AIR 1968 SC 1438 (INTERESTED WITNESS)

FINAL DRAFT- EVIDENCE LAW

SUBMITTED TO: SUBMITTED BY:

Dr. MEETA MOHINI NITISH KUMAR SINGH
B.A.LL.B. (Hons.)
1744

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR,

MITHAPUR, PATNA- 800001

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INDEX:
INTRODUCTION 3
INTERESTED WITNESSES 4-10
Bhupendra Singh vs The State of Punjab (AIR 1968 SC 1438): FACTS 11-12
JUDGEMENT OF THE CASE 13-19
CONCLUSION 20
BIBLIOGRAPHY 21

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INTRODUCTION:
Bhupendra Singh vs The State of Punjab on 5 March, 1968
Equivalent citations: 1968 AIR 1438, 1968 SCR (3) 404
Author: V Bhargava
Bench: Bhargava, Vishishtha
PETITIONER: BHUPENDRA SINGH Vs. RESPONDENT: THE STATE OF PUNJAB
DATE OF JUDGMENT:
05/03/1968
BENCH:
BHARGAVA, VISHISHTHA
SIKRI, S.M.
SHELAT, J.M.

AIM & OBJECTIVES:

The aim of the researcher is to know the facts and the judgement of the case.

RESEARCH METHODOLOGY:
The researcher has relied on doctrinal method of research.

SOURCES OF DATA:
The researcher has relied on both primary as well as secondary sources of data.

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INTERESTED WITNESSES:
According to Section 3 of the Indian Evidence Act, 1872, the term ‘Evidence’ means and
includes two kinds of evidence i.e., statement of witnesses and documentary evidence. But
this does not mean that there cannot be any other kind of evidence. When the judge
inspects the scene of occurrence and draws a chart of it that is also an evidence; though it is
neither an oral statement of a witness nor a document produced by the parties but in a way,
it is a document.
Therefore, a witness is a person who has first-hand information about the happening of
an event. The declaration and statement of a witness, are made under oath and are
received as evidence for some purpose, whether such statements or declaration are made
on oral examination or by deposition or affidavit. The witness has to assist the court in the
Administration of justice, by attending the court when required. The trial court may call as
the court’s witness person, who were personally present at the event, forming the basis of
the prosecution and his testimony is material or of eyewitness, or any other witness.
Therefore, the relevancy of statements of witnesses touch upon the matter in issue. In
Ram Chandra Rambux V. Champabai & Ors1:
"It is open to the court to look into surrounding circumstances. In order to judge the
credibility of the witness, the court is not confined only to the way, in which the witnesses
have deposed or to the demeanor of witnesses, but it is open to look into the surrounding
circumstances, as well as the probabilities', so that it may be able to form a correct idea of
the trustworthiness of the witnesses.”
If the witness is being examined on the question, whether a document is duly executed, he
shall not be asked any question about the contents. Even if he offers to speak, the court
must disallow him to speak on content. A witness who is proposed to be examined may be
an attesting witness, and can also be a witness on any other relevant matter. A witness shall
not be led to say anything about the issues in dispute between the parties, even though he
is free to speak on anything of which he has knowledge. The witness, while he is being
examined- in- chief or in cross, shall not be permitted to speak on any matter which is not
relevant. When a witness is called to depose on any of the issue specifically, he may be
permitted to speak violently, on any fact relating to the other issues also.
A witness in a criminal trial plays a pivotal role in a determining the fate of the case. The
word "witness" has been defined nowhere in the Criminal Procedure Code. A witness may
be defined as one who gives evidence in a case, an indifferent person to each party, sworn
to speak the truth, the whole truth and nothing but the truth.
In Madhu @ Madhuranatha V. State of Karnataka2
The term ‘witness’ means a person who is capable of providing information by way
of deposing as regards relevant facts, via on oral statements or statement in writing, made

1
AIR 1965 SC 354 (V.52 C65) from Bombay.
2
Kant LJ 158; 2014(84) ACR C 329; AIR 2014 (SC) 394.

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or given in court or otherwise. A ‘witness’ is normally considered to be independent unless,
he springs from sources which are likely to be tainted and this usually means, the said
witness, has cause to bear, such enmity, against the accused, so as to implicate him falsely.
Witness is also explained under various foreign laws as person, possessing, relevant
information of criminal proceedings. It Includes Experts Judicial Officers and others who
agreed to provide any Information of an offence being investigated.
In Sampath Kumar V. Inspector of Police, Krishnagiri,3
It was held that there are three categories of witnesses namely, (i) those that are wholly
reliable, (ii) those that are wholly unreliable and (iii)those who are neither wholly reliable
nor wholly unreliable. In the first category, the court has no difficulty in coming to the
conclusion either way. It can convict or acquit the accused on the deposition of a single
witness, if it is found to be fully reliable. In the second category, also there is no difficulty in
arriving, at an appropriate conclusion. There is no question of placing any reliance upon the
deposition of wholly unreliable witness.
Therefore, there are various classes of witnesses who assist to conclude the trial for the
deliverance of justice. They are as below:-
- Child Witness
- Interested Witness
- Eye Witness
- Hostile Witness
- Related Witness
- Independent Witness
- Solitary Witness
- Material Witness - Trap Witness
- Expert Witness
- Official Witness.

According to Section 118 of Indian Evidence Act, 1872, states as under:- "All persons shall
be competent to testify unless the court considers that they are prevented from
understanding the questions put to them, or from giving rational answer to those questions,
by tender years, extreme old age, disease, whether of body or mind, or any other cause of
the same kind.”

3
(2) RCR (Cri) 231 (SC).

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Explanation- A Lunatic is not incompetent to testify, unless he is prevented by his lunacy
from understanding the questions put to him and give rational answer to them.

Interested Witness:
The 'interested’ witness means a person who desires to falsely implicate the accused
relative not necessarily interested witness4.
According to English law Dictionary, 'A witness in a trial who has a personal interest in
the outcome of the matter on hand’.
Interested witness is one who has some kind of material stake in the outcome of the case
and is not an unbiased witness.

In Takdir Samsuddin Sheikh V. State of Gujrat5

The meaning of the terms 'interested' postulates that the witness must have some direct
interest in having the accused somehow or the other convicted for some other reasons. It is
a settled position that the evidence of interested witness is highly unreliable and the some
cannot be accepted with corroboration.
A close relative is usually a natural witness. He is not considered as an interested
witness as he has not personal interest or material gain in becoming an interested
witness6.

In State of Haryana V. Shakuntla7

The Hon’ble Court elaborated the term interested' witness as having some direct or
'interest' in the accused somehow or the other convicted due to animus or for some other
oblique motive.
In Sahabuddin V. State of Assam8

“An interested witness is the one who is desirous of falsely implicating the accused, with
an intension of ensuring their conviction”

4
Sahabuddin V. state of Assam (2012) 13 SCC 213; 2013 Cri. L.J 1252.
5
2011 (4) RCR (Criminal) 840 (SC).
6
Kartik Malhar V. State of Bihar 1996 (1) RCR (Cr) 308; Rakesh V. State of M.P (SC) 2011(4) RCR (Cri) 355; Mst
Dalbir Kaur and Ors V. State of Punjab AIR 1947 SC 472 (Para13).

7
2012 (2) RCR (Cri) 845 (SC).
8
RCR (Cr) 817; 2013(1) Recent Apex Judgments (R.A.J.) 116.

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Credibility of Evidence of Interested Witness:
There was cross examination and no infirmity was noticed in their evidence. The trial court
and the High Court were right in relying on the evidence of prosecution witnesses9. Close
relation would not conceal actual culprit and make an allegation against innocent person.
Judicial approach must be cautions in dealing with such witnesses. In the instance case
evidence of eye witnesses was not liable to be rejected on ground of being relative and
consequently being partisan, hence acquittal was not justified10. Evidence of interested
witness could not be discarded. But it has to be scrutinized with utmost care and caution11.

In Mano Dutt and Anr V. State of U.P12 and State of Haryana v. Shakuntla13 (SC),
When the statement of witnesses, who are relatives and as such are parties known to the
affected party, it is credible, reliable, trustworthy, admissible in accordance with the law and
corroborated by other witnesses or documentary evidence of the prosecution there would
hardly be any reason for the court to reject such evidence merely on the ground that the
witnesses were family members or interested witness or person known of the affected
party.
In Seema alias Veeranam V. State by Inspector of Police14,
It was held that the statement is not rejected merely on the ground that he is a related
witness or the sole witness, or both; if otherwise the same is found credible.
It is paramount duty of court to be more careful in the matter of scrutiny of evidence of the
interested witness, and if on such scrutiny it is found that the evidence on record of such
interested sole witness is worth credence, the same would not be discarded merely on the
ground, that the witness is an interested person.
A relationship is not a reason to conceal actual culprits and make allegations against
innocent persons. The court analysis the evidence to determine carefully whether it is
cogent and credible15.

9
Harbans Kaur V. State of Haryana, 2000 Cri. L.J 2119.
10
Surinder Singh V. State of UP, AIR 2003 SC 3811:2003 Cri. L.J 4446.
11
Gutturthi Eswara Rao V. State of A.P, 2005 Cri. L.J 1632 (AP).
12
(2012) 4 SCC 79
13
2012 (2) RCR (Cr) 844 (SC).
14
AIR 2005 SC 2503.
15
Joginder Singh V. State 2009 Cri. LJ 2805; Munigadappa Meenaiah V. State of Andhra Pradesh 2008 Cri .L.J
3903; D. Sailu V. State of A.P 2008 Cri .L.J 686; Gali Venkatiah V. State of A.P 2008 Cri. L.J 690; Poonam
Chandriah V. State of A.P 2008 Cri. L.J 4298.

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In Alamgir V. State (NCT) Delhi16
"Reliability of the witness being an interested witness would be futile in the event the
evidence is otherwise acceptable, there ought not to be any hindrance in the matter of the
prosecutor’s success."
In Amit V. State of U.P.17
The witness who saw the accused was a grandmother of the child. No ground to disbelieve
the witness on the ground that she was relative and an interested witness.
State of A.P V. K. Venkata Reddy18
The Court held that where testimony of an interested witness gets sufficient
corroboration then it would safely be acted upon for convicting the accused person.
Testimony of an interested witness does not require corroboration.
In State of Bihar V. Shaukat Mian19,
"Its credibility cannot be doubted merely because he was an interested witness. Evidence
of interested witness shall have to be tested with caution. Moreover, an interested witness,
who is a relative of the victim, would be the person who is keen to ensure that justice is
done to the victim."
In Sardul Singh V. State of Haryana20, the evidence of interested witnesses should be
scrutinized more carefully to find out whether it has a ring of truth. if it is found acceptable
and seems to inspire confidence too, in the mind of the court, the same cannot be
discharged totally merely on account of certain, veracious or infirmities pointed or additions
and embellishment noticed unless, they are of such a nature as to undermine the
substractism of the evidence and found to be tainted to the case.
Evidence given by the witnesses should not be discarded only on the ground that it is
the evidence of interested witness. Rejection of the such an evidence on the ground that is
partisan would invariably lead to failure of justice.
In Dalip Singh v. State of Punjab, 1954 SCR 145 Court observed, without any generalization,
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 – each case has to be
considered on its own facts. This is what this Court had to say:
“A witness is normally to be considered independent unless he or she springs from sources
which are likely to be tainted and that usually means unless the witness has cause, such as

16
SCC Cri 165; AIR 2003 SC 282
17
2012 (2) R.C.R (CR) 11 (SC).
18
AIR 1976 SC 2207; Sarwan Singh V. State of Punjab 1973 SCC (Cri) 646; Siya Ram V. State of Bihar 1973 SCC
(Cri) 236.
19
2011 (6) RCR (Cri) 1967 Patna (DB).

20
AIR 2002 SC 3462

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enmity against 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. It is
true, when feelings run high and there is personal cause for enmity, that there is a tendency
to drag in an innocent person against whom a witness has a grudge along with the guilty,
but foundation must be laid for such a criticism and the mere fact of relationship far from
being a foundation is often a sure guarantee of truth. However, we are not attempting any
sweeping generalisation. Each case must be judged on its own facts. Our observations are
only made to combat what is so often put forward in cases before us as a general rule of
prudence. There is no such general rule. Each case must be limited to and be governed by its
own facts.”
How the evidence of such a witness should be looked at was again considered in Darya
Singh v. State of Punjab, (1964) 3 SCR 397. This Court was of the opinion that a related
or interested witness may not be hostile to the assailant, but if he is, then his evidence
must be examined very carefully and all the infirmities taken into account. It was
observed that 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. This is what this Court said:
“There can be no doubt that in a murder case when evidence is given by near relatives of
the victim and the murder is alleged to have been committed by the enemy of the family,
criminal courts must examine the evidence of the interested witnesses, like the relatives of
the victim, 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. In that case, the fact that the
witness was related to the victim or was his friend, may not necessarily introduce any
infirmity in his evidence. But where the witness is a close relation of the victim and is shown
to share the victim’s hostility to his assailant, that naturally makes it necessary for the
criminal courts examine the evidence given by such witness very carefully and scrutinise all
the infirmities in that evidence before deciding to act upon it…….. [I]t may be relevant to
remember that though the witness is hostile to the assailant, it is not likely that he would
deliberately omit to name the real assailant and substitute in his place the name of the
enemy of the family out of malice. The desire to punish the victim would be so powerful in
his mind that he would unhesitatingly name the real assailant and would not think of
substituting in his place the enemy of the family though he was not concerned with the
assault. It is not improbable that in giving evidence, such a witness may name the real
assailant and may add other persons out of malice and enmity and that is a factor which has
to be borne in mind in appreciating the evidence of interested witnesses. On principle,
however, it is difficult to accept the plea that if a witness is shown to be a relative of the
deceased and it is also shown that he shared the hostility of the victim towards the
assailant, his evidence can never be accepted unless it is corroborated on material
particulars.”
More recently, in Waman v. State of Maharashtra, (2011) 7 SCC 295 this Court dealt with
the case of a related witness (though not a witness inimical to the assailant) and while
referring to and relying upon Sarwan Singh v. State of Punjab, (1976) 4 SCC 369, Balraje v.

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State of Maharashtra, (2010) 6 SCC 673, Prahlad Patel v. State of Madhya Pradesh, (2011) 4
SCC 262, Israr v. State of Uttar Pradesh, (2005) 9 SCC 616, S. Sudershan Reddy v. State of
Andhra Pradesh, (2006) 10 SCC 163, State of Uttar Pradesh v. Naresh, (2011) 4 SCC 324,
Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 and Vishnu v. State of Rajasthan, (2009) 10
SCC 477 it was held:
“It is clear that merely because the witnesses are related to the complainant or the
deceased, their evidence cannot be thrown out. 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 affect the credibility of a witness and the courts have to
scrutinise their evidence meticulously with a little care.”
The sum and substance is that the evidence of a related or interested witness should be
meticulously and carefully examined. In a case where the related and interested witness
may have some enmity with the assailant, the bar would need to be raised and the evidence
of the witness would have to be examined by applying a standard of discerning scrutiny.
However, this is only a rule of prudence and not one of law, as held in Dalip Singh and pithily
reiterated in Sarwan Singh in the following words:

“The evidence of an interested witness does not suffer from any infirmity as such, but the
courts require as a rule of prudence, not as a rule of law, that the evidence of such
witnesses should be scrutinised with a little care. Once that approach is made and the court
is satisfied that the evidence of interested witnesses have a ring of truth such evidence
could be relied upon even without corroboration.”

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Bhupendra Singh vs The State of Punjab (AIR 1968 SC 1438): FACTS OF THE
CASE
PETITIONER:
BHUPENDRA SINGH
Vs.
RESPONDENT:
THE STATE OF PUNJAB

DATE OF JUDGMENT:
05/03/1968
BENCH:
BHARGAVA, VISHISHTHA
SIKRI, S.M.
SHELAT, J.M.

CITATION:
1968 AIR 1438, 1968 SCR (3) 404.
ACT:
Code of Criminal Procedure, 1898, ss. 375, 376 and 423—Duty of appellate Court to
examine entire record in proceedings for confirmation of death sentence--if court
can accept defence admission of its case having no substance or should examine record for
itself. Sentence--appeal against--when Supreme Court may interfere.
HEADNOTE:
The appellant lived with his father A in a house adjoining that of the deceased G who lived
there with his two sons and a daughter. An argument developed one evening between the
appellant and one of the sons of G. When G intervened, the appellant's father A raised a
'lalkara' asking the appellant to finish him off. Thereupon the appellant shot and killed G.
By this time G's two sons, his daughter and one M who lived nearby had arrived and
witnessed the occurrence. At the trial the appellant's defence was a pica of alibi but the
Trial Court rejected the defence and convicted the appellant of G's murder and
sentenced him to death. In appeal, the High Court did not go into the defence evidence
because the counsel appearing for the appellant admitted that there was no substance
in it. The High Court accordingly dismissed appeal and confirmed the sentence of death.
In appeal to this Court against the conviction and the sentence it was contended that

11
the High Court in not examining the defence evidence for itself, committed an error and
did not properly discharge its duties.

HELD: (i) Although ordinarily, in a criminal appeal against conviction, the appellate Court,
under s. 423 of the Code of Criminal Procedure, can dismiss the appeal if the Court is of
the opinion that there is no sufficient ground for interference and it is not necessary for
the appellate Court to examine the entire record for the purpose of arriving at an
independent decision, the position is different where the appeal is by an accused who is
sentenced to death, so that the High Court dealing with the appeal has before it,
simultaneously with the appeal, a reference for .confirmation of the capital sentence under
s. 374 of the Code. On a reference for confirmation of sentence of death, the High Court
is required to proceed in accordance with sections 375 and 376 of the Code of Criminal
Procedure and the provisions of these sections make it clear that the duty of the High
Court, in dealing with the reference, is not only to see Whether the order passed by the
Sessions Judge Is correct but to examine the case for itself and even direct a further enquiry
or the taking of additional evidence if the Court considers it desirable in order to ascertain
the guilt or the innocence of the convicted person. [407 D-G]
Jumman and Others v. The State of Punjab, A.I.R. 1957, S.C. 469; Ram Shanker Singh &
Ors. v. State of West Bengal, [1962] Supp. 1 S.C.R. 49 at p. 59; applied.
(ii)(Upon an examination of the entire evidence by the Court) : No s had been made out-
for interference with, the appellants con[409 D-E]
405
Maaslti v. State of U.P., [1964] 8 S.C.R. 133 at p.144; referred to.
(iii) The sentence of death must be set aside and instead the appellant sentenced to
imprisonment for life Although ordinarily this Court, in exercise of its power under Art
136, does not interfere with a sentence, in the present case there were some special
features which had to be taken into account : even according to the prosecution, the
murder of G by the appellant was not premeditated; the act of firing at him a to-be
that of a hot-headed person who was incited to do so by his father; the murder was not in
any way cruel or brutal. In all these circumstances, the ends of justice would be met if
the lesser penalty prescribed by law was awarded to the appellant. [413 G-H]

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JUDGEMENT OF THE CASE:
A.S.R. Charl, B. A. Desai, S. C. Agarwal, A. K. Gupta, Shiva Pujan Singh and Virendra Verma,
for the appellant. Hans Rai Khanna and R. N. Sachthey, for the respondent. The Judgment of
the Court was delivered by Bhargava, J. Bhupendra Singh has come up to this Court in
appeal by special leave against a judgment of the High Court of Punjab and Haryana
confirming the sentence of death awarded to him by the Sessions Judge of Jullundur for an
offence, under section 302 of the Indian Penal Code and dismissing his appeal against the
conviction and sentence. The conviction of the appellant was recorded for committing the
murder of one Gurdarshan Singh who was living in the same. village Birpind as the appellant
in the house adjoining the appellant's house. The- appellant's father, Ajit Singh, also lived
with the appellant, while, with Gurdarshan Singh, were living his sons, Gurdial Singh and
Sarvjit Singh, and his daughter Gian Kaur. According to the prosecution, on the 6th
November, 1965, at about 7.45 p.m., the two brothers, Gurdial Singh and Sarvjit Singh,
happened to be standing in front of their house talking to each other, when the appellant
came out of his house and asked them what they were talking about. Gurdial Singh replied
that he and Sarvjit Singh were brothers and were talking between themselves and it was no
business of the appellant to interfere. The appellant, thereupon, abused the two- brothers
and also slapped Sarvjit Singh on the face. Gurdial Singh asked the appellant why he had
beaten his brother and used abusive language against the appellant. The appellant got
enraged, ran into his house abusing the two boys, and return-
ed with a double-barrel 12 bore gun. When he came out of his house this time, he was
accompanied by his father, Ajit Singh. Gurdial Singh and Sarvjit Singh then ran into the
'deorhi' of their house. In the meantime, their father, Gurdarshan Singh, and their sister,
Gian Kaur, returned to the house from their fields. When Gurdarshan Singh saw the
appellant carrying the gun, he enquired what the matter was. Thereupon, Ajit Singh raised a
'lalkara' asking his son, the appellant, to finish off Gurdarshan Singh. The appellant then
fired two shots in quick succession from his gun hitting Gurdarshan Singh on vital parts of
his body. Gurdarshan Singh fell down dead on the ground. One Malkiat Singh, who lived in a
house nearby, had arrived and saw this occurrence, so that the four persons, who witnessed
the occurrence. were Malkiat Singh, Gurdial Singh, Sarvjit Singh and Gian Kaur. Gurdial
Singh, leaving others to look after the dead body of his father, went with Lal Singh,
Lambardar, to the Police Station which was situated at a distance of about three miles and
lodge the First Information Report at about 9.30 p.m. on the same day. The ,case was then
investigated. A post mortem examination on the corpse of Gurdarshan Singh was performed
and articles like pellets, blood-stained cardboard pieces lying near the scene of occurrence
were taken into their possession by the Police. Both the appellant and his father, Ajit Singh,
were thereafter prosecuted for this murder. The appellant was charged with being the
principal offender in committing the murder, while his father, Ajit Singh, was prosecuted for
having participated in the murder with the common intention that Gurdarshan Singh should
be killed. However, before the trial could take place in the Court of Sessions, Ajit Singh was
murdered and, for that murder, Gurdial Singh was prosecuted.

13
In the case, at the first stage before the Court of the Committing Magistrate, both Ajit Singh
and the appellant took the plea that neither of them was responsible for committing the
murder of Gurdarshan Singh and contented themselves with denying the correctness of the
prosecution case. In the Court of Sessions, when the appellant was examined under section
342 of the Code of Criminal Procedure, he came forward with the plea that it was his father,
Ajit Singh, who actually fired and killed Gurdarshan Singh. He pleaded that he himself was
not present in this
-village at all and was, in fact, that day staying at Phillaur. He, thus, put forward the plea of
alibi. The Sessions Judge believed the evidence of the four prosecution witnesses mentioned
above, and, after discussing the defence evidence given on behalf of the appellant in
support of his pleas. rejected that evidence. He did not accept the defence evidence that
Gurdarshan Singh was fired at by Ajit Singh and he also, held that the evidence given on
behalf of the appellant to prove his alibi could not be relied upon. On these findings, the
Sessions Judge convicted the appellant and sentenced him to death for committing the
murder of Gurdarshan Singh. When the case came up before the High Court, the High Court
briefly examined the evidence of the prosecution witnesses and held that their evidence
was reliable. The High Court did not, however, go into the defence evidence, because the
counsel appearing for the appellant, according to the High Court, frankly admitted that
there was no substance in it. On this view, the High Court dismissed the appeal of the
appellant and confirmed his sentence of death. In this appeal, the principal question that
was canvassed before us on behalf of the appellant was that the High Court, in not
examining the defence evidence for itself on the simple ground that counsel for the
appellant admitted that there was no substance in it, committed an error and did not
properly discharge its duty. It appears that there is substance in the submission made on
behalf of the appellant. Ordinarily, in a criminal appeal against conviction, the appellate
Court, under s. 423 of the Code of Criminal Procedure, can dismiss the appeal, if the Court is
of the opinion that there is no sufficient ground for interference, after examining all the
grounds urged before it for challenging the correctness of the decision given by the trial
Court. It is not necessary for the appellate
-Court to examine the entire record for the purpose of arriving at an independent decision
of its own whether the conviction of the appellant is fully justified. The position is, however,
different where the appeal is by an accused who is sentenced to death, so that the High
Court dealing with the appeal has before it, simultaneously with the appeal, a reference for
confirmation of the capital sentence under s. 374 of the Code of Criminal Procedure. On a
reference for confirmation of sentence of death, the High Court is required to proceed in
accordance with sections 375 and 376 of the Code of Criminal Procedure and the provisions
of these sections make it clear that the duty of the High Court, in dealing with the reference,
is not only to see whether the order passed by the Sessions Judge is correct, but to examine
the case for itself and even direct a further enquiry or the taking of additional evidence if
the Court considers it desirable in order to ascertain the guilt or the innocence of the
convicted person It is true that, under the proviso to s. 376, no order of confirmation is to
be made until the period allowed for preferring the appeal has expired, or, if an appeal is
presented within such period, until such appeal is disposed of, so that, if an appeal is filed by

14
a condemned prisoner that appeal has to be disposed of - before any order is made in the
reference confirming the sentence of death. In disposing of such an appeal, however, it is
necessary that the High Court should keep in view its duty under s. 375 of the Code of
Criminal Procedure and, consequently, the Court must examine the appeal record for itself,.
arrive at a view Whether a further enquiry or taking of additional evidence is desirable or
not, and then come to its own conclusion on the entire material on record whether
conviction of the condemned prisoner is justified and the sentence of death should be
confirmed. In Jumman and Others v. The State of Punjab('), this Court explained this
position in the following words:-
"............ but there is a difference when a reference is made under s.. 374, Criminal
Procedure Code, and when, disposing of an appeal under s. 423, Criminal Procedure Code,
and that is that the High Court has to satisfy itself as to whether a case beyond reasonable
doubt has been made out against the accused persons for the infliction of the penalty of
death. In fact the proceedings before' the High Court are a reappraisal and the reassessment
of the entire facts and law in order that the High Court should be satisfied on the materials
about the guilt or innocence of the accused persons. Such being the case, it is the duty of
the High Court to consider the proceedings in all their aspects and come to an independent
conclusion on the materials, apart from the view expressed by the Sessions
-Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions
Judge, but under the provisions of the law above-mentioned it is for the High Court to come
to an independent conclusion of its own."
The same principle was recognised in Ram Shankar Singh Others, v.State of West Bengal (2)
:_ "...... The High Court had also to consider what order should be passed on the reference
under s. 374, and to decide on an appraisal of the evidence, whether the order of conviction
for the offences for which the accused were convicted was justified and whether, having
regard to the circumstances, the sentence of death was the appropriate sentence."
In Masalti V. State of U.p.(3) this Court was dealing with an appeal under Article 136 of the
Constitution and, in that appeal, on behalf of the persons who; were under sentence of
death, a point was sought to be urged which was taken before the trial Court and was,
rejected by it, but wits not repeated before the -High Court. This Court held:-
".........it may, in a proper case, be permissible to the appellants to ask this Court to consider
(1) A.I.R. 1957 S.C. 469.
(2) [1962] Supp. I S.C.R. 49 at p. 59.
(3) [1964] 8 S.C.R. 133 at P. 144.
that point in an appeal under Article 136 of the Constitution; after aft in criminal
proceedings of this character where sentences of death are imposed on the appellants, it
may not be appropriate to refuse to consider relevant and material pleas of fact and law
only on the ground that they were not urged before the High Court. If it is shown that the
pleas were actually urged before the High Court and had not been considered by it, then, of

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course the party is entitled as a matter of right to obtain a decision on those pleas from this
Court. But even otherwise no hard and fast rule can be laid down prohibiting such pleas
being raised in appeals under Art. 136." In view of these principles indicated by us above,
and in view of the fact that, in this case, the' High Court did not properly examine the
defence evidence on the ground that the counsel for the appellant in that Court admitted
that there was no substance in it, we permitted learned counsel for the appellant in this
appeal to take us through the entire evidence on the record given by the prosecution and
the defence so as to enable us to form our own judgment about the correctness of the
conviction and sentence of the appellant. We, however, find that, after examining the entire
evidence, we are unable to hold that any grounds are made out for interference with the
conviction. The prosecution case, as already mentioned by us above, is supported by the
evidence of four eye-witnesses, Gurdial Singh, Sarvjit Singh, Gian Kaur and Malkiat Singh.
Three of these witnesses, Gurdial Singh, Sarvjit Singh and Gian Kaur are the sons and
daughter of the deceased Gurdarshan Singh, but this circumstance, in our opinion, does not
detract from the value to be attached to their evidence, because, naturally enough, they are
interested in seeing that the real murderer of their father is convicted of the offence and
they cannot be expected to adopt a course by which some innocent person would be
substituted for the person really guilty of the murder. None of these witnesses had any such
enmity with the appellant as could induce him to give false evidence and to substitute him
as the murderer in place of the person really guilty. In fact, their feelings. would be
strongest against the real culprit and, consequently, their evidence cannot be discarded on
the mere ground of their close interest in the deceased. Malkiat Singh has been held both
by the Sessions Judge and the High Court to be an independent witness and we find no
reason to differ from the view taken by the two Courts. On behalf of the appellant, it- was
sought to be. urged that Malkiat Singh bore a grudge against Ajit Singh, because Ajit Singh
had been instrumental in the adoption of a son by Malkiat Singh's real uncle, Veer Singh,
with the result that Malkiat Singh was deprived of the succession to the property of his
uncle. Malkiat Singh denied that he had any grievance against Ajit Singh on such a ground. In
support of the plea put forward on behalf of the appellant, one defence witness, Niranjan
Singh was examined who claimed to be the son of another real uncle of Malkiat Singh.
Niranjan Singh came to depose that his son, Sadhu Singh, had been adopted by Veer Singh
and this adoption took place because Ajit Singh had asked Veer Singh to take Sadhu Singh in
adoption. Niranjan Singh had, however, to admit that, in the deed of adoption, the person
adopted is described as Mukhtiar Singh and not Sadhu Singh. To explain this discrepancy,
Niranjan Singh came forward with the assertion that his son, Sadhu Singh, bore an alias
Mukhtiar Singh. If Sadhu Singh was the real and principal name of the boy adopted by Veer
Singh, there is no reason why that name was not mentioned in the deed of adoption and
why the person adopted was described only as Mukhtiar Singh. There is further the
circumstance that, even according to Niranjan Singh, Malkiat Singh, witness, did not try to
challenge the adoption, even though the adoption had taken place in April 1965, seven
months before this incident. Malkiat Singh had stated that he had no grievance against Ajit
Singh and was in fact not interested in challenging the adoption. In these circumstances, we
do not think that Malkiat Singh can be said to be an interested witness and must hold that
his evidence has been rightly relied upon. The time of the murder was not only proved by

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the evidence of these four witnesses, but is also borne out by the circumstance that the First
Information Report was lodged at the Police station three miles away at about 9.30 p.m.
without any undue delay. On behalf of the appellant, it was urged that the First lnformation
Report was in fact recorded much later and not at 9.30 p.m. the same day, on the basis that
the copy of that report sent to the Ilaqa Magistrate was received by him at 10.30 a.m. on
8th November, 1965. The argument was that, if the report had been lodged at 9.30 p.m. on
6th November 1965, the copy should have reached the Magistrate the same night or early
on the 7th November and not as late as 8th November. We are unable to accept this
submission. The evidence of Gurdial Singh was perfectly clear that he reached the police
station and lodged the report that very night at 9.30 p.m. and there is no reason to
disbelieve him. It appears that in this case, the investigating officer, Sub-Inspector Ram
Saran Dass was, to some extent, negligent. In the report lodged by Gurdial Singh, the facts
given clearly made out an offence of murder, and yet the Sub-Inspector chose to register
the case wrongly as for an offence under section 304 read with section 34 of the Indian
Penal Code. It may be that, having wrongly put down the offence as under 304 I.P.C.'instead
of section 102, the Sub-Inspector did not consider it necessary to send the report to the
Ilaqa Magistrate the same night and delayed sending it, so that it was received at 10-30 a.m.
on 8th November, 1965 by the Magistrate. It is also not clear from the evidence whether,
apart from the copy of the First Information Report sent to the Ilaqa Magistrate, any special
report was also sent to the Magistrate by the Sub-Inspector. In any case, we do not think
that this late receipt of the copy of the First Information Report by the Magistrate can lead
to the inference that Gurdial Singh is not right in saying that he had the report recorded the
same night at 9.30 p.m. The evidence of the doctor who performed the post mortem
examination and of the ballistic expert clearly establish that Gurdarshan Singh had died as a
result of gun shot injury received by him from a gun. The gun which the appellant possessed
under a licence issued to him was examined by the ballistic expert and his evidence proved
that the shots, which killed the deceased, were fired from that very gun. In these
circumstances, the Sessions Judge and the High Court were right in recording the conviction
of the appellant for the murder of Gurdarshan Singh on the basis of this prosecution
evidence.
So far as the defence put forward on behalf of the appellant is concerned, the first point to
be noticed is that the plea that the shots, which killed Gurdarshan Singh, were fired by Ajit
Singh, was not taken by the appellant until his father, Ajit Singh, had already died. It seems
to be clear that this plea, which was put forward for the first time in the Court of Sessions,
was an afterthought which could be taken safely by the appellant after Ajit Singh had died
and he could not be convicted for the murder. When the appellant was examined in the
court of the Committing Magistrate while Ajit Singh was alive, he did, not make any such
statement. This is an important circumstance that militates against the plea put forward in
defence.
The appellant relied upon the evidence of two witnesses in support of the plea that the
shots which killed Gurdarshan Singh were fired by Ajit Singh and not by the appellant. The
first of these witnesses is Uggar Singh who stated that he was in his house situated opposite
to the house of the appellant and, when he came out on hearing the noise, he saw Ajit Singh

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quarelling with Gurdarshan Singh deceased and exchanging abuses. Thereafter, Ajit Singh
fired the gun shots towards Gurdarshan Singh killing him instantaneously. According to him,
neither Malkiat Singh nor the sons of Gurdarshan Singh were present at that time. Even
Shrimati Giano, according to him, was not there. The evidence of this witness cannot be
relied upon for several reasons. According to this witness, his statement was recorded by
the Police at about 10 a.m. the next day, i.e., the 7th November, 1965; but L7Sup.C.l.68--
2the investigating officer's statement is clear that no person residing in the neighbourhood
had been examined by him or had come forward to give any statement to him. Uggar Singh,
thus, made a wrong statement that he was examined by the Police the next day. It also
appears that he was prosecuted in a murder case in which he was acquitted and Ajit Singh
had assisted him in that trial. The answers given by him in the cross-examination also show
that, in fact, his house is not in front of the house of the appellant but is situated in the
same line as the house of the appellant and the deceased and at some distance. He tried to
get over this difficulty by stating that he has another house which is opposite to the house
of the appellant, but it appears that that house belongs to his cousin, Ujagar Singh, and that
is how the house is described in the site plan also. In all these circumstances, the evidence
of Uggar Singh cannot be accepted. The second witness is Niranjan Singh, whose evidence
we have noticed Above, and he also partially supported this part of the defence case by
saying that he came rushing to the spot after the incident and found Gurdarshan Singh lying
dead, while Ajit Singh was standing outside his house with something which appeared to be
a gun. It is clear that this is art another attempt by Niranian Singh to help the appellant and
on this point also reliance cannot be-,placed on his evidence.
There remains to be considered the evidence given on behalf of the appellant to establish
his plea of alibi. One defence witness Kirpal Singh was examined to prove that the accused
was on deputation in the Seed Corporation at Phillaur and was attached to-the Tehsildar,
Phillaur and that he was not suspended until 11th November, 1965. His evidence is of no
help, because it is obvious that the appellant could be suspended only after he surrendered
in connection with this charge which happened on 11th November 1965. The fact that he
was in service on 6th November, 1965, does not necessarily prove that he could not have
been present at the place of occurrence.
The Witness, on whose evidence reliance is primarily placed is Bunta Ram, Patwari. Bunta
Ram stated that on 6th Novem- ber, 1965 he had come to the office of the Corporation at
Phillaur in order to collect his pay and he also brought some files from Nakodar in order to
consign those files. In that connection. he remained in the office of the Corporation
throughout the day. He saw the appellant also working in the said office throughout the
day. According to him, at about 6.30 p.m., he and the appellant went to the house of
Inderjit Singh, Patwari and spent the night at his house. It, 'however, I appears that this
witness is a direct subordinate of the appellant and that is the reason why he has come
forward to support the appellant's case. In this connec-
tion, Jagdish Rai Batta, Tehsildar in the Seed Corporation, was examined as a court witness
by the Sessions Judge and his evidence shows that Bunta Ram was one of the Patwaris
working as a subordinate of the appellant who was a kanoongo in the Corporation. Bunta

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Ram had stated that on that day he had himself appeared before the Tehsildar in
connection with the consignment of the tiles and the Tehsildar had given him some
directions in that behalf. Jagdish Rai Batta stated that on that day Bunta Ram, Patwari did
not appear before him nor did he produce any files. He went further and stated that he did
not point out any defects to Bunta Ram Patwari either orally or in writing. Thus, Bunta Ram-
is proved to be an untruthful witness by the evidence of Jagdish Rai Batta, Tehsildar. Bunta
Ram, in his cross- examination, purported to state that the appellant was living in a part of
the house of Inderjit Singh at Phillaur. On the face of it, it cannot be correct because the
appellant did not belong to Phillaur and was not even posted there in connection with his
employment. His headquarters, according to Jagdish Rai Batta, was Nakodar and not
Phillaur. The evidence of Jagdish Rai Batta only shows that he saw the appellant working in
his office at Phillaur on that day until about 5 p.m. Phillaur is connected with Nako- dar by a
metalled road along with which there is a bus service, and village Birpind,where the murder
took place, is only three miles from Nakodar. It is quite clear that the appellant could easily
reach Birpind well before 7.45 p.m. even if he worked at Phillaur till 5 p.m. on that day.- It is
also significant that the murder was committed with the gun belonging to the appellant. If
the appellant himself had not been at Birpind and had been at Phillaur or Nakodar, the gun
should have been with him. at one of these places and not at Birpind. The gun could not,
therefore, have been available for use by Ajit Singh, his father in his absence. Considering all
these circumstances and the nature of the evidence, we are unable to accept that there is
any force in the defence plea of alibi put forward by the appellant, so that the conviction
based on the prosecution evidence must be upheld.
A plea was put in for reduction of sentence. Ordinarily, this -Court, in exercise of its powers
under Art. 1 36 of the Constitution, does not interfere with a sentence awarded by a
Sessions Judge and upheld by the High Court; but, in this case, there are some special
features which we cannot ignore. Even according to the prosecution, the murder of
Gurdarshan Singh by the appellant was not pre-meditated. The act of firing at him appears
to be that of a hot-headed person who was incited to do so by his father. The murder was,
not in any way cruel or brutal. In all these circumstances, we think that the ends of justice
would be met if the lesser penalty prescribed by law is awarded to the appellant.

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CONCLUSION:
The term ‘witness’ means a person who is capable of providing information by way of
deposing as regards relevant facts, via on oral statements or statement in writing, made or
given in court or otherwise. A ‘witness’ is normally considered to be independent unless, he
springs from sources which are likely to be tainted and this usually means, the said witness,
has cause to bear, such enmity, against the accused, so as to implicate him falsely.
Witness is also explained under various foreign laws as person, possessing, relevant
information of criminal proceedings. It Includes Experts Judicial Officers and others who
agreed to provide any Information of an offence being investigated.
In State of Haryana V. Shakuntla
The Hon’ble Court elaborated the term interested' witness as having some direct or
'interest' in the accused somehow or the other convicted due to animus or for some other
oblique motive.
In Sahabuddin V. State of Assam
“An interested witness is the one who is desirous of falsely implicating the accused, with an
intension of ensuring their conviction”
“The evidence of an interested witness does not suffer from any infirmity as such, but the
courts require as a rule of prudence, not as a rule of law, that the evidence of such
witnesses should be scrutinised with a little care. Once that approach is made and the court
is satisfied that the evidence of interested witnesses have a ring of truth such evidence
could be relied upon even without corroboration.”
Bhupendra Singh vs The State of Punjab (AIR 1968 SC 1438):
The appellant lived with his father A in a house adjoining that of the deceased G who lived
there with his two sons and a daughter. An argument developed one evening between the
appellant and one of the sons of G. When G intervened, the appellant's father A raised a
'lalkara' asking the appellant to finish him off. Thereupon the appellant shot and killed G.
By this time G's two sons, his daughter and one M who lived nearby had arrived and
witnessed the occurrence. At the trial the appellant's defence was a pica of alibi but the
Trial Court rejected the defence and convicted the appellant of G's murder and
sentenced him to death. In appeal, the High Court did not go into the defence evidence
because the counsel appearing for the appellant admitted that there was no substance
in it. The High Court accordingly dismissed appeal and confirmed the sentence of death.
In appeal to this Court against the conviction and the sentence it was contended that
the High Court in not examining the defence evidence for itself, committed an error and
did not properly discharge its duties.

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BIBLIOGRAPHY:
LAL, BATUK, THE LAW OF EVIDENCE, 22nd EDITION
https://indiankanoon.org/doc/1478685/

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