Himachal Pradesh High Court
Baldev Singh & Others vs State Of H.P on 29 April, 2017
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. : 190 of 2008 Judgment reserved on : 05.09.2016 .
Date of decision : 29.04.2017
Baldev Singh & others .....Petitioners
Versus
State of H.P. .....Respondent
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur Whether approved for reporting?1 ___ For the Petitioners : Mr. Y.P.S. Dhaulta, Advocate For the respondent : Mr. Ramesh Thakur and Mr. Pankaj Negi Deputy Advocate Generals Vivek Singh Thakur, Judge Petitioners were convicted under Sections 41 and 42 of Indian Forest Act by learned Judicial Magistrate First Class, Court No.1, Amb, District Una, H.P. in Criminal Case No.17-III-2000 vide judgment dated 22.11.2006 for transporting forest produce (timber) in violation of Rules 5 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 2and 11 of H.P. Forest Produce Transit (Land Routs) Rules, 1978 (here-in-after referred to as 'Transit Rules') after .
sunset and before sunrise in truck No. HP-19-6311 without any hammer mark or permit to transport the same.
Petitioners were sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1000/- each and in default of payment of fine to further undergo simple imprisonment for one month.
2. In r appeal to preferred by petitioners, learned Additional Sessions Judge, Fast Track Court, Una vide judgment dated 5.9.2008 passed in Criminal Appeal No. 12 of 2006 and Criminal Appeal No. 13 of 2006 upheld conviction but modified sentence to fine only and sentenced them with fine of Rs.2000/- each for violation of Rules 5 and 11 of Transit Rules and in default of payment of fine to undergo simple imprisonment for two months. Hence, present revision petition.
3. I have heard learned counsel for parties and have also gone through the record.
4. Learned counsel for petitioners contended that lower courts below have failed to take notice of material ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 3 contradictions and major discrepancies in statements of PW-2 Balbir Singh, PW-4 Gurdev Singh, PW-8 Gian Chand, .
PW-9 Harpal Singh and PW-13 Onkar Singh adversely affecting genesis of prosecution story raising doubt about presence of these witnesses at the place and time as claimed by prosecution rendering search and seizure suspicious. He argued that there are contradictions about manner of arrival of police and forest officials on the spot, timing of arrival, setting up Naka, return to Police Post and number of logs seized. He further contended that an independent witness i.e. driver of Jeep used by forest officials to reach on the spot was neither cited as witness nor examined in the Court for which adverse inference against prosecution in inevitable and also that independent witnesses cited and examined by prosecution have not supported the case of prosecution which renders veracity of official witnesses doubtful.
5. Learned counsel for petitioners submitted that as per PW-2, he was summoned by Deputy Ranger from Saloh Beri whereas PW-4 denied the said fact and according to PW-4 forest officials reached on the spot before police ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 4 whereas other witnesses deposed that they reached together at the spot. He also pointed out contradictions in timing .
about reaching and leaving the spot and police post and also regarding presence of officials in police post. He further contended that during cross-examination by Public Prosecutor hostile independent witnesses PW-1 and PW-3 were suggested that 66 logs were recovered by police from truck in question whereas as per recovery PW-4/A recovery of 73 logs was shown. According to him for r Memo. Ex.
want of support and corroboration by independent witnesses examined by prosecution and also for withholding examination an independent witness i.e. Jeep driver who was present on spot, testimony of official witnesses ought to have not been relied by courts below, particularly when there are material contradictions and major discrepancies in their statements rendering whole prosecution story a farce.
He submitted that learned Courts below despite raising specific contention on aforesaid points, have not answered the same warranting interference of this Court.
6. On the contrary, learned Deputy Advocate General supported impugned judgment for reasons based ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 5 by courts below for conviction of petitioners. He submitted that PW-3 Parkash Chand and PW-7 Vikram Singh were .
related to petitioners and therefore their refrain from supporting prosecution case cannot be considered fatal to prosecution. It is further contended that other contradictions and discrepancies pointed out by learned counsel for petitioners are insignificant in nature and are not having any effect on genesis of prosecution story as there is sufficient material, proved on record, to hold petitioners guilty.
7. It is settled that statement of hostile witnesses is not to be brushed aside in toto and Court can consider evidence of hostile witness to corroborate other evidence on record. It is also clearly well settled that mere fact that a witness is declared hostile does not make him unreliable witness so as to exclude his evidence from consideration altogether but the said evidence remains admissible in the trial and there is no legal bar to base conviction or acquittal upon testimony of hostile witness if corroborated by other reliable evidence. Hon'ble Supreme Court in case Raja and others Vs. State of Karnataka (2016) 10 SCC 506 has held as under:-
::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 6"32. That the evidence of a hostile witness in all eventualities ought not stand effaced .
altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu @ Chintu (supra) by drawing sustenance of the proposition amongst others from Khujii vs. State of M.P. (1991) 3 SCC 627 and Koli Lakhman Bhai Chanabhai vs. State of Gujarat (1999) 8 SCC 624.
It was enounced that the evidence of a hostile witness remains admissible and is open for a Court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record".
8. It is settled law that evidence of official witnesses is not to be disbelieved or discarded merely for reason that they are official witnesses. Presumption is that every witness is impartial and independent unless proved contrary.
There is no presumption for doubting credibility of official witnesses in principle. Statements of official witnesses can ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 7 be basis for conviction of accused. However, before basing conviction on evidence of official witnesses, strict scrutiny .
with care and caution is required particularly when independent witnesses have turned hostile. In case evidence of official witnesses is found cogent, reliable and credible, conviction can be based on evidence of official witnesses only.
9. In Yakub Abdul Razak Memon Vs. State of Maharashtra 2013 (13) SCC 1, reiterating the principle laid down in judgment reported in (1995) 4 SCC 255, the Apex Court has held as under:-
"360. In Pradeep Narayan Madgaonkar and Ors. vs. State of Maharashtra this court upheld that:-
"11...........the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigating or the prosecuting agency. But prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible a corroboration of their evidence in material particulars should be sought. Their desire to see the success of the ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 8 case based on their investigation and requires greater care to appreciate their testimony".
.
10. Hon'ble Supreme Court, in Kulwinder Singh and another Vs. State of Punjab, (2015) 6 SCC 674 has held as under:-
"23. ...........When the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence".
11. It is quality of evidence not quantity which matters for proving a case. Each and every witness is not necessary to be examined. Therefore, non-examination of a single person will not have adverse effect of prosecution case unless statements of witnesses examined are not found cogent and reliable or prejudice caused to accused for non-
examination of the said witness is established and also accused is found incapable to examine that witness in defence for reasons beyond his control.
12. Hon'ble Supreme Court in case Kartik Malhar Vs. State of Bihar, reported in (1996) 1 SCC 614, after ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 9 considering difference in English Law and Indian Law, has observed as under:-
.
"3. This section marks a departure from the English law where a number of statutes still prohibit convictions for certain categories of offences on the testimony of a single witness. This-difference was noticed by the Privy Council in Mahamed Sugal Esa Mamasah Rer Alalah v. The King, A.I.R. (1946) P.C, 3 wherein it was laid down as under :
"It was also submitted on behalf of the appellant that assuming the unsworned evidence was admissible the court could not act upon it unless it was corroborated. In England, where provision has been made for the reception of unsworned evidence from a child, it has always been provided that the evidence must be corroborated in some material particularly implicating the accused. But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a court can act upon it; corroboration unless required by statute goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 10 whether sworn or unsworned but, this is a rule of prudence and not of law."
4. The Privy Council decision was considered .
by this Court in Vadivelu Thevar v. The State of Madras, A.I.R. (1957) S.C. 614 in which it was observed as under : -
"On a consideration of the relevant authorities and the provisions of the Evidence Act. the following propositions may be safely stated as firmly established :
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outways the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon for example, in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogues character.
(3) Whether corroboration of the testimony of a single witness is Or is not necessary, must ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 11 depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this a much depends upon the judicial .
discretion of the Judge before whom the case comes.
In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the Court should insist upon plurality of witnesses, is much loo broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that no particular number of witnesses shall, in any case, be required for the proof of any fact'. The Legislature determined, as long ago as 1872 presumably after due consideration of the pros and cons. that, it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses."
This Court further observed as under :
"It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilty depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 12 crime, would go unpunished. It is here that the discretion of the presiding judge comes into play.
The matter thus must depend upon the
.
circumstances of each cases and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof.
Even as the guilt of an accused may be proved by the testimony of a single witness, the innocence of the accused person may be established on the testimony of the single witness, even though a considerable number of witnesses may be forth coming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact, Generally speaking, oral testimony in this context may be classified into three categories.
namely :
(1) wholly reliable :
(2) wholly unreliable:
(3) neither wholly reliable nor wholly unreliable.::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 13
In the first category of proof, the Court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the .
testimony of a single witness, if it is found to be above approach of suspicion of interestedness, incompetence of subordination. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subordination of witnesses.
Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is fasiable and free from all taints which tend to render oral testimony open to the suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution."
::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 147. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in .
Vadivelyu Thevar's case (supra) and, therefore, conviction can be recorded on the basis of the statement of single eye witness provided his credibility is not shaken by any adverse circumstances appearing on the record against him and the Court, at the same lime, is convinced that he is a truthful witness. The Court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye witness being present Indeed, the Courts insist on the quality, and, not on the quantity of evidence.
14. We have already discussed above that it is open to the Courts to record a conviction on the basis of the statement of a single witness provided the evidence of that witness is reliable, unshaken and consistent with the case of the prosecution. The case of the prosecution cannot be discarded merely on the ground that it was sought to be proved by only one eye witness, nor can it be insisted that the corroboration of the statement of that witness was necessary by other eye-witnesses. The instant case, it may be ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 15 pointed out, does not strictly fall within the category of those cases where only one witness is present and the case of the prosecution is sought .
to be proved by the statement of that witness alone. Here, three of the witnesses were produced but two of them turned hostile leaving the third alone and, therefore, on the principles already discussed, if the remaining eye witness is found to be trustworthy, it becomes the duty of the Court to convict the accused as observed by this Court in Vadivelu Thevar's quoted below;
"But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable.
We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
13. Similar view, that it is not quantity but quality of the evidence which matters, has been taken by the Apex Court in case Rajesh Singh and others Vs. State of Uttar Pradesh reported in (2011) 11 SCC, it was reclaimed that ( see Para-25).
::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 1614. Hon'ble Supreme Court in case Laxmibai and another Vs. Bhagwantbuva and others reported in (2013) 4 .
SCC 97 has held as under:-
"39. 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 in 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. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced, do not carry any weight. (Vide:
Vadivelu Thevar v. State of Madras; AIR 1957 SC 614; Jagdish Prasad v. State of M.P. AIR 1994 SC 1251; Sunil Kumar v. State Govt. of NCT of Delhi AIR 2004 SC 552; Namdeo v. State of ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 17 Maharashtra AIR 2007 SC (Supp) 100; Kunju @ Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381; Bipin Kumar Mondal v. State of West .
Bengal AIR201O SC 3638; Mahesh & Anr. v. State of Madhya Pradesh (2011) 9 SCC 626; Kishan Chand v. State of Haryana).
15. Hon'ble Supreme Court in case Yanob Sheikh Allias Gagu Vs. State of West Bengal, reported in (2013) 6 SCC 428 has observed that in order to prove its case beyond reasonable doubt, the evidence produced by the prosecution has to be qualitative and may not be quantitative' (see paras 20 and 21).
16. Hon'ble Supreme Court in recent judgment in case Gulam Sarbar Vs. State of Bihar reported in (2014) 3 SCC 401 has observed as under:-
"19 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 ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 18 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).
20. If the prosecution had not examined the Panchnama witnesses and witnesses to the arrest memos of the appellants, the appellants could have examined them in their defence".
17. Statement under Section 313 CrPC is not a substantive piece of evidence and it is not equivalent to ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 19 confession of accused. Conviction cannot be based solely on the basis of statement made under Section 313 CrPC where .
prosecution failed to discharge its onus to prove its case as onus to prove certain facts is on the party who asserts.
Similarly, in case where prosecution discharges its burden to prove certain facts leading to some presumption or indicating guilt of accused, resulting shift of onus upon accused to rebut the same, then onus to prove facts contrary to prosecution case cannot be said to be discharged by accused only on the basis of statement given under Section 313 CrPC. In such a situation accused has also to lead substantive evidence either under Section 315 CrPC or to bring some substantive evidence on record during evidence of prosecution, in statements of witnesses as statement under Section 313 CrPC can only be considered and referred to corroborate substantive evidence led by either party.
Statement under Section 313 CrPC has corroborative value and it can also be taken into consideration to complete the chain of missing link. False or impossible plea in statement under Section 313 CrPC may also be taken as adverse circumstance against accused. Accused has a right to remain ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 20 silent but at the same time when onus is upon him to explain certain facts and circumstances which are only in his .
exclusive knowledge (say under Section 106 of Evidence Act), silence can be fatal for him.
18. Hon'ble Supreme Court in case Dehal Singh Vs. State of Himachal Pradesh reported in (2010) 9 SCC 85 has held as under:-
"23"
Statement under Section 313 of the Code of Criminal Procedure is taken into consideration to appreciate the truthfullness or otherwise of the case of prosecution and it is not an evidence. Statement of an accused under Section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act.............. There is reason not to treat the statement under Section 313 of the Code of Criminal Procedure as evidence as the accused cannot be cross-
examined, with reference to those statements.....................".
19. In another case Manu Sao Vs. State of Bihar, reported in (2010) 12 SCC 310, the Apex Court has ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 21 elaborated evidentiary value of statement of accused under Section 313 CrPC as under:-
.
"12 Let us examine the essential features of this Section 313 Cr.P.C. and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Code.
13. As already noticed, the object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and besides ensuring the compliance thereof the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or in the alternative to explain his version and reasons, for ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 22 his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to .
cross- examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.
14. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313 (4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put as evidence against the accused in any ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 23 other enquiry or trial for any other offence for which such answers may tempt to show he has committed. In other words, the use is permissible .
as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution".
20. Hon'ble Supreme Court in case Dharam Deo Yadav Vs. State of Uttar Pradesh, reported in (2014) 5 SCC 509 has held as under:-
"37. Often, false answers given by the accused in Section 313 CrPC statement may offer an additional link in the chain of circumstances to complete the chain. See Anthony D'Souza V. State of Karnataka".
21. Every contradiction discrepancy or improvement is not fatal for prosecution, but it is only major contradiction, discrepancy or improvement on material facts shaking very genesis of prosecution case which matters for creating doubt on prosecution case. Hon'ble Apex Court in case Pawan ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 24 Kumar Alias Monu Mittal Vs. State of Uttar Pradesh and another with other connected matters reported in (2015) 7 .
SCC 48 has held as under :-
"35. As regards the allegation of contradictions in the statements of prosecution witnesses, we do not find any major contradictions which require out attention and consideration. When a witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence ( see Rammi V. State of M.P)..................................".
22. Hon'ble Apex Court in case Bhagwan Jagannath Markad and others Vs. State of Maharashtra reported in (2016) 10 SCC 537 has observed as under :-
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 25 touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details.
.
Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 26 may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical .
rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that principle " falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance.
Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.
20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape".::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 27
23. It is admitted case of prosecution that logs of timber in question were prepared from pine trees, felled .
from land of petitioner Baldev Singh and the said fact has been proved by prosecution through PW-10 Arvind Kumar, Forest Guard, and for that reason only during investigation, as also deposed by I.O. PW-13 Onkar Singh, challan was presented in the Court after removing Section 379 IPC which was initially incorporated at the time of registering case which also has corroboration from copy of FIR Ex. PW-
12/A. In statements under Section 313 CrPC, petitioners admitted ownership of seized timber with petitioner Baldev Singh. Therefore only question to decide in present case is as to whether respondents were transporting timber in question in violation of provisions of Transit Rules, 1978 particularly Rules 5 and 11 of these Rules.
24. Prosecution has examined 13 witnesses to prove its case. PW-2 Balbir Singh, PW-4 Gurdev Singh, PW-8 Gian Chand, PW-9 Harpal Singh and PW-13 Onkar Singh, official witnesses of the spot, in their deposition in court, reiterated prosecution story. Non-official witnesses PW-1 Roshan Deen, PW-3 Parkash Chand and PW-7 Vikram Singh, for ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 28 desisting from supporting prosecution story, were declared hostile leading to their cross-examination by Public .
Prosecutor. PW-3 Parkash Chand is real brother of petitioner Baldev Singh and PW-7 Vikram Singh, owner of truck involved, is uncle of driver of the said truck i.e. petitioner Madan Lal. Therefore, there is force in contention of prosecution that both of them had reason to resile from their earlier statements recorded by police under Section 161 CrPC so as to favour petitioners. However reading of their statements with other evidence on record and also with statements of petitioners under Section 313 CrPC substantiates material part of prosecution story. PW-3 stated that timber was taken in possession by police during day time from the land owned by them on the pretext that it was extracted from Government Forest. PW-1 also stated that police had brought timber from land of PW-3 Parkash Chand at about 2.30 PM which were being claimed extracted by Parkash Chand from his land, and Baldev Singh and Madan Lal were not on the spot. In his statement under Section 313 CrPC, in answer to question No. 16, petitioner Baldev Singh had explained in the similar manner. However ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 29 to the contrary, in his statement under Section 313 CrPC, petitioner Madan Lal, in answer to the same question, had .
explained that Parkash Chand and Baldev Singh had requisitioned his truck to their house and during day time, at 2.30 PM, while loading timber in the truck, police seized timber on the pretext that it belonged to Government Forest. PW-3 Parkash Chand and petitioner Baldev Singh did not admit requisition of truck loading of timber in it rather claimed that police had picked up the same from their land and PW-7 Vikram Singh owner of truck also denied use of his truck for transportation of timber in question at any time and he also disowned petitioner No. 2 Madan Lal as his driver with further claim that during night of 16.06.2000, truck in question was parked at his residence and he had engaged one Rachhpal as driver. Petitioner No. 2, in answer to question No. 4 in statement under Section 313 CrPC, has refused that Madan Lal was driver of the truck and he was sitting with driver in said truck, whereas in answer to the same question, in his statement under Section 313 CrPC petitioner Madan Lal admitted it to be correct but qualified that they were not transporting timber during night time.
::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 30In answer to question No. 5, petitioner Baldev Singh claimed that they were not transporting timber at all whereas .
petitioner Madan Lal, in answer to the same question, stated that they were transporting timber during day time.
25. PW-2, though, in his examination-in-chief, stated that 66 logs of pinewood were recovered vide memo Ex. PW-4/A but in cross-examination, he specifically stated there is r specific to that there were 70-72 logs in the truck. In Memo Ex. PW-
4/A mention of 73 logs. Therefore, apparently, mention of 66 logs in examination-in-chief was a mistake to which this witness was never confronted but the said mistake stands clarified by this witness in his cross-
examination.
26. It is true that in cross-examination of PW-1 and PW-3, Public Prosecutor has suggested recovery of 66 logs of pine trees being transported without permit which was denied by these witnesses. These suggestions of Public Prosecutor appears to be because of lack of vigilance on his part as it is evident from record that vide Ex. PW-4/A 73 logs were recovered by PW-11 Gurdayal Singh. This memo is prepared by writing both sides of paper and details of ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 31 logs from serial No. 61 to 73 is on back side of this memo.
At first glance this memo creates illusion of total 66 logs .
as there are two columns in this memo, written so tightly so as to give impression of one column only ending at serial No. 66 whereas logs No. 67 to 73 are mentioned in second column which can be noticed only on careful perusal.
Therefore, these suggestions by learned Public Prosecutor are nothing but result of mistake on his part.
pertinent that prosecution witnesses have quoted number r It is also of logs as 73 not 66. Hence, this contradiction or discrepancy in statement of PW-2 and also in questions put to hostile witnesses by learned Public Prosecutor is not fatal to prosecution.
27. Contradiction pointed out in statement of PW-2 Balbir Singh and PW-4 Gurdev Singh with respect to calling PW-2 by PW-4 is not contradiction but is only expressing the same fact in different words. PW-2 stated that Deputy Ranger had come in Jeep to call him in the evening. PW-4 stated that he himself had not gone to call PW-2 but had called PW-2. Deposition of both of them is to the effect that was called by PW-4. PW-2 never stated that PW-4 had come ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 32 to him personally to call him but stated that he had come in Jeep. Similarly PW-4 had endorsed it in different manner.
.
28. It is also incorrect to allege that PW-3 in contrast to PW-4, stated that they went to spot at 2.00 AM.
Statement of PW-2 is to be appreciated as a whole and not by picking a single sentence in isolation. In any case he did not say that they went on naka at 2.00 AM. In examination-
in question
r carrying to
in-chief PW-2 stated that during 'Naka' at logs of pinewood 2.00 AM, truck came from Surangdwari side. Time of going on spot was stated by him in cross-examination where he categorically stated that they started from Daulatpur to spot of 'Naka' at 12.00 AM in the night.
29. As per PW-4, time of reaching on the spot, is 12.30 AM. According to PW-8 Gian Chand they started for 'Naka' at 12.10 AM. PW-9 stated that they were on the spot at 12.45 PM. PW-13 also claimed their presence on the spot at 12.45 AM. All these witnesses including PW-2 stated that truck loaded with timber occupied by petitioners was stopped and checked at about 2.00 AM during 'Naka' and was found transporting logs of pinewood. Therefore, there ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 33 is no material discrepancy in the timing of reaching on the spot and apprehending petitioners transporting timber during .
night without hammer and/or permit.
30. Discrepancy about arrival of police officials and forest officials on the spot is also not significant as it is again divergence in manner of explaining one and the same fact by prosecution witnesses. PW-4 stated that they went on 'Naka' first and police reached thereafter however in later part of his statement he stated that police reached first at 'Naka'.
PW-8 stated that they started from police post at 12.10 AM and they met forest officials coming from Surangdwari side.
PW-13 also stated that at about 12.45 AM, police officials met forest officials who were coming from Surangdwari side.
There is a minor difference with regard to time of reaching on the spot but the fact remains that all theses witnesses stated that between 12.15 AM to 12.45 AM police officials as well as forest officials had reached at Naka point.
31. Contentions of petitioner regarding contradiction about time in statements of prosecution witnesses about time of returning from spot to police post is also not tenable for the reason that there are only minor difference in ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 34 statement of prosecution witnesses. According to PW-2 they reached back at about 3.30 AM, PW-4 and PW-9 stated that .
they remained on spot about one and half hour after apprehending petitioners. PW-8 stated that they reached back in police post at about 3.00 AM and PW-13 stated that they remained on the spot till 5.00 AM and came back at 5.30 AM. The difference of time in the statement of PW-13 is immaterial as there is sufficient evidence on record which otherwise corroborated the prosecution story.
r A single omission in remembering correct time of returning by a witness cannot be taken a ground to disbelieve entire prosecution case particularly when there is corroboration of other material facts in statements of prosecution witnesses.
32. There is no discrepancy or contradiction with regard to presence of witnesses in police post. PW-2 stated that they remained on the spot for about two hours. PW-2 has not claimed his presence in proceedings in police post which is corroborated PW-4 Gurdev Singh who stated that Updesh was with him in police post and PW-2 was in his residence. Presence of PW-4 is also admitted by PW-8, PW-9 and PW-13 with slight difference of timing of his presence.
::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 3533. The incident is of 17.06.2000 whereas PW-2 was examined in June 2002, PW-4 was examined in October .
2002, PW-8 was examined in October 2003, PW-9 was examined in August 2004 and PW-13 was examined in September 2005. There is a considerable long gap between the date of incident and date of deposition of these witnesses in the Court. Therefore by passage of time these minor discrepancies or contradictions were bound to occur as power to observe, grasp, retain, remember and narrate always differs from person to person. Way and manner of expression explaining one and the same incident also differs from person to person. Contradictions and discrepancies pointed out by counsel for petitioners are either non existent or trivial in nature having no effect on credibility and veracity of prosecution witnesses. On the other hand contradictory explanation of incident by petitioners has itself proved falsehood of the defence taken by them.
34. Transportation of timber, atleast, during day time stands admitted by petitioners. The said timber, whether during night or day time, was being transported without valid permit and hammer mark or imprint of ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 36 registration mark. Rule 5 of Transit Rules provides that no person shall transport forest produce without imprint of .
registration mark. Rule 11 prohibits transpiration of any timber without hammer mark. In absence of permit or mark on timber, petitioners had to explain and establish authority and right to transport the said timber. There is nothing on record to show that petitioners were having valid transport permit with respect to timber seized by police and it is also not defence of petitioners that there was no requirement of permit and the case was covered under Rule 6.
35. Learned counsel for petitioners in support of his contentions has relied upon judgments passed by the Apex Court in cases Karamjit Singh Vs. State of Punjab, AIR (2000) SC 1002, State of Punjab Vs. Harbans Singh, AIR (2003) SC 2268, Aslam Parwez Vs. Government of NCT of Delhi, AIR (2003) 9 SCC 141, Pratap Singh Vs. State of Madya Pradesh, AIR (2006) SC 514 and Dilip Vs. State of M.P., AIR (2007) SC 369.
36. In Kamaljit Singh's case, eye witnesses were not found to be reliable by the Court to convict accused for murder whereas in present case witnesses present on spot ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 37 are reliable for duly corroborating prosecution case in their statements on material particulars.
.
37. Harbans Singh's case has been referred for doubting presence of witnesses on the spot. In that case prosecution witnesses were found to be stock witnesses and their presence on spot was doubtful and in absence of independent witnesses their evidence was rejected. In present case witnesses are official witnesses and case of prosecution is not only corroborated in their statements but also found to be trustworthy on scrutiny of statements of witnesses including hostile witnesses as well as explanation offered by petitioners in their statements under Section 313 CrPC.
38. In Aslam Parwez's case, testimonies of police personnel were not found inspiring confidence and were considered highly unsafe to be relied upon to convict accused specially when the public and independent witnesses did not at all support prosecution case on any material particular whereas in present case there is sufficient material corroborating statements of official witnesses.
::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 3839. In Partap Singh's case, the Apex Court had acquitted accused not only for non-examination of seizure .
witness but also for other facts and circumstances of that case and it was also found that the High Court on one hand made adverse comments against the conduct of Investigating Officer but on the other hand placed strong reliance story relying on his evidence for the purpose of of offence to believing that several material objects including the weapons were recovered in accordance with law. This judgment is not applicable in the facts and circumstances of the present case.
40. By referring paras 15 and 16 of judgment in Dilip's case, it is contended that for non-association of independent witnesses during search and seizure proceeding, prosecution case must fail as such search and seizure would have a bearing on credibility of the evidence of official witnesses. The judgment in reference was passed in a case pertaining to NDPS Act dealing with mandatory provisions and requirement of Sections 42 and 50 of NDPS Act to be complied with and the said judgment is not applicable in facts and circumstances of the present case.
::: Downloaded on - 07/05/2017 00:01:36 :::HCHP 3941. Overall assessment of material on record, it cannot be said that courts below have failed to appreciate .
evidence on record completely and correctly or the impugned judgments are perverse in nature causing mis-carriage of justice. There is no illegality, or irregularity in impugned judgment in arriving at conclusion that petitioners are guilty for committing offence charged. Hence, the judgment of the trial Court with modified sentence by learned Additional Sessions Judge is upheld. Accordingly present petition fails and as such is dismissed. Records of the Court below be sent back immediately.
(Vivek Singh Thakur) Judge April, 29 2017 *brb* ::: Downloaded on - 07/05/2017 00:01:36 :::HCHP