JUDGMENT
T. Nandakumar Singh, J.
1. The appellant-accused of this appeal is challenging the judgment passed in Sessions Trial Case No. 89/91 /5/911\ 5/93/2/94/5/02 convicting the appellant-accused under Section 302IPC and the order dated 29.8.2002 sentencing him to suffer life imprisonment not less than 14 years as required by Section 433 A of the Code of Criminal Procedure and in the computation of 14 years period, the period during which convict had already been in the jail during investigation and trial should be taken and calculated by the appropriate Government for the purposes under Section 428 of the CrPC.
2. Heard Mr. Kh. Chonjohn, learned Counsel appearing for the appellant-accused as well as Md. Jalaluddin, learned P. P. appearing for the State-respondent.
3. The golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and give benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey. (Reference : State of Rajasthan v. N.K. the accused .
4. The prosecution story as unfolded during the trial, in nutshell is as follows:
One Moirangthem Ibochouba Singh, elder brother of the deceased late Moirangthem Lukhoisana Singh lodged an ejahar (Ext. P.26) at about 9.30 P.M. on 22.8.1986 at the Lamphel Police Station, which was registered being FIR No. 329 (8)86 under Section 302 IPC, that on 22.8.1986 in the evening at around 6 P.M. his brother deceased/victim Shri Moirangthem Lukhoisana Singh aged about 23 years went out of the house riding a cycle but in the night around 9.30 P.M. he heard that the appellant-accused Shri Mutum Seityaban Singh aged about 27 years, son of late Gandha Singh of Heignang Makha Leikai stabbed his brother Moirangthem Lukhoisana Singh (deceased/victim) on his right armpit near his courtyard (the courtyard of the appellant-accused), and the injured (victim/deceased) came running and fell down in front of the shop(located at the homestead of Shri Mutum Pungoubi Singh) and also heard that bloodstain were also found in the appellant-accused’s courtyard. His brother Moirangthem Lukhoisana (victim) succumbed to his injury on the way to District hospital, Imphal. S.I. Shri L. Rajen Singh of the Lamphel Police Station (PW-17) was the Investigating Officer of the said FIR.
5. After registering the said FIR, the Investigating Officer, S.I. Shri L. Rajen Singh, PW-17 in the early morning about 6 A.M. of 23.8.1986 raided the residence of appellant-accused but he was not found at his house. The appellant-accused surrendered before the Lamlong Police Out Post and from there the appellant-accused was brought to the Lamphel Police Station and remanded to the police custody from 24.8.1986 till 29.8.1986.
6. The Investigating Officer Shri L. Rajen Singh, P W-17 stated that he found the bloodstain/blood drops from the courtyard of the appellant-accused upto the house of the said Shri Mutum Pungoubi Singh. He prepared the sketch map; Exhibit P-27 showing the place of occurrence i.e. at the courtyard of the appellant-accused and also the blood drops from the courtyard of the appellant-accused upto the house of Shri Mutum Pungoubi Singh. While the appellant-accused was in the police custody, he made a statement (Exhibit-P-7), which was recorded in the presence of Heikrujam Rajen Singh (PW-10) and one Shri Bimol Singh, that he concealed the knife (Exhibit-MO-4) with which he stabbed the victim/deceased Lukhoisana Singh in the northern side of the eastern foot of Heingangthong Bridge and the knife (Exhibit MO-4) must be still in the place until and unless somebody found it accidentally. He can identify and produce the knife to the Police Officer. Exhibit MO-4 was seized under seizure memo (Exhibit P-8) at the pointing of the appellant-accused.
7. After completion of the investigation the charge sheet against the appellant-accused for commission of the offence punishable under Section 302 IPC was submitted. The trial court framed the charge against the appellant-accused under Section 302 IPC to which the appellant-accused pleaded not guilty and claimed to be tried.
8. In support of the prosecution case 17 PWs were examined and exhibited 31 documents i.e. Exhibit P-1 to P-31 and also produced four M.O.s i.e. M.O.-l to M.O.-4 Shri Yumnam Kanta Singh (PW-3) when he was examined as a witness on 16.4.1992 stated that about five years ago at about 9 P.M. after taking his dinner he was easing himself near his gate and in the meantime he got an information that the deceased Lukhoisana Singh was stabbed by the appellant-accused at his courtyard and the victim Lukhoisana Singh was lying at the house of Mutum Pungoubi Singh i.e. husband of Smti. Mutum Ongbi Mema Devi (PW-6). On getting the information, he along with his cousin brothers Moirangthem Ibochouba Singh, Shri Tombi Singh (PW No. 4) and their family members rushed to the house of the said Mutum Pungoubi Singh. On reaching there, they found the deceased/victim Lukhoisana Singh lying soaked with blood. They hired Auto-rickshaw belonging to K. Manglam Singh (PW-5) for taking the injured person to the District Hospital at Imphal. They i.e. Shri Tombi Singh (the PW No. 4) and himself took the injured person to the District Hospital, Imphal in an Autorickshaw as driven by the said K. Manglam Singh, PW-5. Before reaching the District Hospital, the victim-deceased expired on the way. However, they took the victim upto the District Hospital where the Medical Officer-in-charge declared him dead after examination. The said Shri Mutum Ibochouba Singh, the elder brother of the victim immediately went to the Lamphel Police Station for lodging the FIR. Accordingly, FIR was lodged at about 9.30 P.M. on the same day of occurrence. S.I. Shri L. Rajen Singh, PW-17 held inquest over the dead body of the victim. The FIR (Ejahar) which was lodged on 9.30 P.M. of the day of the occurrence was exhibited as exhibit P-26 by the S.I. Rajen Singh, PW-17 who stated that Lamphel Police Station received the FIR at about 9.30 P.M. of the occurrence. Shri L. Rajen Singh, PW-17 stated that when he along with his police party raided the house of the appellant-accused in the early morning on the next day of the occurrence i.e. 23.8.1986, the appellant-accused was not at his house. Shri M. Tombi Singh, PW-4 stated that he learnt from the wife of said Pungoubi Singh i.e. Smti. M. Ongbi Mema Devi (PW-6) of his locality that the deceased Moirangthem Lukhoisana was stabbed by the appellant-accused at his courtyard when victim went to the house of the appellant-accused to demand his money. On getting information, he along with his elder brother the said M. Ibochouba Singh, Shri Y. Kanta Singh (PW-3) along with some other family members rushed to the house of Smti. M. Ongbi Mema Devi to see the conditions of the victim/deceased. When they reached there they found that the victim/deceased. Moirangthem Lukhoisana Singh lying with full of blood sustaining stabbed injury on his right armpit. He was unconscious by then and immediately they hired Autorickhow belonging K. Manglem Singh (PW-5) and they rushed to the District Hospital by taking the injured brother (deceased) along with the said Y. Kanta Singh, PW-3 for medical treatment but before reaching hospital, his brother Lukhoisana Singh succumbed to his injury. Immediately after the death of Moirangthem Lukhoisana Singh (victim), his elder brother M. Ibochouba Singh rushed to the Lamphel Police Station for reporting the matter. He and Y. Kanta Singh, PW-3 put their signatures on the inquest report of the dead body of the deceased Moirangthem Lukhoisana Singh prepared by I.O. Shri L. Rajen Singh (PW-17).
9. Shri M. Chaoba Singh, PW-12 when he was examined as a prosecution witness on 12.7.1993 stated that about seven (7) years ago one day in the night at about 10 P.M. one Shri Moirangthem Naba Singh along with the appellant-accused Seityaban Singh came to his house. Shri Moirangthem Naba Singh who is from his locality requested him to allow the appellant-accused Seityaban Singh to stay at his house for that night. Accordingly, he allowed, the appellant-accused to stay that night at his house. In the next morning when he woke up he found the room where the appellant-accused Seityaban Singh stayed for the night locked from inside. Then he went to the house of Mutum Ibomcha Singh, elder brother of the appellant-accused for discussing about their work of loading earth in the trucks. When they were discussing about their work, the police personnel in a jeep came to the house of Mutum Ibomcha Singh i.e. the elder brother of the appellant-accused for arresting the appellant-accused, but the appellant-accused who was residing with his elder brother Mutum Ibomcha Singh was not at his house. Shri K. Manglem Singh (PW-5) stated that at about 10 P.M. of the day of occurrence he took the deceased Lukhoisana Singh in his Autorickshaw from the house of the said Pungoubi Singh as requested by Moirangthem Tombi Singh, PW-4 i.e. the elder brother of the deceased upto the District Hospital, Imphal for medical treatment. He also stated that Shri Y. Kanta Singh (PW-3) was also accompanied with them while taking the victim/deceased Moirangthem Lukhoisana Singh in his Autorickshaw to the District Hospital. The victim/deceased died on the way to the hospital and on examination, the doctor of the District Hospital declared the victim was dead. Dr. S. Arun Kumar Singh (PW-1) who was the concerned Medical Officer-in-charge of the District Hospital, Imphal stated that on 22.8.1986 while he was on night duty at the casualty department of the District Hospital, Imphal one person was brought dead by some persons. On examination of the dead body of the victim, he found one lacerated injury on the right axilla. He exhibited the out patient ticket of the deceased as exhibit P-1. He also stated that the dead body of the deceased was handed over to the Lamphel Police Station for further necessary legal action. Shri N. Nabachandra Singh, PW-9 stated that he is a license driver. He owned one truck (Shaktiman) bearing Registration No. MNP 676. He knew Mutum Mangi Singh and Ibocha Singh who are the elder brothers of the appellant-accused. As engaged by Shri Mangi Singh, Contractor he”” (N. Nabachandra Singh) and others executed some earth work at Aimol side near Patel on payment of Rs. 1,000/- per day. One day i.e. on the day of occurrence at about 7 P.M. they returned from work side along with the said Mangi Singh, the said Ibocha Singh, Moirangthem Naba Singh (labour), Tbiyam Ibotombi Singh (labourer) and Naorem Nanaocha Singh Handyman along with the appellant-accused to the house of said Mangi Singh i.e. (elder brother of the appellant-accused) i.e. the house of the appellant-accused. They had dinner at the house of the said Mangi Singh (i.e. the house of the appellant-house) as arranged by him on that night. After taking dinner they all sat in the Veranda of the said Mangi’s house and they calculated the money required to be paid for the work done by him i.e. N. Nabachandra Singh, the labourer and other. When they were taking at the Veranda, Moirangthem Lukhoisana Singh (deceased) came here. In the meantime, the appellant-accused was calculating the amount of money to be paid to him i.e. N. Nabachandra Singh and the others for the said contract work. The deceased Moirangthem Lukhoisana Singh shouted to the appellant-accused Mutum Seityaban Singh to complete the calculation in his presence (N. Nabachandra Singh) the said Mangi Singh, M. Ibochouba Singh and others. The said Mangi Singh and M. Ibocha Singh elder brothers of the appellant-accused asked deceased Lukhoisana to sit down but he paid no heed except shouting. On hearing the said shouting he again requested the appellant-accused and his brother to complete the calculation quickly. At the time of such incident, one woman said to be the sister-in-law of the appellant-accused was sitting at the Veranda preparing pan with a knife. He then returned home in his Shaktiman. On the next day, police came to his house in his absence at 9 A.M. and on his return to his home, his father told him that police came in connection with the quarrel between the appellant-accused and the victim. On the next day, the police again came to his house and seized his Shaktiman vehicle by preparing a seizure memo exhibit P-6.
10. Smt. M. Ongbi Mema Devi i.e. wife of the said M. Pungoubi Singh, who is a neighbour of the appellant-accused and from the courtyard of her house the victim/deceased Moirangthem Lukhoisana Singh was picked up by Y. Kanta Singh, PW-3 and M. Tombi Singh, PW-4 for medical treatment soon after the deceased received stabbing wound at his right armpit, ‘When examined as PW No. 6 on 21.4.1992 stated that the appellant-accused was her neighbour and also the victim/ deceased was also her neighbour. One day about 5/6 years ago while she and her husband Mutum Pungoubi Singh along with their other family members were taking meals at about 9 P.M., the deceased Lukhoisana Singh was entering inside their homestead i.e. courtyard shouting that “save me” “save me” calling her husband by name. On hearing the calling of Lukhoisana, she and her husband rushed to him and saw that the deceased was soaked with blood from his stabbing wound. Her husband Pungoubi asked her to go to the house of the victim to inform the matter. She accordingly informed the relatives of the deceased that the deceased was lying at her house after sustaining injuries. The relative of the deceased had taken the deceased from her house by the Autorickshaw of the K. Manglem Singh, PW-5 for medical treatment to the District Hospital. After 2/3 hours on the same day of the occurrence police came to her house and they inspected the blood droppings from her house to the house/veranda of the appellant-accused. As the PW-6 M. Ongbi Mema Devi resiled from her earlier statement recorded under Section 161 CrPC which was marked as X-l that “the victim came shouting to save him as he was stabbed by the appellant-accused”, she was declared the hostile witness.
11. The Apex Court in Koli Lakhmanbhai Chanabhai v. State of Gujarat AIR 2000 SC 210 held that the evidence of the hostile witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence. By Section 9 of the Criminal Law (Amendment) Act 2005 (Act No. 2 of 2006) Sub-section (2) has been inserted to Section 154 of the Evidence Act. Section 9 of the Criminal Law (Amendment) Act, 2005 (Mo. 2 of 2006) read as follows:
CHAPTER-IV
AMENDMENT TO THE INDIAN
EVIDENCE ACT, 1872
9. Amendment of Section 154 of Act 1 of 1872-In the Indian Evidence Act, 1872, Section 154 shall be numbered as Sub-section (1) thereof and after Sub-section (1) as so numbered, the following sub-section shall be inserted, namely:
(2) Nothing in this section shall disentitle the person so permitted under Sub-section (1), to rely on any part of the evidence of such witness.
12. Shri H. Rajen Singh, PW-10 in whose present the S.I. L. Rajen Singh, PW-17 recorded the statement of the appellant-accused i.e. exhibit P-7 while the appellant-accused was in police custody stated that on 26.8.1986 at about 4.30 P.M., he and his friend Shri Bimol Singh visited Lamphel Police Station in connection with the loss of a jeep bearing Registration No. 1952 at about 4.30 P.M. He and his friend were called by S.I. L; Rajen Singh, PW-17 of Lamphel Police Station to come to his room through a Constable. Accordingly, they entered his room and found the appellant-accused standing. No other persons were found except the appellant-accused and the S.I. L. Rajen Singh, PW-17 in the said room. In their presence the appellant-accused stated to the I.O. i.e. S.I. L. Rajen Singh, P.W.-17 that the incriminating articles i.e. knife i.e. exhibit MO-4 was kept concealed under the eastern end of the Heignang Bridge inside the bush. He could able to point out the same where he concealed the knife. After recording the said statement of the appellant-accused, he and his said friend Bimol Singh signed on it. The PW-10 H. Rajen Singh also exhibited the said statement as exhibit-7 and also his signature as exhibit-7/1 on the said statement i.e. exhibit-7 and also the signature of his friend the said Bimol Singh on the said statement as exhibit-7/2 and also the signature of the appellant-accused as exhibit-7/3. He further stated that after recording the said statement by the I.O. Shri L. Rajen Singh, S.I., PW-17 they all went in a police jeep as led by the appellant-accused to the place where the said knife the exhibit MO-4 was kept concealed and after reaching the spot as pointed out by the appellant-accused where the MO-4 was kept concealed Shri Rajen, S.I., PW-17 asked one Constable to pick up the knife MO-4 from inside the bush. The police seized the MO-4 by preparing seizure memo in their presence i.e. exhibit P-8. He also stated that after fully knowing the contents of the said seizure memo exhibit P-8 he put his signature on it and the exhibit P-8/2 is his signature. He also stated that he could be able to identify the knife if shown to him and he identified the said knife as exhibit MO-4. Dr. Fimate, PW-8, Professor of the Forensic Medicine stated that he conducted the post mortem examination of the dead body of the deceased Moirangthem Lukhoisana Singh and prepared the post mortem report. He also stated that according to his opinion victim (deceased) could speak concisely before his death after he sustained injury. The injury sustained by the deceased could have been caused according to his opinion by the exhibit MO-4.
13. MO-4, knife was recovered at the pointing of the appellant-accused Mutum Seityaban Singh as per his statement recorded by the I.O. (exhibit P-7), S.I. Shri L. Rajen Singh, in presence of the H. Rajen Singh (PW-10) by preparing the seizure memo exhibit P-8. The requirement of utilizing the fact discovered under Section 27 of the Indian Evidence Act had been discussed by the Apex Court in Anter Singh v. State of Rajasthan reported in (2004) WSCC 65 7 and held that the first condition necessary for bringing Section 27 of the Indian Evidence Act into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information recovered from a person accused of an offence. The second is that the discovery of such fact to be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only “so much of the information” as relates distinctly to the fact thereby discovered is admissible.
14. Para Nos. 11, 12, 13, 14, 15 and 16 of the SCC in Anter Singh (supra) are quoted hereunder:
11. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya v. Emperor in the following words, which have become locus classicus : (AIR p.70, para 10).
(I) It is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’ these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.
12. The aforesaid position was again highlighted in Prabhoo v. State of U.P.
13. Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases in the background events proved therein is not always free from difficulty. It will, therefore, be worthwhile at the outset, to have a short and swift glance at Section 27 and be reminded of its requirements. The section says.
27. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
14. The expression “provided that” together with the phrase “whether it amounts to a confession or not” shows that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in con-sequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only “so much of the information” as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word “distinctly” means “directly”, “indubitably”, “strictly”, “unmistakably”. The word has been advisedly used to limit and define the scope of the provable information. The phrase “distinctly” relates “to the fact thereby discovered” and is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered [Reference: Mohd. Inayatullah v. State of Maharashtra .]
15. At one time it was held that the expression “fact discovered” in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression “fact discovered” includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kottaya case: AIR 1947 PC 67 : 74 1A 65 : 48 Cri.LJ 533 and in Udai Bhan v. State of U.P. .
16. The various requirements of the section can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by the accused’s own act.
(4) The person giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.
15. The Apex Court also discussed the pre-requisite for utilizing the fact discovered in consequence of information received from the accused under Section 27 of the Indian Evidence Act in State (NCT of Delhi) v. Navjot Sandhu .
16. Para 121, 123, 132, 136 and 142 of the SCC of Navjot Sandhu (supra) are quoted hereunder:
121. The first requisite condition for utilizing Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. It is explicitly clarified in the section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to the police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. As pointed out by the Privy Council in Pulukuri Kottaya v. Emperor AIR 1947 PC 67:48 Cri LJ 533 : 74IA 65 (AIR p. 70, para 10).
Clearly the extent of the information admissible must depend on the exact nature of the fact discovered.
And the information must distinctly relate to that fact.
Elucidating the scope of this section, the Privy Council speaking through Sir John Beaumont said: AIR p. 70, para 10)
Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused.
(Emphasis supplied)
We have emphasized the word “normally” because the illustrations given by the learned Judge are not exhaustive. The next point to be noted is that the Privy Council rejected the argument of the counsel appearing for the Crown that the fact discovered is the physical object produced and that any and every information which relates distinctly to that object can be proved. Upon this view, the information given by a person that the weapon produced is the one used by him in the commission of the murder will be admissible in its entirety. Such contention of the Crown’s counsel was emphatically rejected with the following words: (AIR p. 70, para 10).
If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban by the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect.
Then, their Lordships proceeded to give a lucid exposition of the expression “fact discovered” in the following passage, which is quoted time and again by this Court : (AIR p. 70, para 10).
In their Lordships’ view it is fallacious to treat the ‘fact discovered’ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‘with which I stabbed A’ these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.
(Emphasis supplied).
123. In para 11, their Lordships observed that they were in agreement with the view taken by the High Courts of Lahore and Bombay in Sukhan v. Emperor and Ganu Chandra v. Emperor. The contrary view taken by the Madras High Court in Athappa Goundan. In Athappa Goundan case was not accepted by the Privy Council. In Athappa Goundan case the High Court held that even that part of the confessional statement, which revealed the connection between the objects produced and the commission of murder was held to be admissible under Section 27 in its entirety. This approach was criticized by the Privy Council. To complete the sequence, we may refer to another decision of the Madras High Court in Emperor v. Ramanuja Ayyangar. In that case, the majority of learned Judges had disagreed with the view taken in Sukhan case that the expression “fact” in Section 27 should be restricted to material objects or something which can be exhibited as material object. It was held that the facts need not be self-probatory and the word “fact” as contemplated by Section 27 is not limited to “actual physical material object”, Emphasis was laid on the wording “any fact”. In this respect, the view taken in Sukhan case was dissented from. The minority view was that the discovery of a witness to the crime or the act of the accused in purchasing the incriminating material cannot be proved by invoking Section 27. We have referred to this decision in Ramanuja Ayyangar case for the reason that the expression “fact” was given a wider meaning in this case-which is the meaning now sought to be given by Mr. Gopal Subramanium. In Athappa Goundan case the connotation of the word “fact” i.e. whether it can be restricted to a material object was not specifically dealt with. The reason for referring to these two decisions of the Madras High Court rendered before Kottaya case becomes evident when we advert to the decision of this Court in Om Prakash a little later
132. The following observations are also crucial:
As explained by this Court as well as by the Privy Council, normally Section 27 is brought into operation where a person in police custody produces from some place of concealment some object said to be connected with the crime of which the informant is the accused. The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden, sold or kept and which is unknown to the police can be said to be discovered as a consequence of the information furnished by the accused. These examples however are only by way of illustration and are not exhaustive. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused. A witness cannot be said to be discovered if nothing is to be found or recovered from him as a consequence of the information furnished by the accused and the information which disclosed the identity of the witness will not be admissible.
Then follows the statement of law:
But even apart from the admissibility of the information under Section 27, the evidence of the Investigating Officer and the panchas that the accused had taken them to PW 11 and pointed him out and as corroborated by PW 11 himself would be admissible under Section 8 of the Evidence Act as conduct of the accused.
136. We may add that in the case of Earabhadrappa v. State of Karnataka , A.P. Sen, J, speaking for the Bench observed (SCC p. 337, para 7) that the word “fact” in Section 27 “means some concrete or material fact to which the information directly relates”. Then His Lordship quoted the famous passage in Kottaya case. However, there was no elaboration.
142. There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the police officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the investigating officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the investigating officer will be discovering a fact viz. the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the police officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 37. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the police officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspect that goes into evaluation of that particular piece of evidence.
17. Keeping in view of the ratio laid down by the Apex Court in Anter Singh (supra) and the Navjot case (supra) we have carefully considered as to whether the requisite for utilizing the fact recovered under Section 27 of the Indian Evidence Act had been fulfilled in the instance case. From the statement of Shri H. Rajen Singh, PW-10 as well as the statement of the Investigating Officer, I.O., PW-17 Shri L. Rajen Singh as well as on perusal of the statement of the accused as exhibit P-7, seizure memo at exhibit P-8 we are of the considered view that the requirement/pre-requisite for utilizing the fact discovered under Section 27 of the Indian Evidence Act had been fulfilled. The Apex Court in Modan Singh v. State of Rajasthan reported in (1978) 4 SCC 435 held that if the (sic. evidence of) Investigating Officer who recovered the material object is convincing the evidence as to recovery need not be rejected on the ground that seizure witness do not support the prosecution version. We are of the considered view that the statement of the Investigating Officer i.e. PW-17 about the discover of the material object i.e. exhibit MO-4 (knife) is very convincing.
Para 9 of the SCC in Modan Singh (supra) is quoted hereunder:
9. The only other material on which the prosecution can connect the appellant with the crime is the recovery of the fired cartridge, Ex.9 and the seizure of the pistol Ex. 8 and the deposition of the ballistic expert, PW-9. It is found that the witnesses who have been examined for attesting the seizure have not supported the prosecution version. On behalf of the defence it was submitted that the seizure witnesses were men of status in the village and their not supporting the recovery would be fatal to the prosecution. We would rather not place any reliance on the witnesses who attested the seizure memo. If the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. According to the Investigating Officer, PW-12, he recovered a live cartridge lying on the ground towards the head of the cot wherein the dead body was found lying and an empty cartridge lying near the cot of that room. The recovery memo was marked Ex. P.-14. The recovery of the pistol, Ex.8 from the person of Modan Singh was on December 20, at the police station itself and the recovery memo is Ex. P-23. An empty cartridge, a live cartridge and a pistol case were recovered from the house of Modan Singh on the 23rd and the seizure memo was prepared but the prosecution failed to lead evidence that the material objects were properly kept till they were sent to the expert on February 6, 1967 by a special messenger. The Investigating Officer would only say that the material objects were kept sealed up to December, 14, 1966. The prosecution is silent as to in whose custody the material objects were till February 6, 1967. Added to all these infirmities, we find that the ballistic expert, PW-9 had in his report, Ex. P-25, stated as follows:
The fired cartridge has been marked C/l by me. It had been fired from the pistol under reference. The barrel of the pistol is loose for 303 bullets and hence, reliable markings on the test bullets could not be obtained. Therefore, the bullets mentioned above could not be identified in respect of the weapon under reference.
In the evidence, no doubt, the ballistic expert stated that he fired test cartridges studied them and found that the markings on the test cartridges were similar to the marking in cartridge, Ex.9. Though he had referred to his report, Ex. P-25, which has been extracted above, no question was put to the ballistic expert as to how he was able to fire test cartridges when in his statement he stated that the barrel of the pistol was loose and the bullets mentioned could not be identified in respect of the weapon under reference. It is strange that the witness was not asked to explain the statement in Ex. P-25; neither the trial Court nor the High Court has referred to this aspect. After reading carefully the evidence of PW-9, the ballistic expert and his report, we are far from satisfied that the prosecution has established that the cartridge, Ex. 9 was fired from Ex. 8.
18. The golden thread which runs through the web of administration of justice and criminal case is that if two views are possible on the evidence adduced in the case, (1) one pointing to the guilt of the accused and (ii) another to his innocence, the view which is favourable to the accused should be adopted. The paramount jurisdiction of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may raise from acquittal of the guilt is not less than from the conviction of the innocence. The Apex Court in C. Chenga Reddy v. State of A.P. held that:
In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be a conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
19. The Apex Court in the State of U.P. v. Ashok Kumar Srivastave held that a great care must be taken in evaluating the circumstantial evidence and if the evidence relied on is reasonably capable of two influences-one in favour of the accused must be accepted. It is also pointed that circumstances relied upon must be found to have been fully established and cumulative of all the facts so established must be consistent only with the hypothesis of guilt. The Apex Court in the State of U.P. v. Satish convicted the accused to death sentence basing on the circumstances evidence. The portion of the judgment of the Apex Court in the State of U.P. v. Satish (supra) which spells out the prosecution case are quoted hereunder:
4. On 16.8.2001 the victim who was studying in Sarvodya Public School had gone to school and did not return at the usual time. On the next day morning her dead body was found in the Sugarcane field of one Moolchand around 6.00 a.m. She was lying in a dead condition and blood was oozing from her private parts and there was marks of pressing on her neck. Report was lodged at the nearly Police Station and the dead body was sent for post mortem examination. Dr. R. K. Gupta (PW 7) conducted the post mortem around 2.00 p.m. on 17.8.2001 and opined that death was within the proceeding 24 hours.
5. Three persons claimed to have seen the accused nearby the place of occurrence between 1.00 P.M. to 2.00 P.M. on the date of occurrence. Two of them, namely, Sanjeev Kumar Tyagi (PW 3) and Kulbhushan (PW5) claimed to have seen the deceased being carried on a bicycle by the accused who was taking the bicycle with the deceased sitting on the handle thereof. Anil (PW2) stated that he had seen the accused in perplexed state around 2.00 P.M. near the place from where the dead body of deceased was found. Investigation was undertaken. During such investigation, there was recovery of accused’s underwear as also the undergarment the deceased was wearing. This recovery was treated to be under Section 27 of the Indian Evidence Act, 1872 (in short the ‘Evidence Act’).
20. The Apex Court in the State of U.P. v. Satish (supra) held that where time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime became impossible. Para 23 of the AIR is quoted hereunder:
23. The last seen theory conies into play where the time-gape between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other per-sons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs a 3 and 5, in addition to the evidence of PW”2′
21. The trial Court after appreciation of the statement of the prosecution witnesses, material exhibit and the exhibited document had passed the impugned judgment and order dated 23.8.2002 convicting the appellant-accused under Section 302IPC and sentenced him to undergo life imprisonment by judgment and order dated 29.8.2002. The case of the appellant-accused in all along the trial was a total denial of the prosecution case. This Court while examining the record of the Sessions trial as well as submissions of both the parties, found that the learned Additional Sessions Judge/Trial Court had not complied with the mandatory provision contemplated in Section 313(1)(b) of CrPC 1973 while examining the appellant-accused and also there is omission on the part of the trial court to obtain evidence for ascertaining if the portion of the previous statement (Ext. X1) i.e. statement recorded under Section 161 CrPC of PW-6 M. Ongbi Mema Devi who was declared as a hostile witness with the permission of the Court, was proved or not. Accordingly, this Court passed the judgment and order dated 25.7.2006 in the present appeal. The operative portion of which reads as follows:
13. In State of Maharashtra v. Sukhdeo Singh their Lordships at para 50 held:
50. …The learned trial Judge is not expected before he examines the accused under Section 313 of the Code, to sift the evidence and pronounce on whether or not he would accept the evidence regarding any incriminating material to determine whether or not to examine the accused on that material. To do so would be to pre-judge the evidence without hearing the prosecution under Section 314 of the Code. Therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon. It is only after that stage is over that the oral arguments have to be heard before the judgment is rendered. It is only where the Court finds that no incriminating material has surfaced that the accused may not be examined under Section 313 of the Code. If there is material against the accused he must be examined. In the instant case it is not correct to say that no incriminating material had surfaced against the accused particularly accused No. 5, and hence the learned trial Judge was not justified in examining the accused under Section 313 of the Code.
14. A Division Bench of this Court in State of Mizoram v. Lalninghaka (2006) 1 GLR 574, after referring to the above said two decisions held at para 9.
9. It is, now, settled beyond dispute by a catena of judicial pronouncements that every circumstance, on which a trial Court relies to hold an accused guilty, must be put to the accused person and his answer sought thereto. They very purpose of Section 313 CrPC will stand defeated if a trial Court, without affording any opportunity to the accused of explaining the circumstances, which appear to the trial court to be incriminating in nature, bases its conviction on such circumstances. It is in this view of the matter that the examination of an accused person under Section 313 CrPC is a solemn act of a trial Court and it cannot, and must not, be treated as an empty formality.
15. In the case before us, we find that there are many material circumstances which are required to be taken into account for the purpose of making a just decision of the case. However, the learned Addl. Sessions Judge (FTC), Manipur East, Imphal did not put any of the said material circumstances to the accused/appellant for the purpose of giving opportunity to him for enabling him to explain them. The examination was done in a perfunctory manner disregarding the above mentioned well settled position of law. The said material circumstances can very well be ascertained on careful reading of the statements of the witnesses in the record. We do not think it necessary to specify those material circumstances. Since we have already decided to direct the trial court for taking additional evidence on the matter already mentioned above, it will be fair and just to direct the trial Judge to comply with provisions of Section 313(i)(b) of the CrPC in letter and spirit in the light of the various decisions of the Apex Court without considering the question if any prejudice has been caused to the appellant by reason of failure to comply with the said provisions. It is expected that in future, the Additional Sessions Judge (FTC), Manipur East, Imphal will be very careful while dealing a Sessions case by following the principles of a fair trial which is manifested itself in virtually every aspect of our practice and procedure including laws of evidence.
16. Ordinarily we would have re-appreciated the entire evidence on record to make a just decision of this appeal on merit. However, in view of the above said infirmities found in the proceedings of the case before the trial Judge, we consider that unless certain correctional measures are taken, interest of justice will suffer. Disposal of appeal does not mean disposal for statistical purposes but effective and real disposal to achieve the objects of any trial. We consider that the discovery, vindication and establishment of truth are the main objects of a trial. In the interest of justice and having regards to all the relevant considerations, we direct that the Addl. Sessions Judge (FTC) Manipur East, Imphal shall take additional evidence in respect of the question if the said Mema Devi (PW 6) gave statement marked “X-1” to the I.O. during the investigation of the case by giving due opportunities to both sides and if necessary by taking steps under the law from the side of the trial Court. After taking the required additional evidence, the learned Addl. Sessions Judge (FTC), Manipur East shall certify such evidence to this appellate court. The appellant/accused and his counsel shall have the right to be present when the additional evidence is taken. Further, learned Addl. Sessions Judge (FTC), Manipur East, Imphal is directed to examine the accused/appellant in respect of the material circumstances appearing in the evidence against him in compliance with the provisions of Section 313 (i) (b) of the CrPC in letter and spirit in the light of the decisions of the Apex Court already noted above. The learned Additional Sessions Judge (FTC), Manipur East, shall have to do the needful and send the records back to this Court through the Registrar, Imphal Bench within two months from today. This appeal is to be taken up after receiving back the records from the trial Court.
17. Send a copy of this order to the trial court, i.e. the Court of the Additional Sessions Judge (FTC), Manipur East, Imphal along with the trial court records for information and for doing the needful. The parties are directed to appear before the learned trial Judge on 31.7.2006 in connection with the proceeding before the Court as directed above.
22. In compliance of the direction of this Court in the judgment and order dated 25.7.2006 the learned trial Court examined the appellant-accused on 16.9.2006 under Section 313 of the Code of Criminal Procedure 1973 by putting question in respect of the material circumstances appearing in evidence against him and also the PW-6 M. Ongbi Mema Devi and the I.O. P.W.-l 7 on fresh oath by giving the opportunity of cross-examining them on 11.9.2006. After such examination, the trial Court set up the records to this Court. The PW No. 17 also proved the portion of the statement of the PW No. 6 Sniti. M. Ongbi Mema Devi Ext. XL.
23. After receiving the record, this Court heard the submissions of the learned Counsel appearing for the appellant-accused as well as learned P. P. for the State at length.
24. From the statements of the PWs, exhibited documents and exhibited MOs, it is clear that though none of the prosecution witnesses saw the very act of stabbing suddenly by the appellant-accused Mutum Seityaban Singh to the victim Moirangthem Lukhoisana Singh at the courtyard of the appellant-accused house, the prosecution could proved the following facts and circumstances beyond reasonable doubt:
(a) In the night about 7/8 A.M. of 22.8.1986, PW-9, N. Nabachandra Singh had dinner with the elder brothers of the appellant-accused at the house of appellant-accused. After dinner the appellant-accused had calculated the amount of money to be paid to N. Nabachandra Singh, PW-9, the labourers of the contract work and the others for the contract work. In the course of calculating the said amount of money by the appellant-accused, the deceased M. Lukhoisana Singh was not happy with the manner the appellant-accused had calculated the amount. The deceased also made a strong complain against the appellant-accused by using strong words, in retaliation to that the appellant-accused stabbed the victim at the right armpit with the exhibit MO-4.
(b) Soon after receiving the stabbing wound, at the courtyard of the appellant-accused, the victim rushed to the next neighbour i.e. the house of the PW-6 M. Ongbi Mema Devi by shouting for help that he was stabbed by the appellant-accused.
(c) Within few minutes after collapsing at the courtyard of PW-6 M. Ongbi Mema Devi, the victim deceased was picked up by PW-3, Y. Kanta Singh and PW-4, M. Tombi Singh who are neighbour of PW-No. 6 M. Ongbi Devi in the Autorickshaw driven by PW-5 K. Manglem Singh for treatment to the District Hospital, Imphal.
(d) The victim Moirangthem Lukhoisana Singh died on the way to hospital.
25. The learned Counsel appearing for the appellant-accused had taken us to the statements of the PWs, exhibit documents and the material exhibit for re-appreciation of the evidence. He also further submitted that even though the independent witnesses are available, they were not examined. Only some witnesses were examined in the present case and in such situation the prosecution case has to be scrutinized with more care and cautious.
26. The learned Counsel appearing for the appellant-accused also stated that as the prosecution could not proved the origin of the blood stain on the exhibit MO-4, there is a strong doubt on the prosecution case. The Apex Court in Sanjay @ Kaka v. State (NCT of Delhi) held that failure of the prosecution to prove the origin of the blood stain on the pants and shirt of the accused would not extent any benefit of doubt to the accused and para 34 of AIR are quoted hereunder:
34. Following Teja Ram’s case this Court again in Gura Singh v. State of Rajasthan (2000) Suppl. (3) JT (SC) 528 : 2000 AIR SCW 4439: AIR 2001 SC 330, para 20 held:
We do not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the origin of the blood, the trial court could not have convinced the accused. The Serologist and Chemical Examiner has found it that the Chadar (sheet) seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with the lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial Court as well as the High Court were, therefore, justified in holding this circumstance as proved beyond doubt against the appellant.
27. The Apex Court also is of the similar view in Gura Singh v. State of Rajasthan (2001)2 SCC 2005.
28. We have given our anxious consideration to the submissions made by the learned Counsel appearing for the appellant-accused for re-appreciation of the evidence. The Apex Court had discussed the nature and extent of power of the appellant Court under Section 386 CrPC in State of West Bengal v. Kailash Chandra Pandey and held that the appellate court should be slow in re-appreciating the evidence. As the trial Court which has the occasion to see the demeanour of the witnesses is in a better position to appreciate it, the appellate court should not lightly brush aside the appreciation done by the trial Court except for cogent reasons.
Para 13 and 14 of the AIR in Kailash Chandra Pandey (supra) are quoted hereunder:
13. It is needless to reiterate that the appellate Court should be slow in re-appreciating the evidence. This Court time and again has emphasized that the trial Court which has the occasion to see the demeanour of the witnesses and it is in a better position to appreciate it, the appellate Court should not lightly brush aside the appreciation done by the trial Court except for cogent reasons. In this connection, a reference may be made to a decision of this Court in the case of The State of Punjab v. Hari Singh and Anr. , wherein Their Lordships have observed as follows:
Supreme Court’s power of interference under Article 136 with judgments of acquittal is not exercised on principles which are different from those adopted by it in dealing with convictions. It is a principle, common to all criminal appeals by special leave, that the Supreme Court will refrain from substituting its own view about the appreciation of evidence if the judgment of the High Court is based on one of two alternative views each of which was reasonably open to the High Court to accept. If, however, the High Court’s approach is vitiated by some basically erroneous apparent assumption or it adopts reasoning which, on the face of it, is unsound, it may become the duty of the Supreme Court, to prevent a miscarriage of justice, to interfere with an order whether it be of conviction or of acquittal.
Similarly, in the case of Khem Karan and Ors. v. The State of U.P. and Anr. , it was observed as follows:
Further neither mere possibilities nor remote probabilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony. If a trial court’s judgment verges on the perverse, the appellate Court has a duty to set the evaluation right and pass a proper order.
Similarly, in the case of State of Rajasthan v. Bhawani and Anr. , the appellate Court reversed the finding of the trial Court without considering and taking into account the testimony of eyewitnesses. Their Lordships after appreciation of the evidence reversed the order of the High Court and maintained the order of conviction of the trial Court. Their Lordships observed that notwithstanding the inconsistencies, exaggerations or embellishments, the eye-witnesses account has to be accepted that clinches the case of the prosecution.
14. In the case of Govt. of NCT of Delhi v. Jaspal Singh, . Their Lordships reversed the order of acquittal passed by the High Court and convicted the accused on the basis of clinching, truthful and cogent evidence proving that a co-accused was a party to the common design of other accused who stood convicted by the Court below and Their Lordships held that the confession of the co-accused is satisfactory corroborated by the witnesses.
29. The Apex Court in Bishna @ Bhiswadeb Mahato and Ors. v. State of West Bengal held that hearsay evidence of the witnesses who came immediately to the place of occurrence after the incident had taken place which corroborate the evidence of other prosecution witnesses regarding the prosecution case as alleged in the FIR would be admissible in terms of Section 6 of the Evidence Act. In the present case PW-3 Y. Kanta Singh, PW-4, M. Tombi Singh and PW-6, M. Mema Devi are the witnesses who came to the place of occurrence immediately after the incident and their statements also corroborate the prosecution case.
30. Further only because of the failure of ‘prosecution to examine the independent witnesses, the prosecution case could not be thrown out on that ground alone. Reference Appabei and Anr. v. State of Rajasthan reported in AIR 1986 SC 896. It is also well settled law that the Court while appreciating evidence must not attach undue importance to minor discrepancies. Regarding this point we may refer to the decision of the Apex Court in Sukhdev Yadav and Ors. v. State of Bihar .
Para 3 and 15 of the SCC in Sukhdev Yadav and Ors. (supra) are quoted hereunder:
3. It is indeed necessary, however, to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment-sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness box detail out an exaggerated account. In Appabhai v. State of Gujarat reported in 1988 Supp. SCC 241: 1988 SCC (Cri.) 559 this Court in para 13 of the Report observed (SCC petitioner 246-47).
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 of observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into and 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 facts, 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.
15. True, as noticed above, there are lapses, but the question that arises for consideration is whether any prejudice has been caused by reason of such a lapse; if the answer thereto is in the affirmative, obviously it will have a serious impact on the trial but if in the event, however, it is in the negative, no prejudice can be said to have been caused and correspondingly question of the trial being vitiated would not arise. The eyewitnesses account as available on record cannot but be termed to be trustworthy and by reason thereof, the lapses stand over shadowed by the testimony of the eyewitnesses. The observations above obtain support from the decision of this Court in Baleshwar Mandal v. State of Bihar .
31. For the reasons discussed above, we are of the considered opinion that no interference to the impugned judgment and order dated 23.8.2002 and the sentence dated 29.8.2002 are called for. Accordingly, the present criminal appeal has no merit and is hereby dismissed. The appellant-accused if he is on bail shall be taken to custody forthwith to serve out the sentence imposed upon him.
