CASE NO.: Appeal (crl.) 297 of 1992 PETITIONER: LEELA RAM (D) THROUGH DULI CHAND RESPONDENT: STATE OF HARYANA AND ANR. DATE OF JUDGMENT: 06/10/1999 BENCH: K.T. THOMAS U.C. BANERJEE JUDGMENT:
JUDGMENT
1999 Supp(3) SCR 435
The Judgment of the Court was delivered by
BANERJEE, J. This appeal by special leave is directed against an order of
acquittal passed by the Punjab & Haryana High Court at Chandigarh,
reversing the order of conviction and sentence of life imprisonment passed
by the learned Sessions Judge under Section 302 IPC and Section 27 of the
Arms Act.
The occurrence dates back to 16th July, 1983 at about 12.00 noon in a
village called Alipur Barota. The prosecution case as made out, depicts
that the accused wanted to dig a khal forcibly through the field of one
Maman Ram, which was objected to and the local Sarpanch was also informed
accordingly. At a meeting, called by the Sarpanch, it was decided that the
matter ought to be resolved amicably and by reason therefor the Panchayat
consisting of Kurra Ram (PW2), Leela Ram (PW1), Ram Kumar Panch and Blum
Sen (PW4) alongwith deceased Maman Ram and a few other persons proceeded
towards the field of the accused. The Maman Ram, the deceased, was few
paces ahead of the other members. When however the deceased Maman Ram, was
near the field of Kundan Singh, the accused came out of the field with a
double barrel gun and on seeing Maman Ram, raised a Lalkara to the effect
“pani na dene ka maza chakhata hun”. The accused thereafter fired a shot
from his gun, striking on the chest of the deceased Maman Ram. The other
members of the group on hearing the gun shot, stopped there and immediately
thereafter the second shot was fired by the accused and who then left the
place running with his gun towards village Aharwan. The Sarpanch arrived
there a little later and he and Kurra Ram remained at the place whereas
Leela Ram (son of the deceased) went to the Police Station, Fatehabad and
gave the first information statement being recorded as Exh. PA before the
trial court. Upon compliance with the formalities, Sub-Inspector Devi Dutt
along with Leela Ram went to the place of occurrence and prepared the
inquest report (Ex. PG) and despatched the dead body to Civil Hospital,
Fatehabad for post-mortem examination. Blood stained earth and two empty
cartridges were also taken into custody. All these recoveries were effected
in the presence of Kurra Ram and Bhim Sen.
The post-mortem examination on the body of Maman Ram was conducted by Dr.
A.S. Chaudhary (PW3) at Fatehabad on 16th July, 1983 at 6.00 p.m. and he
had found the following ante-mortem injuries on the body;
1. “There was a lacerated wound 1-1/2″ diametre with inverted margins
showing blackening at edges, situated at front of lower and of sternum over
ziphi-sternum. On further exploration of wound, it led towards the left
side obliquely upward and laterally, causing laceration of the heart, the
left lung had passed through another wound with averted margins on lateral
side of left chest wall just below left arm-pit measuring 2-1/2″ x 2-1/2″
shown in the diagram.”
2. A lacerated wound with inverted margins measuring 6 x 2″ on the
medial and upper and of left upper arm. On dissection, there were
laceration of muscles, vessel, nerves and humerus bone was badly, fractured
in pieces. The wound passed on lateral side of upper left arm, with averted
margins, resulting in injury no, 4 measuring T x 2-1/2″. There was skin tag
hanging between injuries nos. 3 and 4 in front, there were corresponding
holes in the left sleeve of the shirt.
3. There were four bulges and four lacerated wounds situated on the back
between and of scapula in mid-line in an area of about 6″in diametre.
Wounds were of averted margins of size about +” x +” in oval shape, on
dissection of the bulges, four pellets and 3 pieces of card board with
marking “Tiger” were recovered and sealed in a bottle. On further
exploration of ribs nos. 3, 4, 5 and 6 at their junction with the vertabrae
were fractured in pieces on left side. There were holes in the body of the
vertabrae nos. 2, 5 and 6 left side with fracture of traneverse processes
and laceration of the spinal cord corresponding to the hole in the
verterbrae. There were corresponding holes in the shirt on the back side.
Stomach contained semi digested food material. Semen discharged at urithral
end”.
In his opinion Dr. Chaudhary recorded that the cause of death was shock and
haemorrhage and the injuries were sufficient to cause death in the ordinary
course of nature.
Without much of a factual detail, be it noted that on 18th July, 1983, the
accused was arrested and from his possession one DBBL gun along with 3 live
cartridges of 12 bore and a licence in his name were recovered. The empty
cartridges along with the gun were sent to the Ballistic expert on 21st
July, 1983 and who in no uncertain recorded that empty cartridges has been
fired from the gun belonging to the accused. The prosecution examined nine
witnesses in all, and in the statement under Section 313 of the Code of
Criminal Procedure, the accused alleged false implication in the case at
the instance of Bhim Sen Sarpanch by reason of his brother Ramji Lal having
contested an election against Bhim Sen.
The reason recorded by the High Court in the support of acquittal is that
the eye witnesses’ account regarding the number of shots fired by the
appellant on the deceased stand contradicted by medical evidence. In this
context the High Court observed :
“The positive case of the prosecution as set up by Leela Ram and Ram Kumar,
eye-witnesses is that two shots were fired by Om Prakash, appellant at
Maman (deceased). They do not seem to be clear about the site of the first
injury. In examination-in-chief they stated that the first gunshot had hit
on the left side of the chest of Maman, but during cross-examination both
of them stated consis-tently that it was on the left upper arm. According
to Leela Ram, it has hit on the left shoulder and Kurra Ram’s position was
that it had hit the left upper arm, near the arm pit. The injury had been
described by the doctor as injury No. 3. The injury was on the medial and
upper end of left upper arm and its exit was on the lateral side. To
describe in a more simple language, the wound of entry was on the inner
side of the left arm. The exit wound was just opposite, that is outer side
of the arm. The injury was from 12 bore gun. We cannot imagine any
situation in which the appellant could cause injury No. 3 to Maman from any
angle. We asked the learned State counsel to caricature any position in
which a man can strike such an injury with a 12 bore gun, as was injury No.
3 Maman, without causing injury on another part of the body. This injury is
simply impossible and cannot be caused from any angle. The circumstances of
the case suggest that all the injuries were the result of the gunshot,
noted as injury No. 1. PW 1 Dr. A.S. Chaudhary, during cross-examination,
had also to agree to this position. The shot which was from a close range
had entered the chest of Maman (deceased) at the point of strike, after
encountering the bony resistence, it appears, the pellets got scattered
into two groups; one group which was forcing the overshot cardboard the
point which was noted as injury No. 5 by Dr. Chaudhary. The other group,
after bony resistence, split from the main charge and traveled to the left
side. After puncturing the heart, it went out at point No. 2 and re-entered
the left arm under the arm-pit to make an exit on the lateral side of the
left arm. The route of the scattered pellets is almost in line from the
point of entry till the point of exit on the lateral side of the left arm.
We are, therefore, satisfied that these injuries on the dead body of Maman
were the result of one gunshot and not of two shots, as stated by the eye-
witnesses.”
This longish quotation probably could have been avoided but we thought it
fit to reproduce it verbatim so as to assess the situation in the proper
perspective, more so when there is an order of acquittal by the High Court
in reversal of the conviction and sentence for life imprisonment passed by
the trial Court. Apart from the comment on the method of investigation, the
High Court mainly proceeded on two counts. On the first, the learned Judges
commented that the discrepancies and contradictions between the witnesses
do not inspire confidence and on the second count they noted that there was
fabrication of evidence by the investigating agency.
Before however, proceeding with the matter on two counts as above, it would
be convenient to note another aspect of the matter, namely, the
observations pertaining to the investigation by the Investigating Agency.
It is now a well settled principle that any irregularity or even an
illegality during investigation ought not to be treated as a ground to
reject the prosecution case and we need not dilate on the issue excepting
referring a decision of this Court (vide State of Rajasthan v. Kishore, AIR
(1996) SC 3035).
Be it noted that the High Court is within its jurisdiction being the first
appellate court to re-appraise the evidence, but the discrepancies found in
the ocular account of two witnesses unless they are so vital, cannot affect
the credibility of the evidence of the witnesses. There is bound to be some
discrepancies between the narrations of different witnesses when they speak
on details, and unless the contradictions are of a material dimension, the
same should not be used to jettison the evidence in its entirety.
Incidentally, corroboration of evidence with mathematical niceties cannot
be expected in criminal cases. Minor embellishment, there may be, but
variations by reason therefor should not render the evidence of eye
witnesses unbelievable. Trivial discrepancies ought not to obliterate an
otherwise acceptable evidence. In this context, reference may be made to
the decision of this Court in the State of U.P. v. M.K. Anthony, AIR (1985)
SC 48. In paragraph 10 of the report, this Court observed :
“While appreciating the evidence of a witness, the approach must be whether
the evidence of the witness read as a whole appears to have a ring of
truth. Once that impression is formed, it is undoubtedly necessary for the
Court to scrutinise the evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out in the evidence as a
whole and evaluate them to find out whether it is against the general tenor
of the evidence given by the witness 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,
hypertechnical 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. If the
Court before whom the witness gives evidence had the opportunity to form
the opinion about the general tenor of evidence given by the witness, the
appellate court which had not this benefit will have to attach due weight
to the appreciation of evidence by the trial Court and unless there are
reasons weighty and formidable it would not be proper to reject the
evidence on the ground of minor variations or infirmities in the matter of
trivial details. Even honest and truthful witnesses may differ in some
details unrelated to the main incident because power of observation,
retention and reproduction differ with individuals.”
In a very recent decision in Criminal Appeal No. 61 of 1999 (Rammi alias
Rameshwar v. State of Madhya Pradesh) with Criminal Appeal No. 33 of 1999
(Bhura Alias Sajjan Kumar v. State of Madhya Pradesh) this Court observed :
“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 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 state-
ments of the same witness) is an unrealistic approach for judicial
scrutiny”.
This Court further observed :
“It is a common practice in trial courts to make out contradictions from
previous statement of a witness for confronting him during cross-
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 former statement. 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
below :
” 155. Impeaching credit of witness. The credit of a witness may be
impeached in the following ways by the adverse party, or, with the consent
of the Court, by the party who calls him…..
(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 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 intended to “contradict” the witness the cross-examiner is
enjoined to comply with the formality prescribed therein. Section 162 of
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 par-ticular
version of the witness. Unless 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,
(vide Tahsildar Singh and Anr. v. State of U.P., AIR (1959) SC 1012)”.
The court shall have to bear in mind that different witnesses react
differently under different situations : whereas some become speechless,
some start wailing some others run away from the scene and yet there are
some who may come forward with courage, conviction and belief that the
wrong should be remedied. As a matter of fact it depends upon individuals
and individuals. There cannot be any set pattern or uniform rule of human
reaction and to discard a piece of evidence on the ground of his reaction
not falling within a set pattern is unproductive and a pedantic exercise.
It is indeed necessary to note that hardly one conies across a witness
whose evidence does not contain some exaggeration or embellishments –
sometimes there could even be a deliberate attempt to offer embellishment
and sometimes in their over anxiety they may give slightly exaggerated
account. The Court can sift the chaff from the corn and find out the truth
from the testimony of the witnesses. Total repulsion of the evidence is
unnecessary. The evidence is to be considered from the point of view of
trustworthiness – If this element is satisfied, they ought to inspire
confidence in the mind of the Court to accept the stated evidence though
not however in the absence of the same.
In this context, reference may be made to the decision of this Court in the
case of Appabhai and Another v. State of Gujarat, AIR (1988) SC 696 wherein
this Court in paragraph 11 of the report observed :
“Experience reminds us that civilized people are generally insensitive when
a crime is committed even in their presence. They withdraw both from the
victim and the vigilante. They keep themselves away from the Court unless
it is inevitable. They think that crime like civil dispute is between two
individuals or parties and they should not involve themselves. This kind of
apathy of the general public is indeed unfortunate, but it is there
everywhere whether in village life, towns or cities. One cannot ignore this
handicap with which the investigating agency has to discharge its duties.
The Court, therefore, instead of doubting the prosecution case for want of
independent witness must consider the broad spectrum of the prosecution
version and then search for the nugget of truth with due regard to
probability, if any, suggested by the accused. The Court, however, must
bear in mind that witnesses to a serious crime may not react in a normal
manner. Nor do they react uniformly. The horror stricken witnesses at a
dastardly crime or an act of egregious nature may react differently. Their
course of conduct may not be of ordinary type in the normal circumstances.
The Court, therefore, cannot reject their evidence merely because they have
behaved or reacted in an unusual manner.”
In paragraph 13 of the report this Court further observed :
“The Court while appreciating the evidence must not attach undue importance
to minor discrepancies. The discrepancies which do not shake the basic
version of the prosecution case may be discarded. The discrepancies which
are due to normal errors of perception or observation should not be given
importance. The errors due to lapse of memory may be given due allowance.
The Court by calling into aid its vast experience of men and matters in
different cases must evaluate the entire material on record by excluding
the exaggerated version given by any witness. When a doubt arises in
respect of certain facts alleged by such witness, the proper course is to
ignore that fact only unless it goes into the root of the matter so as to
demolish the entire prosecution story. The witnesses nowadays go on adding
embellishments to their version perhaps for the fear of their testimony
being rejected by the Court. The courts, however should not disbelieve the
evidence of such witnesses altogether if they are otherwise trustworthy.”
The basic reason for non-acceptance of prosecution case so far as the High
Court is concerned is the contradiction said to have effected by not being
clear about the side of the first injury on the body of the deceased Maman
in so far as the evidence of Leela Ram (PW 1) is concerned. Be it noted,
Leela Ram is the son of deceased Maman. In his examination in Chief he
stated :
“My father was 7/8 paces ahead of me. When my father reached the field of
Kundan Singh, then the accused came out from the field of Kundan Singh, he
was having a double barrel gun. The field of Kundan Singh was having charri
crop. The accused uttered the words `Pani Na Dene Ka Maza Chakhata Hun.’
The accused fired a gun shot at my father which struck him on the upper
part of the chest to the left side. On receiving this shot, my father fell
down on the ground. The second gun shot fired by the accused struck my
father on his chest. After this, myself, Kurra Ram and Ram Kumar, Member
Panchayat ran back. In the meanwhile, the Panchayat had reached the canal
bridge. I told the Sarpanch that Om Prakash accused had fired at my father,
who was running towards village Aharwan with his weapon.”
In cross-examination however, the evidence records as below :
“I was at a distance of 5 karams when the accused fired the first shot at
my father. The accused had fired first shot on my father from the left side
hitting him on the chest on the left side. Again said on the left shoulder.
My father fell down on receipt of that shot. He fell down with his face
towards the sky. The head of my father was towards the bridge. The second
shot was fired by the accused while standing towards the side of his feet,
I cannot tell the distance between the feet of my father and the accused,
where he was standing. He was at a distance of a few feet from the feet my
father, when he fired the second shot -I remained at the place where I was
when the first shot was fired. When the second shot was fired then I ran
backward by two paces. Kurda also went backwards by 2/3 paces. After the
firing of two shots, I ran towards the Panchayat. I had raised noise when
the two fires were shot at my father. When I was retreating backwards, then
the second shot was fired.”
It is the above evidence which has prompted the High Court to ask the
learned Advocate appearing for the prosecution “to caricature any position
in which a man can strike such an injury with a .12 bore gun…….”
Where there was one shot or two shots, can it not be termed to be
immaterial in the matter of assessing the culpability of the accused. The
son who saw his father has been shot at and thereafter fell dead – total
stunning effect on the son and it is on this score that mere hair splitting
on the available evidence ought not to be undertaken and instead the
totality of the situation ought to have been reviewed. The empty cartridges
were found and the ballistic expert’s report that the cartridges match with
the injury. The High Court ascribes this to be an immaterial piece of
evidence. We, however, do not think so. Ballistic expert’s evidence cannot
be brushed aside since that is in the normal course of events, a valuable
material vis-a-vis the use of the gun and the injury. The High Court went
on to record the contradiction from the medical evidence but unfortunately
the same does not find support from the evidence on record. Dr. A.S. Chaud-
hary having done the post-mortem examination on the deceased Maman, has
stated in his evidence that : “Injuries Nos. 2, 4 and 5 are the exit
wounds. Injuries Nos. 1 and 3 are the entry wounds”. Dr. Chaudhary further
said that “Injury No. 1 is an entry wound of point blank range”. The doctor
has been subjected to cross examination and he at the end of it all said
that : “It can be said that the injuries on the person of the deceased were
the result of one shot”. It is on this count, High Court recorded that Dr.
Chaudhary “had also to agree to this position” (emphasis supplied).
Needless to say that the Doctor probably has not been able to match the
cross-examining lawyer and there was thus an unequal duel between the
medical man and a refined lawyer. Can it be said; that by reason of the
evidence of Dr. Chaudhary the contradictions are galore in nature, so far
as the evidence of Leela Ram is concerned – the High Court upon
consideration of the factum of such a contradiction answers the same on a
positive note. This however; is not acceptable to this Court the
discrepancy does not seem to be of such a nature so as to effect the
creditworthiness or the trustworthiness of the witness. As as matter of
fact it does not so do by reason of the fact that Maman fell a victim of
gun shot injuries and died; it is immaterial as to whether one or two gun
shots were fired – the contradiction at its highest cannot but be stated to
be in regard to a minor incident and does not travel to the root of the
nature of the offence. The other piece of evidence is that the Sarpanch and
the members of the village panchayat saw the accused running away towards
the village Aharwan just after firing with his gun.
Incidentally, the Sarpanch also stated that there were two gun shots sounds
which he heard. Then there is ballistic expert report as noticed above-
these pieces of evidence as available on record cannot be ascribed to be
untrustworthy neither can be that they do not inspire confidence. There is
thus no discrepancy about the totality of the situation and witnesses
without any major contradiction deposed before the Court of Session with an
unbiased mind and in a manner which in our view unmistakably point to the
guilt of the accused and the appreciation of evidence by the High Court, in
our view is wholly unwarranted, improper and unimaginative in the
contextual facts.
Admittedly, there was some dispute pertaining to digging of a water course
though the land of the deceased Maman. There is such an evidence that the
Sarpanch of the village was going to resolve the dispute between the
parties and it was at this juncture this gruesome murder took place: motive
therefore, cannot be ruled out. The High Court has proceeded on the basis
that two eye witnesses being the son and brother-in-law of the deceased are
interested witnesses, and hence their evidence ought not to be relied upon,
we are unable to concur therewith. The ocular account though may have been
given by the son and the brother-in-law does not by itself loses its
efficacy or its evidentiary value unless some other factor is brought on
record to discredit the creditworthiness of the witnesses: On the facts of
the matter under consideration, the presence of Leela Ram being the son of
the deceased appears to be quite natural by reason of the fact that the
father had a land dispute with someone else and the son in the normal way
could be interested in settlement of the dispute. As such his presence
during parley cannot be termed unnatural. Similar was the situation as
regards the presence of Kurra Ram, brother-in-law of the deceased, who has
lodged a complaint to the Panchayat. If Kurra Ram, also accompanied the
Panchayat members for the amicable settlement of the dispute, in our view
there is nothing unnatural about it. Evidence of both the eye-witnesses
stand fully corroborated by the Sarpanch who is an independent witness. The
High Court has doubted the veracity of his evidence only on the ground that
the brother of the accused once lost election against the witness. We
consider that as too feeble a ground to doubt the evidence of the Sarpanch.
The core of his testimony remains reliable and no good reason can be traced
out to reject it.
In our view the High Court relying upon some minor contradictions fell into
a clear error in passing the order of the acquittal of the accused.
According to us the learned Sessions Judge has reached the conclusion
correctly and such a well merited conviction should not have been so
lightly interfered with.
We therefore, allow this appeal and set aside the judgment of the High
Court. The conviction and sentence passed by the Session Judge shall stand
restored. The accused is hereby directed to surrender before the trial
court. We direct the Sessions Judge concerned to take prompt steps to put
the accused back in jail to undergo the sentence imposed on him.