Rajasthan High Court - Jaipur
Muuna And Ors. vs State Of Rajasthan on 4 July, 2001
Equivalent citations: 2001CRILJ4127, 2001(3)WLC700
Author: K.S. Rathore
Bench: K.S. Rathore
JUDGMENT Madan, J.
1. Accused appellants have challenged the judgment of the trial court whereby they have been convicted and sentenced as under:-
Name of the accu-sed appellant Convicted under Section Sentence awarded to each accused appellant Munna @ Munnalal U/s. 302 IPC Life Imprisonment with a fine of Rs. 5,000/- (in default further 2 years' RI) U/s. 120-Br.w. 302
-do-
Balak Dass U/s. 302/34 IPC Llfe Imprisonment with a fine of Rs. 5,000/- (in default further 2 years RI).
U/s. 120-B r/w
-do-
302, IPC Jagdish &Damodar U/s. 120-BJPC r/w 302 Life imprisonment with a fine of Rs. 5.000/- (in default further 2 years' RI)
2. Brief & undisputed facts out of which prosecution of the appellants arises are that a Parcha Bayan (Ex.P20) of Shiv Prasad (PW 15) was recorded on 18.10.90 at 1 PM by the SHO PS Pushkar (Ajmer) to the effect that his Guru Ramratan Giri went to get his cycle mended but when he did not return for sometime he went to search him, and when they were returning on the cycle and were near the Animal Hospital, they saw a Station Wagon No. RSL 5253 coming rashly so his Guru asked him to get down from the cycle and he turned it towards the Ramdeoji temple and then saw the Wagon being driven by Munna duly accompanied by Damodar & Balak Dass. It has also been stated that at that time Balakdass instructed Munna to crush Ramratan (cyclist) thereupon Munna (Wagon driver) rashly turned the Wagon towards temple resulting into crushing Ramratan Guruji with dragging for about 15-20 ft. and at the same time, Jagdish (accused) did also come on scooter and he made rounds on scooter nearby the body of Ramratan Guruji so also saying that the work has been done and then all of them ran away.
3. Upon this Parcha Bayan, Crime No. 130/90 was registered at PS Pushkar for offences punishable Under Sections 307/341 IPC. The investigation commenced. However on 18.10.90 Ramratan succumbed to his injuries in the hospital and therefore post mortem examination on his person was conducted by Dr. P.K. Saraswat Medical Jurist JLN Hospital Ajmer who gave autopsy report (Ex.P17). Since Ramratan (injured) died therefore the case was converted into for commission of offence Under Section 302/34 IPC. After completion of investigation the charge sheet was produced against the accused appellants for offences punishable Under Section 302 read with Section 120-B IPC and the case was committed to the Court of Sessions. The learned trial Judge framed charges for offences against accused Munna Under Sections 302, 302/120-B IPC, Balakdass Under Sections 302/34, 302/120B, 302/114 IPC, Jagdish Under Sections 302/34, 302/120-B IPC, and Damodar Prasad Under Sections 302/34 & 302/120B, IPC, to which the appellants pleaded not guilty and claimed trial. In support of its case the prosecution examined as many as 17 witnesses and exhibited 26 documents (Ex P1 to P 26). The accused appellants were examined Under Section 313 CrPC and they produced three witnesses in defence and got five documents exhibited (ExD1 to D5). After hearing the learned counsel for the parties, the learned trial Court convicted and sentenced the accused appellants as indicated above. Hence this appeal.
4. Though the medical evidence was not seriously disputed but before taking into consideration rival contentions of the parties let us have a look at the of medical evidence as to homicidal death of the deceased. As per report (ExP17) of autopsy conducted at 5PM on the body of deceased Ratan Giri who died on 18.10.90, following ante mortem external injuries were found by the medical jurist Dr. PK Saraswat (PW 11), and according to him, cause of death of deceased was head injury which was ante mortem in nature.
(1) Lacerated wound 34 x 10 cm in size extending from just below left knee to ankle with exposed muscles and bone (tibia).
(2) Abrasion 4 x 3 cm on right knee cap.
(3) Abrasion 3 x 1 cm on right ankle maxillary.
(4) Abrasion 10 x 9 cm from acromin process to posterior part with swelling and dislocation of shoulder joint on left side anteriorly.
(5) Laceration with abrasion 3 x .3 x .3 cm in size, below left eye on cheek.
(6) Abrasion with contusion 1 x 1 cm on left side of forehead near hairline.
(7) Abrasion 4 x 3cm on right maxillary area of cheek.
(8) Lacerated wound 3 x .8 x full thickness of scalp torn on posterior part of head.
(9) Abrasion 1 x 1 cm on tip of nose.
(10) Abrasion 3 x 2 cm on right ankle laterally.
(11) Abrasion 6 x 4 cm on left forearm dorsally in lower 1/3rd with coller, fracture.
(12) Three barasions 0.5 x 0.5 in size each on left hand dorsally at knee surface of middle, ring and little fingers.
(13) Two abrasions 0.5 x 0.5 in size each on right hand dorsally at kunakle surface of middle and ring fingers.
(14) Three abrasions 1 x 1cm in size each on lumbosacral region.
5. In autopsy report (Ex.P17) the doctor also found that there was diffuse haematoma on occipital area 7 x 7 cm in size with external injury No. 8 and as regards skull he found that there was linear fracture 7 cm in size extending from sub occipital area to downward on occipital bone, and further that there were fractures of IVth and Vth left ribs on curvature in axillary area. As regards brain, the medical jurist found that (1) it was congested and odematus; (ii) there is subdural accumulation of free blood with 100 cc in quantity over both occipital area of cerebral hemisphere superior laterally and inferiorly; (iii) there are diffuse patching sub arachnoid haemorrhagic areas on both cerebral hemisphere in posterior part; (iv) pin point to pin head sized intracerebral haemorrhagic spots on both cerebral hemisphere, scattered diffusely on posterior parts; (v) external fracture on occipital region extending on posterior cranial fossa. Similarly as per autopsy report, post mortem staining have faintly appeared over the dependent parts of trunk except the contact areas on shoulder blades and buttocks. Rigor mortis had also appeared over face, eye lids, neck and upper part of trunk with upper extremities and partially over the lower extremities. There was evidence of bleeding from nostrils and mouth. This autopsy report was proved by oral evidence of Dr. PK Saraswat (PW 11). Nothing was brought in evidence during cross-examination of Dr. P.K. Saraswat (PW 11) either to disprove the autopsy report (Ex PI 7) or to shatter his expert testimony on the deceased's cause of death opined by him in the autopsy report. Thus in our considered opinion, it stands established that the deceased died due to homicidal death emerging from sustaining grievous injuries on his person in the incident out of which the prosecution against appellants have been alleged.
6. Next contention canvassed by the defence counsel is that as per deposition made by Pooran (PW3), Chhotu (PW 4) & Radhey Shyam (PW 8) the incident had occurred due to truck accident on main road resulting in death of the deceased. We find no merit in this theory projected by the defence. A careful perusal of these trioka witnesses makes it clear that Pooran (PW 3) & Chhotu (PW 4) were attesting witnesses to the inquest report and Radhey Shyam (PW 8) though was attesting witness to seizure of an Agreement (ExP15) but he has turned hostile to the seizure of the agreement itself in his presence. Pooran & Chhotu both have merely deposed that the inquest report (ExP4) to the dead body of the deceased was prepared in their presence and thus they have proved the inquest report (ExP4). Merely because Pooran (PW3) deposed in examination in chief that the police had in his presence prepared inquest report which related to an accident case and similarly in cross examination Chhotu (PW 4) said that when the inquest report was being prepared then a boy aged 12/13 years, though may be named as Shivprasad but he did not know his name, was also present and that boy had told that information of accident was given to him (boy) in the temple, in our considered view. It cannot be said that the death of the deceased had occurred in a truck accident as projected by the defence. Moreover none of these trioka witnesses had been examined by the police as eye witnesses to the impugned incident nor they have deposed before the trial court that they had even seen truck accident causing death of the deceased on 18.10.90 at the place of incident. Radheyshyam (PW8) was material witness to the seizure of agreement (Ex.P15) as motbirone but he turned hostile to that effect and was declared as such on the request of the APP by the trial Court and whereafter though cross-examination could have been restricted to the seizure of agreement only but he was cross-examined as to the events of the incident despite he being not eye witness to the impugned incident. Therefore, in such cross-examination whatever testimony of such hostile witness has been given out deserves to be discarded from being considered. As held by the Apex Court in Parveen v. State of Harayana (1), testimony of hostile witness cannot be relied on by the defence. Similarly as laid down in Khujji v. State of M.P (2), and Satpal v. Delhi Admn (3) even evidence of hostile witness to the extent it corroborates the prosecution version can be relied upon. And, as propounded in Bhagwan Singh v. State of Haryana (4) the evidence of hostile witness however remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.
7. Learned counsel for the appellants contended that as per prosecution case, Ramratan (deceased) was run over by the Station Wagon having been driven by accused appellants, so there should have been damage caused to the wagon at its right side, but curiously enough as per seizure memo of the wagon (ExP12) and mechanical report (ExP18) the wagon was not at all damaged from right side, for which there is categorical finding of the trial Court that there was no damage to the wagon on its right side, inasmuch as there was no mention in site plan (ExP6) as to the tyre marks at the place of incident, nor tyre mark impressions were taken by the investigating officer, being vital evidence to connect the wagon with the crime. Shri Rathore also contended that to connect the wagon with the crime, the prosecution ought to have produced a piece of evidence i.e. broken glasses of head light which were not seized with a view to compare them with piece of glasses of the wagon, and that apart mechanical report (ExP18) did not mention as to the glass of head light of the wagon being broken, inasmuch as the prosecution failed to produce owner of the wagon. Shri Rathore then did much stress that there has been total lack of evidence to complete the chain of circumstances so as to prove as to from where the wagon had come, who was the owner, how all the accused appellants were boarding therein on the day of incident.
8. We find no substance in the contention of Shri Rathore that it was incumbent upon the prosecution to have taken sample of glasses of head light of the Wagon so as to establish pieces of glasses of the seized wagon, because as per seizure memo of Wagon (Ex.P12) where it was taken in to custody left side head light was found broken while right side headlight was intact with no damage. The Wagon was seized from the place of incident where the dead body was lying after the deceased was run over by the wagon, as is proved by the site plan also. The broken glasses of the wagon scattered nearly from the place of incident besides one piece of glass duly blood stained were also seized and lifted vide seizure memoes (ExP9 & Ex P 11). Ex.P9 pertains to seizure of 37 pieces of glasses of broken head light of the wagon. As per mechanical inspection report (Ex.P.18) right side head light was found properly lighting while left side head light was not in working condition and even its glass was not there. On these points no question was put to Setharam (10) (PW16) who had drawn proceedings at the spot as to the seizure of wagon, blood stained bitumen and pieces of head light glass and other broken pieces of glass, so as to dispel doubt. Though Setharam (PW16) during cross-examination admitted that no tyre marks had been lifted from the place of incident for the reasons not known to him. He further deposed that he forgot to state in site plan as to the Impression of tyre marks; and however he denied to the suggestion put by the defence that the reason for non-lifting of the tyre marks was because those were of a truck. In our considered view, non-lifting of the tyre marks from the place of incident would not render the seizure of the wagon or complicity of the wagon in the crime as doubtful, especially when the prosecution case rests on direct evidence and not on circumstantial evidence, inasmuch as the wagon was found near the dead body of the deceased at the place of incident when the police reached there at the spot and from where the wagon was seized and taken into custody, alongwith cycle in a damaged condition.
9. It is further case put by the defence counsel that once as per prosecution case itself, 8-9 accused persons were there in the wagaon while it was into motion, but the prosecution did not hold identification parade to link identify of the accused with those alleged to have boarded in the wagon at the time of the incident alleged to have been witnesses by Shiv Prasad (PW 15). The question of holding identification parade did not arise because as per the version given out in the FIR and subsequent statement, sequences of the incident of the accused appellant having run the wagon over the deceased were witnessed by eye witness Shiv Prasad (PW15) and Santosh Giri (PW 6), who have named the accused appellants in the FIR and police statements at the earliest point of time. That apart presence of eye witness Shiv Prasad (PW15) in the company of deceased when both of them were returning on cycle, has not at all been shaken by the defence during trial. Shiv Prasad (PW15) though deposed that in the wagon there were nine persons including Munna but he has specifically deposed that out of 8-9 persons, his father Balak Dass and two others Jagdish and Damodar are known to him who are present in the court. Thus once the informant and eye witness named the accused in the FIR then so far as the present accused appellants named in the FIR is concerned no identification parade was required to be held though it may be necessary for rest of five accused not named in the FIR and not known to the eye witness, out of total nine accused alleged to have been sitting in the seized wagon at the time of the incident. Hence we find no 'substance in the case put by the defence counsel for the prosecution of not having held the identification parade for the impugned incident.
10. Even in a case of identification of accused for the first time in court by eye witnesses when they did not know him earlier and when no test identification parade had been held, the Apex Court in Ramanbhai N. Patel v. State of Gujarat (5), observed that evidentiary value of such evidence although may be treated to be of a weak nature but is not totally irrelevant or inadmissible because real credence of such evidence would depend upon the facts and circumstances of each case. It was a case where two eye witnesses were assaulted in broad daylight, so the Apex court held that they could have easily seen the faces of the assailants and their appearance and identify would well remain imprinted in their minds and similarly third witness had seen the fatal assault on her husband causing fatal injuries to him, further the Apex Court held that face of the accused can easily be treated to have been imprinted in her mind. Hence, in these circumstances the Apex Court held that even in absence of a test identification parade none of the three witnesses could be said to be interested in roping in innocent persons by shielding the real assailants. Applying the ratio of decision in Ramanbhai Patel's case (supra), since in the instant case the eye witnesses claimed to have seen the present appellants driving and sitting in the seized wagon by which the deceased was run over resulting into his death at the place of incident, from which the wagon was seized and dead body was found lying when the police reached the spot, and further disclosure of names of the assailants not only in statement recorded by police and FIR then & there, inasmuch as in chief examination they gave reasons for their knowing the accused, in our considered opinion, evidence of these eye witnesses (PW6 & PW15) as to the identification of the present accused appellants have been in the absence of test parade, is acceptable as they had disclosed the names of the assailants to the police at that very point of time when the police reached the spot as stated in the FIR and in their police statements and thus they cannot be said to be interested in roping in innocent persons.
11. As regards the contention of defence counsel as to the non production of the alleged eye witnesses Pyara & Habu, we are of the opinion that his contention is misconceived because if we go through entire record then we find that Kishan Gopal (PW 2) and Sohanlal (PW 1) though have been produced by the prosecution but they have resiled from their versions given out before the police. ExP1 is statement of Habulal alias Sohanlal (PW 1) S/o Dharamchand whereas ExP3 is statement of Kishangopal alias Pyara (PW 2) S/o Bhanwarlal. These statements (ExP1 & ExP3) were recorded Under Section 161(3) CrPC. Habulal alias Sohanlal (PW 1) & Kishangopal alias Pyara (PW 2) have resiled from their versions portion A to B of statements (ExP1 & ExP3). However, as discussed above merely because out of three eye witnesses, two have resiled from their versions given at the earliest point of time during investigation there is no ground for holding that rest of one should also be disbelieved.
12. Next contentions advanced by the defence counsel is that since telephonic message was recorded in Rojnamacha at 12.20 P.M. (ExP21) disclosing cognizable offence so also name of the assailants, and whereupon the police proceeded to the spot therefore, Parcha Bayan (ExP20) recorded by the police at subsequent point of time is inadmissible in evidence being hit by Section 162 CrPC. Shri Rathore relied on the decision of the DB of Delhi High Court in Randhir Singh v. State (6), where telephonic message was received by the police from anonymous person revealing commission of cognizable offence and name of person committing it, the Division Bench of Delhi High Court held such telephonic message as first information report, and the fact that police officer proceeded to the spot and made enquiry was held amounting to investigation. Further it was held that the admission made by accused before the police-officer was hit by Section 162 and could not be read against the accused.
13. In the instant case though Ex.P12 contains that a telephonic message was received by the SHO PS Pushkar by a person concealing his identity that at the Mela Ground Road along Animal Hospital. Munna driver has struck Baba Ramratan Giri by colliding wagon RSL 5253. This telephonic message in our considered view, cannot be termed as FIR firstly, because it was a mere information to the police pulling into motion for investigation and secondly as per message it did not disclose commission of cognizable offence inasmuch as it did not disclose name of informant. Thus, in the circumstance of the case, the information received on telephone giving no details of the offence would not have been said to be the first information and the SHO did the right thing in reaching the spot on the basis of the information and registering first information report on the basis of a Parcha Bayan of Shiv Prasad (PW15). We find support from the decision in Sheikh Ishaq v. State of Bihar (7), following by this Court in Pyare v. State of Rajasthan (8).
14. Further we find no substance in the defence case contended before us that the FIR, which ought to have been lodged immediately came into existence after due deliberation and concoction merely because eye witness Shiv Prasad (PW 15) firstly went to Ashram instead of immediately informing the police or because Shiv Prasad (PW15) stated that Parcha Bayan was not readable and the police got his signature saying that the matter was to be written and then would be read over to him thereafter. Telephonic message was received at 12.20 PM and after getting it noted down in the daily diary book, the SHO PS Pushkar immediately rushed and reached the spot from where firstly Ramratan was taken to JLN Hospital, where Parcha Bayan (ExP20) was recorded by SHO at about 1.00 PM and then sent to the Police Station for registering the crime and this statement was received by the police station at 1.45 PM. Thus we do not find that there was any delayer deliberation. After going through the prosecution evidence, we are of the opinion that the FIR (ExP22) is not the result of any deliberation or consultation nor any such question has been put to the witnesses including the investigating officer/SHO and eye witnesses in their cross-examination as to why these police officials would indulge in roping in the appellants or would falsely involved them for connecting with the crime.
15. Merely because Shiv Prasad (PW15) during cross-examination stated that his Parcha Bayan (ExP20 was not get read over to him or that he had asked the police to let him read over it but the police told him to first put signature as something more was to be written, his evidence cannot be discarded nor his evidence can be held inadmissible. If his entire evidence including cross- examination is read over carefully it is apparent that though he might have said so, as is pointed out by the defence but after saying so, he has also clarified the situation by specifically stating that his Parcha Bayan (ExP20) was written by the police at his instance according to his version, in other words, whatever he said the police got written the same in his Parcha Bayan and only after the police completed willing he put his signature. It is trite that what the court has to adjudge is the substratum of the case and in doing so grain has to be separated from chaff, and that some improvement here and some exaggerations there or some minor discrepancies in the evidence do not hurt or demolish the prosecution case itself,
16. It is the defence case that conduct of Shiv Prasad (informant) (PW 15) is in a pool of doubt as is reflected by his three statements namely Parcha Bayan (ExP20) police statement (Ex D4) recorded Under Section 161 CrPC and statement recorded Under Section 164 CrPC by the Magistrate (Ex D5) which denote improvements and contradictions. Here let us have a resume of the decisions cited by the defence counsel State v. Sardara Singh (8), and Namdev Daulat Dhayagude v. State of Maharashtra (9).
17. In N.D. Dhayagude v. State of Maharashtra on the question of appreciation of evidence Under Section 3 of the Evidence Act and contradictions in evidence of witness, the Apex Court observed that where the story narrated by the witness in his evidence before the court differs substantially from that set out in his statement before the police, and there are number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
18. In State v. Sardara Singh (supra), where the State had filed appeal against acquittal of the accused, the Division Bench of this Court held that contradictory statements at various stages of the case not only affect reliability but also create (serious difficulties for the Court arrive) at the truth and if the contradictory statements are not explained in a reasonable manner and have been made deliberately and motivated by ulterior consideration they run the risk of being completely ignored. It was also held that unless there is a definite, positive, legal, unimpeachable and reliable evidence, the accused in a serious case cannot be convicted, because in a criminal case mere suspicion howsoever strong cannot take the place of proof.
19. In our considered view, it is a fundamental rule of criminal jurisprudence that a statement of a witness recorded Under Section 164 CrPC cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him. As regards Parcha Bayan Ex P20)'s portion E to F (this incident was witnessed by Pyare and Habu), Shiv Prasad (PW 15) during cross-examination denied to have given out such version to the police during recording of Parcha Bayan (ExP20). Similarly during cross-examination Shiv Prasad (PW 15) insisted saying that though he had given out not only to the police but also before the Magistrate that the incident was witnessed by Santosh Gin (PW 6) and she was present at the time of incident and that dispute was with regard to the land of the temple but it is not known why such version was not written in her those statements recorded either Under Section 161 or 164 CrPC. Though the trial court itself on critical analysis of the evidence of Santosh Giri (PW 6) held her presence at the time of incident as doubtful because her presence was neither stated in Parcha Bayan (ExP20) (on the basis of which FIR Ex P22 was chalked out nor in his police statement ExD1, but curiously enough both these witnesses PW 6 and PW15 during cross- examination insisted that despite their version having been given out to the police as to the presence of Santosh Giri at the time of incident having witnessed the culpable act of the accused appellants for causing death of the deceased, it is not known as to why such version was not got written by the police. However, if another prosecution evidence is carefully examined then it is crystal clear that Setharam (PW 16) (10) in chief examination categorically deposed that when he reached the spot he found Swami Ramratan Giri in an injured condition and further found Santosh Girl and Shiv Prasad present nearby Ramratan Giri besides blood scattered there nearby, Station Wagon and Lady cycle duly damaged and since Ramratan was duly injured therefore he was taken to the hospital at Ajmer alongwith police party and aforenamed two witnesses. Merely because during cross examination Santosh Giri (PW6) admitted saying that her signature was got put in the evidence of the incident day at the inquest report, her presence at the time of incident cannot be held doubtful, as has wrongly been done by the trial court, rather from her such version it is crystal clear that she is a truthful witness. In fact, inquest is made of the dead body and in the instant case, as per autopsy report, autopsy on the body of deceased was put to examination at 5 P.M. and obviously after autopsy the inquest report could have been prepared and that being so inquest report (ExP 4) was got prepared by the police after 5 P.M. i.e. in the evening and Santosh. Giri specifically deposed in her chief examination that inquest was got done in her presence, and therefore, it makes no difference if she in her examination said that her signature was got done at the inquest report in evening. There is no requirement of law or any rule that an inquest panchnama should contain name of the accused or eye witness of the occurrence. An inquest panchnama is a report required to be made by the investigating officer with respect to the apparent cause of death. It is to be prepared in the present of two or more respectable inhabitants of the neighbourhood and has to describe the wounds, fractures, bruises and other marks of injuries as are found on the dead body and slating in what manner, or by what weapon or instrument (if any), such marks appear to have inflicted. Thus, for the purpose of holding the inquest it is neither necessary nor obligatory on the part of the investigating officer to investigate into or ascertain as to who were the person responsible for the death. Our view is fortified by the observation made in George v. State of Kerala (11), and as held in Pedda Narayana v. State of AP (12), the question regarding the details how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings.
20. In fact the defence counsel used all those three statements to ferret out some of omissions therefrom for confronting Shiv Prasad (PW15) and Santosh Giri (PW 6). Section 161(2) CrPC requires the person making statements to answer truly all questions relating to such case put to him by such officer. It therefore depends on the questions put by the police officer. It is true that a certain statement may now because Under Section 161 to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act. It is trite as enunciated in Tehsildar Singh v. State of UP (13), "omissions, unless by necessary implication be deemed to be part of the statement, cannot be used to contradict the statement made in the witness box." Though explanation to Section 162 provides that an omission to state a fact in the statement may amount to a contradiction but it makes explicit that the omission must be a significant one and "otherwise relevant" having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. A concomitant reading of Section 161(2) with explanation to Section 162 CrPC makes it clear that an omission in order to be significant must depend upon whether the specific question, the answer to which is omitted, was asked of the witness by the police officer during investigation.
21. That apart, merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. 'Though Section 155 of the Evidence' Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement but a bare reading of the Section depicts that all inconsistent statements are not sufficient to impeach the credit of the witness. That being so, in Leelaram v. State of Haryana (14), following the decision in Rammi v. State of MP (15), the Apex Court laid much stress that courts should bear in mind that it is only when discrepencies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence but too serious a view to adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. We lend support and may observe that to contradict a witness therefore must be to discredit the particular version of the witness and unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent, it would Tahsildar Singh v. State of U.P (supra), because a former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction; only such of the inconsistent statement which is liable to be contradicted would affect the credit of the witness. Section 145 of the Evidence Act enables the cross examiner to use any former statement of the witness but it cautions that if it is intended to contradict the witness, the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of CrPC. permits the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of CrPC. permits the cross examiner to use previous Statement of the witness recorded under Section 161 CrPC. for the only limited purpose i.e. to contradict for the only limited purpose i.e. to contradict the witness.
22. We may reiterate that only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. Only when the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the prosecution case becomes doubtful and not otherwise. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness. Similarly mere congruity or consistency is not the real test of truth in the depositions. Material discrepancies are those which are not normal and not expected of a normal person.
23. Let us have a benefit of analysis of three statements of eye witness Shiv Prasad (PW 15) on which the defence counsel used to ferret out some of contradictions or omissions or discrepancies, with a view to find out as to what has been deposed on material particulars. First statement of Shiv Prasad is Parcha Bayan (ExP20) on the basis whereof FIR was chalked out and the investigation was put into motion. As discussed above, there remains no doubt or dispute as to it being FIR, which is not required to contain each and every minute details of the events happened during the course of commission of the offence in the incident. Similarly it is not a substantive piece of evidence. It can only be used to corroborate or contradict.
24. The following circumstances find place in deposition of the eye witness Shiv Prasad (PW IS) in his all three statements (supra)-
1. On 18.10.1997 his Guru Ramratan Giri had gone to repair his autocycle at a mechanic shop situated at Marwar bus stand;
2. Since much time had elapsed and his Guru did not come back, he went to Guru Ramratan Giri on his cycle, to call back him and thereupon he and Guru Ramratan both left mechanic shop for the temple with a short stay at police station by his Guru Ramratan Giri on his cycle to call back him and thereupon he and Guru Ramratan both left mechanic shop for the temple with a short stay at police station by his Guru;
3. After leaving police-station, the cycle was being driven by Guru Ramratan Giri and he was riding on pillion seat and it was time about 12.15 PM When they were moving on their side ahead Animal's hospital then saw a station wagon No. RSL 5253 coming in their front rashly, whereupon Guruji told him to get down the cycle so he got down and at that point of time Guruji turned the cycle towards the road going to the temple ;
4. Driver of the station wagon was Munna and besides Munna, Balakdass and Jagdish and Damodar were also there in the wagon and out of whom Balak Dass told Munna to run the wagon over Mahant Guruji so Munna run over it dragging Mahant Guru Ramratan Giri for about 15-20 ft. and then Munna stopped the wagon just ahead;
5. Due to run the wagon over Mahant Guru, bone of left leg of Guruji struck out and also sustained head injuries besides other slight injuries on his body;
6. When Guruji was tying on the road. Jagdish had driven scooter surrounding Guruji with saying that the work has been done and then all the accused ran away towards Ramdev temple.
25. However, before the trial Court Shiv Prasad (PW 15) besides above circumstances further deposed that there were 8-9 persons out of whom four present in court are known to him; that he and Santosh Giri cried upon having seen the incident of dragging Mahant Ramratan Giriji; that they were threatened of dire consequences if cried, with the same fate as of Guruji; that Jagdish Pehlwan got down the wagon and then came with scooter of green colour bearing No. RNW 6964; that the incident was outcome of the temple's land dispute. He further deposed that Setharam Thanedar came to the spot and wherefrom they took Guruji in police vehicle to JLN hospital, where his parchabayan was got written by the police.
26. We have carefully perused the statement of Setharam (10) (PW16) and found that he was not asked whether he had put questions during interrogation or recording of statements under Section 161 CrPC of the prosecution witnesses (either eye witness or any other) one (PW 6) and PW 15) asking for their versions alleged to have been either omitted in their police statements or recorded under Section 164 CrPC but have been given out in court statement or during cross examination such as with regard to the presence of Santosh Giri at the time of commission of the crime resulting into death of the deceased, and/or as to temple's land dispute, or as to the accused Jagdish having got down the wagon and then having come with scooter or as to the colour and number of the scooter of Jagdish, or as to the version stating numbers of accused persons riding in the wagon, i.e. 8-9 persons. Hence in our considered view, the alleged omissions first of all have occurred as they were not asked by the investigating officer to these witnesses, and secondly exaggerations in the nature of omissions being not significant inasmuch as by necessary implication also being not a part of the statement, cannot be used to contradict the statement in the witness box and that being so, whatever the portions of the prosecution witnesses used by the defence counsel to ferret out some of contradictions or omissions or exaggerations, being not on material particulars and significant, cannot be made a ground to reject the evidence of eye "witnesses (PW6) & (PW 15) and further those were not contradictions in the particular context on an overall conspectus by analysis of the statement of Shiv Prasad (PW 15), his statement under Section 161 CrPC so also under Section 164 CrPC, and that of Santosh Giri (PW 6), we come to the conclusion that there are no material improvements, muchless contradictions in the deposition made by them before the trial Court. The so called omissions or exaggerations are in fact the details of the narrations extracted by the Public Prosecutor and the defence counsel in the cause of their examination in-chief and cross- examination.
27. No doubt in Hariram v. State of HP (16), the Division Bench of the Himachal Pradesh High Court held that the gist of the offence of conspiracy is the agreement; direct proof of the conspiracy is seldom available; in a case of conspiracy when there is no direct evidence inferences from the proved facts and circumstances to a large extent form the basis of the court's conclusion. However it was a case of an accused who was a peon and illiterate person and whose thumb impression was found on receipt purported to be passed by rightful incumbent, therefore, the Court observed that there was possibility of his superior taking his thumb impression without disclosing intention to commit misappropriation and accordingly the accused was held not guilty either under Section 467 or 120-B, IPC holding that in the absence of any evidence the mere existence of the thumb impression of the accused who is admittedly an illiterate person and could not know the contents of the receipt would not suffice to Incriminate the accused. It was a case of forged document. Hence having distinguished facts, ratio of decision in Hariram's case does not help the present appellants so as to render their guilt not sustainable in law.
28. In D.K. Naik v. State of Maharashtra (17), me commission of offence alleged was of cheating and fraud in contract for sale of goods with criminal conspiracy. The learned Single Judge of the Bombay High Court observed as under:-
In cases of conspiracy, though it is true that direct evidence other than that furnished by an approver is not generally available, in those cases of conspiracy in which the prosecution relies only on circumstantial evidence to established a criminal agreement between the accused persons to commit an alleged offence, it is necessary for the prosecution to prove and establish such circumstances as would lead to the only conclusion of existence of a criminal conspiracy."
"There are cases of criminal conspiracy in which evidence adduced by the prosecution for proving criminal conspiracy is the same as evidence for establishing the offence which is alleged to be the object of the criminal conspiracy. In such cases, if the prosecution is not able to establish its case so far as the main offence constituting the object of criminal conspiracy is concerned, it will be extremely unsafe to find the accused persons guilty of abatement of the said offence with the aid of Section 120-B IPC unless by unimpeachable evidence, circumstances incompatible with the non existence of criminal conspiracy are established by the prosecution."
29. In Harchand Singh v. State of Harayana (18), the Apex Court held that in a case where the prosecution leads two sets of evidence each one of which contradicts the other, then it is difficult to sustain the conviction of the accused. It was a case where the prosecution in support of its case examined two sets of eye witnesses; one was consisted of the testimony of three eye witnesses who were not present at the time of the incident according to the fourth eye witness who according to the prosecution case was with the deceased at the time of the assault; and this fourth eye witness was shown to be an unreliable witness by the other evidence produced by the prosecution. Therefore, the Apex Court observed that it was a case wherein one set of evidence condemned the other set leaving the Court with no reliance and trustworthy evidence upon which the conviction of the accused might be based.
30. In our considered view, the prosecution has unfolded and disclosed the prosecution case in a most natural manner and there is no scope for imaginary doubt about correctness of the version. Though the trial Court held Shiv Prasad (PW 15) as the sole eye witness of the fatal knock down by the accused appellants but that cannot be held to be an infirmity of the prosecution case. A conviction can be based and the verdict of the Court can rest even on the testimony of a sole witness, if the court is fully satisfied that such witness is a truthful witness and his presence at the time of occurrence has been proved beyond reasonable doubt, as has rightly been held by the trial Court in the instant case. But in the facts and circumstances proved in prosecution evidence on record, as discussed above, we hold that Santosh Giri (PW 6) was also eye witness of the commission of the crime and her evidence was not at all shaken during cross examination to dispel doubt about her presence either during the course of commission of the crime or at the spot subsequently. That apart her evidence is fully corroborated by the evidence of Shiv Prasad (PW 15) in all material particulars. Not only evidence of Shiv Prasad (PW 15) but also of Santosh giri (PW 6) stands fully corroborated by the damaged station wagon found at the spot, itself, alongwith broken glasses found on the road nearby the body of deceased before taking him as injured. Most of the injuries on me person of the deceased being on left side go a long way to prove that the eye witnesses have disclosed correct version of the occurrence, that firstly the accused appellants by driving rashly station wagon come in front of them (witnesses while they were returning on cycle and were near the Animal's hospital) and after Shiv Prasad getting down the cycle. Ramratan Giri turned the cycle towards the road going to the temple, then also they (accused) chased by turning back station wagon towards Ramratan Giri with a view to drag him and thereupon deceased was knocked down. Obviously the station wagon by virtue of knocking down the deceased on cycle had got damaged on the left side head light as it stands proved by the seizure and mechanical inspection report of the station wagon recovered from the sport. Especially statement of Shiv Prasad (PW 15) is vivid in explanation and inspires full confidence of the court to pass the conviction on the appellants for the offences with which they were charged. The corroborate evidence to the aforesaid statement leave no doubt in the mind of the court regarding the involvement of the appellants in the commission of the crime for which they have been convicted and sentenced. Having carefully considered various submissions made on behalf of the accused with regard to the impugned conviction and after going through the record as also judgment of the trial court and taking into consideration rival contentions, we come to the conclusion that no infirmity whatsoever is found in the judgment of the trial Court. The evidence has properly been appreciated. The material placed before the trial court has carefully been considered by it. The conclusion as to the testimony of the eye witnesses gelling corroboration on the material particulars, in our opinion, is unassailable.
31. In the aforesaid premises, we see no legal infirmity with the impugned conviction & sentence requiring interference. Resultantly, this appeal accordingly fails and is dismissed. The impugned judgment of conviction and sentence passed against each of the appellants for the respective offences referred to above is upheld. The appellants are in jail and therefore be detained to serve out remaining sentence confirmed by this Court. They be informed accordingly.