12. Here only, we may record that the presence of the accused on the spot is not disputed by anyone of them. This we may say so not only from the line of their cross-examination of the witnesses but also as we would notice hereinafter, to have come on record through the testimonies of the witnesses, who despite not having supported the prosecution on the issue of the accused having assaulted the deceased, have supported on this count. Perusal of cross-examination part of the witness, despite being cross-examined extensively, is consistent in his testimony to the effect that the accused caught hold of the deceased and inflicted serious injuries upon his person. The accused had used chilli powder as a weapon to stop him from fleeing away and pushed him to the ground. Though, the witness is not clear as to which one of the accused had assaulted the deceased after he fell down, but then he is categorical with regard to the role played by each one of them.
xxx
16. It is stated that it is the quality and not the quantity of the witnesses that matters and since, PW-1 is an interested witness being the brother of the deceased, and that his statement is not “inherently believable” or of “sterling quality” as recently held by this Court, in the presence of two possible versions, the one that favours the accused is required to be taken.
17. This Court has on numerous occasions considered cases similar in nature, and, from such consideration emanated various principles in deciding the cases. Some of the principles essential for the instant lis to be decided are –
17.1 Evidence of hostile witness
a) Corroborated part of the evidence of a hostile witness regarding the commission of offence is admissible. Merely because there is deviation from the statement in the FIR, the witness’s statements cannot be termed totally unreliable;
b ) The evidence of a hostile witness can form the basis of conviction.
c) The general principle of appreciating the evidence of eye-witnesses is that when a case involves a large number of offenders, prudently, it is necessary, but not always, for the Court to seek corroboration from at least two more witnesses as a measure of caution. Be that as it may, the principle is quality over quantity of witnesses. [Mrinal Das Vs. State of Tripura (2011) 9 SCC 479].
17.2 Effect of omissions, deficiencies
Evidence examined as a whole, must reflect/ring of truth. The court must not give undue importance to omissions and discrepancies which do not shake the foundations of the prosecution’s case. [Rohtash Kumar Vs. State of Haryana (2013) 14 SCC 434; Bhagwan Jagannath Markad Vs. State of Maharashtra (2016) 10 SCC 537; and Karan Singh Vs. State of Uttar Pradesh (2022) 6 SCC 52].
17.3 Reliance on single witness
If a witness is absolutely reliable then conviction based thereupon cannot be said to be infirm in any manner. [Karunakaran Vs. State of Tamil Nadu (1976) 1 SCC 434; and Sadhuram Vs. State of Rajasthan (2003) 11 SCC 231].
17.4 Testimony of a close relative
A witness being a close relative is not a ground enough to reject his testimony. Mechanical rejection of an even “partisan” or “interested” witness may lead to failure of justice. The principle of “falsus in uno, falsus in omnibus” is not one of general application. [Bhagwan Jagannath Markad Vs. State of Maharashtra (2016) 10 SCC 537].
17.5 Preponderance of probabilities
To entitle a person to the benefit of a doubt arising from a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. [Gopal Reddy Vs. State of Andhra Pradesh (1979) 1 SCC 355].
17.6 Delay in sending fir
Unless serious prejudice is caused, mere delay in sending the FIR to the Magistrate would not, by itself, have a negative effect on the case of the prosecution. [[State of Rajasthan Vs. Doud Khan (2016) 2 SCC 607]. One of the external checks against ante-dating or ante timing an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. A dispatch of a copy of the FIR forthwith ensures that there is no manipulation or interpolation in the FIR. [Mehraj Vs. State of U.P. (1994) 5 SCC 188; and Ombir Singh Vs. State of U.P. (2020) 6 SCC 378].
17.7 Last seen theory
On its own, last seen theory is considered to be a weak basis for conviction. However, when the same is coupled with other factors such as when the deceased was last seen with the accused, proximity of time to the recovery of the body of deceased etc. The accused is bound to give an explanation under Section 106 of the Evidence Act, 1872. If he does not do so, or furnishes what may be termed as wrong explanation or if a motive is established – pleading securely to the conviction of the accusedclosing out the possibility of any other hypothesis, then a conviction can be based thereon. [Satpal Singh Vs. State of Haryana (2018) 6 SCC 610; and Ram Gopal Vs. State of M.P. (2023) SCC OnLine 158].
17.8 Cases involving several accused persons
A three judge bench of which one of us (B.R Gavai J.) was a member, observed as under in respect of the application of Section 149, of the Indian Penal Code, 1860-
“30. Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew would be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence, and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed.” [Hari v. State of UP 2021 SCC OnLine SC 1131; Shambhu Nath Singh v. State of Bihar, AIR 1960 SC 725]
While overt act and active participation may indicate common intention of the person perpetrating the crime, the merepresence in the unlawful assembly may fasten vicariously criminal liability under Section 149. [Lalji Vs. State of U.P. (1989) 1 SCC 437].
When a case involves large number of assailants it is not possible for the witness to describe the part played therein by each of such persons. It is not necessary for the prosecution to prove each of the members’ involvement especially regarding which or what act. [Masalti Vs. State of UP AIR 1965 SC 202].
17.9 Power of court of appeal
a) The Court of appeal has wide powers of appreciation of evidence in an order of acquittal as in the order of conviction, along with the rider of presumption of innocence which continues across all stages of a case. Such Court should give dueimportance to the judgment rendered by the Trial Court. [Atley Vs. State of UP AIR 1955 SC 807].
b) Referring to Gurudutt Pathak Vs. State of U.P. [(2021) 6 SCC 116] the judgment in Geeta Devi Vs. State of U.P. [2022 SCC OnLine 57], this Court appreciated the law on this aspect and then observed that the High Court, being the First Appellate Court must discuss/re-appreciate the evidence onrecord. Failure to do so is a good ground enough to remand the matter for consideration.
17.10 Power of the Supreme Court under Article 136
In the absence of very special circumstances or in the presence of gross errors of law committed by the High Court, this Court does not interfere with the concurrent findings of fact of the courts below. [Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116]. The limitations under Article 136 are self-imposed limitations where in the ordinary course appreciation of evidence is not to be done in the absence of manifest error or the judgment, subject matter of the special leave, being ex facie perverse. [Kalamani Tex Vs. P. Balasubramanian (2021) 5 SCC 283].
Principles regarding delay in lodging fir
20. In regard to the delay in the FIR reaching the Magistrate, it is the settled position of law that each and every delay caused is not fatal to a case in the absence of demonstrated prejudice [Bhajan Singh @ Harbhajan Singh Vs. State of Haryana (2011) 7 SCC 421]. In Chotkau (supra) it has been held that a Court is “duty bound to see the effect of such delay on investigation and even the credit worthiness of the investigation.” In the present case, though, while there is reliance at the Bar on this principle no submission has been made to show prejudice having been caused to the accused. Statements sans adequate backing cannot sway the Court. Even the delay in the receipt of the FIR with the concerned Magistrate cannot be a reason to disbelieve the prosecution case. It is not a case of non-compliance of provisions equally the delay is not inordinate so as to cast any doubt. For an FIR registered on 13.08.2004 at 4.45 p.m. was immediately forwarded and received at 1.15 a.m.
Whether the testimony of a single eye-witness is sufficient to put all the eight persons behind bars for life?
23. The primary submission led was that reliance on a solitary witness to convict as many as eight people (now six, withproceedings against two having abated on their death) is excessive. On a specific query by the Court as to what the learned counsel can point to, to impeach the veracity of PW-1’s testimony the answer was to say that looking at a number of external factors as also the testimonies of other witnesses, the elements to demolish the credibility are present – which to our mind does not merit interference. For the heightened scrutiny requirement, as observed by this Court in Jagdish Vs. State of Haryana [(2019) 7 SCC 711] to be held as unsatisfied, the surrounding evidence would have to be called into credible question, which it was not. The admissions made by PW-7 in his examination in chief have not been disputed and neither has, as already observed earlier, the presence of any of the accused been disputed. Keeping in view the principles noted in Mrinal Das (supra), Rohtash Kumar (supra), Karan Singh (supra) and Karunakaran (supra), the testimony of PW-1 can undoubtedly form the basis of conviction of the accused persons.
Prosecution need not prove specific acts to specific persons
24. We have also noticed the holding in the landmark Masalti (supra), where four learned judges have held that the prosecution need not prove specific acts to specific persons. With neither the number nor the presence of the accused being disputed, we cannot, within law, hold that the accused have been wrongly convicted by the courts below.
Appreciation of interested witness
25. PW-1 is an interested witness, being the brother of the deceased; as also he being the solitary witness upon which reliance is placed by the learned Trial Court is put forward as a ground before us to question the verdicts. The position of law as held in Harbans Kaur Vs. State of Haryana [(2005) 9 SCC 195]is clear in stating that there is no proposition of law which doubts the statement of a close relative simply for that reason. There is a note of caution sounded in Bhaskarrao Vs. State of Maharashtra [(2018) 6 SCC 591] which is undoubtedly on point but we may also note the observation of this Court in Rajesh Yadav Vs. State of U.P. [2022 SCC OnLine 150] wherein it has been observed:
“30. Once again, we reiterate with a word of caution, the trial court is the best court to decide on the aforesaid aspect as no mathematical calculation or straightjacket formula can be made on the assessment of a witness, as the journey towards the truth can be seen better through the eyes of the trial judge. In fact, this is the real objective behind the enactment itself which extends the maximum discretion to the court.
Party
RAVASAHEB @ RAVASAHEBGOUDA ETC. vs. STATE OF KARNATAKA – CRIMINAL APPEAL NOS.1109-1110 OF 2010 – 16.March.2023 [3 Judge Bench].
Ravisahed @ Ravasahebgouda vs. State of Karnataka 4612_2010_8_1501_42730_Judgement_16-Mar-2023
