Paragraph numbers below are the court’s original numbering, recovered from the source text.
22. For an eye-witness to be believed, his evidence, it has been held, should be of sterling quality. It should be capable of being taken at face value. The principle has been discussed in Rai Sandeep @ Deepu alias Deepu v. State (NCT of Delhi)35 as follows- “22. In our considered opinion, the “sterling witness” should be of very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and 35 (2012) 8 SCC 21 [2 Judge Bench] every one of other supporting material such as the recoveries made, the weapons used, the manner of off ence committed, the scientifi c evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the off ence alleged against him. Only if the version of such a witness qualifi es the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the off ence to rely on the core version to sieve the other supporting materials for holding the off ender guilty of the charge alleged.” (emphasis supplied) This was quoted with profi t by this Court in Ganesan v State36. Recently, this principle was further reiterated in Naresh @ Nehru v State of Haryana37.
23. As the above discussion would show vis-à-vis the delineation on the qualities of a sterling witness, none of the witnesses of the prosecution would qualify per this standard. Numerous contradictions and inconsistencies have borne from record, rendering such witnesses to be unreliable and undependable so as to place reliance on the same to hold the accused persons guilty of having committed an off ence.
24. On circumstantial evidence, the trial court has examined the testimonies of PWs 1-5, 10, 13 and 15. We have, above, discussed PWs 1, 2, 3, and 4 along with 15. We now proceed to discuss PWs 10, and 13, 36 (2020) 10 SCC 573 [3 Judge Bench] 37 Criminal Appeal No.1786 Of 2023 [2 Judge Bench] MANJUNATH & ORS. v. STATE OF KARNATAKA [SANJAY KAROL, J.] independently. PW5, although classifi ed as a circumstantial witness, a reading of the same suggests the witness to be an eyewitness. 24.1 PW10 stated that upon seeing the group of persons, I ran in diff erent directions with him running towards Thadhooru. While there, he heard of his brother (deceased) having sustained various injuries. Pursuant to such information he went to the hospital where he stated that the deceased himself stated that “Manjunath and his henchmen of our village assaulted him” he stated, he never went to the place where the deceased was lying nor could he say who informed him of his brother’s injuries. Hence, his statement is the nature of hearsay. 24.2 The circumstances, which are mentioned within the testimonies relied on by the trial court, we fi nd, that they do not, conclusively point to the guilt of all the accused. The following conclusions from the circumstantial evidence on record, support our conclusion- apart from PW15 none of the witnesses relied on, name all accused persons; a group of 25 to 30 people is generally referred to- a general description does not indicate guilt. Secondly, the factum of enmity although repeatedly testifi ed to by numerous witnesses, upon itself cannot thrust upon the accused, the guilt for having killed the deceased person. This view is supported by the fact that the criminal case lodged as a result of the altercation between a brother of the deceased and certain accused persons resulted in their acquittal, as has been noted by the trial court. 24.3 It is true that certain witnesses such as PW4 categorically mentioned certain accused persons holding particular weapons. As a solitary aspect, it can be seen as indicating a particular act done by the accused, aiding the death of the deceased person. However, the medical evidence of PW1 negates that possibility as well. The relevant extract of the testimony is reproduced: – “ I see the clubs at M.O. 3. they are of about 4 feet length and 3 inches in diameter. If a person is assaulted repeatedly by such clubs, he would sustain several abrasions, contusions and lacerations. When I examined the deceased Byregowda clinically, I did not found any abrasions lacerations of contusions on his back or chest and so also on the abdomen. I did not fi nd any incised injury on the body of the deceased.” 24.4 While it may be true that the deceased had died due to injuries sustained, as the above-extracted testimony of PW1 shows, the said injuries could not have been caused as a result of the weapons that the accused persons were allegedly yielding, and the ones that were supposedly recovered at their instance. 24.5 It is on both these counts, we fi nd the circumstantial evidence on record, not to conclusively point towards guilt of the accused persons. We further fi nd the eyewitness testimony to also be rendered questionable, since the weapons, which the accused were holding, and were subsequently recovered at their instance, do not correspond to the injuries found on the body of the deceased, as borne out from the cross-examination of PW1, reproduced supra.
25. The next aspect is the recovery of the alleged weapons, we have noted the particulars thereof while discussing the fi ndings of the Trial Court. Such recoveries were discarded by the trial court stating that the clubs were recovered from a place accessible to the public and, the chopper and the rods were recovered from a house where other persons were also residing which compromises the sanctity of such recovery and takes away from the veracity thereof.
26. Further discovery made, to be one satisfying the requirements of Section 27, Indian Evidence Act it must be a fact that is discovered as a consequence of information received from a person in custody. The conditions have been discussed by the Privy Council in Pulukuri Kotayya v. King Emperor38 and the position was reiterated by this Court in Mohd. Inayatullah v. State of Maharashtra39, in the following terms:- “12…It will be seen that the fi rst condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an off ence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the 38 1946 SCC OnLine PC 47 39 (1976) 1 SCC 828 MANJUNATH & ORS. v. STATE OF KARNATAKA [SANJAY KAROL, J.] most important condition is that only “so much of the information” as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word “distinctly” means “directly”, “indubitably”, “strictly”, “unmistakably”. The word has been advisedly used to limit and defi ne the scope of the provable information. The phrase “distinctly relates to the fact thereby discovered” is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery…” (Emphasis supplied)
27. Prima facie, in the present facts, the 3 conditions above appear to be met. However, the Trial Court held, given that the discoveries made were either from a public place or from an area where other persons also resided, reliance thereupon, could not be made. We fi nd this approach of the trial court to be correct. 27.1 This court has, in various judgments, clarifi ed this position. Illustratively, in Jaikam Khan v. State of U.P40 it was observed: – “One of the alleged recoveries is from the room where deceased Asgari used to sleep. The other two recoveries are from open fi eld, just behind the house of deceased Shaukeen Khan i.e. the place of incident. It could thus be seen that the recoveries were made from the places, which were accessible to one and all and as such, no reliance could be placed on such recoveries.” (Emphasis supplied) 27.2 Also, in Nikhil Chandra Mondal v. State of W.B.41 the Court held:- “20. The trial court disbelieved the recovery of clothes and weapon on two grounds. Firstly, that there was no memorandum statement of the accused as required under Section 27 of the Evidence Act, 1872 and secondly, the recovery of the knife was from an open place accessible 40 (2021) 13 SCC 716 41 (2023) 6 SCC 605 to one and all. We fi nd that the approach adopted by the trial court was in accordance with law. However, this circumstance which, in our view, could not have been used, has been employed by the High Court to seek corroboration to the extra-judicial confession.” (Emphasis supplied)
28. As refl ected from record, and in particular the testimony of PW-15 it is clear that the discoveries (stick as shown by A10, for instance) was a eucalyptus stick, found from the eucalyptus plantation, which indisputably, is a public place and was found a week later. A second and third stick purportedly found half kilometre away on that day itself, was found by a bush, once again, a place of public access. Two further sticks recovered at the instance A6 and A7, were also from public places. An iron chain produced from the house of A1 and A2, is not free from the possibility that any of the other occupants of their house were not responsible for it. We, further cannot lose sight of the fact that sticks, whether bamboo or otherwise, are commonplace objects in village life, and therefore, such objects, being hardly out of the ordinary, and that too discovered in places of public access, cannot be used to place the gauntlet of guilt on the accused persons. CONCLUSIONS
29. Our conclusions, therefore, are thus: 29.1 The dying declaration, although undoubtedly a substantive piece of evidence upon which reliance can be placed, in the present facts is rendered nugatory as the person who took down such declaration was not examined, nor did the police offi cer (PW19) endorse the said document with details of who took down the declaration. It is also not clear as to in front of which of the relatives of deceased was the same taken down. 29.2 The circumstantial evidence present on record does not point to the hypothesis of the guilt of the accused persons, for the reasons discussed above. 29.3 None of the eyewitnesses-PWs 2, 3, 15, as referred to by the trial court have succeeded in attributing a particular role to any of the accused persons and equally so, to A-1 to A-5 and A-7, whose acquittals have been overturned by the High Court. MANJUNATH & ORS. v. STATE OF KARNATAKA [SANJAY KAROL, J.]
30. In our considered view, the view taken by the Trial Court was a possible view and there being no error in correct and complete appreciation of evidence as also application of law; the High Court, without assigning any cogent reasons ought not to have interfered with such fi ndings.
31. For the aforesaid reasons, the judgment impugned before us in Criminal Appeal Number 1795 of 2004 dated 21 September 2010, is set aside. The appeal is, accordingly, allowed.
32. Having allowed the appeals as above, we are constrained to observe that the Criminal Appeal u/s 378 Code of Criminal Procedure, 1973 the High Court has not appreciated the severity of the allegations involved to the full extent. That a Court of Appeal should be circumspect in overturning its judgment of acquittal, is not a principle that requires reiteration. It has been held time and again that an acquittal will only be overturned in the presence of very compelling reasons.42 Further, right from the Privy Council43 onwards, it is been held that the presumption of innocence in favour of the accused is bolstered if the trial court hands down an acquittal.44 We fi nd the High Court not to have observed the said principles in deciding the appeals. Quite opposite thereto, perfunctory reasons stand recorded to restore the convictions of the Appellants herein. The observations of the trial court along with the principle of a bolstered principle of innocence, were summarily cast aside. The same cannot be said to be in accordance with the law.
33. As a result, the acquittals handed down by judgment and order dated 25th September 2004 in S.C. No. 162 of 1999, passed by the Additional Sessions Judge- Presiding Offi cer, Fast Track Court-II, Kolar, are restored. The judgment of conviction and sentence, as awarded by the High Court, stands set aside.
34. Since the sentence awarded by the High Court under Section 304 Part II of the IPC was for 4 years, and the application of exemption from surrender was disallowed by this Court, vide order dated 13th December 2010, the Appellants appear to have already served the sentence awarded to them. 42 Tulsiram Kanu v State AIR 1954 SC 1 43 Sheo Swarup v King Emperor AIR 1934 PC 227(2) 44 Ghurey Lal v State of U.P. (2008) 10 SCC 450
35. It is however directed, that the fi ne made payable by each of the accused, as a result of the impugned judgment be refunded to them. Consequently, bail bonds, if in eff ectuation, shall stand discharged. The appeal is accordingly, allowed.
36. In view of the above, interlocutory applications, if any, shall stand disposed of. Headnotes prepared by: Appeal allowed. Divya Pandey