Allahabad High Court
Prabhu And Others vs State Of U.P. on 22 November, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 01.10.2019
Delivered on 22.11.2019
Criminal Appeal No. 1940 of 1990
1. Prabhu (Dead)
2. Balbir
3. Virendra
4. Lallu (Dead)
5. Ram Behari
6. Ram Babu (Dead)
---- Accused-Appellants
Vs
State Of U.P. ------------ Respondent
For Appellant : Shri Dharam Pal Singh, Senior Advocate
Shri Jitendra Kumar, Advocate
For Respondent/State : Shri Amit Sinha, Additional Government Advocate
Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Raj Beer Singh, J
1. This criminal appeal has been preferred against the judgment and order dated 10.10.1990 passed by IInd Additional Sessions Judge, Jalaun at Orai in S.T. No. 15 of 1988 (State vs. Prabhu and Five Others) and S.T. No. 34 of 1988 (State vs. Ram Babu), under Sections 148, 120-B, 302/149 of Indian Penal Code (hereinafter referred to as 'I.P.C.'), police station Rendhar, district Jalaun, whereby accused-appellants, namely, Prabhu, Ram Behari, Balvir Singh, Virendra Singh, Lallu and Ram Babu have been convicted under Section 302/149 of IPC and sentenced to undergo imprisonment for life. They were further convicted under Section 148 of IPC and sentenced to undergo two years rigorous imprisonment. Both the sentences were directed to run concurrently. However, all the above-stated accused-appellants and co-accused Paras Ram were acquitted of charge under Section 120-B of IPC.
2. During pendency of the appeal, accused-appellants Prabhu and Lallu have expired and their appeal has already been abated by this Court vide order dated 04.07.2019. As per report of concerned C.J.M., dated 21.11.2019, accused-appellant Ram Babu has also expired and thus, the appeal in respect of accused-appellant Ram Babu also stands abated. Now, the present appeal is confined only in respect of accused-appellants, namely, Balbir, Virendra and Ram Behari.
3. Prosecution case is that complainant/PW-3 Mool Chandra alias Ram Chandra has got executed a Will regarding one acre of land and a house in his favour from his distant cousin Ganesh. Co-accused Parshuram Kanojiya has threatened the complainant that for getting the Will in his favour, he (PW 3) has to pay for his life. 4-5 days prior to the incident, a panchayat was also held and due to the said Will, accused-appellant Prabhu has turned Ganesh out of home. Due to the alleged Will, accused-appellant Prabhu was nurturing an animosity against the complainant. It is alleged that in the intervening night of 22/23.07.1987 at around 1:00 AM, accused-appellants Balbir, Virendra, Ram Behari and deceased accused-appellant Prabhu, Ram Babu and Lallu, armed with licenced guns, trespassed into the house of the complainant. Due to summer season, complainant and his family members were awaking and there was light of lantern. Complainant's son Shyam Babu, his wife Kailashi and son were lying at the roof. Deceased accused-appellant Prabhu fired a shot at complainant's son Shyam Babu, resultantly he fell down on ground floor in courtyard. Shyam Babu starting crying that he has been fired by Prabhu and thereafter, all the accused persons came inside the house through window and threatening that they would teach a lesson for getting the Will executed, deceased accused-appellant Prabhu exhorted accused-appellant Balbir to kill Shyam Babu. Consequently, accused-appellant Balbir fired a shot at Shyam Babu, causing his death at the spot. When complainant's wife Ladaiti ran to save him, deceased accused-appellant Ram Babu committed her murder by causing fire-arm injury to her. Other accused-appellants have also made firing. Hearing noise and cries, several villagers, including Ramsewak, Niranjan Shyam Karan, Prem Nath reached at the spot, but thereafter, all the accused-appellants went away. Due to firearm injuries, complainant's son Shyam Babu and wife Ladaiti have died at the spot. Complainant/PW-3 reported matter to police by submitting written complaint Ex. Ka-1 and on that basis, a case under Sections 147, 148, 149, 302 of IPC was registered on 23.07.1987 at 07:15 AM against all six accused persons vide first information report Ex. Ka-4.
4. Inquest proceedings were conducted by PW-5 S.I. Hukum Singh and inquest report regarding death of Shyam Babu was prepared vide Ex. Ka-5, while inquest report regarding death of deceased Ladaiti was prepared vide Ex. Ka-11.
5. Post-mortem on dead body of deceased Ladaiti was conducted on 24.07.1987 by PW-4 Dr. S.K. Shukla vide post-mortem report Ex. Ka-2 and following injuries were found of her person:-
"Multiple small firearm wound on upper part of left side of breast (upper part region), left arm, left elbow joint and upper part of left forearm (front portion) front of right arm and forearm, front lower part of abdominal wall, upper front part of right and left thigh, left side of upper outer part of back lower part of back, left thigh, most of firearm wounds are superficial and very few skin deep escept in the region of left side of chest, which are thorasic cavity deep, wounds are about 2 mm x 3 mm in diameter, blackening around wounds present, only four pellets recovered from skin."
Cause of death was stated haemorrhage & shock due to fire arm wounds.
On the same day post-mortem on dead body of Shyam Babu was also conducted by PW-4 Dr. S.K. Shukla vide post-mortem report Ex. Ka-3 and following injuries were found on his person:-
"Multiple firearm wound on right-side of neck, chin, lower lip, whole of front of chest and front upper part of left arm, each wounds 2-3 mm in diameter, blackening around wounds of all the wounds present and most of them are superficial to clean cavity."
Cause of death was stated haemorrhage & shock due to fire arm wounds.
6. During investigation, two empty cartridges were seized from the spot vide seizure memo Ex. Ka-16. Lantern was also taken into possession vide seizure memo Ex. Ka-17. Samples of blood stained and simple soil were lifted from the spot. Two torch were also taken into possession on 02.08.1987 vide memo Ex. Ka-22. After completion of investigation, all the accused persons were charge sheeted.
7. Accused Prabhu, Ram Behari, Balvir Singh, Virendra Singh, Lallu and Ram Babu were charged by learned trial court under Sections 148, 120-B, 302/149 of IPC, while co-accused Parasuram was charged under Section 120-B of IPC. Accused persons pleaded not guilty and claimed trial.
8. In order to bring home the guilt of accused persons, prosecution has examined six witnesses. Accused-appellants were examined under Section 313 Cr.P.C., wherein they denied prosecution evidence and claimed false implication. However, no evidence was adduced in defence.
9. After hearing and analysing the evidence on record, accused-appellants were convicted under Sections 149, 302/149 of IPC vide impugned judgment and order dated 10.10.1990 and were sentenced as stated in paragraph no. 1 of this judgment, while co-accused Parshuram Kanaujia was acquitted of charge under Section 120-B of IPC.
10. Being aggrieved, accused-appellants have preferred the present criminal appeal.
11. We have heard Sri Dharam Pal Singh, learned Senior counsel assisted by Sri Jitendra Kumar, learned counsel for the accused-appellants and Sri Amit Sinha, learned A.G.A. for the State-respondent.
12. Learned Senior counsel submits as under:-
(I) that all the alleged eye witnesses i.e. PW-1 Kailashi, PW-2 Tar Babu and PW-3 Mool Chandra alias Ram Chandra are closely related to each other and to the deceased and thus, they are interested witnesses.
(II) that as per FIR several villagers including Ram Sewak, Niranjan Shyam Karan and Prem Nath have reached at the spot, but none of them has been examined. It was submitted that in the absence of evidence of any independent witness, testimony of PW-1 Kailashi, PW-2 Tar Babu and PW-3 Mool Chandra alias Ram Chandra must not be relied upon.
(III) that in FIR, there was no version regarding any robbery or dacoity, thus these witnesses have made improvement in their statements in Court. Further no charge was framed under Sections 396, 394 or 392 of IPC and thus, the element of alleged robbery or dacoity has been introduced during evidence in Court, which render prosecution version unreliable.
(IV) that PW-3 Mool Chandra alias Ram Chandra has accepted in his statement that he has also sustained injuries in the alleged incident and that his other family members have also sustained firearm injuries but there is no medical examination report of PW-3. Similarly, there is no medical examination report of any of the injured on record and all these facts show that the alleged eye witnesses have not made true statements.
(V) that all the facts and circumstances of the case show that it was a case of dacoity and murder committed by unknown persons and that the accused persons have been falsely implicated in the case on account of enmity.
(VI) that prosecution has come up with a case that alleged incident was committed in pursuance of a criminal conspiracy, but the theory of criminal conspiracy has been disbelieved by the trial court and all the accused persons were acquitted of the charge under Section 120-B of IPC.
13. Per contra, it was submitted by learned State counsel that alleged incident took place inside the house of the complainant and thus, PW-1 Kailashi, PW-2 Tar Babu and PW-3 Mool Chandra alias Ram Chandra are natural witnesses of the incident. The accused-appellants have been identified in the light of lantern and that they were also known to the complainant and witnesses since before the incident and thus, their identity cannot be disputed. Though there are some contradictions in the testimony of eye witnesses, but in such cases, minor contradictions and inconsistencies are bound to happen and that testimony of PW-1, PW-2 and PW-3 cannot be disbelieved merely on the ground of alleged contradictions and inconsistencies. The motive of alleged incident is also established as the accused persons have not liked the execution of Will by Ganesh in favour of the complainant and that said Ganesh was turned out of home due to this reason. Due to the alleged Will, accused-appellants, who are related to each other, were having enmity with the complainant and, therefore, this incident was committed. Learned State counsel argued that PW-1, PW-2 and PW-3 have made clear and cogent statements and their version is supported by medical evidence. Merely because any injured person was not medically examined, it would not create any dent on the credibility of PW-1, PW-2 and PW-3. It was submitted that conviction of accused-appellants is based on evidence and there is no illegality or error in the same.
14. In evidence, PW-1 Kailashi stated that on the night of incident at around 1:00 AM, while she along with her husband and son was lying at roof of the house, whereas her mother-in-law Ladaiti, father-in-law Mool Chandra, brother-in-law (Dewar) Tar Babu, sister-in-law Kusuma Devi and her younger brothers-in-law (Dewars) Ganesh and Muneesh were lying in the courtyard and there was light of lantern. As it was a summer season, they were awakening at the time of incident. Accused Prabhu came at the roof of the house by climbing through window and after seeing her husband, he fired a bullet at him. Son of Prabhu, namely, Balbir and Virendra as well as accused Lallu, Ram Behari and Ram Babu also came at the roof. After sustaining firearm injury, her husband fell down in courtyard. Thereafter, all accused-appellants came out in the courtyard and accused Prabhu exhorted accused-appellant Virendra to kill her husband Shyam Babu. Consequently, accused-appellant Virendra fired a bullet at him by saying that it was a consequence of alleged sale deed. PW-1 further stated that as her mother-in-law Ladaiti ran to save her husband, accused-appellant Ram Behari fired a bullet at her. Both Shyam Babu and Ladaiti have died at the spot.
15. PW-2 Tar Babu stated that on the night of incident at around 1:00 AM while he was lying in courtyard along with her mother Ladaiti, father Mool Chandra and other family members, namely, Ganesh and Sushama and that his brother Shyam Babu and his wife Kailashi were lying at the roof of house. Due to summer season, they were awakening. Accused-appellant Prabhu climbed through window and fired a bullet at Shyam Babu and resultantly Shyam Babu fell down in the courtyard. Accused-appellant Ram Babu, Balbir and Virendra came down in courtyard and at the exhortation of deceased accused-appellant Prabhu that Shyam Babu was still alive and he must be killed, deceased accused-appellant Ram Babu fired a bullet at his mother Ladaiti and she died at the spot. Shyam Babu has also died at the spot.
16. PW-3 Mool Chandra alias Ram Chandra, who is complainant of the case, stated that before the incident in question, he has got executed a Will pertaining to a house and land from Ganesh and while that Will was being executed, co-accused Parshuram Kanaujia has threatened him to face dire consequences. On the night of incident, he, his wife Ladaiti, brothers Dinesh and Sitaram, son Shyam Babu and his wife Kailashi as well as other family members including Tar Babu and his wife were present at their house. Shyam Babu, his wife and child were lying at the roof, while remaining family members were in the courtyard and there was light of lantern. At around 1:00 AM in the night, accused-appellant Prabhu climbed at the roof through window and fired a bullet at Shyam Babu and resultantly Shyam Babu fell down on ground. Thereafter remaining five accused persons climbed at the roof and came down in courtyard. On exhortation of accused Prabhu, accused-appellant Balbir has fired a bullet at Shyam Babu. When wife of PW-3, namely, Ladaiti ran to save her son Shyam Babu, deceased accused-appellant Ram Babu fired a bullet at her, causing her death. Thereafter, all these accused persons have fired shots. Hearing cry and noise, one Ram Sewak Kurmi, Shyam Karan Kurmi, Lakhan Singh and Prem Narayan came there with torch and guns and in retaliation, they also fired shots. All the accused-appellants were recognized in the light of torch and lantern.
17. PW-4 Dr. S.K. Shukla has conducted post-mortem of both the deceased persons.
18. PW-5 Hukum Singh has conducted inquest proceedings and PW-6 S.I. Sukh Ram Verma has conducted investigation.
19. So far the argument that PW-1 Kailashi, PW-2 Tar Babu and PW-3 Mool Chandra alias Ram Chandra, being closely related to both the deceased, are interested witnesses, is concerned, it is well settled that a natural witness may not be labelled as interested witness. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim. Generally, close relations of the victim are unlikely to falsely implicate anyone. Relationship is not sufficient to discredit a witness unless there is motive to give false evidence to spare the real culprit and falsely implicate an innocent person is alleged and proved. A witness is interested only if he derives benefit from the result of the case or as hostility to the accused. In the case of State of Punjab Vs Hardam Singh, 2005, S.C.C. (Cr.) 834, it has been held by the Apex Court that ordinarily the mere relations of the deceased would not depose falsely against innocent persons so as to allow the real culprit to escape unpunished, rather the witness would always try to secure conviction of real culprit. The contention about branding the witnesses as 'interested witness' and credibility of close relationship of witnesses has been examined by Apex Court in number of cases. A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness'. The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straight way unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. On the issue of appreciation of evidence of interested witnesses, Dalip Singh Vs. State of Punjab, AIR 1953 SC 364 = 1954 SCR 145, is one of the earliest case on the point. In that case, it was held:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
Similarly, in Piara Singh and Ors. Vs. State of Punjab, AIR 1977 SC 2274 = (1977) 4 SCC 452, the Apex Court held:
"It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."
In Hari Obula Reddy and Ors. Vs. The State of Andhra Pradesh, (1981) 3 SCC 675, a three-judge Bench of this Court observed:
".. it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
In Jayabalan V UT of Pondicherry (2010) 1 SCC 199, the Supreme Court held as under:
"23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency."
Again, in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the following observations were made by the Apex Court:
"The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."
From above-stated pronouncements, it is clear that a close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness. The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straightway unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. A survey of the judicial pronouncements of the Hon'ble Apex Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52).
Keeping in view the aforesaid legal position in mind, in the instant case, it is true that PW-1 Kailashi is wife of deceased Shyam Babu and daughter-in-law of complainant Mool Chandra, PW-2 Tar Babu is brother of deceased Shyam Babu and son of deceased Ladaiti, where as PW-3 Mool Chandra alias Ram Chandra is husband of deceased Ladaiti and father of deceased Shyam Babu and thus, all these witnesses and the deceased were closely related to each other but the alleged incident took place in midnight at about 1:00 AM inside the house of complainant/PW-3 and thus, it cannot be accepted that at that time there would be presence of public or independent witnesses, rather presence of these witnesses at that time in their house is quite natural. If an incident takes place inside a house, the inmates of that house are natural witnesses and they cannot be levelled as interested witnesses.
20. It is correct that as per prosecution version, some residents of village including Ram Sewak, Niranjan Shyam Karan and Prem Nath have reached at the spot and they have not been examined as a witnesses but there is no such law that all the witnesses of an occurrence have necessarily to be examined to prove that occurrence. There is no such law or rule that all the witnesses have necessarily to be examined. If a fact has been proved by a reliable and credible evidence of a witness, there is no legal requirement to examine any other witness to support that fact. It is well settled that conviction can be based on the testimony of sole eye-witness, if the same inspires confidence. There is no such law that the testimony of an eye-witness cannot be relied upon unless it is corroborated by some independent witness. Corroboration is a rule of caution and not a mandatory requirement. If the testimony of an eye-witness is clear, cogent and credible, such testimony cannot disbelieved on the ground that it has not been corroborated by any independent witness. It is the quality and not the quantity of the evidence, which matters. In case of Gulam Sarbar vs. State of Bihar, Criminal Appeal No. 1316 of 2012, the Hon'ble Apex Court has held that:
"In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time- honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Even in Probate cases, where the law requires the examination of at least one attesting witness, it has been held that production of more witnesses does not carry any weight. Thus, conviction can even be based on the testimony of a sole eye witness, if the same inspires confidence. (Vide:Vadivelu Thevar & Anr. v. State of Madras; AIR 1957 SC 614; Kunju @ Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381; Bipin Kumar Mondal v. State of West Bengal AIR 2010 SC 3638;Mahesh & Anr. v. State of Madhya Pradesh (2011) 9 SCC 626; Prithipal Singh & Ors. v. State of Punjab & Anr., (2012) 1 SCC 10; and Kishan Chand v. State of Haryana JT 2013( 1) SC 222)."
It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement. Further, in Raghubir Singh v. State of U.P., it has been held that: (SCC p. 84, para 10) "10. ... the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need to be produced without unnecessary and redundant multiplication of witnesses. ... In this connection general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when spirits on both sides are running high has to be borne in mind."
The Supreme Court in the case of Vijendra Singh vs. State of U.P. reported in (2017) 11 SCC 129 has held as under:
"31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P. would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para 13) "[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon." It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v. State of Bihar has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason."
In the instant case, merely because the alleged eye witnesses are related to deceased, they cannot be called an 'interested' witness. As observed earlier a 'Related' is not equivalent to 'interested'. In the instant case, PW-1, PW-2 and PW-3 are natural witnesses and are the only possible eyewitness in the circumstances of a case and thus, they cannot be said to be 'interested'. The presence of the witnesses has been established and thus, their credibility could not be affected due to non-examination of independent witness. In a case like this, wherein the accused had killed two persons at the spot and also caused injuries to others, it may be difficult for the prosecution to procure an independent witness. The independent witness may not muster the courage to come forward and depose against such accused. Considering entire facts and the above discussed position of law, testimony of PW-1 Kailashi, PW-2 Tar Babu and PW-3 Mool Chandra alias Ram Chandra cannot be disbelieved or doubted on ground that no independent witness has been examined and thus, contention of learned senior counsel has no force.
21. It was next contended that PW-3 Mool Chandra alias Ram Chandra has stated in his statement that he has also sustained injuries in the alleged incident and that his other family members have also sustained firearm injuries, but there is no medical examination report of PW-3 or of any other family member. In this connection, it may be stated that PW 3 or any of other witness has not stated that they were medically examined. They might have sustained some minor injuries. Merely because prosecution has not proved their medical examination report, it cannot be ground to doubt their presence at spot or to affect their credibility. Here it has to be kept in mind that incident in question took place in mid night inside their house and thus, presence of these witnesses at spot is quite natural and probable. These witnesses have subjected to cross-examination, but no such fact could emerge so as to give any indication that these witnesses were not present at their house. The contention raised by learned counsel for appellants has no substance.
22. It was next argued that in FIR, there was no version regarding any robbery or dacoity, thus, these witnesses have made improvement in their statements in Court. Further, no charge was framed under Sections 396, 394 or 392 of IPC and thus, the element of alleged robbery or dacoity has been introduced during evidence in Court, which render prosecution version unreliable. It is correct that in FIR, there was absolutely no version regarding any robbery or dacoity, while in his statement in court, PW-2 Tar Babu has stated in his cross-examination that alleged miscreants have broken the locks of the house and committed robbery and similarly, in his cross-examination, PW-3 Mool Chandra alias Ram Chandra stated that the miscreants took away utensils etc. after breaking the locks of the house but such type of improvements and inconsistencies are bound to crept in every case, however, the same do not affect core of eye-witnesses, who otherwise inspire confidence. The concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. Alleged discrepancies cited by learned counsel are not of such nature so as to affect the pith and substance of testimony of eye witnesses. It is well settled in law that minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution, but not every contradiction or omission. (See Rammi @ Rameshwar Vs. State of M.P., (1999) 8 SCC 649; Leela Ram (dead) through Duli Chand Vs. State of Haryana and Another, (1999) 9 SCC 525; Bihari Nath Goswami Vs. Shiv Kumar Singh & Ors., (2004) 9 SCC 186; Vijay @ Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC 191; Sampath Kumar Vs. Inspector of Police, Krishnagiri, (2012) 4 SCC 124; Shyamal Ghosh Vs. State of West Bengal, (2012) 7 SCC 646 and Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr., (2013) 12 SCC 796).
23. So far the contention that theory of criminal conspiracy has been disbelieved by the trial court is concerned, it may be observed that in view of facts and circumstances of the case, it was not a case, wherein offence was committed in pursuance of criminal conspiracy and thus, the theory of criminal conspiracy was rightly disbelieved by the trial court. However, it would not affect the prosecution version, particularly, when all the six accused-appellants were charged with the aid of Section 149 IPC. Evidence clearly disclose that all the accused-appellants were members of unlawful assembly and offence in question was committed in furtherance of common object of unlawful assembly. Thus, the contention raised by learned counsel has no force.
24. Perusal of record shows that after incident, prompt FIR was lodged naming all the other accused-appellants. PW-1 Kailashi, PW-2 Tar Babu and PW-3 Mool Chandra alias Ram Chandra have made clear and cogent statements regarding entire incident. The alleged incident took place inside their house and thus, presence of these witnesses at the scene of offence is quite natural. These witnesses have been subjected to lengthy cross- examination, but no such material fact could emerge in their cross-examination, so as to create any doubt about their presence at the spot or to affect their credibility. The version of PW-1 has been corroborated by PW-2 and PW-3. The inconsistency like that deceased Shyam Babu has not sustained any such injury, which might have caused by falling on ground from first floor cannot be termed such material, so as to affect testimony of eye witnesses. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence but contradictions, inconsistencies, embellishments or improvements on trivial matters, which do not affect the core of the prosecution case, may not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. In the instant case, considering entire evidence and all attending facts and circumstances of the case, testimony of PW-1, PW-2 and PW-3 is found credible and inspires confidence. In view of the evidence on record and the aforesaid analysis of facts and evidence, we reach at the inescapable conclusion that the prosecution has succeeded in bringing home the guilt of all the accused-appellants.
25. In view of aforesaid, we are of the considered opinion that conviction of the appellants-accused under sections 302/149 and 148 of IPC is based on evidence and the trial court was fully justified in convicting them. Accordingly, conviction and sentence of appellants-accused is affirmed. Appellants are stated on bail, they be taken in to custody forthwith to serve out remaining sentence.
26. Appeal is dismissed.
27. Copy of this order be sent to the court concerned forthwith for necessary compliance.
Dated: 22.11.2019
Anand
(Raj Beer Singh, J) (Pritinker Diwaker, J)