Who is an Interested Witness? IS Raju alias Balachandran and others vs. State of Tamil Nadu (AIR 2013 SC 983) Correctly decided ?
- In the decision referred to above, a two judge Bench of the Supreme Court held as follows:-
Para 33:- “For the time being, we are concerned with four categories of witnesses - a third party disinterested and unrelated witness (such as a by-stander or passerby); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused”. (Emphasis supplied)
Nevertheless, the Bench observed further as follows:-
“But more than the categorization of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. That is all that is expected and required”. (Emphasis supplied)
- In paragraphs 30 to 32 of the judgment, Raju alias Balachandran referred to and specifically dissented from the decision of a three judge Bench (O. Chinnappa Reddy, A.P. Sen and Baharul Islam JJ.) in State of Rajasthan vs. Smt. Kalki and others. In this case, the widow of the deceased victim was the sole eye witness to the occurrence which took place in her house while her mother- in -law, who had been at some distance from the house, came running to the scene and saw the accused leaving the place. The conviction entered by the trial court was set aside by the High Court. The Supreme Court, in an appeal by the State, confirmed the conviction, setting aside the High Court order. The acquittal by the High Court was on two grounds, namely, that PW1 was a “highly interested witness” and there were serious discrepancies in her evidence: The Supreme Court held that both the grounds were invalid.
Dealing with PW1, the three judge Bench held:-
“In the circumstances of the case, she (PW1) was the only and most natural witness; she was the only person present in the hut with deceased at the time of the occurrence. True it is she is the wife of the deceased. “Related” is not equivalent to “interested”. A witness may be called “interested” only when he or she derives some benefit from a litigation, in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be “interested”. In the present case PW1 had no interest in protecting the real culprit and falsely implicating the respondents”. (Emphasis supplied)
- Two questions logically arise from the observations in paragraphs 32 and 33 of Raju alias Balachandran. One is of the propriety of the two judge Bench in dissenting from the decision of a three judge Bench, without at the same time, referring the case or the question to a larger Bench. Are smaller Benches at liberty to dissent freely from decisions of three judge, four judge or even Constitution Benches? The question, with respect, answers itself in the negative. The action indicates a degree of lack of judicial cohesion and harmony so necessary in the Apex Court. No wonder, one of the senior most and highly respected members of the Supreme Court bar recently made a suggestion to the effect that Article 141 of the Constitution be amended to exclude from its’ purview law being purportedly laid down by two judge Benches.
- In paragraph (34) of Raju alias Balachandran the Bench indicated that the only eyewitness examined, namely, PW5 Srinivasan was related to the victim and was an interested witness and “also some one who has an enemity with the appellants”, and his evidence, therefore, needed to be scrutinized with great care and caution. In paragraph 41, the Bench accepted his presence at the scene of occurrence and held that he was an eyewitness to the occurrence and his testimony was acceptable.
- If in the above case, PW5 was shown to be previously inimical to the deceased, the Bench was justified in scrutinizing his evidence with care and caution. In this view, it was wholly unnecessary for the Bench to have considered the question whether PW5 would fall within the class of “interested witness” merely because of his relationship with the two victims, and if so, whether such an “interested” witness’s evidence was, in law, required to be scrutinized with greater care and caution than the evidence of a third party disinterested and unrelated witness. It is not as if this area is not covered by earlier decisions of the Supreme Court; on the other hand, such decisions are a legion! Raju alias Balachandran itself referred to a few earlier decisions, Dalip Singh vs. State of Punjab, Darya Singh vs. State of Punjab, besides Waman vs. State of Maharashtra, which in turn relied on eight other decisions of the Supreme Court as also Kalki case (See paragraph 37 of Raju alias Balachandran) which went against the tenor of the judgment in Raju alias Balachandran to the effect that a witness who is related to the victim is “therefore an interested witness” whose evidence is required to be scrutinized with greater care and caution.
- A two judge Bench in Rameshwar Singh vs. State of Rajasthan considered the rule of corroboration of the evidence of a girl who was raped at the age of eight years. The Bench, speaking through Vivian Bose J, indicated that in such cases a large volume of case law has grown up which treats the evidence of the complainant somewhat along the same lines as accomplice evidence and this rule has become hardened into one of law, clarifying that the rule in reality is not that corroboration of the rape victims evidence is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except when the circumstances make it safe to dispense with it, must be present in the mind of the judge before a conviction without corroboration can be sustained and that there is no rule of practice that there must in every case be corroboration before a conviction can be allowed to stand. In cases where corroboration is found desirable, its’ nature and extent must necessarily vary with the circumstances of each case. All that may be necessary by way of corroboration is some evidence rendering it probable that her story is true and that it is reasonably safe to act upon it. Corroboration, it was observed, must come from independent source; such evidence can be direct or circumstantial. In that case, evidence was adduced to the effect that soon after the rape, the victim, an eight year old girl complained to her mother about rape committed on her by the accused. Both the girl and her mother gave evidence about this conversation. The Bench held that this evidence provided sufficient corroboration of the evidence of the victim regarding the rape. Then the Bench considered the argument that the mother cannot be regarded as an “independent” source. Dealing with this argument, the Bench held:-
“It may be that all mothers may not be sufficiently independent to fulfill the requirements of the corroboration rule but there is no legal bar to exclude them from its’ operation merely on the ground of their relationship. Independent means independent of sources which are likely to be tainted. In the absence of enmity against the accused, there is no reason why she would implicate him falsely. It is true that accused suggested that they were on bad terms, but that has not been believed by anyone”. (Emphasis supplied)
Raju alias Balachandran has not even suggested that under any circumstances, the rule of corroboration is applicable in the case of close relations or friends of the victim or persons bearing enmity towards accused; the decision states that in such cases their evidence is required to be scrutinized with “greater care and caution”, a proposition not warranted by any substantial precedent. Raju alias Balachandran did not take not of Rameshwar Singh, though a Constitution Bench in The State of Bihar vs. Basawan Singh quoted with approval the rule of corroboration as explained in Rameshwar Singh.
- Basawan Singh decided by a Constitution Bench which considered the case of a trap witness, did not deal with the case of a close relation or friend of the victim. There was no violence in that case as it related to a case of trapping the accused in the context of a bribe. The members of the raiding party were treated as accomplices. The Constitution Bench held that in the matter of assessment of the value of evidence and the degree of corroboration necessary to inspire confidence,no rigid formula can or should be laid down. All that one can say is that Basawan Singh actually does not support the propositions laid down in Raju alias Balachandran. The quotation from Dalip Singh, Darya Singh and Waman referred to in Raju alias Balachandran are clearly against the view taken in Raju alias Balachandran. The quotations show that those decisions lay down the following propositions:-
(a) Without generalization, it can be stated that a related witness would ordinarily speak the truth, but in the case of an enmity, there may be a tendency to drag in an innocent person as an accused. (Dalip Singh, 3 Judges)
(b) A witness is normally considered to be an independent witness unless he springs from sources which are likely to be tainted and that means the witness has cause, such as enmity the accused, to wish to implicate him falsely, ordinarily a close relative would be the last to screen the real culprit and falsely; implicate an innocent person. (Dalip Singh)
(c) A related or interested witness may not be hostile to the assailant; but, if he is, his evidence must be examined very carefully and all infirmities taken into account (Darya Singh, 3 Judges)
(d) Where the witness shares the hostility of the victim against the assailant, it would be unlikely that he would not name the real assailant but would substitute the real assailant with the “enemy” of the victim
(e) Where evidence is given by near relatives of the victim and alleged murderer is alleged to be an enemy of the family, Court must examine their evidence (relatives) very carefully. But a person may be interested in the victim, being his relation or otherwise and may not necessarily be hostile to the accused. (Darya Singh).
(f) Merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is consistent and true, the fact of being a relative is not a factor to affect the credibility of a witness and the courts have to scrutinize their evidence meticulously with a little care (Waman vs. State of Maharashtra, 2 Judges).
- I may now refer to a few more decisions of Benches consisting of three or more judges. Masalti and Others vs. State of Uttar Pradesh, dealt with a case of a large number of accused convicted under section 302 r/w section 149 IPC. In a faction - ridden village, Gayadin and four other members of his family were murdered allegedly by the members of the rival faction which included the appellants. This rival faction was led by Laxmi Prasad, one of the appellants. There were criminal cases between the parties for several years. There was also panchayat election rivalry between the two factions. The resulting incident was gruesome and long drawn out. Of the evidence of twelve eyewitnesses examined, the High Court accepted the evidence of ten witnesses as substantially true and correct. The High Court thought that most of the eyewitnesses belonged to Gayadin’s faction and hence partisan but confirmed the conviction of those accused against whom four or more witnesses gave a consistent account.
This was an extreme case of violently fighting village factions and the eyewitnesses examined belonged to the faction of the victims. In such a situation it is not difficult to presume the existence of enmity between the members of the two groups and hence the witnesses could be regarded as partisan or interested. The four judge Bench (consisting of P.B. Gajendragadkar, CJI, K.N. Wanchoo, K.C. Das Gupta and RaghubirDayal JJ.) held as follows in paragraph 14:-
“… When a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are serious discrepancies in the evidence; whether or not evidence strikes the court as genuine, whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would be… unreasonable to contend that evidence…should be discarded only on the ground that it is partisan that it is evidence of partisan or interested witnesses…Judicial approach has to be cautious in dealing with such evidence”. (Emphasis supplied)
The above decision was rendered with reference to a case of two bitterly inimical factions, members of one faction attacking members of the other faction. Enmity of witness to the accused is inherent in the situation. According to the clearly inimical witnesses the killing was by members of the inimical faction. Even in such a scenario, the Bench held discarding of the evidence would be unreasonable. In such a situation, according to the Bench, the merits, quality and consistency of the testimony of the eyewitnesses is to be scrutinized; but then such scrutiny is required to be made in any criminal case involving some stakes. This decision, of course, did not deal with evidence of a close relation or friend of the victim, who was not shown to the inimical to the accused; this has been considered by a few three judge Bench decisions.
9. One of the early judgments was rendered by Vivian Bose. J. in Dalip Singh and others vs. State of Punjab on behalf of a bench of three judges consisting of M.C. Mahajan, Vivian Bose and B. JagannadhaDas JJ. The relevant portions of the judgment are seen quoted in first sub para of para 35 of Raju alias Balachandran. These portions are quite contrary to the view taken in the latter decision! The latter decision, while quoting the following sentence, namely,
“Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person”
Omitted the following sentence:-
“and hence the mere fact of relationship far from being the foundation for criticism of the evidence is often a sure guarantee of truth” (Emphasis supplied)
In Gurucharan Singh and another vs. State of Punjab decided by a three judge Bench consisting of N.H. Bhagwati, T.L. VenkatramaIyyar and B.P. Sinha JJ., the Bench held as follows in paragraph 9 of the judgment about the factor of eye-witnesses being close relations of the deceased:-
“But that, it has again been repeatedly held is no ground for not acting upon the testimony if it is otherwise reliable in the sense that the witnesses were competent witnesses, who could be expected to be near the place of occurrence and could have seen what happened that afternoon”. (Emphasis supplied)
The following decision of three judge Benches may also be seen:-
a) Darya Singh & Others vs. State of Punjab (P.B. Gazendragadkar, K.N. Wanchoo and K.C. Das Gupta JJ)
b) Badri others vs. State of U P (Y.V. Chandrachud, P.N. Bhagwathi and R.S. Sarkaria JJ). In this case, the Bench, relying on Raghubir Singh vs. State of U P drew attention to the general reluctance of an average villager to appear as a witness and get himself involved in cases of rival factions when spirits on both sides are running high.
c) Molu and others vs. State of Haryana (P.N. Bhagwati, N.L. Untwalia and S. MurtazaFazl Ali JJ.)
d) State of Punjab vs. Ramji Das (Y.V. Chandrachud, P.K. Goswami and P.N. Singhal, JJ)
e) Lehna vs. State of Haryana (M.B. Shah, B.N. Agarwal and Dr.A. Pasayat JJ)
f) State of Rajasthan vs. Kalki and another (O. Chinnappa Reddy, A.P. Sen and B. Islam JJ.)
10. Decisions of two judge Benches of the Supreme Court on this aspect are a legion. The author has perused over seventy such judgments. A few of them are mentioned hereunder:-
(a) Angnoo and others vs. State of U P (V. Bhargava and I.D. Dua JJ.) (para 8)
That an eyewitness is the brother of the deceased (the relationship) would add value to his evidence because he would be interested in getting the real culprit, rather than an innocent person, punished.
(b) State of U P vs. Samman Das (J.M. Shelat and H.R. Khanna JJ) (Para 20)
“In a murder trial the relationship of the eyewitness to the deceased is not a sufficient ground for discrediting of his testimony unless a motive is alleged and proved against him to spare the real assailant and falsely involve another person in the place of the assailant.”
(c) State of Punjab vs. Jagir Singh Baljit Singh and Karan Singh (H.R. Khanna and A. Alagireswami J.(para 12)
Some of the (eye) witnesses are close relatives of the deceased persons and it is most difficult to believe that they would spare the real assailants and falsely mention the names of innocent persons as having caused the injuries to the deceased persons.
Four of the eye witnesses, namely, Ajit Singh (PW 19), Harbans Singh (PW 21), Jarnail Singh (PW 22) and Mohinder Singh (PW 27) received injuries during the course of the present occurrence and there can be hardly any manner of doubt regarding their presence at the scene of occurrence. It is not possible to accept the contention that these witnesses in spite of the attack upon them and the three deceased persons failed to fix the identity of the assailants.
It is, no doubt, true … that these witnesses belong to the party of the deceased but that fact, in our opinion, would only make the court scrutinise the evidence of these witnesses more closely. (Emphasis supplied)
d) Labh Singh and others vs. State of Punjab (R.S. Sarkaria and A.C. Gupta JJ.) dealing with the evidence of an eye witness PW13 who admitted that the deceased in the case was his collateral, the Bench of observed:-
“The mere fact that PW13 Tejasingh was a collateral of Nasib Singh (one of the deceased) in some degree is no ground to hold that he is not a disinterested, independent witness.”
(e) Dalbir Kaur and others vs. State of Punjab (A.C. Gupta and S. Murtaza Faze Ali JJ.) (para 13):-
“Moreover a close relative who is a very natural witness cannot be regarded as an interested witness. The term "interested" postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason”.
(f) State of U P vs. Ballabh Das and others (S.M. Fazl Ali and A. Varadarajan JJ.) (para 5)
“The … question is whether … the witnesses, despite being interested, have spoken the truth and are creditworthy. Once it is found by the Court, on an analysis of the evidence of an interested witness that there is no reason to disbelieve him then the mere fact that the witness is interested cannot persuade the court to reject the prosecution case.”
(g) Anil Rai vs. State of Bihar and others (K.T. Thomas and R.P. Sethi JJ).
In the case of inimical witnesses, courts are required to scrutinize their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity, where enmity is proved to be the motive for the commission of the crime, accused cannot urge that despite proof of motive of the crime, the witnesses proved to be inimical should not be relied on. … Testimony of eyewitnesses, which is otherwise convincing and consistent, cannot be discarded simply because on the ground that the deceased was related to the eye-witnesses or previously there were some disputes between the accused and the deceased on the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or liying to rape in more persons as accused persons… Such a possibility is required to be ascertained on the facts of the case…” (Emphasis supplied)
(h) Rizan and another vs. State of Chattisgarh (Shivaraj.V. Patil and A. Pasayat JJ)
“Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to the laid if the plea of false implication is made in such a case. In such a case, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.”(Emphasis supplied)
The Bench relied on Dalip Singh, relied on in Gulichand and others vs. State of Rajasthan and Vadivelu Thevar vs. State of Madras. The Bench also referred to Masalti and others vs. State of U P , State of Punjab vs. Jagir Singh and Lehna vs. State of Haryana.
(i) State of Punjab vs. Karnail Singh para 8
(j) Surinder Singh and another vs. State of U P para 10,13
“We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavored to dispel in - 'Rameshwar v. State of Rajasthan'. We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.”
(k) Israr vs. State of U P para 12 to 16
(l) Nagarjit Ahir and another vs. State of Bihar at para 12
(m) S. Sudarshan Reddy and others vs. State of A P at paragraph 12 to 17
(o) Bhagya and others vs. State of M P para 15
11. Here are a few more relevant decisions of two judge Benches:-
(a) Ashok Kumar Chaudhary and others vs. State of Bihar (C.K. Thakker and D.K. Jain JJ) para 7
In so far as the question of credit-worthiness of the evidence of relatives of the victim is concerned, it is well-settled that though the court has to scrutinize such evidence with greater care and caution, but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship perse does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterized as an “interested witness. It is trite that the term “interested” postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or other convicted either because he had some animus with the accused on for some other oblique motive.(Emphasis supplied)
The Bench relied on some of the decisions referred to in this paper. They are
b) Rajesh Kumar vs. State of H P (Dr. A. Pasayat and Dr. M. Sharma JJ)
c) State vs. Saravanan and another (Dr. A. Pasayat AND Dr. Mukundakam Sharma, JJ.)
d) BheruLal and others vs. State of Rajasthan (V.S. Sirpurkar and J.M. Panchal JJ.) para 8
e) Bhupendra Singh vs. State of U P (A. Pasayat and A.K. Ganguly JJ) (Refers to several earlier decisions).
f) Myladimmal Surendran and Others vs. State of Kerala (B. Sudershan Reddy and Surinder Singh Nijjar, JJ.) Paragraph 27 to 30
The Court must be cautious in appreciating and accepting the evidence given by interested witness, but the court must not be suspicious about such evidence. The primary endeavor of the court must be look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is a closely related to the victim. (emphasis supplied)
(g) Takdir Samsudden Sheik vs. State of Gujarat and another, (B.S. Chauhan and A.K. Patnaik JJ.) para 10
(h) While appreciating the evidence of witness considering him as an interested witness, the court must bear in mind that the term “interested postulates” that the witness must have some direct interest in having the accused somehow or the other convicted for some other reason.
(i) Waman v. State of Maharashtra (P.Sathasivam and A.K. Patnaik JJ) para 12
“If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to effect the credibility of a witness and the courts have to scrutinize their evidence meticulously with a little care.”(emphasis supplied)
(j) Brahm Swaroop and another vs. State of U P (P.Sathasivam and Dr. B.S. Chauhan JJ)
Merely because the witnesses are closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its’ false implication. However, in such cases, the court has to adopt – a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. (Emphasis supplied)
(k) State of U P vs. Naresh and others (P.Sathasivam and B.S. Chauhan JJ)
Para 23:- The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its’ own relevancy and efficiency as he has sustained injuries at the time and place of occurrence and this lends support to has testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus the evidence of the injured witness should be relied upon unless there are grounds for the contradictions and discrepancies therein.” (Emphasis supplied)
Para 24:- A mere relationship cannot be a factor to affect credibility of a witness. … The plea relating to relative’s evidence remains without substance in case the evidence has credence and it can be relied upon. In such a case the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible.” (Emphasis supplied)
(l) Amit vs. State of U P at para 6 (A.K. Patnaik and Swatanter Kumar JJ)
“PW3 is no doubt the grandmother of Monika (victim, aged three years – Author) but she is not an interested witness. As was been held in Kalki, Myladimmal Surendran and TakdirSwamsuddinShaik, an interested witness must have some direct interest in having the accused somehow convicted for some extraneous reason and a near relative of the victim is not necessarily an interested witness. (Emphasis supplied).”
(m) Alagupandi vs. State of Tamil Nadu at paragraph 18 (Bench same as above)
(n) State of Haryana vs. Shakuntala at paragraph 14 to 18. (Bench same as above)
(o) Dayal Singh and others vs. State of Uttaranchal para 10 and 11
“The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused.”
12. There are a large number of decisions of two-judge Benches to similar effect; however, I consider it unnecessary to multiply citations.
13. “The word “Interested”in the general or popular sense means only, “having an interest or concern”. (See Chambers, 20th Century Dictionary, new edition 1996). But in the matter of appreciation of evidence in criminal cases, courts, generally speaking, have not gone by the popular meaning; courts have adopted a special meaningnamely, that a person can be regarded as an interested witness only if he, activated by ill feeling towards the accused or for extraneous reasons, wishes to ensure that accused is convicted and sent to prison. “Extraneous reason” can only mean some reason other than the incident in which his close relation or friend sustained serious injuries. Ordinarily, such “extraneous reason” can only be ill feeling or strong antipathy towards the accused. This is what the Supreme Court has consistently opined for over sixty years. Therefore the formulation in Raju alias Balachandaran of a “related and therefore an interested witness (such as wife of the victim) having an interest in seeing that the accused is punished” is far from correct. That a wife or other close relation or friend will always have an interest in seeing that the accused is punished is an assumption contrary to common sense and the stated position of the Supreme Court. Such a close relation or friend, if he is a genuine eye witness, will be the last person to falsely accuse an innocent person, the inevitable consequence of which will be to allow the real assailant to escape the clutches of law. Such an attitude on the part of a close relation or friend would be most unnatural or strange, unless the accused can show that the witness has reason to do so for some specific reason or the other.
14. Scrutiny and appreciation of the testimony of an eye-witness involves consideration of the following factors:-
i. was he at or near the scene of occurrence so as to enable him to witness the occurrence and see and identify the victim or victims and the assailant or assailants?
ii. was the assailant personally known to the witness? If not, what are the indications or circumstances showing his capacity to identify the assailant?
iii. Is his evidence of good quality and consistent? Did the court notice anything particular in his demeanour? Did his previous statement(s) seriously contradict his evidence in court and if so, what is the explanation? How well or ill he fared in cross-examination. How does his version of the occurrence compare with the version of other eye-witnesses, if any? The circumstances of the case, including the medical evidence support the version given by the witness.
iv. If the witness sustained an injury in the occurrence at the hands of the same accused, was he likely to point his finger falsely at an innocent person?
v. Was the witness a natural witness? If he was a chance witness, is his explanation for his presence at the scene at the time in question reasonable?
vi. Is the version given by the witness such that it is likely to have happened in the light of the circumstances mentioned in section 114 and whether the version is probable in the circumstances?
vii. Did the eyewitness have any motive to implicate the accused falsely? Was he interested against the accused for any reason other than the particular assault referred to in the charge?
viii. If the eye witness is a close relation or friend of the victim, did he have any extraneous reason or motive to falsely implicate the accused in this incident?
ix. To what extent, if any, the version given by the eye witness is supported or contradicted by other evidence and circumstances arising in the case relating to motive for the crime, preparation, conduct of the accused, admissions of and admissible (relevant) confession of the accused.
x. A close relation or friend of the victim who, though he was not present at the scene and hence did not watch the occurrence, might be persuaded to believe that it was the accused who caused injuries to the victim and to give evidence claiming to be an eyewitness; however if he had really seen the occurrence and identified the assailant, who was really not the accused, is it likely or probable that he would or could be persuaded to tell the police or give evidence that he saw the accused cause injuries to the victim since by such conduct he would be allowing the really guilty to escape; this would be so provided he did not have powerful extraneous reason such as strong enmity with the accused, to implicate him falsely, provided also that there is strong foundation laid for the theory of false implication.
15. It is indeed surprising that the two judge bench which decided the case of Raju alias Balachandran after quoting a proposition laid down by a four judge bench in the case of Darya Singh, two three-judges Benches in the cases of Dalip Singh and Kalki and a two judges Bench in the case of Waman, which as the Bench noticed, relied on eight earlier decisions reported during the period from 1976 to 2011, purported to take a totally different view to the effect that “a related witness” is an “interested witness” having an interest in ensuring that the accused is punished. (See Paragraphs 30, 32 to 33, 35, 36 and 37 of Raju alias Balachandran). All the decisions referred to in Raju alias Balachandran said exactly the contrary, that is, relationship is not a factor to affect credibility of a witness (through his evidence has to be scrutinized carefully). In a criminal case, particularly a case which may lead to a sentence affecting the life or liberty of an accused, the court is always required to scrutinize the evidence with care and caution. When the courts suspicion is roused, the court may bestow more care and caution in scrutinizing the evidence. This is far from saying as Raju alias Balachandran did that a related witness who is not shown to be hostile to the accused for other reasons (i.e. reasons other than the assault on the victim in the case) is having an interest in seeing that an innocent accused is punished.
16. At any rate, the observation of the two judges bench in Raju alias Balachandran in para (32) is that the view expressed by an earlier three judge bench in Kalki’s case is too narrow and generalized and needs a rethink. Para 32 is followed by paras 35 to 37, all of which refer to other decisions laying down the principle in language more or less similar to the language employed in Kalki’s case. Nevertheless, the Bench did not desire to have the case heard by a larger Bench.
17. If “narrowness” and “generalization” are found to be objectionable, some of the ideas propounded in Raju alias Balachandran suffer from the same defect. That a witness related to the victim is necessarily an interested witness, (The Bench calls him “ a related and therefore an interested witness), is too narrow and generalized an assumption. A criminal court generally proceeds on presumptions which may be drawn by virtue of Section 114 of Indian Evidence Act. This provision requires court to have regard to “common course of natural events”, “human conduct” etc. in their relation to the facts of the particular case.
18. “Interested” necessarily connotes “Interested” at any point of time prior to the occurrence of which the witness happens to be an eyewitness. Theoretically, everyone who witnesses the commission of violent crime may feel revolted by the crime and ideally, may feel it is his duty to report the matter to the police and thereafter give evidence in court. However, in the practical world, one finds considerable reluctance on the part of our people to get involved in any matter in the process of criminal justice. In this context, a close relation or friend of the victim may not share such reluctance and may come forward to get involved in the process, irrespective of any prior ill feeling or enmity towards the accused. In the general sense, he can be said to be “interested” in the victim. Such a witness may feel revolted by the occurrence he witnessed and may, on that account, develop dislike towards the accused. But for that reason, he cannot be regarded as hostile or inimical to the accused. This is so whether or not he had previous acquaintance with the accused. However, an eye-witness who knew the accused prior to the occurrence and had hostility towards them may have a vengeful attitude towards them and may be prepared to give information or evidence against them. A witness having ill will towards the innocent accused previously may be capable of involving the latter falsely in the occurrence, whether or not the witness had seen the occurrence. But a close relation or friend of the victim who has no such pre-existing enmity towards the accused has no motivation to give information or evidence implicating the accused person as the assailant in the case, if the he had witnessed the occurrence, since that would allow the actual assailant to escape the clutches of justice. Of Course, in practice, nothing is ruled out. But in scrutinizing and appreciating evidence, court is concerned only with “broad probability” and not “extreme possibilities” having in view the provisions of Section 114 and the definition of “proved” in Section 3 of the Evidence Act. When accused takes the stand of “false implication”, that stand must be supported by some materials on record; that the eyewitness is a close relative or friend of the victim, cannot be a substitute for such materials. The word “interested” has two dimensions – failure to perceive these different dimensions can lead one astray.
19. In paragraph 34 of Raju alias Balachandran, the Bench found that PW5, the sole eyewitness in the case was “someone who has an enmity with the accused and his evidence needs to be scrutinized with great care and caution”. This proposition cannot be taken exception to. What is taken exception to is the proposition that evidence of a “related person” without previous enmity towards the accused should be treated at par with a witness shown to have previous enmity with the accused.
Justice U.L.Bhat is the former Chief Justice of Gauhati High Court and High Court of Madhya Pradesh.