KALKI vs.

STATE OF RAJASTHAN

EVIDENCE LAW CASE BRIEF

SUBMITTED BY : SUBMITTED TO :
NIRAJ KUMAR DR. SHUBHAM SRIWASTAVA
SEMESTER V ‘A’ ASSISTANT PROFESSOR, LAW
ROLL NO. 1055 NUSRL, RANCHI

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN

LAW, RANCHI
 ABSTRACT
The onus of proof in a criminal trial is always on the prosecution who has to prove its case
beyond reasonable doubt. The accused cannot possibly be convicted without any legal
substantive evidence as the evidence is an essential element in the criminal proceedings.
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.
Evaluating evidence and rendering decisions is a great responsibility in criminal cases. The
credibility of any witness, who gives evidence as to the facts either for the prosecution or the
defence is material to the issue. Therefore, the appreciation of evidence is important and has to
be done carefully. The Courts have laid down guiding principles which have evolved with time.
The case of State of Rajasthan vs. Kalki is a remarkable judgment and has been refereed to and
discussed in a lot of cases. However, recently in the case of Raju vs. State of Tamil Nadu, the
same was dissented. The present article analyses the philosophy that has devolved with and after
the Kalki case, in the light of the gradual changes.

FACTS OF KALKI vs. STATE OF RAJASTHAN

• There was a land dispute between Nimba, father of the deceased, Poona, on the one hand,
and respondent Amara and the members of his family, on the other.
• On July 17, 1970 at about sunset, Kalki armed with an axe and Amara with a dharia, the
respondents, along with other accused persons, came to the house of the deceased and called
for Poona. Poona came out followed by his wife Mooli, when he was knocked down by
Amara and Rama whereupon Kalki gave him blow with the axe on the neck. Poona met with
instantaneous death. Mooli screamed as a result of which Geli, mother of the deceased came
running from some distance and saw the assailants leaving the place.
• A report was lodged and consequently, the Sessions Judge, tried convicted and sentenced the
six accused persons including the two respondents as stated above.
• The High Court however set aside the order of conviction and sentence passed by the
Sessions Judge on the grounds of the widow of the deceased being an interested witness and
the material discrepancies in her statement. The Supreme Court granted special leave to
appeal only against the two respondents and refused it as against the other four.
ANALYSIS OF THE ISSUES

• The widow being a “related” and “interested” witness

A witness in a criminal trial plays a pivotal role in determining the fate of the case. Though the
Criminal Procedure Code does not define the word "witness", it has been 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.1

When a person appearing as a witness, either on behalf of any party, is related to the party
summoning him, is addressed as a related witness. And an interested witness is a witness in a
trial who has a personal interest in the outcome of the matter on hand. The appreciation and
acceptance of the evidence by related and/or interested witness has been the subject matter of the
cases since a long time. The Courts have laid down certain guiding principles; nevertheless, it
remains a matter to be decided as per the facts and circumstances of the case.

Evidence of related witness can be relied upon provided it is trustworthy. Mere relationship does
not disqualify a witness. Witnesses who are related to the victim are as competent to depose the
facts as any other witness only that such evidence is required to be carefully scrutinized and
appreciated before reaching to a conclusion on the conviction of the accused.2

In a case3 where the witnesses, relatives of the deceased, remained silent when they didn’t know
that the accused committed murder of his wife and buried her dead body in the graveyard but
deposed the facts in sequence and evidence, was believed. The Court held that the close relation
of the witnesses with the deceased was no ground to suspect their credibility. It has been held
that it is the duty of court to analyze the evidence of related witness cautiously and scrutinize the
same with other corroborative evidence.4

The independence of a witness is not a subject of examination unless he or she spring from
sources, which are likely to be tainted, and that usually means unless the witness has a cause or

1
P. Ramanatha Iyer , Concise Law Dictionary, WADHWA & COMPANY, p. 896, (8th ed., 2004).
2
Sampath Kumar vs. Inspector of Police, Krishnagiri, 2011(4) RCR (Cri) 355
3
Ranjhe Khan vs. State of Punjab, 2011(4) RCR (Cri) 355.
4
Mookkiah vs. State, AIR 2013 SC 321
such enmity against the accused, to wish, to implicate him falsely.5 The possibility and
probability of their physical presence at the place of occurrence has to be taken in consideration.6

Even when the witness is “interested”, the statements cannot be rejected if they are convincing
and corroborated by other eyewitnesses7. The evidence in each case has to be considered from
the point of trustworthiness and from the angle as to whether it inspires confidence in the mind
of the court, to accept and the question of credibility and reliability of a witness is to be decided
with reference to the way he fared in cross examination and the nature of impression created in
the mind of the court.8 But the court should examine the evidence of related and interested with
greater care and caution, than evidence of a third party disinterested and unrelated witness.

The Court in the present case differentiated between a “related witness” and an “interested
witness”. It has rightly held that even though she is the wife of the deceased; but she cannot be
called an 'interested' witness. A witness who is a natural one and is the only possible eye witness
in the circumstances of a case cannot be said to be 'interested'.

• Appreciation of Evidence

In the past, great importance was given to minor contradictions and omissions while appreciating
the statements of the witnesses. Such practices made cross-examination of witnesses a kind of
mockery. But recently, the courts have been criticizing this tendency which is unduly
advantageous to the defense side and paralyze the prosecution case on the strength of minor
contradictions and omissions came on record.

The Supreme Court in the present case observed that in the depositions of witnesses there are
always some normal discrepancies however honest and truthful they may be. These
discrepancies are due to normal errors of observation, normal errors of memory due to lapse of
time, due to mental disposition such as shock and horror at the time of the occurrence, and the
like. Material discrepancies are those which are not normal, and not expected of a normal person.

5
Kedar Behra vs. State, 1993 Cri .L.J 378.
6
Md. Jshaque vs. St of West Bengal, 2013(3) RCR(Cr) 58.
7
Yakub Razak Memon vs. State of Maharashtra, AIR 1966 SC 1418.
8
Tapubhaa Bhagvanji vs. State of Gujrat, AIR 2002 SC 2794
It is well settled principle now that mere ‘inconsistency’ in evidence is not sufficient to impair
the credit of the witness. Even though Section 155 of the Evidence Act provides scope for
impeaching the credit of a witness by proof of inconsistent former statement but proper
interpretation of the section would indicate that not all inconsistent statements are sufficient to
amount to contradiction.

In appreciation of evidence, the approach now adopted by the courts is whether the evidence of
the witness read as a whole, appears to have a ring of truth. The Courts scrutinize the evidence
keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a
whole. The evaluation is to find out if the intention is changed or against the evidence and
whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor
discrepancies on trivial matters not touching the core of the case, hyper-technical approach by
taking sentences torn out of context here or there from the evidence, attaching importance to
some technical error committed by the investigating officer not going to the root of the matter
would not ordinarily permit rejection of the evidence as a whole.9

The background of the witnesses is also given due importance while appreciating their
statements, for example when witnesses hail from agricultural family and are villagers, they are
not expected to state minute details in their earlier statements before Court.10 The happening of
the incident, the state of mind of the witnesses there and the impact on them is also a factor to be
considered. For instance, when several people with deadly weapons attack one or more person,
then the witnesses are not expected to describe the incident with graphic details or with such
precision that which member and in what manner participated in the commission of offence.11

The Courts after exercising care and caution and sifting through evidence to separate truth from
untruth, exaggeration and improvements can come to a conclusion as to whether residuary
evidence is sufficient to convict the accused.12

CONCLUSION

9
State of U.P. Vs. M. K. Anthony, AIR 1985 SC 48
10
Waman Vs. State of Maharashtra, AIR 2011 SC 3327.
11
Nand Kumar v State of Chhattisgarh, 2014 (4) RCR (Cr) 895(SC).
12
C. Muniappan Vs. State of Tamil Nadu, AIR 2010 SC 3718
The Court in the present case has rightly analyzed the situation though it has been observed to be
“narrow” and “generalized” in the case of Raju alias Balachandran. In the opinion of the author,
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.
Their relationship to one of the parties is not a factor that affects the credibility of a witness,
more so, 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. The discrepancies in the statements should be analysed in the
light of the entire facts and circumstances. If it doesn’t affect the basic foundation of the case and
there is no reason to not accept the evidence and prejudice against the party.
BIBLIOGRAPHY

• Books

M. Moneir, The Law of Evidence, UNIVERSAL LAW PUBLISHING CO., (8th ed., 2011)

P. Ramanatha Iyer, Concise Law Dictionary, WADHWA & COMPANY, p. 896, (8th ed.,
2004).

Ratanlal, Dhirajlal, The Law of Evidence, WADHWA & CO., (22nd ed., 2006)

• Bare Act

The Evidence Act, 1872

• Online Resources

Manupatra

SCC Online

• Articles

Abdullah, Who is an Interested Witness? IS Raju alias Balachandran and others vs. State of
Tamil Nadu (AIR 2013 SC 983) Correctly decided?, LIVE LAW, (Jan. 20, 2014),
https://www.livelaw.in/who-is-an-interested-witness-is-raju-alias-balachandran-and-others-vs-
state-of-tamil-nadu-correctly-decided/

Himanshu Setia, Witnesses In A Criminal Trial: Their Role And Efficacy, RESEARCH
JOURNAL OF FORENSIC SCIENCES, (June 1, 2016).