REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1264 OF 2005
BABASAHEB APPARAO PATIL -- APPELLANT (S)
VERSUS
STATE OF MAHARASHTRA -- RESPONDENT (S)
JUDGMENT
D.K. JAIN, J.:
1. This appeal arises out of the judgment rendered by the
High Court of Judicature at Bombay, in Criminal Appeal
No. 686 of 1988, confirming the conviction of the appellant
for offence under Section 302 read with Section 34 of
Indian Penal Code, 1860 (for short `IPC’).
2. As many as four accused came to be tried by the Addl.
Sessions Judge, Solapur in Sessions Case No.198 of 1987.
These persons were Babasaheb Apparao Patil – Accused
No.1, Tanaji Manikrao Patil – Accused No.2, Appasha
Dharmarao Patil – Accused No.3 and Prakash Limbanna
Koli – Accused No.4. The Trial Court convicted all the
accused for the said offence and sentenced them to suffer
rigorous imprisonment for life and to pay a fine of
Rs.1000/- each, with default stipulation. All the convicts
preferred an appeal to the High Court. Although accused
No.2 and 4 expired during the pendency of the appeal, yet
the High Court dealt with their appeals as well. The High
Court confirmed the conviction of the appellant herein and
accused No.2 but acquitted the remaining two accused,
giving them the benefit of doubt.
3. According to the prosecution in village Boramani, District
Solapur, there are two rival parties. Manikrao Patil was the
leader of one party and the deceased – Baburao Vibhute
was the leader of the other party. Tanaji Manikrao Patil –
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Accused No.2 is the son of Manikrao Patil. Babasaheb
Apparao Patil-Accused No.1 and Appasha Dharmarao Patil
– Accused No.3 are cousin brothers of Tanaji. Prakash
Limbanna Koli-Accused No.4 is not related to other three
accused but was known to them. On 7th June, 1989, one
Abhimanyu Rama Bhagare had assaulted the said
Manikrao Patil, father of Accused No.2 by using a Sattur.
Abhimanyu was a good friend of the deceased Baburao
Vibhute. Manikrao suspected that assault on him by
Abhimanyu had been instigated by the deceased Baburao
and therefore, he held a grudge against him.
4. On 19th June, 1986, the deceased – Baburao Vibhute,
Sidram Birajdar (PW-10) Sarpanch of village Boramani,
Prakash Rajguri (PW-11), driver of the deceased and one
Suresh Rokade left for Solapur by jeep because the
deceased had some work there. On completion of the work,
at around 3.00 p.m. they started the return journey. On
their way, they stopped at hotel Khansaheb to take some
snacks. But since vegetarian snacks were not available,
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they procured beer from outside and had it in the hotel. At
the hotel, Prakash (PW-11) saw Shivaji Rajguru (PW-26),
who was in the service of the deceased and had owed some
money to him. He, accordingly informed the deceased, who
demanded money from Shivaji but on his failure to oblige
him, he belaboured him and made him sit in the jeep to
take him to his village. When the jeep came near the village
of Shivaji, his wife (PW-19) stopped it. The deceased got
down from the jeep and was talking with the wife of Shivaji.
While the conversation was going on, another jeep came
from the side of Solapur. All the four accused got down
from the jeep. Accused No.1 was armed with a pistol;
Accused No.2 got down wielding an instrument like jamiya
(dagger); Accused No.3 came to the rear side of the jeep of
the deceased and grabbed him from behind; Accused A-2
gave a dagger blow on his stomach. When the deceased fell
down on the ground, Accused No.1 fired a bullet shot at his
chest. On seeing the assault, Sidram (PW-10) ran away out
of fear. At a nearby petrol pump, he boarded a truck and
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reached Hyderabad. Prakash (PW-11) the driver of the jeep,
also fled from the scene and on reaching Solapur, he went
to the house of his uncle (PW-18) and narrated the entire
incident to him.
5. On 19th June, 1986 itself, at about 9.10 p.m., a phone call
was received by CPI Bhaskar Patil (PW-28) from an
unknown person informing him about the murder of
Baburao Vibhute. The said informant is stated to have
disclosed that the murder had been committed by
Babasaheb Patil – Accused No.1 and Tanaji Patil – Accused
No. 2. PW-28, after making the entry in the station diary
regarding the telephonic message, conveyed the information
to PSI Annasaheb Patil (PW-33), attached to the Taluka
police station within whose jurisdiction the murder had
been committed. On receiving the information, the police
sprung into action. At the place of occurrence, Panchnama
of the scene of occurrence was prepared, the jeep and some
articles alongwith the dead body were seized. The body of
Baburao was sent for post mortem. At the civil hospital,
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Dr. Kanki (PW-20) performed the post mortem and found as
many as 15 injuries on the person of the deceased. The
injuries included a fire arm injury over abdomen near left
postal margin, four deep incised wounds over abdomen,
four stab wounds over chest, one incised wound over left
side at lumber region and exit wounds of pellets. Lungs,
kidneys, liver, spleen were also injured. Doctor opined that
these injuries were sufficient to cause death and the death
was caused on account of shock and haemorrhage and due
to injuries sustained by the deceased over abdomen, chest
and to visceral organs. On completion of investigations,
which included recording of confessional statements of
Accused No.2 and Accused No.4, who also produced the
weapons of offence (2 daggers and one country made pistol),
chargesheet was filed against all the accused.
6. The accused abjured their guilt and accordingly, the trial
was held. The prosecution examined as many as 33
witnesses to support its case. No evidence was produced in
defence. Upon consideration of the evidence, as noted
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above, the trial court convicted all the four accused for
offence punishable under Section 302 read with Section 34
of the IPC. Appellant’s (Accused No.1) conviction having
been confirmed by the High Court, he has come up before
us in this appeal. The other convict – Accused No.2 expired
during the pendency of his appeal in the High Court.
7. Learned counsel for the appellant contended that the trial
court as also the High Court committed serious error in
relying on the wholly unreliable testimony of PW-10 and
PW-11, examined by the prosecution as eye-witnesses,
inasmuch as there are contradictions and discrepancies in
their evidence. It was argued that the story of PW-10 going
to Hyderabad is inherently improbable and was a make up
to cover the delay of three days in recording of his
statement by police on 23rd June, 1986. It was also
submitted that it was very improbable that Prakash (PW-
11), an employee of the deceased, stated to have seen the
entire incident did not disclose the name of the accused to
his uncle Kisan Ingale (PW-18) when he met him
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immediately thereafter and furthermore instead of reporting
the occurrence to the police he went to his uncle’s house
and narrated the incident to him. It was pleaded that all
the accused had been falsely implicated on account of
rivalry between the two factions in the village.
8. Learned counsel appearing on behalf of the State, on the
other hand, supported the judgment of the High Court and
submitted that the evidence of the two eyewitnesses,
coupled with the medical evidence and the recovery of
weapons of offence clearly prove the case against the
appellant.
9. Having carefully gone through the judgments of the courts
below, we feel that in the light of the evidence on record, the
view taken by the High Court is correct.
10. As noted earlier, the mainstay of the prosecution is the
testimony of Sidram (PW-10) and Prakash (PW-11) who
claimed to be eye witnesses of the occurrence. Both the
courts below have found their evidence creditworthy and
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have held that the minor contradictions in their testimony
were not sufficient to affect the credibility of their evidence.
The discrepancies in the evidence of PW-10 highlighted
before the High Court on behalf of the appellants were: (i)
his non-mentioning of non-availability of vegetarian food in
the hotel and drinking of beer as recorded in his statement
by police (ii) belabouring of Shivaji by Baburao after
returning to the hotel. Similarly, the alleged omissions on
which emphasis was laid were : (i) non-mentioning of the
deceased falling on his back after receiving the first jamiya
blow and (ii) the firing of bullets at the chest of the
deceased. As regards PW-11, the alleged contradictions
were again with regard to his going to the market to
purchase beer and the deceased, Sidram and Suresh
having beer at the hotel. The stated omission was again
about the bullet being fired at the chest of the deceased.
11.As already noted, the High Court has come to the
conclusion, and in our opinion, rightly, that the
contradictions brought on record pertaining to the bringing
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and drinking of beer are not directly related to the incident
and cannot be said to be material contradictions. Similarly,
the alleged omission relating to the firing being on the chest
of the deceased has also been held to be not a material
omission because there is no omission in the statement as
regards the firing by the appellant on the deceased.
12. It is to be borne in mind that some discrepancies in the
ocular account of a witness, unless these are vital, cannot
per se affect the credibility of the evidence of the witness.
Unless the contradictions are material, the same cannot be
used to jettison the evidence in its entirety. Trivial
discrepancies ought not to obliterate an otherwise
acceptable evidence. Merely because there is inconsistency
in evidence, it is not sufficient to impair the credibility of
the witness. It is only when discrepancies in the evidence
of a witness are so incompatible with the credibility of his
version that the court would be justified in discarding his
evidence.
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13. In State of U.P. Vs. M.K. Anthony1, this Court indicated
the proper approach which needs to be adopted while
appreciating the evidence of a witness. It was observed as
under:
“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,
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. 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.”
1
(1985) 1 SCC 505
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14. In Appabhai & Anr. Vs. State of Gujarat2, this Court
had again emphasized that while appreciating the evidence,
the court should not attach undue importance to minor
discrepancies. The discrepancies which do not shake the
basic version of the prosecution case may be discarded.
Similarly, the discrepancies which are due to normal errors
of perception or observation should not be given
importance. The Court by calling into aid its vast
experience of men and matters in different cases must
evaluate the entire material on record as a whole and
should not disbelieve the evidence of a witness altogether, if
it is otherwise trustworthy.
15. Having gone through the evidence of PW-10 and PW-11, we
are in complete agreement with the High Court that the
aforenoted contradictions are not directly relating to the
incident and cannot be said to be material contradictions
affecting the credibility of the evidence of both the eye
witnesses viz. PW-10 and PW-11. Similarly, the so-called
2
1988 (Supp) SCC 241
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omission of not mentioning the exact portion of the body of
the deceased where the shot had been fired cannot be said
to be a significant omission because there was no omission
as regards the firing by the appellant on the deceased. In
his testimony, PW-10 has given graphic details of the
occurrence. Similarly, PW-11, the driver of the jeep, in his
evidence, has narrated the incidence which corroborates
with the version of PW-10. The evidence of these two
witnesses stands corroborated by the medical evidence,
which clearly shows that several blows were given to the
deceased by jamiya (dagger) and a fire arm injury was also
found over the abdomen of the deceased. The conduct of
PW-11 in going to the house of his uncle instead of
reporting the incident to the police cannot be said to be
unnatural, impairing the creditworthiness of his evidence.
The post-event conduct of a witness varies from person to
person. It cannot be a cast iron reaction to be followed as a
model by every one witnessing such event. Different
persons would react differently on seeing any serious crime
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and their behaviour and conduct would, therefore, be
different. (See: Rammi @ Rameshwar Vs. State of M.P.3).
Therefore, having witnessed a dastardly murder, it was not
unnatural for the said witness to go to his uncle and,
therefore, the courts below were justified in not rejecting his
evidence merely on that score.
16.Thus, we are unable to agree with learned counsel for the
appellant that the trial court as well as the High Court have
failed to appreciate properly the evidence on record. We are
convinced that the conclusions of the courts below, that the
appellant had committed the offence of murder of Baburao
Vibhute, are supported by acceptable evidence. We do not
find any legal or factual infirmity in the impugned judgment
warranting interference. The appeal is dismissed
accordingly.
…………………………………………J.
(D.K. JAIN)
3
(1999) 8 SCC 649
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………………………………………….J.
(V.S. SIRPURKAR)
NEW DELHI;
NOVEMBER 28, 2008.
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