On the point of the veracity of an injured eye-witness whose oral evidence is not supported by medical evidence.
In Indira Devi and Ors. v. State of Himachal Pradesh – 2016(3) Crimes 43 (SC), wherein the Supreme Court has held:
“7. The proposition of law that an injured witness is generally reliable is no doubt correct but even an injured witness must be subjected to careful scrutiny if circumstances and materials available on record suggest that he may have falsely implicated some innocent persons also as an after thought on account of enmity and vendetta. The trial court erred in not keeping this in mind.” (emphasis supplied)
(II) On the aspect that the version given by eye-witnesses who are also interested and witnesses being related to the deceased, in addition to being inimically disposed against the accused and whose versions were not corroborated by medical evidence, reliance has been placed upon a judgment of the Supreme Court in Kuldip Yadav And Others v. State of Bihar – (2011)5 SCC 324, wherein it is held that:
“43. (n) The version given by eye-witnesses who were also interested witnesses on account of their relationship with the deceased and being inimically deposed against the accused persons is highly exaggerated, contrary to each other and not fully corroborated with medical evidence and there are discrepancies about the number of accused persons, weapons and ammunitions carried by them and they are not in tune with what (PW9) informant has stated in his deposition. In other words, the prosecution has not presented true version on most of the material parts and therefore the witnesses and material placed on their side does not inspire confidence and cannot be accepted on its face value.”
(III) The very same judgment has been relied upon to bring home the force of the submission that it is mandatory for the Court, before convicting an accused with the aid of Section 149, to give clear findings regarding the nature of the unlawful common object.
The relevant extract of the judgment is as under:
“36. In order to understand the rival claim, it is useful to refer Section 149 which reads as follows:
“149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.–If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”
In Rajendra Shantaram Todankar vs. State of Maharashtra and others (2003) 2 SCC 257=2003 SCC (Crl.) 506, Apex Court has once again explained Section 149 and held as under:
“14. Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 — either clause — is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act….”
There can be no doubt regarding the principle of law that the testimony of a injured witness would stand on a higher pedestal than that of other witnesses as the injury sustained by him would go to prove his presence at the place of occurrence. However, in the same judgment, it has been stated by the Supreme Court that the evidence of an injured eye-witness should be relied upon unless there are strong grounds for the rejection of his evidence on the basis of major contradictions and inconsistencies. Therefore, even the evidence of an injured eye witness requires scrutiny and analysis and there is no rule of law stating that it should be accepted blindly, as it is.
The proposition of law that an injured witness is generally reliable is, no doubt, correct but even an injured witness must be subjected to careful scrutiny if circumstances and material available on record suggest that he may have falsely implicated some innocent persons as an afterthought on account of enmity or vendetta. Again where there is a contradiction between the medical evidence and ocular evidence, though the ocular testimony of a witness has greater evidentiary value visa vis the medical evidence, however, when the medical evidence makes the ocular evidence improbable, that becomes relevant factor in the evaluation of evidence. Moreover, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. It is but natural for human beings to state variant statements due to time gap but if such statements go to defeat the core of the prosecution then such contradictions are material and the Court has to be mindful of such statements [Tahsildhar Singh v. State of UP, AIR 1959 SC 1012; Pudhu Raja v. State, (2012) 11 SCC 196; State of UP v. Naresh, (2011) 9 SCC 698]