KHUJJI@SURENDRA TIWARI versus THE STATE OF MADHYA PRADESH

Citation: [1991] 3 S.C.R. 1 · Decided: 16-07-1991 · Supreme Court of India · Bench: A.M. AHMADI · Disposal: Dismissed

Cited by 4 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

KHUJJl@SURENDRA TJWARI 
A 
v. 
·-
THE STATE OF MADHYA PRADESH 
JULY 16, 1991 
[A.M. AHMADI, V. RAMASWAMI AND K. RAMA SW AMY, JJ .] 
B 
Evidence Act, 1872: Hostile witness-Evidence of-Whether to 
be treated as wholly effaced from record or could be accepted to the 
extent dependable-Prosecution witness expressing doubt in cross-
examination regarding indentity of some of the asssai/ants-Whether 
evidence in examination-in-chief acceptable-Presence of same set of 
Panch witnesses for all discoveries and attachments-Whether per-
C 
rnissible-Evidence of interested party-Whether could be overlooked. 
Criminal Procedure Code, 1973: Section 174-0bject and scope 
of-Inquest report-Whether should contain names of witnesses. 
Section 386( l)(b )-Evidence of witnesses-Reappraisal by appel-
late court-Whether permissible. 
Indian Penal Code, 1860: Sections 302, 34 and 149-0ffence of 
murder-Several persons charged-Al/ accused except one acquitted-
D 
No appeal by State against acquittal-Whether appellate court can 
E 
reappreciate evidence to determine persons committing the offence and 
record conviction notwithstanding acquittal of co-accused. 
Practice and Procedure Per incuriam-Omission to refer deci-
sion of larger Bench in the Court's decision-Effect of. 
The appellant was convicted by the courts below under Section 
302 IPC and sentenced to life imprisonment for the murder of one G. It 
F 
was alleged that when the deceased and his companion, PW-4 were 
proceeding in a rickshaw, pulled by PW-3, the appellant and his five 
companions launched an attack on them. While PW-4 received an 
injury hy a cycle chain, the deceased received stab injuries, to which the 
G 
succumbed on the spot. On the First Information Report lodged by 
PW-4, statements of three eye witnesses viz. PW-1, an on-looker and 
PWs 3 and 4 recorded during the course of investigation, and the evi-
dence regarding discovery of incriminating articles and find of human 
blood on them, the appellant and his five companions were chargeshee-
ted for the murder ot'the deceased. 
A 
B 
c 
D 
E 
F 
G 
H 
2 
SUPREME COURT REPORTS 
I 1991] 3 S.C.R. 
During the trial, two of the eye-witnesses, viz. PWs 3 and 4 were 
declared hostile, since they expressed their inability to identify the 
accused per;11ns as assailants of the deceased. Though PW I supported 
the prosecution in examination-in .. chief, he expressed some doubt 
regarding the identity of the appellant and one other assailant in the 
cross-examinatiou. The trial court refused to place reliance on the evi-
dence of the three eye-witnesses and acquitted all, except the appellant. 
It convicted the appellant under Section 302 !PC and sentenced him to 
life imprisonment on the evidence that the appellant was absconding, 
that he had discovered the weapon which was found to be stained with 
human blood and the factum of find of human blood on the pant worn 
by him at the time of his arrest. The appellant's appeal was dismissed 
by the High Court. While ignoring the evidence of PWs 3 and 4, the 
High Court relied on the evidence of PW-I holding that his subsequent 
attempt to create a doubt regarding the identity of the appellant was of 
no consequence, since there \\'as intrinsic material in his evidence to 
establish the presence of the appellant amongst the assailants of 
deceased. It also relied on the discovery evidence and find of human 
blood on the weapon and on the pant he was wearing at the time of his 
arrest. The State did not prefer an appeal against the five companions 
of the appellant who were acquitted by the trial court. 
In the appeal before this Court on behalf of the appellant it was 
contended that (I) the prosecution version regarding the incident, 
particularly, the involvement of the appellant was highly doubtful since 
the correctness of the First Information Report, purported to have been 
lodged by PW4 was itself doubtful since he had disowned it; (2) the 
presence of PW I at the scene of offence and at the time of occurrence 
was highly doubtful anti the High Court committed an error in placing 
reliance on his testimony in examination-in-chief, while brushing aside 
his statement in cross-examination; (3) same set of Panch witnesses had 
been employed for all the discovery panchnamas as well as the attach-
ment of clothes of the appellant and others and since PWS, Panch 
witness was closely associated with the family and was a stock witness 
for the prosecution, no reliance could he 

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