1988 Supreme(SC) 111

SUPREME COURT OF INDIA
M.M. DUTT AND K. JAGANNATHA SHETTY, JJ.
Appabhai and another, Appellants
Versus
State of Gujarat Respondent.
Criminal Appeals Nos. 318 and 489 of 1982, D/- 5-2-1988.

IMPORTANT POINT
Where injured victim named all the accused but did not name those who murdered his brother and out of them A 5 and A 6 were not named in FIR as murdered then A 5 and A 6 but benefit of doubt for their conviction u/s. 302 IPC, but their conviction u/s. 307 IPC is justified.
GRANT OF SPECIAL LEAVE DOES NOT ENTITLE PARTIES TO OPEN OUT AND ARGUE THE WHOLE CASE

Headnote:(i) Constitution of India, 1950 - Art. 136 - Appeal to Supreme Court by special leave - Scope.

       Held: Before we consider the contentions urged for the appellants, we may recall that these are appeals by special leave under Art 136 of the Constitution. If conclusions of the courts below are supported by acceptable evidence, this Court will not exercise its overriding powers to interfere with the decision appealed against. This court also will not consider the contentions relating to re-appreciation of the evidence which has been believed by the courts below. The fact that the special leave has been granted should not make any difference to this practice. The grant of special leave does not entitle the parties to open out and argue the whole case. The parties are not entitled to contest all findings recorded by the Courts below unless it is shown by error apparent on the record that substantial and grave injustice has been done to them. (Para 8)

       (ii) I.P.C. 1860 - Sections 302/148 and 307/149 - Appellants convicted for the murder of one Trikam and attempt to murder his brother Devji Bhai - Incident as an offshoot of panchayat election - Taken place at Bus stand -Evidence of eye witnesses having animus against accused - Whether in the absence of any independent witness the prosecution version does not inspire confidence? (No infirmity).

       Held: 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 of doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw 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 witness 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. (Para 11)

       Held further: In this case, the Courts below, in our opinion, have taken into consideration of all those aspects and rightly did not insist upon the evidence from other independent witnesses. The prosecution case cannot be doubted or discarded for not examining strangers at the bus stand who might have also witnessed the crime. We, therefore, reject the first contention urged for the appellants. (Para 12)

       (iii) Criminal Trial - Dying declaration of injured - Later survived - Statement to Police and Evidence before Court - Contradictions - Whether show that his evidence is not trustworthy? (No).

       Held: It is true that there are many contradictions in the evidence of Devji. He has not attributed over as 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 eye witness. 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 men 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. (Para 13)

       (iv) I.P.C. 1860 - Sections 302/148 and 307/149 - Injured Devji specifically naming accused 1, 2, 3, 5, 6 and 7 who attacked him but not mentioning the names of those who murdered his brother Trikam - Accused 5 and 6 do not figure in F.I.R. - Result - Benefit of doubt go to A5 and A6 for offence u/s. 301/148 for the Murder of Trikam but conviction and sentence for offence u/s. 307/149 is justified - Appeal of other accused dismissed. (Paras 15 & 16)