Holding

Minor inconsistencies in witness statements do not automatically discredit the core evidence, and the driver and conductor’s testimony was credible, justifying conviction under Section 302 read with Section 34 IPC.

Summary

The appellants, Rammi alias Rameshwar and Bhura alias Sajjan Kumar, were charged with murder of Sardar Singh Thakur inside a moving bus, allegedly as revenge for a prior killing. The prosecution relied on the testimony of the bus driver, the conductor, and a passenger, as well as weapons recovered under Section 27 of the Evidence Act. The trial court dismissed these witnesses as unreliable due to minor inconsistencies and acquitted the accused, but the High Court reversed that decision and convicted them under Section 302 read with Section 34 of the IPC. On appeal, the Supreme Court held that minor variations in witness statements do not amount to contradictions sufficient to impeach credibility under Sections 145, 155, and 162 of the Evidence Act, and that the driver and conductor’s evidence remained credible. The Court also clarified the scope of re‑examination under Section 138 and the admissibility of information leading to discovery of facts under Section 27. Consequently, the conviction was upheld and the appeal dismissed.

Issues considered

The effect of minor discrepancies in witness statements on their credibility under Sections 145, 155 and 162 of the Evidence Act.
Whether post‑event conduct of a witness can be used to discredit testimony.
The admissibility and reliability of evidence recovered under Section 27 of the Evidence Act.
The duty of the public prosecutor to re‑examine witnesses and its impact on the evidentiary value.
Whether the trial court erred in acquitting the accused on the basis of credibility assessments.

Legislation cited

Code of Criminal Procedure, 1973s. 379
Indian Evidence Act, 1872s. 138, s. 145, s. 155, s. 162, s. 27
Indian Penal Code, 1860s. 302, s. 34

Subjects

murderbuseyewitness credibilityevidence discrepanciesSection 27 evidencere‑examinationpublic prosecutor dutiesIPC 302IPC 34Indian Evidence Act

Judgment

RAMMI @ RAMESHWAR ETC. A
v.
STATE OF MADHYA PRADESH

SEPTEMBER 21, .1999

[KT. THOMAS AND A.P. MISRA, .TJ.] B

Penal Code, 1860: Section 304/34-Murder inside a bus-Appreciation
of evidence-Prosecution examining 'driver' , 'conductor' and a passenger of
the bus-Cross examination-Discrepancies in evidence-Trial Coun dis-
believing the prosecution witnesses, awarding acquittal-High Cowt reversing c
the finding of Ilia! Cowt regarding credibility of witnesses--Conviction and
sentence-On appeal, held the evidence of driver and conductor are most
natural and evinces credibility-Minor vmiations in their statements does not
amount to discredit the core of their evidence-Conviction and sentence
upheld-Evidence Act, 1872 : Sections 155, 145 and 138.
D
Evidence Act, 1872 :

Sections 155 and 145--Impeaching the credit ofwitnesses-b1consistent,
statements-Whether sufficient to impeach the credit of witnesses-Held,
no-A f onner statement though seemingly inconsistent with the evidence need
not necessarily be sufficient to amount to contradiction. E

Section 138-Re-e.xamination of witnesses-Scope and object of

Section 27-Recovery of weapon at the instance of accused-Admis-
sibility of
F
Criminal trial-Post-event conduct of witness-Murder taking place in
a bus-Witness, a passenger not informing the incident to the members of
deceased family or police-Held, post-event conduct of witness vmies from
person to person-Different persons react differently on seeing any violence
,- . and their behaviour and conduct would be different-Thus no abnormality in G
the conduct of the witness.

Public prosecutor-Re-examination of witnesses-Failure to discharge .
_, his rights and duties-Deprecated

Appellants were prosecuted for an offence under Section 302 read H
1
2 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A with Section 34 IPC. The prosecution case was that while 'S' was travelling
in bus, the appellants-accused thirsting for revenge for the murder of first
appellant's brother by 'S', boarded the bus and started attacking 'S' with
chopper and knives inflicting as many as 12 incised injuries. After killing
'S', accused alighted from the bus and escaped. The bus was driven to
B police station and FIR was lodged by conductor-PW-8. The accused were
arrested and after interrogation the weapons used for the Murder were
recovered by PW-13 at the instance of the appellant. The Trial Court
disbelieving the evidence of PW-8, PW-9, PW-12 and PW-13 acquitted the
appellants. However, the Division Bench of High Court by reversing the
findings of Trial Court convicted them for an offence under Section 302
C read with Section 34 IPC and sentenced them to imprisonment for life.
Hence the present appeal.

The contention of the appellant was that the reasoning of the Trial
Judge regarding different items of the incriminating evidence did not
warrant interference in an appeal against acquittal as the views expressed
D by the Trial Judge was not unreasonable.

Dismissing the appeal, this Court

HELD : 1.1. The approach by the Trial Court in groping for dis-
E crepancies in the testimony of witnesses had resulted in the unmerited
acquittal. The High Court was justified in convicting the appellants under
Section 302 IPC. [11-A-B]

1.2. When an eye-witness is examined at length it is quite possible
for him to make some discrepancies. No true witness can possibly escape
F from making some discrepant details. Perhaps an untrue witness who is
well tutored can successfully make his testimony totally non-discrepant.
But Courts should bear in mind that it is only when discrepancies in the
evidence of a witness are so incompatible with the credibility of his version
that the Court is justified in jettisoning his evidence. But too serious a
G view to be adopted on mere variation falling in the narration of an
incident (either as between the evidence of two witnesses or as between
two statements of the same witness) is an unrealistic approach for judicial
scrutiny. [11-B-D]

1.3. It is a common practice in trial courts to make out contradic-
H tions from previous statement of a witness for confronting him during
RAMMlv. STATE 3

cross-examination. Merely because there is inconsistency in evidence it is A
not sufficient to impair the credit of the witness. No doubt Section 155
of the Evidence Act provides scope for impeaching the credit of a witness
by proof of inconsistent former statement. But a reading of the Section
would indicate that all inconsistent statements are not sufficient to im-
peach the credit to the witness. [11-D-F]
B
1.4. A former statement though seemingly inconsistent. with the
evidence need not necessarily be sufficient to amount to contradiction. Only
-~ such of the inconsistent statements which is liable to be "contradicted"
would affect the credit of the witness. Section 145 of the Evidence Act also
enables the cross-examiner to use any former statement of the witness, but c
'~' it cautions that if it is intended to "contradict" the witness the cross-ex-
aminer is enjoined to comply with the formality prescribed therein. Section
162 of the Code also permits the cross-examiner to use the previous state-
ments of the witness (recorded under Section 161 of the Code) for the only
limited purpose, i.e. to "contradict" the witness. To contradict a witness,
therefore, must be to discredit the particular version of the witness. Unless D
the former statement has the potency to discredit the present statement,
even if the latter is at variance with the former to some extent it would not
be helpful to contradict that witness. [11-H; 12-A-B]

Tehsildar Singh and A111: v. State of U.P., AIR (1959) SC 1012, relied
E
on.

1.5. In the instant case the evidence of the conductor and the driver
of the bus evinces credibility. They are the most natural witnesses for the
murder which took place inside the bus. The minor variations which the
defence counsel discovered from their former statements did not amount F
• to discredit the core of their evidence. The strained reasoning of the Ses-
sions Jmlge for side-stepping their evidence is too fragile for judicial conn-
tenance. The Division Bench of the High Court h~tly reversed the
finding regarding the credibility of their evidence. [12-C-E]

2.1. Section 27 of the Evidence Act permits so much of information G
which lead to the discovery of a fact to be admitted in evidence. Here the
fact discovered by the police was that the accused had hidden the blood-
stained weapons. In that sphere what could have been admitted in
-• evidence is only that part of the information which accused had furnished
to the police officer and which led to the recovery of the weapons. While H
4 SUPREME COURT REPORTS (1999) SUPP. 3 S.C.R.

A testing the reliability of such evidence the Court has to see whether it was
voluntarily stated by the accused. (8-C-E]

2.2. There is material discrepancy regarding the time when police
took the accused in custody. PW-13-lnvestigating Officer has said in his
evidence that the accused were arrested on the succeeding day of the occur-
B rence from a different place and they were interrogated by him. But PW-12
has said in his evidence that after he reached the police station on the same
evening he saw the accused inside the police station. If PW-12 is correct the
accused should have been interrogated on the very day of occurrence in
which case the accused would have no occasion to conceal the weapons.
C Thus no reliance can be placed on the evidence of PW-13 regarding recovery
of the weapons at the instance of the accused. [8-H; 9-A-C]

3. PW-9, a passenger of the bus in his evidence said that he saw the
ap1>ellants attacking the deceased with chopper and knives. The Trial
Court pointed out that he did not inform the members of the family of
D the deceased nor did he bring this matter to the notice of the police. The
Sessions Judge regarded the above as a conduct incompatible with the
normal behaviour of a person witnessing such a crime. Such a remark
on the conduct of a person who witnessed the murderous attack is least ·
justified in the realm of appreciation of evidence. It cannot be a cast-iron
E reaction to be followed as a model by everyone witnessing such event.
Different persons would react differently on seeing any violence and their
behaviour and conduct would, therefore, be different. There is nothing
which can be regarded as an abnormal conduct of PW-9. [7-E-H]

4.1. Ambiguities can be resolved through re-examination. But that is
F not the only function of the re-examiner. If the party who called the witness
feels that explanation is required for any matter referred to in cross- ex-
amination he has the liberty to put any question in re-examination to get the
explanation, The Public Prosecutor should formulate his questions for that
purpose. Explanation may be required either when ambiguity remains
G regarding any answer elicited during cross-examination or even otherwise.
If the Public Prosecutor feels that certain answers require more elucidation
from the witness he has the freedom and the right to put such questions as he
deems necessary for that purpose, subject of course to the control of the
court in accordance with the other provisions. But court cannot direct him
to confine his questions to ambiguities alone which arose in cross-examina-
H tion. [9-E-H]
RAMMiv. STATE[THOMAS,J.] 5

4.2. The very purpose of re-examination is to explain matters which A
have been brought down in cross-examination. Even if the public prosecutor
feels that new matters should be elicited from the witnesses, he can do so, in
which case the only requirement is that he must secure permission of the
Court. A Public Prosecutor who is attentive during cross-examination can-
not but be sensitive to discern which answer in cross-examination requires ·
explanation. An efficient public prosecutor would gather up such answers B
falling from the mouth of a witness during cross-examination and formu-
late necessary questions to be put in re-examination. There is no warrant
that re-examination should be limited to one or-two questions. If the exigency
requires any number of questions can be asked in re-examination. But in this
case the Additional Public Prosecutor in the trial court seemed oblivious of
c
such a right. It is rather amazing that he did not avail himselfof that rightin
respect of a single witness. [9-C-E; 10-B-CJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
61 of 1999.
D
WITH

Cr!. A. No. 33 of 1999.

From the Judgment and Order dated 1.9.98 of the Madhya Pradesh

- High Court in Crl.A. No. 626 of 1987.

Uday Umesh Lalit for the Appellant.
E

Anoop Choudhary (Prashant Kumar) for Uma Nath Singh for the
Respondent.
F
The Judgment of the Court was delivered by

THOMAS, J. A manslaughter in an automobile in locomotion is the
subject matter of this case. The slaughtered man was a Home Guard
personnel, by name Sardar Singh Thakur. When he boarded the bus
destined to Naseerabad on the evening of 20.7.1985, he had no foreboding G
that it was his last journey alive. Before the bus could reach its terminus
he was finished by armed assailants inside the vehicle while it was in
motion. Appellants (Rammi alias Rameshwar and Bhura alias Sajjan
:=::> Kumar) were two of the three persons arraigned before the Sessions Court.
Though the Sessions Judge acquitted all of them a Division Bench of the
High Court of Madhya Pradesh convicted the two appellants under Section H
6 SUPREME COURT REPORTS [1999) SUPP. 3 S.C.R.

A 302 read with Section 34 of the IPC and sentenced them to imprisonment
for life. The third accused (Surcsh alias Chhigga) died before the appeal
was decided by the High Court. These appeals were filed by the two
convicted persons as of right under Section 379 of the Code of Criminal
Procedure (for short 'the Code') and under Section 2 of the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970.
B
The story of the prosecution, as revealed through evidence, can be
summarised like this:

One Channa Babu (brother of appellant Rammi and late Chhigga)
was murdered for which the police charge-sheeted Sardar Singh Thakur
C (the deceased in this case) and his brother Shyam Singh (PW-3 in this case)
and a few others. From then on these accused were thirsting for revenge
for the murder of Channa Babu. They were prowling for an opportune
opportunity to strike back. In such a background accused came to know
that Sardar Singh Thakur was travelling in a bus. Accused wanted to avail
D themselves of that opportunity and boarded the bus on the way. After the
vehicle moved for some distance the assailants mounted the attack on the
deceased with chopper and knives.

The assailants inflicted as many as 12 incised injuries on Sardar Singh
Thakur. Those who tried to intervene were told by the assailants to mind
E their own business as the attack was intended for a revenge. After ac-
complishing the object all the assailants alighted from the vehicle and
escaped from the scene. The passengers of the bus became frightened and
most of them jumped out of the vehicle and ran helter-skelter.

The stage carriage was then driven towards the police station by its
F driver (PW-12 Jabbar Khan). Ext. P-12 - First Information Statement was
lodged at the police station by the conductor of the vehicle (PW-8
Ramashray). The accused were arrested and after interrogation the
weapons used for the murder were recovered by PW-13 Investigating
Officer from hidden places on the basis of informations elicited from the
G accused.

There is no doubt that deceased Sardar Singh Thakur was murdered
inside the said bus at about 5 P .M. while the bus was in motion. In fact
that part of the case is not controverted by the appellants. The dispute now
centers round the identity of the assailants. PW-8 Ramashray and PW-12
H Jabbar Khan supported the case of the prosecution regarding the identity
RAMMI v. STATE (THOMAS, J.] 7

of the assailants, besides one of the passengers of the bus (PW-9 Ram A
Dulare). But the trial court was not impressed by their evidence. Nor did
the trial court place any reliance on the evidence relating to the recovery
of weapons which the prosecution adduced as per Section 27 of the
Evidence Act. But the Division Bench of the High Court made complete
reversal of the findings of the trial judge and made a scathing observation
in the penultimate paragraph of the judgment under appeal, as under:
B

-·
"Before parting with this appeal, we cannot resist from observing
that the perverse reasoning and conclusions given by the trial judge
in appreciating the evidence in the instant case cannot be sup-
ported. Such unrealistic approach in appreciating evidence in a C
criminal case shakes the confidence of the society in the legal
system itself and our interference, therefore, is urgently called for."

Shri Uday Umesh Lalit, learned counsel for the appellants con-
tended that the reasoning of the trial judge regarding different items of
incriminating evidence did not warrant interference in an appeal against D
acquittal as the views expressed by the trial judge were not unreasonable.
Learned counsel dealt with the evidence almost threadbare in his
endeavour to show that the Sessions Judge was not altogether wrong in
acquitting the appellants.
E
PW-9 Ram Dulare (a passenger in the bus) in his evidence said that
he saw the appellants attacking the deceased with chopper and knives. The
trial court pointed out that he did not inform the member's of the family
of the deceased nor did he bring this matter to the notice of the police.
The Sessions Judge regarded the above as a conduct incompatible with the
normal behaviour of a person witnessing such a crime. F

Such a remark on the conduct of a person who witnessed the
murderous attack is least justified in the realm of appreciation of evidence.
This Court has said time and again that the post event conduct of a witness
varies from person to person. It cannot be a cast-iron reaction to be G
followed as a model by everyone witnessing such event. Different persons
would react differently on seeing any violence and their behaviour and
conduct would, therefore, be different. We have not noticed anything which
can be regarded as an abnormal conduct of PW-9 Ram Dulare.

Nonetheless, there are two broad circumstances which would bridle H
r
t
8 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A the Court from placing full reliance on the evidence of PW-9. First is,
though his name appeared in the First Information Statement its author
PW-8 (the conductor of the bus) said in his evidence that Ram Dulare was
not a person known to him. Second is, PW-9 has said in cross-examination
that he did not mention anything about the incident to anybody else at all
B until he was questioned by the police.

· Though the aforesaid two incongruities came on record during cross-
examination no attempt whatsoever was made by the Additional Public
Prosecutor to secure any explanation regarding such aspects.

C Regarding the recovery of weapons, the prosecution could utilize
statements attributed to the accused on the basis of which recovery of
certain weapons was effected. Section 27 of the Evidence Act permits so
much of information which lead to the discovery of a fact to be admitted
in evidence. Here the fact discovered by the police was that the accused
had hidden the blood-stained weapons. In that sphere what could have
D been admitted in evidence is only that part of the information which
accused had furnished to the police officer and which led to the recovery
of the weapons.

True, such information is admissible in evidence under Section 27 of
E the Evidence Act, but admissibility alone would not render the evidence,
pertaining to the above information, reliable. While testing the reliability
of such evidence the Court has to see whether it was voluntarily stated by
~he accused.

F
PW-13 Investigating Officer has said in his evidence that the accused
were arrested on the succeeding day of the occurrence from a different
..
place and they were interrogated by him. But PW- 12 (the driver of the
bus) has said in his evidence that after he reached the police station on the
same evening he saw the three accused inside the police station. We do
not know whether it was an error which PW-12 committed during
G cross-examination. No doubt the Public Prosecutor who conducted the
prosecution did not choose to put any question to PW-12 also in
re-examination.

As it is, there is material discrepancy regarding the time when police
H took the accused in custody. If PW-13 is correct the accused would have
---;

RAMMI v. STATE [TIIOMAS, J.] 9

been arrested only on the succeeding day of occurren~e. But if PW-12 is A
correct the accused should have been interrogated on the very day of
occurrence in which case the accused would have had no occasion to
conceal the weapons.

With the above scrutiny we are unable to place any reliance on the
evidence of PW-13 regarding recovery of the weapons at the instance of B
the accused. In this context we are tempted to observe that the Additional
Public Prosecutor who conducted _prosecution has not discharged his
responsibility as he avoided putting any question to those witnesses when
an opportunity for re-examination was provided to him.
c
The very purpose of re-examination is to explain matters which have
been brought down in cross-examination. Section 138 of the Evidence Act
outlines the amplitude of re-examination. It reads thus :

"Direction of re-examination. - The re-examination shall be directed
to the explanation of matters referred to in cross- examination; D
and if new matter is, by permission of the Court, introduced in
re-examination, the adverse party may further cross-examine upon
that matter".

There is an erroneous impression that re-examination should be E
confined to clarification of ambiguities which have been brought down in
cross-examination. No doubt, ambiguities can be resolved through
re-examination. But that is not the only function of the re-examiner. If the
party 'who called the witness feels that explanation is required for any
.-, matter referred to in cross-examination he has the liberty to put any
F
question in re-examination to get the explanation. The Public Prosecutor
should formulate his questions for that purpose. Explanation may be
required either when ambiguity remains regarding any answer elicited
during cross-examination or even otherwise. If the Public Prosecutor feels
that certain answers require more elucidation from the witness he has the
freedom and the right to put such questions as he deems necessary for that G
purpose, subject of course to the control of the Court in accordance with
the other provisions. But the Court cannot direct him to confine his
questions to ambiguities alone which· arose in cross-examination.

Even if the Public Prosecutor feels that new matters should be H
I
10 SUPREME COURT REPORTS [1999) SUPP. 3 S.C.R.

A elicited from the witness he can do so, in which case the only requirement
is that he must secure permission of the Court. If the Court thinks that
such new matters are necessary for proving any material fact, courts must
be liberal in granting permission to put necessary questions.

A Public Prosecutor who is attentive during cross-examination can
B not but be sensitive to discern which answer in cross- examination requires
explanation. An efficient Public Prosecutor would gather up such answers
falling from the mouth of a witness during cross-examination and formulate
necessary questions to be put in re-examination. There is no warrant that
re-examination should be limited to one or two questions. If the exigency
C requires any number of questions can be asked in re-examination.

But in this case the Additional Public Prosecutor in the trial court
seemed oblivious of such a right. It is rather amazing that he did not avail
himself of that right in respect of a single witness. The defence counsel
would have had a free day as he was left totally undisturbed by the Public
D Prosecutor.
.----<:<
Be that as it may, side-stepping above items of evidence is hardly
sufficient to end· the woes of the appellant because the prosecution ex-
amined two of the most important witnesses to the occurrence, PW-8
E Ramashray - the conductor, and PW-12 .Jabbar Khan - the driver.

PW-8 had given three former statements regarding the occurrence
(Ext.P-12 the First Information Statement, and then what the Investigating
Officer recorded under Section 161 of the Code, and another statement
which the magistrate recorded under Section 164 of the Code). The
F defence counsel used all those three statements to ferret out one or two
omissions therefrom for confronting PW- 8. The Trial Court on the
strength of such answers castigated PW- 8. This was what the Sessions
Judge said about their evidence :

"Ramshray (PW-8) stood contradicted on material and vital points
G from the first information report Ex.P.11, case diary statement
ex.D-1. Those contradictions relate to the material and vital points.
These details go to show that Ramashray (PW-8) is not a truthful
or reliable witness. He was made to modulate his version but to
,_ ....
suit the prosecution case and it is not safe to place implicit reliance
H on his testimony. The evidence of this witness appears artificial,
l RAMMI v. STAIB [THOMAS, J.]

unnatural and improbable and suffers from intrinsic infirmities. In
11

A
the circumstances, his testimony cannot be accepted on its face
value."

Shri Uday Umesah Lalit, learned counsel for the appellant tried to
support the said reasoning of the trial court. We feel that the approach
made by the trial court in groping for discrepancies in the testimony of B
such important witnesses had resulted in the unmerited acquittal.
'.>
When eye-witness is examined at length it is quite possible for him
to make some discrepancies. No true witness can possibly escape from
making some discrepant details. Perhaps an untrue witness who is well c
tutored can successfully make his testimony totally non-discrepant. But
courts should bear in mind that it is only when discrepancies in the
evidence of a witness are so incompatible with the credibility of his version
that the court is justified in jettisoning his evidence. But too serious a view
to be adopted on mere variations falling in the narration of an incident
(either as between the evidence of two witnesses or as between two D
statements of the same witness) is an unrealistic approach for judicial
scrutiny.

It is a common practice in trial courts to make out contradictions
from previous statement of a witness for confronting him during cross- E
examination. Merely because there is inconsistency in evidence it is not
sufficient to impair the credit of the witness. No doubt Section 155 of the
Evidence Act provides scope for impeaching the credit of a witness by
proof of inconsistent forll'.er stateinent. But a reading of the Section would
indicate that all inconsistent statements are not sufficient to impeach the
credit of the witness. The material portion of the Section is extracted F
below:

"155. Impeaching credit of witness. - The credit of a witness n;iay
be impeached in the following ways by the adverse party, or, with
the consent of the court, by the party who calls him........ G

(3) by proof of former statements inconsistent with any part of his
evidence which is liable to be contradicted."

A former statement though seemingly inconsistent with the evidence
need not necessarily be sufficient to amount to .contradiction. Only such of H
I
12 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.
~
A the inconsistent statement which is liable to be "contradicted" would affect
the credit of the witness. Section 145 of the Evidence Act also enables the
cross- examiner to use any former statement of the witness, but it cautions
that if it is intended to "contradict" the witness the cross-examiner is
enjoined to comply with the formality prescribed therein. Section 162 of
B Code also permits the cross-examiner to use the previous statement of the
witness (recorded under Section 161 of the Code) for the only limited
purpose, i.e. to "contradict" the witness.

To contradict a witness, therefore, must be to discredit the particular
version of the witness. Unless the former statement has the potency to
C discredit the present statement; even if the latter is at variance with the
former to some extent it would not be helpful to contradict that witness,
vide Tahsildar Singh and Anr. v. State of U.P., AIR (1959) SC 1012.

In this case the evidence of the conductor and the driver of the bus
evinces credibility. As pointed out earlier they are the most natural
D witnesses for the murder which took .place inside the bus. The minor
variations which the defence counsel discovered from their former state-
ments did not amount to discredit the core of their evidence. The strained
reasoning of the Sessions Judge for side-stepping their evidence is too
fragile for judicial countenance. The Division Bench of the High Court has
E rightly reversed the finding regarding the credibility of their evidence.

For the aforesaid reasons we agree with the High Court that
appellants are liable to be convicted under Section 302 of the IPC. We,
therefore, dismiss this appeal.

S.V.K. Appeal dismissed.