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
10difference 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
11grounds. 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
13of 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
16facts 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
17the 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
19as 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:
24
“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
25constitute 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
26was 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)
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