JUDGMENT
N.A. Britto, J.
1. This is a State’s appeal against the acquittal of the accused under Sections 325, 506(ii) of I.P.C. by Judgment dated 30-10-2004 of the learned J.M.F.C., Mapusa.
2. The accused was charged and tried with the allegation that on 23-4-2001 at about 9.00 a.m. at Sonarbhat, Betim, the accused assaulted PW2/Madhukar P. Haldankar with a bamboo stick and an iron rod on his right hand, thereby causing fracture to his right hand and also committed the offence of criminal intimidation.
3. The accused pleaded not guilty. The prosecution examined 11 witnesses in support of the charge. The accused also examined himself.
4. Undisputably, the injured PW2/Madhukar and the accused are first paternal cousins and have been residing in their respective houses which are at a distance of about 25 meters or so. PW1/Sushant and PW4/Supriya are the son and daughter of PW2/Madhukar and PW7/Tushar is his brother’s son. The relations between them prior to the incident were good. The accused had earlier called upon PW2/Madhukar twice or so to verify the location where the W.C. was being repaired by the family of PW2/Madhukar. On 23-4-2001 at about 8 or 8.15 a.m., the accused came to the house of PW2/Madhukar and both of them proceeded together to the place of the said W.C. to verify its exact location, with a measuring tape. Both of them went together and the accused with a measuring tape. As per PW2/Madhukar, after measurements were taken, it was found that the W.C. was within one meter from the property of the accused. Accused did not specifically state that the W.C. fell in his property but it was suggested to PW2/Madhukar that the W.C. was being constructed on the boundary. According to the accused on reaching the place PW2/Madhukar told him he had constructed the said toilet temporarily and he would demolish the same later on and he told him that he did not trust him and further told him that he would not demolish the same. The accused also claims that he told PW2/Madhukar that twenty tenants of his were answering nature’s call in his property and for that purpose his tenants had demolished his compound wall having a length of 200 meters. Nevertheless, the fact remains that the accused has admitted that there was a quarrel between them. But according to the accused the injuries sustained by PW2/Madhukar were on account of a fall sustained by PW2/Madhukar when the latter lifted the stick to hit him. PW2/Madhukar is a handicapped person and requires a stick to walk. According to the accused, at that time, besides PW2/Madhukar and himself no other persons were present and he has specifically stated that at that time PW1/Sushant, PW4/Supriya and PW7/Tushar were not present. If the W.C. was found to be in the property of PW2/Madhukar, as stated by him and which is not seriously disputed on behalf of the accused it sounds improbable that PW2/Madhukar would lift the stick to hit the accused.
5. The learned J.M.F.C. has acquitted the accused observing that PW1/Sushant, PW4/Supriya and PW7/Tushar were not present at the spot of incident. As per him, they did not withstand the test of cross-examination. The learned J.M.F.C. also observed that the conduct of PW1/Sushant in not going near the injured PW2/Madhukar at the time of occurrence was suspicious and that indicated that the first informant had not seen the occurrence. In fact, it was nobody’s case that PW1/Sushant was present at the time of incident. As per his own version he had gone for his work to Verem and when he returned at about 9.30 a.m. that he had come to know that his father was assaulted by the accused at about 6.45 a.m. and he proceeded to Porvorim Police Station where he was told that his father was taken to Asilo Hospital where he went and found his father and thereafter he went to G.M.C. Hospital along with his father. The learned J.M.F.C. also observed that PW1/Sushant who was allegedly been beaten by the accused person had received injuries but had not raised alarm. This is again an indication of clear non application of mind by the learned J.M.F.C. The learned J.M.F.C. also observed that the weapon of offence was not recovered from the accused, as if to say that unless the weapon of offence was recovered from the accused no conviction could be recorded. The learned J.M.F.C. also stated that there was enmity between the accused and PW1/Sushant inspite of the fact that PW2/Madhukar had clearly stated that till the date of incident their relations were good. In case their relations were otherwise strained it does not sound probable that PW2/Madhukar would accompany the accused, when called by the latter, to inspect the location of the W.C. The learned J.M.F.C. has also observed, and in my view rightly, that PW2/Madhukar was an injured witness and his presence could not be doubted but wrongly came to the conclusion that his evidence was in conflict with medical evidence, when in fact, the medical evidence corroborates the version given by PW2/Madhukar. The learned J.M.F.C. discarded the evidence of PW2/Madhukar as well as that of his daughter PW4/Supriya and nephew PW7/Tushar as well as medical evidence and chose to accept the solitary version of the accused in acquitting the accused. Referring to PW1/Sushant, PW4/Supriya and PW7/Tushar, the learned J.M.F.C. observed in one place that they had fallen in line with the story set up in the F.I.R. which meant that their evidence was corroborative in nature, but in another place observed that they being witnesses of fact have been fairly inconsistent so far as main points of main story are concerned. The learned J.M.F.C. also observed that there were variations, contradictions or inconsistencies in the evidence of PW1/Sushant, PW4/Supriya and PW7/Tushar without pointing out as to what were the said contradictions or inconsistencies and how they were material to the case of the prosecution. Suffice it to observe that the appreciation of evidence has been without application of mind.
6. The learned J.M.F.C. ought to have seen that the Courts are not required to attach undue importance to minor discrepancies appearing in the evidence of witnesses and unless the omissions or contradictions affect the core of the evidence of a particular witness, they are not required to be given any importance and are to be overlooked. As held by the Apex Court, time and again, unless the discrepancies are so vital, they cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak of details, and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. Corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.
7. In this context, the learned Public Prosecutor Ms. Winnie Coutinho has placed reliance on Appabhai and Anr. v. State of Gujarat wherein the Apex Court has observed that a victim of assault has got to be considered as the best eye witness. The Apex Court has also referred to other decisions of the Apex Court as regards appreciation of evidence particularly to an observation in Sohrab and Anr. v. The State of Madhya Pradesh wherein it is observed that in most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered.
8. On behalf of the accused, it is pointed out, with a view to discard the evidence of PW4/Supriya and PW7/Tushar that the former stated that PW11/Khalil came there and on seeing him the accused dropped the wooden danda at the said place and ran away from the place of incident while the latter made no reference to the said PW11/Khalil and merely stated that the accused threw the said danda and went away. In my view, such a minor discrepancy was not at all justified to reject either the evidence of PW4/Supriya or PW7/Tushar, as inconsistent. Another discrepancy sought to be pointed out on behalf of the accused by the learned Counsel is that PW4/Supriya and PW7/Tushar could not have been present because PW11/Khalil stated that he had seen only one Samir who was the other panch witness and two to three ladies. It is contended that in case PW4/Supriya and PW7/Tushar were present PW11/Khalil would have certainly seen them. As already stated, PW4/Supriya and PW7/Tushar are the daughter and nephew of PW2/Madhukar and they too are related to the accused, through their father and uncle respectively. It is quite probable that PW11/Khalil did not see them when he reached the place though he is the person who took the injured PW2/Madhukar on his motor-cycle to the Police Station. Only because PW4/Supriya or for that matter PW7/Tushar were not seen by PW11/Khalil is no reason good enough to jump to the conclusion that either of them had not seen the incident. Another point sought to be raised on behalf of the accused is regarding the attachment of the walking stick/wooden danda (M.O. 1). Admittedly, this wooden danda was attached from the scene of offence on the next day i.e. on 24-4-2001 by PW10/PSI Bawkar. It is true that PW11/Khalil, in the course of his cross-examination, stated that the said wooden danda was in the hand of PW1/Sushant on 24-4-2001 when he saw it for the first time. PW11/Khalil also stated that he had not seen the said danda at the place of incident on 23-4-2001. It is quite probable that PW11/Khalil had not seen the danda on the previous day but PW10/PSI Bawkar has categorically stated that he seized the said danda (M.O. 1) on 24-4-2001 from the scene of offence. There has been no cross-examination of PW10/PSI Bawkar as regards the said aspect. Only because PW11/Khalil had stated that PW1/Sushant had shown the danda to him and he did not know from where he had brought the same would be insufficiently to conclude that the danda was not attached from the scene by PW10/PSI Bawkar as stated by him and substantially corroborated by PW11/Khalil. That the said danda was attached from the scene is a story which can be acceptable without any doubt. As regards the handle of the said danda/walking stick PW2/Madhukar has admitted that the same had remained in his hand and had come off in his hand and he had taken it to the hospital along with him, and, for that reason probably it was not attached by the Police.
9. PW2/Madhukar has stated that in his property there were chawl type tenanted houses constructed by him and he had constructed a W.C. originally in the year 1994 and that he was repairing it but his tenants had lodged a Police complaint that he was demolishing it and in order to avoid any dispute with the tenants he had temporarily constructed four partitions with pig type basins when the accused came to his house on 23-4-2001 and complained to him that he was constructing the W.C. in his property. As per him, after measurements were taken, he showed the accused that the W.C. was one meter inside his property and to that the accused stated that he was talking too much(“tum subej uloita”) and started assaulting him with kick blows and he was thrown on the ground and after he fell on the ground the accused assaulted him with the walking stick mercilessly several times and he snatched the said stick from the hands of the accused and thereafter the accused picked up from nearby the spot of the incident an iron plate locally known as “patti” and with it he assaulted him on his left hand causing a tear injury between his left thumb and the index finger. He stated that he was also given a blow with the said patti by the said accused and thereafter the accused once again snatched the walking stick and gave a blow with it on his right hand and on the first blow given on his right hand his right hand was fractured and on the second blow given with the said stick by the accused on his right hand one of the bones of the right hand came out and thereafter the accused again started assaulting him with the said stick, namely, on his chest, at his back, on his head, etc. As per him, there was a haematoma on his back on account of the assault by the accused with the said stick. According to him, the accused also threatened him by saying that he would be killed and buried in the W.C. (“Tuka jivont marun tuka sandasan purtolo”). According to him, he shouted for help and he fell unconscious and upon hearing his shouts PW7/Tushar and PW4/Supriya and other people rushed to the place where he was and one carpenter by name Khalil/PW11 and one fisher woman came there and put him in a rickshaw and brought him to Porvorim Police Station as he was bleeding and from the Police Station he was taken in a jeep to Asilo Hospital and after having been given preliminary aid he was referred to G.M.C. and was operated twice at G.M.C. at Bambolim on his right hand, first on 23-4-2001 and again on 18-6-2001 as the first operation was not successful.
10. PW2/Madhukar was examined at Asilo Hospital at 10.25 a.m. by PW6/Dr. Sabrina Falcao with history of assault. According to her, PW2/Madhukar had (1) CLW between the left index finger and thumb; (2) swelling above left ear; (3) multiple bruises on the left leg; (4) swelling on the right forearm; (5) bruise on right shoulder; (6) swelling on the right shoulder. The description and details of which have been given by her on the certificate produced by her – Exh. PW6/A. In cross-examination, she stated that the patient was not able to stand without support because his blood pressure was low and further stated that such injuries are possible if a person falls on a hard surface. PW2/Madhukar was next examined by PW9/Dr. Shivanand Bandekar who is a Professor in Orthopaedics in G.M.C., Bambolim, and he found a Grade I compound fracture of distal end of radius and ulna and as per him, he carried out the emergency procedure under general anaesthesia.
11. He stated that debridement and suturing of the punctured wound with closed reduction of the fractures of radius and ulna was carried out. According to him, the patient was admitted on 23-4-2001 and discharged on 25-4-2001 with advice to follow up as an out patient. In the opinion of PW9/Dr. Bandekar, the injuries could have been caused by the stick(M.O. 1) or other blunt object. In cross-examination, PW9/Dr. Bandekar stated that PW2/Madhukar told him the history of assault at 8.30 a.m. In further cross-examination, PW9/Dr. Bandekar stated that such injuries could be caused if a person falls on the ground but stated that a person had to fall with his hands out stretched. Although, PW6/ Dr. Falcao stated that the injuries seen by her on PW2/Madhukar were possible if a person falls on a hard surface and PW9/Dr. Bandekar opined that the said injuries could be caused by a fall only if a person fell down with out stretched hands the fact remains that the said injuries appear to be more compatible with the story of assault as given by PW2/Madhukar and improbable by a fall considering the location of the said injuries on different parts of the body, including shoulders. In other words, in my view, the version of PW2/Madhukar was sufficiently corroborated by PW6/Dr. Falcao as well as by PW9/Dr. Bandekar. Although PW2/Madhukar also referred to a patti, as another weapon of assault, such patti was not recovered from the scene and this part of the story could be considered as exaggeration. As stated by the Apex Court in Sohrab and Anr. v. The State of Madhya Pradesh “this Court has held that falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered”. In my view the version given by PW2/Madhukar was convincing in the main, and there is nothing to doubt about the same. It was sufficiently corroborated by the medical evidence, as well.
12. PW4/Supriya in her version stated that on 23-4-2001 she was informed by one Chanappa that her father was being assaulted by the accused at the rear side of the chawl and saw the accused assaulting his father with a danda which was used by her father to walk, as a support and her father was lying on the ground unconscious and her cousin PW7/Tushar was preventing the accused assaulting her father. According to her, the accused told her that he would kill her father and bury him in the toilet at the place of incident. She denied the suggestion that her father had fallen down on his own on the ground. She also denied the suggestion that it is her father who took the wooden danda which he was using as support to walk and raised it in order to assault the accused and in that process her father lost balance and fell down on the ground. This suggestion has not been translated into evidence by DW1/Premanand Haldankar in his evidence before the Court though this fact was stated by the accused in his statement under Section 313 Cr.P.C. PW7/Tushar stated that the incident took place on 23-4-2001 and at about 9.00 a.m. he was inside his house and he heard a noise which came from the rear side of the chawl of PW2/Madhukar and he immediately rushed to the spot and saw the accused assaulting PW2/Madhukar with a bamboo danda and at that time, PW2/Madhukar had fallen on the ground and his right hand near the wrist side had a fracture. He intervened and prevented the accused from assaulting PW2/Madhukar. He also stated about the threats given by the accused and after that the accused threw the danda there and went away. In cross- examination, he admitted that PW2/Madhukar is his paternal uncle and he cannot walk without taking support and denied the suggestion that PW2/Madhukar had fallen on his own. He also stated that when he reached the spot, besides the accused PW2/Madhukar and himself nobody was present there but stated that PW4/Supriya came there subsequently, after he reached there. As already stated, both the parties as well as PW4/Supriya and PW7/Tushar are closely related and the evidence of these witnesses could not be discarded by labeling them as interested witnesses. In any event, in case they were interested the Court was required to scrutinize their evidence very closely. The evidence of PW2/Madhukar, his daughter PW4/Supriya and nephew PW7/Tushar is consistent and convincing. They have stood the test of lengthy and incisive cross-examination. The version of the complainant was sufficiently corroborated not only by the medical evidence of both the doctors but as well as by his nephew PW7/Tushar as well as by his daughter PW4/Supriya. The prosecution evidence was cogent and reliable. The learned J.M.F.C. proceeded to acquit the accused on flimsy reasoning, to which reference has already been made. In my view the prosecution had proved its case beyond reasonable doubt in the main against the accused. The case of the prosecution had to be examined in its totality and not by isolated scrutiny. The version of PW2/Madhukar was probable and consistent with the evidence of other witnesses. The learned J.M.F.C. therefore ought to have convicted the accused under Section 325 I.P.C.
13. As far as Section 506(ii) I.P.C. is concerned, the view held by the learned J.M.F.C. cannot be called to be unreasonable and in fact it appears to be in consonance with the view expressed in Rajender Datt v. The State of Haryana 1993 CRI. L.J. 1025. The learned Public Prosecutor has not cited any Judgment to canvass a contrary view. The acquittal of the accused under Section 506(ii) therefore cannot be faulted.
14. As a result, the appeal is partly allowed. The Judgment of the learned J.M.F.C. is partly set aside and the accused is hereby convicted under Section 325 I.P.C.
15. On the point of sentence, the learned Counsel on behalf of the accused submits that at present the accused is 66 years of age and therefore some leniency should be shown to him in awarding the sentence. On the other hand, the learned Public Prosecutor submits that the offence committed by the accused is grave considering that PW2/Madhukar was himself a handicapped person.
16. A sentence to be imposed should always have a deterrent effect. Sentence, it is said, is the most public face of the criminal justice system and it has got to be always proportionate to the crime committed by the accused. Proportion between crime and punishment is a goal respected in principle. Courts are required to ensure that whenever an accused is found guilty, he does not escape the clutches of law very lightly. Sentencing discretion has to be exercised considering the facts of each case. Considering the facts of this case, where the accused assaulted his own cousin who was a handicapped person in my view, the ends of justice would be met by the following order:
The accused is hereby sentenced under Section 325 I.P.C. to undergo S.I. of fifteen days and to pay a fine of Rs. 5000/-, in default to undergo S.I. for three months. In case the fine is realized the entire amount shall be paid as compensation to PW2/Madhukar. The accused to surrender before the trial Court within a period of four weeks to undergo the sentence.