REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 330 OF 2009
(Arising out of SLP (Crl.) No. 7557 of 2008)
Prithu @ Prithi Chand and Anr. ..Appellants
Versus
State of H.P. ..
Respondent
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the
Himachal Pradesh High Court setting aside the acquittal recorded by learned
Additional Sessions Judge, Kangra, Dharamshala. Three accused persons,
Bhola, Pruthu and Dharmu faced trial for alleged commission of offence
punishable under Sections 302 read with 34 of the Indian Penal Code, 1860
(in short the `IPC‘). The High Court by the impugned judgment set aside
the order of acquittal and directed each of the accused persons guilty of
offence punishable under Section 304 Part I, IPC read with Section 34 IPC
and sentenced each to undergo rigorous imprisonment for seven years and
to pay a fine of Rs.5,000/-.
2. Background facts in a nutshell are as follows:
Fandi Ram (hereinafter referred to as the `deceased’) owed certain
amount to Prehlad Chand (PW-10), merchant of village Boh on account of
purchases made on credit. Appellant is son of PW-10. On 14.2.1992 at 8.00
a.m. the accused appellant visited house of Fandi Ram and demanded
payment due to his father. Fandi Ram told Bhola that he had to take loan
from the society and would make payment. Bhola who was carrying a bottle
of liquor asked Fandi Ram to go to society shop after visiting the house of
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accused Prithu. Both of them went to the house of Prithu located in the
village of Fandi Ram. All the three sat in the house and started consuming
liquor in which his brother Dharmu also joined. At about 2 p.m. Singhu
(PW-4) son of deceased was sent by his widow Kailasho Devi (PW-3) to see
if Fandi Ram had gone to society shop. Singho reminded his father, but all
the three accused told that they would accompany him to society shop.
Singho then came and left for village Kathla and Sardair Lal (PW-5) another
son of deceased went to water mill (Gharat).
At about 3.30 p.m Kailasho and her son Jagdish from their house
noticed all the three accused giving fist blows to Fandi Ram near the school,
located in front of their house, separated by a drain from the school.
Kailasho shouted why her husband was being beaten and she accompanied
by Jagdish rushed to the place of occurrence where her husband was being
given a beating. Bhola accused in her presence gave a stone blow on the
head of Fandi Ram and ran away. Remaining accused also hit him with the
stone on the head. Jagdish (PW-2) intervened but the accused Dharamu and
Prithu also gave beatings to him. The sleeve of the shirt of Jagdish got torn
and one sleeve was left on the spot. Jagdish tied a cloth around the head of
his father, which was bleeding due to injuries. They took Fandi Ram to the
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shop of Prehlad Chand (PW-10). On the way Sardari Lal (PW-5) who was
coming from water mill met them. He inquired about the cause of injuries
from his father. Fandi Ram told him of the accused beating him with stones
with all the other accused due to the enmity of Panchayat elections. Then on
the way to the shop of Prehlad Chand, Janam Singh, Nambardar (PW-6)
met them who was also told by the deceased that he was beaten by the
accused with stones due to Panchayat elections. Prehlad Chand was also
told by the deceased that he was beaten by the accused, who then tried to get
the matter compounded and settled for Rs.600/-. But accused did not agree
to make payment. Thereafter in the shop of Prehlad Chand, Fandi Ram fell
unconscious. On way a Compounder Desh Raj (PW -12) provided him first
aid.
Fandi Ram at about 11.00 p.m. succumbed to the injuries. Further
case revealed is that during night due to distance, injured could not be taken
to hospital at Shahpur located at a distance of 25 Kilometers, nor police
could be informed. In the morning of 15th February, 1992, Sardari Lal came
to Shahpur to lodge report but when he reached village Darini, the bus had
already left. Therefore, Darini informed police station Shahpur on
telephone about the occurrence upon which information A.S.1. Feru Ram
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(PW-15) recorded Rapat Ex.P.19 and proceeded to the spot. In village of the
deceased he recorded statement Ex.P-5 of Jagdish Singh (PW-2), sent the
same for registration of a. case. Prepared inquest report Ex. P. 2 and took
Parna Ex. P. 10 vide memo Ex. P. 8 in possession. Investigation was
undertaken. After completion of investigation charge sheet was filed.
Trial Court did not accept the evidence to be credible and directed
acquittal. State questioned the acquittal.
The High Court found that the trial Court has over looked the
evidence of the eye witnesses, more particularly, PWs 2 to 5. It was also
noted that PW-10 the father of accused Bhola accepted that Kailasho Devi
accompanied by her son and the deceased in injured condition came to his
shop and on enquiry Fandi Ram and his wife informed him that he was
beaten by accused Dharmu and Fundi Ram also nodded his head supporting
the version of his wife. The High Court noted that the evidence clearly
established that the accused persons took liquor with the deceased in the
house of accused Bhola. There was election dispute. PW-10 who was
Pradhan proclaimed that he did not vote for a winning party and this was the
bone of contention between the accused persons and the deceased. The
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accused persons were also drunk. They started quarreling with the deceased
and gave him a fist blow and assaulted him with some stones which was
witnessed by Kailasho Devi and her son Jagdish Singh from their house.
Therefore, the order of acquittal was set aside.
3. In support of the appeal, learned counsel for the appellant submitted
that the evidence of the eye witnesses was not reliable and, therefore, the
order of acquittal should not have been set aside.
4. Learned counsel for the State on the other hand submitted that the
High Court had rightly held that in course of sudden quarrel the occurrence
took place and, therefore, had convicted the accused persons in terms of
Exception 4 to Section 300 IPC by altering the conviction to Section 304
Part I IPC.
5. It is to be noted that the accused persons pleaded that the evidence of
the eye witnesses cannot be accepted as there were omissions,
contradictions and discrepancies in the evidence of most of the prosecution
witnesses. In the effort to false implication prosecution made introduction
of PW-9 an eye witness. It is fairly settled position in law that even if there
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are some omissions, contradictions and discrepancies the entire evidence
cannot be discarded. After exercising care and caution and sifting the
evidence to separate the truth from untruth, exaggeration, embellishments
and improvements the court can come to a conclusion as to whether the
residual evidence is sufficient to convict the accused. (See Sohrab and Anr.
V. The State of M.P. (AIR 1972 SC 2020) and State of U.P. v. M.K.
Anthony (AIR 1985 SC 48).
6. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (AIR 1983 SC
753), it was observed that undue importance should not be attached to
omissions, contradictions and discrepancies which do not go to the root of
the matter and shake the basic version of the prosecution witnesses. A
witness cannot be accepted to possess a photographic memory and to recall
the deals of an incident verbatim. Ordinarily, it so happens that a witness is
overtaken by events. A witness could not have been anticipated the
occurrence which very often has an element of surprise. The mental
faculties cannot, therefore, be expected to be attuned to absorb all the
details. Thus, minor discrepancies were bound to occur in the statement of
witnesses.
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7. The High Court has analysed the evidence in the aforesaid
background and has rightly come to the conclusion that the guilt of the
accused persons has been established.
8. The appeal is, therefore, dismissed.
………………………………….J.
(Dr. ARIJIT PASAYAT)
………………………………….J.
(ASOK KUMAR GANGULY)
New Delhi,
February 18, 2009
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