Paragraph numbers below are the court’s original numbering, recovered from the source text.
14. Per contra, the learned counsel for the Respondents has primarily reiterated the reasons that found favour with the High Court in recording an order of acquittal in favour of the Respondents viz. failure of prosecution to prove beyond reasonable doubt that the accused persons Bhanwarlal, S, .eeshpal, Nemichand and Shiv Bhagwan hatched criminal conspiracy at the Dhani ofSheeshpal at around 7-8 p.m. on 19.12.1993 and that the prosecution case suffered from contradictions, discrepancies and inconsistencies and, in particular, that the testimony of eye witnesses did not inspire confidence due to the reasons recorded by the High Court.
15. We have given careful consideration to the submissions made by the parties and we are inclined to agree with the observations of the High Cou11 that PW3 and PW9 were not witnesses to the alleged conspiracy between the accused persons since not only the details of the conversation given by these two prosecution witnesses were different but also their presence at the alleged spot at the relevant time seems unnatural in view of the physical condition of PW9 and the distance of Sheeshpal's Dhani from Sikar road. Besides, it appears that there have been improvements in the statements of PW3. The Explanation to Section 162 Cr.P.C. provides that an omission to state a fact or circumstance in the statement recorded by a police officer under Section 161 Cr.P.C., may amount to contradiction ifthe same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
Thus, while it is true that c c every improvement is not fatal to the prosecution case, in cases where an improvement creates a serious doubt about the truthfulness or credibility of a witness, the defence may take advantage of the same. [See Ashok Vishnu Davare Vs. State Of Maharashtra, (2004) 9 SCC 431; Rad ha Kumar Vs. State of Bihar (now Jharkhand), (2005) IO SCC 216; Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. Vs. State of Maharashtra, (2010) 13 SCC 657 and Baldev Singh Vs. State of Punjab, (2014) 12 SCC 473]. In our view, the High Court had rightly considered these omissions as material omissions amounting to contradictions covered by the Explanation to Section 162 Cr.P.C. Moreover, it has also come in evidence that there was a delay of 15-16 days from the date of the incident in recording the statements of PW3 and PW9 and the same was sought to be unconvincingly explained by reference to the fact that the family had to sit for shock meetings for 12 to 13 days. Needless to say, we are not impressed by this explanation and feel that the High Court was right in entertaining doubt in this regard.
16. As regards the incident of murder of the deceased, the prosecution has produced six eye-witnesses to the same. The argument raised against the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police under Section 161 of Cr.P.C. In the present case, the date of occurrence was 21.12.1993 but the statements of PW I and PW 5 were recorded after two days of incident, i.e., on 23.12.1993. The evidence of PW6 was recorded on 26.12.1993 while the evidence of PW! I was recorded after I 0 days of incident, i.e., on 31.12.1993. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The Court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the Court. [See Ganeshlal Vs. State of Mahrashtra, ( 1992) 3 SCC I 06; Mohd. Khalid Vs. State of W.B., (2002) 7 SCC 334; Prithvi (Minor) Vs. Mam Raj & Ors., (2004) 13 SCC 279 and Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC
17. However, Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 sec 371, is an authority for the proposition that delay in recording of statements of the prosecution witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon HARBEER SINGH v. SHEESHPAL & ORS. [PINAKI CHANDRA GHOSE, J.] thereafter, would cast a doubt upon the prosecution case. [See also Balakrushna Swain Vs. State OfOrissa, (1971) 3 SCC 192; Maruti Rama Naik Vs. State of Mahrashtra, (2003) I 0 SCC 670 and Jagjit Singh Vs. State of Punjab, (2005) 3 SCC 68]. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case.
18. Further, the High Court has also concluded that these witnesses were interested witnesses and their testimony were not corroborated by independent witnesses. We are fully in agreement with the reasons recorded by the High Court in coming to this conclusion.
19. In Darya Singh Vs. State of Punjab, AIR 1965 SC 328 = c 1964 (7) SCR 397, this Court was of the opinion that a related or' interested witness may not be hostile to the assailant, but ifhe is, then his evidence must be examined very carefully and all the infirmities must be taken into account. This is what this Court said: "There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully …….. But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, Courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence …… If the -criminal Cow1 is satisfied that the witness who is related to the victim was not a chance-witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised."
20. However, we do not wish to emphasise that the corroboration by independent witnesses is an indispensable rule in cases where the prosecution is primarily based on the evidence of seemingly interested c [2016) 8 S.C.R. witnesses. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement.
21. Further, in Raghubir Singh Vs. State ofU.P., ( 1972) 3 SCC 79, it has been held that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. In this connection general reluctance of an average villager to appear as a witness and get himself involved in cases ofrival village factions when spirits on both sides are running high has to be borne in mind.
22. The High Court has further noted that there were chance witnesses whose statements should not have been relied upon. Learned counsel for the Respondents has specifically submitted that PW5 and PW6 are chance witnesses whose presence at the place of occurrence was not natural.
23. The defining attributes ofa 'chance witness' were explained by Mahajan, J., in the case of Puran Vs. The State of Pun.jab, AIR 1953 SC 459. It was held that such witnesses have the habit of appearing suddenly on the scene when something is happening and then disappearing after noticing the occurrence about which they are called later on to give evidence. 24. ln Mousam Singha Roy and Ors. Vs. State ofW.B., (2003) 12 SCC 377, this Court discarded the evidence of chance witnesses while observing that certain glaring contradictions/omissions in the evidence of PW2 and PW3 and the absence of their names in the FIR has been very lightly discarded by the Courts below. Similarly, Shankarlal Vs. State of Ra.iastahan, (2004) I 0 SCC 632, and Jarnail Singh & Ors. Vs. State of Punjab, (2009) 9 SCC 719, are authorities for the proposition that deposition of a chance witness, whose presence at the place of incident remains doubtful, ought to be discarded. Therefore, for the reasons recorded by the High Court we hold that PW5 and PW6 were chance witnesses and their statements have been rightly discarded.
25. In the light of the above and other reasons recorded by the High Court, we hold that the evidence of the eye witnesses is not truthful, reliable and trustworthy and hence cannot form the basis of conviction. HARBEER SINGH v. SHEESHPAL & ORS. (PINAKI CHANDRA GHOSE, J.] Their presence at the scene of occurrence at the time of the incident is highly unnatural as also their ability to individually and correctly identify each of the accused from a considerable distance, especially when it was dark at the alleged place of occurrence, is itself suspect.
26. Besides these, the prosecution has also been unable to convincingly connect the jeep of the accused Sheeshpal with the incident beyond reasonable doubt. Further, owing to other lapses in investigation, as recorded by the High Court, we are convinced that the prosecution has been unable to prove its case beyond all reasonable doubt. The view taken by the High Court in the facts and circumstances of the case • appears to be a reasonably plausible one.
27. Thus, in the light of the above discussion, we are of the view that the present appeals are devoid of merits, and we find no ground to interfere with the judgment passed by the High Court. The appeals are, accordingly, dismissed. Ankit Gyan Appeals dismissed. c