Delhi District Court
In Re: State vs Munni Ram Etc on 18 January, 2010
IN THE COURT OF SHRI GAURAV RAO: METROPOLITAN
MAGISTRATE: DELHI
In Re: STATE VERSUS MUNNI RAM ETC
F.I.R. No: 23/96
U/s 325/452/34 IPC
P.S. Nangloi
Date of Institution of Case : 16.07.1997
Judgment Reserved for : 18.01.2010
Date of Judgment : 18.01.2010
JUDGEMENT:
(a) The serial no. of the case : 620/1/08
(b) The date of commission of offence : 12.01.1996
(c) The name of complainant : Sukhbir @ Bittoo, S/o Mange
Ram, R/o village Bakarwala,
Delhi.
(d) The name, parentage, of accused : 1 Munni Ram, S/o
Sardar Singh, R/o
Village Chhawala,
Delhi.
2.Jagdish Prasad, S/o
Jhhgaru Ram, R/o
Village Lokati, PS
Patondi, Distt.
Gurgaon (Haryana).
3. Sanjay Kumar S/o
Mange Ram, R/o
village Bakarwala,
Delhi.
4. Rattan Singh, S/o
Dig Ram, R/o RZ/C-5,
near IP College, Kiran
Garden, Uttam Nagar,
Delhi.
Present Address : As above
(e) The offence complained of : U/s 325/452/34 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : All accused persons convicted
(h) The date of such order :18.01.2010
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 12.01.1996 at about 7.00 am at village Bakarwala Delhi within the jurisdiction of police station Nangloi accused Munni Ram along with co-accused Jagdish Parsad, Sanjay Kumar and Rattan Singh in furtherance of their common intention committed house tress pass by entering into the building of Sukhbir Singh S/o Sh. Mange Ram which was being used as a dwelling house after having made preparation for causing injuries and they voluntarily caused grievous hurt to Sukhbir Singh and thereby the accused persons committed offence punishable u/s 325/452/34 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 accused persons were supplied the documents. Thereafter vide order dated 28.01.1998, charge u/s 325/452/34 IPC was framed against accused persons to which they pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined six witnesses. After the PE was closed the statement of accused persons u/s 313 Cr.P.C were recorded on 28.06.2004 wherein they claimed themselves to be innocent and stated that they have been falsely implicated in the case and examined three witnesses in their defene as DW1 to DW3.
A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 PW Sukhbir Singh @ Bitoo deposed that on 12.01.1996 while he was present at his house along with his wife and sister and 12 day old daughter accused Mani Ram, Jagdish, Sanjay and Rattan Singh (correctly identified) came to his house armed with lathis and started beating him, his wife and his sister with lathis. He further deposed that accused persons ran away but came back after sometime and took him to the field (Khet) and beat him till he was unconscious. He received injuries on his hands and legs. Police came at the spot and recorded his statement Ex. PW1/A. During his cross examination, he stated that lathis were not taken into possessions by the police in his presence. He further stated that he was not conscious when his statement was recorded on 12.01.1996 at the hospital. He stated that statement was recorded in his unconsciousness.
5. PW2 Neelam deposed on 12.01.1996 at about 4:00 a.m. again said 7:00 a.m. while she was present in her house along with her husband and her sister-in-law, accused Mani Ram (correctly identified) came to her house and knocked the door. She opened the door and found Manni Ram outside the house. She further deposed that in the meanwhile, her father in law, Mange Ram, Jagdish and Rattan came at the door and accused entered into her house along with lathis and started beatings her and her sister in law. Thereafter, accused persons ran away and she made a complaint to the police. She further deposed that when she reached near the Talab and School, accused persons again started beating her, her husband and her sister in law. She stated that villagers separated them from the accused persons. Police came and taken them to the hospital and recorded her statement as well as that of her husband.
During her cross examination, she stated accused persons hit her and her husband with more than four lathis. Accused Manni Ram hit her and her husband, her sister in law with lathis as well as gave fist and legs blows on her breast. She stated that she was not medically examined in the hospital. She stated that she had told the police that accused persons had hit on her breast. She further stated that accused Mani Ram is her Devar Sanjay's father-in-law. She stated that there relationship was not amicable and there was a partition dispute with her Devar Sanjay. She stated that she does not know who called them on the date of incident and she also does not know that on whose fault they started beating them after knocking the door and they were armed with danda and kulhari. She stated that there was no bleeding and stitching due to the said assaults. She admitted that they again started beatings them in the mid way to the police post. She stated that there were villagers out of which 2/3 persons came and intervened in the matter, police removed them to the hospital for treatment but she did not get any treatment or any check up. She further stated that her sister in law was not carried to the hospital for treatment or medical and only her husband was got examined by the doctor as her husband was unconscious. She further stated that her husband was not having any wound except swelling on hands and legs and the accused run away from the spot on the same day. She denied the suggestion that her husband had no other wound except swelling on hands and legs or that she was deposing falsely.
6. PW3 Santosh deposed that she does not remember the date, month and year but on that day she was in her parent's house and her brother Sukhbir and his wife were also present there. She deposed that on that day Munni Ram, Munni Ram's brother in law, his son Jagdish (correctly identified) came armed with the lathis and axes and started beatings his brother as a result his brother's hand was broken. She stated that she managed to run away with her brother till the pond (Johr) but there also accused Munni, Jagdish, Rattan Singh (correctly identified) started beating her brother. Thereafter, police arrived at the spot and enquired about incident.
During her cross examination by Ld. APP she admitted that the incident happened on 12.01.1996. She denied that in her statement Mark A she had disclosed the name of accused no. 4 as Sanjay s/o Mange Ram and that she told the police that accused persons had beaten her brother and inflicted injuries upon him including Sanjay. She denied the suggestion that accused Sanjay also inflicted injuries to his brother. She further denied the suggestion that being the real sister of accused Sanjay, she was trying to save accused Sanjay.
During her cross examination by Ld. defence counsel, she stated that accused persons present in the court without any reasons had beaten her brother at his house. She stated that accused Munniram is father in law of her brother Sanjay. She stated that she does not know whether any scuffle had taken place prior to the quarrel. She stated that she raised alarm but no one came to save them. She stated that she does not remember who was having the axes. She stated that her brother was hit with an axe on his head as a result blood oozed out. She stated that she does not know who called the police. She stated that police recorded her statement at the spot. She stated that she never visited the PS. She denied the suggestion that Sanjay (her brother) had called all the three accused persons at the house of Sukhbir. She further denied the suggestion that she was deliberately trying to save the accused Sanjay.
7. PW4 J.C. Vashist, Record clerk DDU hospital deposed that he has been working in DDU hospital since 1982 and he had seen the MLC no. 3338 dated 12.01.1996 in respect of injured Sukhbir prepared by Dr. Amitabh Upadhaya and final opinion was given by Dr. Rakesh Gupta who opined same as grievous blunt injuries. He identified the signatures and writing of both the doctors as he had seen them writing and signing during his course of duties. He proved the MLC as Ex. PW4/A. He further stated that he had also seen X-ray report of Sukhbir Singh and same was filled up by Dr. Richa Gupta. He proved the same as Ex. PW4/B. He further stated that doctor has left the hospital and his present whereabouts are not known.
During his cross examination he stated that he has no personal knowledge about the case and MLC was not prepared in his presence.
8. PW5 Ct. Shyam Sunder deposed that on 12.01.1996 while he was posted at PS Nangloi on receipt of DD no. 3 A, he along with S.I. S.P. Vashist reached the spot and found that injured were taken to hospital. He further stated that Sukhbir was admitted in the hospital. The statement of injured Sukhbir was recorded and after endorsement he went to PS for registration of FIR and after recording the FIR, came back at the spot along with the copy of FIR and handed over the same to IO and IO recorded his statement.
9. PW6 SI Satya Prakash deposed that on 12.01.1996 while he was posted at PS Nangloi on receipt of DD No. 3A he along with Ct. Shyam Sunder reached at Village Bakkarwala and found that injured had already been removed to hospital. He along with Ct. Shyam Sunder reached DDU hospital and obtained the MLC of injured Sukhbir. The injured was fit for statement and after recording the statement, he sent ruqqa Ex. PW1/A through Ct. Shyam Singh for registration of the case. He deposed that thereafter, he proceeded to village Bakkarwala i.e. the spot and inspected the spot and prepared the site plan Ex. PW6/A. He deposed that in the meanwhile, Ct. Shyam Sunder returned to the spot and handed over the copy of FIR Ex. PW6/B to him along with original ruqqa. He recorded the statement of witnesses, arrested the accused persons (correctly identified) and released them on police bail. He deposed that after obtaining the MLC result, he prepared the challan and sent the same to the court.
10. The accused persons in their defence examined three witnesses.
11. DW1 Sanjay deposed that Sukhbir Singh is his elder brother and the alleged house as above mentioned in Kachi Colony belongs to his father Late Sh. Mange Ram. He deposed that he along with his elder brother Sukhbir Singh and their father lived in the said house. On the said date and time his father had not divided the house and they lived jointly with their father. He deposed that he is married and her wife's name is Suman. He further deposed that 12 days prior to the incident, the wife of his elder brother Prem had given birth to a child and she was confined to a room. He deposed that on 01.01.1996 when he returned from his duty, his wife Suman told him that his elder brother Sukhbir tried to molest her and when he objected his elder brother Sukhbir started abusing him in a filthy language and gave him beatings. He further deposed that on 02.01.1996 he went to his brother in law's house at Uttam Nagar and told him about the said incident and his brother-in-law asked him to go back home and told him to advice his brother to behave in future. He stated that on the next day when he reached his house after attending the duty, his brother again started abusing him and on 04.01.1996 he went to his office and in the evening he went to his in laws at Chawla and told about the deplorable behaviour of his brother to his brother in law Jasbir Singh. He further stated that on 12.01.1996 at about 7:15 a.m. his brother in law came along with his father in law Muni Ram and his brother-in-law Jagdish and his father called his brother Sukhbir Singh and enquired about the incident on arrival of Sukhbir Singh his jija Rattan Singh told him that wife of younger brother is like a daughter and you have tried to molest her and same is a very deplorable behaviour. On this his elder brother Sukbhir Singh caught hold his Jija Rattan Singh by his collar and started abusing his Jija. Thereafter, he scuffled with his elder brother Sukhbir Singh to save his jija and during this scuffle Sukhbir Singh fell on the wooden logs which were stocked for making fire in the hearth. He deposed that his brother went out abusing them and threatened them with dire consequences.
During his cross examination by Ld. APP he stated that Sukhbir is his real brother. He admitted that his wife had told him in the evening at around 6/6:30 p.m that Sukhbir misbehaved with her. He stated that my duty hour was from 9:00 a.m to 5:00 p.m. He further stated that on the said date after reaching at house, he changed his clothes, drank water and thereafter, his wife told him his brother had spoken in filthy language and she was not physically assaulted or molested by him. He stated that his wife not told the reason of his brother unnatural behavior and vol. stated that he tried to pull her clothes. He stated that he and his brother had a dispute pertaining to distribution of land/partition. He stated that he had not lodged the complaint with respect to the above said incident to the police due to honour of his family. He stated that Jasbir Singh is his brother in law and he told about the incident to Jasbir Singh also. He further stated that on 03.10.1996 firstly he told about this incident to Rattan Singh and thereafter to Jasbir Singh. He further stated that on 01.10.1996 he had confronted Sukbhir Singh and enquired as to why he indulged in such kind of behavior. He further stated on 12.01.1996, at his residence his relative Rattan Singh, Muniram (father in law) and Jagdish Prasad (brother in law of Muniram), his father Mange Ram, himself and his father were present at around 7:00 a.m. He admitted that all had come from their respective houses situated at different places and also admitted that there was time gap in their arrival. He stated that his father in law, Muniram, brother in law Jagdish Prasad arrived together at his house and them his Jija Rattan Singh arrived after 15 minutes. He stated that they all were familiar with the incident and Sukbhir was also in the house. He stated that no lathies were in the courtyard and only small wooden blocks for the purpose of burning were there. He denied the suggestion that he had not on inimical terms with his brother Sukhbir and he had beaten him on the relevant date with lathis. He denied the suggestion that he gave beatings to his brother Sukhbir Singh.
12. DW2 Muni Ram deposed that Sanjay is his son in law and on 04.01.1996 his son in law Sanjay came at his house at Chawla and told his son that some incident of molestation had taken place by Sukhbir Singh. He further deposed that his son told him about the incident of molestation with his daughter by Sukhbir Singh and thereafter, he went to Rattan Singh who is their eldest Jija and sought help to solve the problem. He deposed that Rattan Singh advised him to bring some elder persons so that such type of incident was not committed again. On 12.01.1996, he along with Jagdish Prasad reached Bakkarwala, the house of Sanjay, and Rattan Singh had already reached there. Then, Sanjay's father Late Mange Ram called his son Sukhbir Singh and Rattan Singh told him about the incident, then Sukhbir Singh cau hold Rattan Singh by his collor and started abusing him in filthy language. He deposed that thereafter, Sanjay caught hold Sukhbir Singh and during scuffle and on account of slippery ground he fell on the wooden logs, then Sukhbir went away by calling them filthy language along with a threat to face dire consequence.
During his cross examination, he stated that he had not told about the incident dated 01.10.1996 on 02.01.1996 by his son in the evening after arrival from his office. He told him that Sanjay had come in the morning and told that Sukhbir had misbehaved/tried to outragged her molesty. He stated that on the next date, he talk to his son in law Sanjay on phone in the morning regarding the incident. He admitted that I had not called his son law Sanjay on 02.01.1996. He stated that his house was at Chawla. On 04.01.1996, he went to the house of Rattan Singh and he agreed to met at Bakarwala on 12.01.1996 and they reached at Bakarwala at the residence of his son in law at around 7:30/8:00 a.m. He stated that Rattan Singh was already present there when he reached there along with Jagdish Parshad and they all sat in the courtyard. He denied the suggestion that Sanjay had given beatings to Sukhbir on the relevant day. He admitted that Sanjay and Sukhbir had a dispute about the distribution of ancestral property and on account of this they were loggerheads.
13. DW3 Rattan Singh deposed that on 02.01.1996 Sanjay his younger brother in law came to his house and told that his brother Sukhbir Singh had misbehaved with his wife Suman and then he advised him to tell the incident to his father in law. He deposed that on 12.01.1996 in the morning, he went to Bakkarwala Village where the father in law of Sanjay and one more elder person arrived there. The father of Sukhbir Singh called Sukhbir Singh and when he tried to advise Sukhbir Singh, he abused him and caught him by collor. He deposed that Sanjay and his father in law tried to separate Sukhbir Singh and while they were trying to intervene, Sukhbir Singh fell on the logs of wood which were lying there and thereafter Sukbhir Singh started abusing us and went away.
During his cross examination by Ld. APP he stated that on 02.01.1996, Sanjay had come to his house in the evening and told him that Sukhbir Singh had abused wife of Sanjay i.e. Suman. He stated that on 02.01.1996, at around 7/8:00 p.m. Sanjay told him on telephone that all the relatives will be gathering at his house on 12.01.1996 in the morning. He stated that he was residing at Uttam Nagar and he left Uttam Nagar at around 6:30/6:45 p.m. and reached at Bakkarwala at around 7:10 p.m. on his scooter. He stated that distance between his house and Bakkarwala was about 10/11 Kms. He stated that they all after being gathered sat in front of house of Sanjay and he called Sukhbir again said Mange Ram. He admitted that Sanjay and Sukhbir were on inimical terms on account of partition of ancestral property. He denied the suggestion that he and Sanjay had beaten Sukhbir with lathies. He further denied the suggestion that he was deposing falsely.
14. This so far is the prosecution evidence in the matter is considered.
15. I have heard the arguments advanced at bar by the learned Defence counsel as also learned APP and have carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
16. In my opinion the prosecution has successfully established the guilt of the accused.
17. After going through the material on record and giving my thoughtful considerations to the arguments advanced at bar, I am of the opinion that the prosecution has successfully established the guilt of the accused.
18. The injured/complainant Sukhvir Singh, Smt. Neelam and Santosh who were examined by the prosecution as PW 1, 2 & 3 respectively duly proved the incident dated 12.01.1996 i.e. the alleged tress pass into their house and infliction of injuries upon them by accused persons.
19. PW 1 Sukhvir Singh proved that on 12.01.1996 while he was present at his house along with his wife and sister, accused Manni Ram, Jagdish, Sanjay and Rattan Singh entered his house armed with lathis and they started beating him and his wife and sister. The accused persons went away however, came back again took him to field and kept beating him till he became unconscious. He proved that he received injuries on his hands and legs and he proved his statement i.e. PW1/A which was recorded by the police.
20. Though, this witness was cross examined by the Ld. Defence counsel however, his cross examination failed to impeach his credit. In fact, during the cross examination, no suggestion was given to this witness that he was not beaten by the accused persons or that he was deposing falsely.
Though, during cross examination, Ld. Defence counsel argued that as admitted by this witness that he was unconscious at the time when his statement was recorded by the police and hence, he cannot be relied upon. However, I do not agree with the same as when the injured was taken to hospital he was fully conscious as is reflected in the MLC. Further, it is a matter of common knowledge that a person can easily make a statement in his semi- unconscious state of mind and strictly speaking it is difficult to distinguish between a consciousness/unconsciousness/semi-consciousness.
21. The deposition of this witness was duly corroborated by PW 2 Smt. Neelam who was also injured on 12.01.1996 by the accused persons. She proved that on 12.01.1996 during early morning hours accused Manni Ram, Jagdish and Rattan came to her house and they were armed with lathis and they started beating her and her sister-in-law. She further proved that after beating them, the accused persons went away and when she was going to lodge the complaint with the police and had reached near the talab/school, the accused persons came there and again started beating her, her husband and her sister- in-law. They were rescued by the villagers and taken to hospital by the police where the police recorded her statement and that of her husband.
22. This witness withstood the grilling cross examination by the Ld. Defence counsel and reiterated her stand that she along with her husband and sister-in-law were beaten by the accused persons.
23. PW 3 too proved the alleged incident and stated that her brother Sukhbir was beaten up by the accused persons.
24. All these witnesses not only established the identity of accused persons but they also proved the incident dated 12.01.1996 regarding the infliction of injuries upon them by the accused persons.
25. Injuries upon Sukhbir (PW 1) were proved by PW 4 who proved the MLC no. 338 dated 12.01.1996 prepared by Dr. Amitabh and opinion given by Dr. Rakesh Gupta. As per the MLC, Sukhbir received grievous injuries. The X-ray reports were also proved as Ex.PW4/B.
26. The prosecution story got further support/strength from the deposition of PW 5 Ct. Shyam Sunder and IO SI Satya Prakash who was examined as PW
6. PW 5 proved DD no. 3A dated 12.01.1996 as well as the fact that he visited the place of occurrence/quarrel where he met complainant Sukhbir Singh and recorded his statement which he endorsed and got the case FIR registered.
PW 6 in addition to what was proved by PW 5 proved the statement of Sukhbir Singh as Ex.PW1/A as well as the preparation of the site plan as Ex.PW6/A. He also proved the arrest of the accused persons in the present matter.
27. The prosecution story is absolutely consistent regarding the time of assault, their admission into hospital by PCR officials, preparation of rukka on the basis of statement of complainant and the subsequent registration of the FIR. Further at the time of medical examination of injured Sukhbir Singh i.e. when he was taken to hospital on 12.01.1996 and MLC was prepared by the doctors he had told the doctors on duty that he had been assaulted as same is reflected in the MLC.
28. Though, the defence examined three witnesses as DW 1 to DW 3 however, the witnesses failed to inspire confidence as far as their version of the incident was concerned. However, from their deposition it stands proved that on 12.01.1996 they visited the house of the complainant and quarrel took place between them and the injured persons. Same is crystal clear from their deposition in which they state/admit visiting the house of the injured as well as the subsequent quarrel/scuffle which took place there.
29. During the course of the arguments, Ld. Defence counsel contended that the prosecution story does not inspire confidence and is full of various infirmity/inconsistencies. It was argued that the injured witnesses gave contrary version of the allege incident. It was also argued that neither the weapon of offence were recovered and nor were the blood stained clothes. It was further argued that no public persons were joined/examined as independent witnesses. It was also argued that deposition of PW 2 in particular does not inspire confidence as she did not receive any injuries despite her claims that she was beaten with lathis and dandas.
30. However, I do not agree with either contentions raised by the Ld. Defence counsel.
31. Testimony of an injured witness has its own efficacy and relevancy. He has no reasons to omit real culprit and implicate falsely the accused persons. It's a well settled law that once the eye version is given particularly by the injured himself, the Court would normally rely upon such version of the prosecution un- less it suffers from serious infirmities or improvements. (Balbir Singh v. State of Punjab, (P&H) 2003 Cri.L.J. 3148).
32. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance.
33. In case titled as State of Gujarat v. Bharwad Jakshibhai Nagribhai, (Gujarat) (DB) 1990 Cri.L.J. 2531 it was observed that while appreciating evidence of the injured witnesses it has to be kept in mind that their presence at the time and place of the occurrence cannot be doubted. They do not have any reason to omit real culprits and implicate falsely the accused persons. In this case History of assault given by witness corroborated by medical evidence. However there were minor discrepancies regarding the place of injury. The court observed that his testimony cannot be doubted on mere ground that before doctor the witness has stated that Dharia blow was given on his head but as per medical evidence Dharia injury was found on leg. The court further observed that the "learned Judge ought to have imagined the physical condition of a witness who is assaulted and who is grievously injured and was having three fractures on his body before discarding his evidence. "
34. After recapitulating number of cases in the case of Appabhai v. State of Gujarat, AIR 1988 SC 696, the Supreme Court has succinctly dealt with this aspect. The Court has held that the injured witness should be considered to be the best eye-witness to the incident and the discrepancy in his evidence which does not shake the basic version of the prosecution case may be discarded. The Court has also held that civilized people withdraw both from the victim and the vi- gilante and they keep them selves away from the Court unless it is inevitable.
35. The pertinent observations of the Hon'ble Supreme Court in the aforesaid case are as under:
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilised people are generally insensitive when a crime is committed even in their presence. They withdrew both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner."
Further, in para 13 the Court has laid down the criteria for appreciating the evidence of injured eye-witnesses and how exaggeration by a witness is required to be discarded. The Court has also relied upon the observations of the Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753, wherein the Court has observed that a witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervous- ness mix up facts, get confused regarding sequence of events, or fill up de- tails from imagination on the spur of the moment, but that would be no ground for discarding the evidence of the witness. The relevant observations are as under (para 13 of AIR 1988 SC 696) :
"We have, however, also examined the relevant evidence. It is true that there are many contradictions in the evidence of Devji. He has not attributed overt acts to individual accused in his statement before the police whereas he has attributed such overt acts in his evidence before the Court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately he has survived. He must, therefore, be considered as the best eyewitness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of man and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.
In Sohrab v. State of Madhya Pradesh, AIR 1972 SC 2020 at p. 2024 it was also observed :
"This Court has held that falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered."
Further, in the case of State of U.P. v. Anil Singh, AIR 1988 SC 1998, the Su- preme Court deprecated the practice of rejecting the prosecution version either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. The Court held that if there is a ring of truth in the main, the case should not be rejected. The Su- preme Court observed that it is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as import- ant as the other. Both are public duties which the Judge has to perform. It is un- fortunate to note that the trend is to have easy recourse of appreciating evidence and reject it on the ground of some discrepancy here and there without making any effort to disengage the truth from falsehood. The pertinent observations of the Supreme Court are as under (para 13) :
"13. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard of falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version.
The Privy Council had an occasion to observe this. In Bankim Chander v. Matagini, 24 Cal WN 626 : AIR 1919 PC 157, the Privy Council had this to say (at p. 628) (of Cal WN) : (at p. 158 of AIR) :
"That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence."
36. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."
37. In case titled as Surender Singh v. State of Haryana , (SC) 2006(1) Apex Criminal 261 it was held that every discrepancy in the witness statement cannot be treated as fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity.
38. Further in Bishna @ Bhiswadeb Mahato v. State of West Bengal, (SC) 2006 A.I.R. (SC) 302 while dealing with the testimony of injured witness it was held that if the injured witness makes some improvement this alone is no ground to disbelieve him . AIR 1994 SC 1187 relied.
39. In the present case the incident occurred on 12.01.1996 and the complainant/injured persons were examined on 01.08.1998 i.e after more than 2 ½ years of the incident. Minor inconsistencies due to lapse of time are bound to appear however they are not so grave so as to take their toll upon the prosecution version and it cannot be expected that a witness how so intelligent he may be would remember an incident that old with mathematical precision. Only a tutored witness can remember so.
40. It was also argued that though the incident occurred in a well popu- lated area however none of the neighbors came forward to depose in favour of the complainant. Firstly, section 134 of the Indian Evidence Act does not require any minimum number of witnesses to be examined for proving a particular fact and it is the quality of evidence that matters and not the quantity/number of wit- nesses (Krishna Mochi and others Vs. State of Bihar, (2002) 6SCC 81). Fur- ther the court/judges cannot sit in an ivory tower of isolation and ignore the fact that there is a tendency amongst witnesses in our country to wash off their hands/desist from joining/assisting the investigation (Ambika Prasad and oth- ers Vs. State, (2002) 2 CRIMES 63 SC) and (AIR 1988 SC 696).
41. In the present case, I find no reason to disbelieve the injured. The injuries as proved from MLC Ex. PW4/A could not be self inflicted and the injured persons had no reason to save the real culprit who inflicted the above said injuries upon them.
42. Regarding the non-recovery of the alleged weapons i.e. danda etc. the law is well settled that just because the weapon has not been recovered the same is not sufficient to discard the evidence of the PWs especially the injured. (Anwarul Haq v. The State of Uttar Pradesh, (SC) 2005(5) J.T. 9 : 2005(2) Apex Criminal 350 ) and Vazir Singh v. State of Haryana, (P&H) 1990(3) R.C.R.(Criminal) 545.
43. The fact that the blood stained clothes were not recovered by the IO should not and cannot be a ground to let off the accused once the version given by the injured/eye witness inspire confidence. Why should an accused go scott free or the complainant be disbelieved for defective investigation (Balwant Singh v. State of Haryana, (SC) 1995 A.I.R. (SC) 84 and Amar Singh Vs. Bal- winder Singh 2003 AIR SCW 717). An accused should not be allowed to go scot free merely on account of faulty/negligent investigation. Every faulty invest- igation or padding in evidence cannot by itself lead to total demolition of prosecu- tion case if it can otherwise stand ignoring these fallacies. (Lakshmi v. State of UP (SC) 2002 (4) R.C.R. (Criminal) 82). Mere faulty investigation cannot be made basis of acquitting the accused when sufficient evidence is available to nail him (Ram Parshad v. State of Haryana, (P & H) (DB) 1992(3) R.C.R (Criminal)
231). In Zahira Habibulla H. Sheikh v. State of Gujrat (SC), 2004 (4) S.C.C 158 and State of UP v. Jagdeo (SC) 2003 A.I.R. (SC) 660 , the Hon'ble Apex Court held that accused should not be acquitted solely on account of the defect in investigation. To do so would tantamount to playing into hands of investigating officer if investigation is designedly defective. Once the injuries stands proved and the testimony of the injured inspires confidence nothing else remains to be established.
CONCLUSION
44. In view of my above discussion, I am of the opinion that the prosecution has been able to prove the guilt against the accused persons as the incident of tress pass into the house of the injured and infliction of injuries upon him stands duly proved beyond the shadow of doubt and accordingly the accused persons are held guilty and convicted of charges in the present case.
45. A copy of this judgment be supplied to the accused persons free of cost and the matter be now listed for arguments on the point of sentence.
(Gaurav Rao) MM (West)/Delhi.
18.01.2010