come together at the place of occurrence; and that the case is not covered by Section 302 r/ w Section 34 IPC, but the same can at the most be covered u/s 324/325 or 304 Part II IPC.
Allowing the appeal, the Apex Court held that the judgment of High Court is indefensible for more reasons than one. It has not been indicated as to why and how the High Court came to the conclusion about non-compliance with the requirements of Section 157 Cr.P.C. It has not been indicated as to what is the requirement and what proof was required to be adduced.
Importance does not appear to have been attached to the evidence of injured witnesses PWs 4 and 7, on the ground that their statements were recorded under Section 164 Cr.P.C. Evidence of witnesses cannot be discarded merely because their statements were recorded under Section 164 of the Code. All that is required as a matter of caution is a careful analysis of the evidence.
The evidence of injured witnesses have greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Merely because there was no mention of a knife in the First Information Report, that does not wash away the effect of evidence tendered by the injured witnesses PWs 4 and 7.
Minor discrepancies do not corrode credibility of otherwise acceptable evidence. The circumstances highlighted by the High Court to attach vulnerability to evidence of the injured witnesses are clearly inconsequential. Omission to mention the name of the assailants in the requisition memo, perforce does not render prosecution version brittle.
# Non-mention of Name in the FIR
One of the circumstances highlighted by the High Court to discard the evidence of PW 8 is non-mention of his name in the FIR. Evidence of the person whose name did not figure in the FIR as witness does not perforce become suspect. There can be no hard and fast rule that the names of all witnesses more particularly eye-witnesses should be indicated in the FIR. Mere non-mention of the name of an eye-witness does not render prosecution version fragile.
High Court failed to notice that evidence of PWs 4 and 7 was to the effect that they left the deceased in injured condition and rushed to the police station. The arrival of PW8 near the deceased, according to prosecution, was thereafter. His presence could not have been noted by PW4 who lodged FIR and, therefore, non-mention of his name in the FIR is the natural consequence. The High Court has completely misread the evidence in this regard.
Even if it is accepted that there were deficiencies in investigation as pointed out by the High Court, that cannot be a ground to discard the prosecution version which is authentic, credible and cogent. He was not an eye-witness and according to the version of PW8 he arrived after PW 8. When PW 8 has been examined, his non- examination is of no consequence.
# Non-mention of knife recovered from the spot
The plea regarding non-mention of knife is unsustainable. From a reading of the evidence on record it appears that mention was made about a sharp- edged weapon affixed to a stick being used.
Prosecution’s failure to produce the statement purported to have been recorded by the Tehsildar cannot be a factor to throw doubt on prosecution version. Though PW4 has stated that the Tehsildar had come and had noted some statements after inquiries, the investigating officer has not been asked about the recording of any such statement by the Tehsildar. It is not known as to under what circumstance the Tehsildar had come and noted the statement as stated.
# Change in time of the lodging of FIR
Merely because there was some change in time of the lodging of FIR, that does not per se render prosecution version vulnerable. At the most the requirement was a careful analysis of the evidence, which has been done by the Trial Court. One material factor which the High Court missed to notice is that the spot map was prepared at 13.30 p.m. and PW 8 is the witness to the map.
# Section 34 IPC
Plea that Section 34 has no application because all the four accused did not come together is one which is liable to be rejected. Section 34 has no requirement that all the accused must come together. It is their common intention which is material and not how they converage on the place of occurrence.
Looking at the nature of injuries and the manner of assaults established by evidence. Section 302 IPC has clear application and not Section 304 Part II.
This Criminal Appellate Jurisdiction of the Apex Court exercised in Criminal Appeal No. 825 of 1996 arose from the Judgment and Order dated 5.11.1992 of the Madhya Pradesh High Court in Crl. A. No. 397 of 1985.
Advocates Siddhartha Dave and Ms. Vibha Datta Makhija appeared for the Appellant and Sushil Kumar Jain, H.D. Thanvi, Anil Vyas, Alok Bachawat, Ms. Anjali Doshi and Ms. Ruchi Kohli for the Respondent.
# Case Law Reference on Evidence
- Balas Ram and Anr. v. State of U.P., AIR (1974) SC 2165
- Chittar Lal v. State of Rajasthan, (2003) AIR SCW 3466
- Ram Charan and Ors. v. The State of U.P., AIR (1968) SC 1270
- Shri Bhagwan v. State of Rajasthan,  6 SCC 296