Important point
A concurrent finding of fact in a conviction cannot be reopened in an appeal by special leave unless finding is shown based on no evidence or finding is perverse or based on inadmissible evidence or that some vital piece of evidence which could tilt the balance in favour of convict was overlooked.

Headnote:Indian Penal Code, 1860—Sections 392 and 397—Three accused, two armed with knife and pistol, snatched a bag containing Rs.62000/- from PW2 when PW2 with PW9 had come to deposit the amount in bank—PW2 was inflicted knife blow injuries when he tried to resist snatching of bag —Accused armed with knife was overpowered by persons on spot—Other two accused were also apprehended by police and an amount Rs. 5000/- and a pistol loaded with two live cartridges from one and Rs. 10000/- in a bag from other accused were recovered—Conviction by trial Court under and upheld in appeal by High Court—Appeal—Concurrent finding of fact could not be reopened in appeal by special leave except when finding was based on no evidence or finding was perverse or was based on inadmissible evidence or that some vital piece of evidence was over looked—Contention that panch witnesses had turned hostile and injured PW2 and complainant PW9 also turned hostile and there were discrepancies in evidence—Minor discrepancy pointed out were not of a nature which created infirmity in the case—Panch witnesses though denied recoveries effected in their presence, had admitted their signatures on recovery memos—No body’s case that accused and police or PW2 and PW9 had previous enmity which could warrant for foisting false case—Conviction could not be interfered with.
Held : So far the minor discrepancy, which has been pointed to us, we are of the view that it is not of such a nature, which creates infirmity in the prosecution’s case. It is a well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity. With regard to PWs 3 and 4 panch witnesses being turned hostile, this contention was also well considered by the Trial Court and the High Court. And both the courts held that their statements do not affect materially the prosecution story. PW 3 stated that pistol or cartridges or currency notes mentioned in Ex.PC were not recovered in his presence. He, however, admitted his signatures over Ex.PC and Ex.PD. PW-4 also stated that the pistol, cartridges or currency notes mentioned in Ex.PC were not recovered in his presence. He also admitted that Ex.PC and Ex.PD bear his signatures. Therefore, both the courts correctly held that the Ex.PC and Ex.PD were recovered in the presence of PWs 3 and 4 who were panch witnesses. (Paras 6 and 7)
The testimony of an injured witness has its own relevancy and efficacy. The fact that the witness is injured at the time and in the same occurrence lends support to the testimony that the witness was present during occurrence and he saw the happening with his own eyes. Curiously enough even the injured witness PW-2 has turned hostile. Learned counsel for the appellants strenuously urged that PW-2 Baldev Raj stated that the accused were not the persons who attacked him and, therefore, the appellants are entitled to the benefit of doubt. This submission was considered by both the Trial Court and the High Court and rejected, in our view, rightly. Although PW-2 was declared hostile, he has categorically stated that he had gone to Oriental Bank of Commerce, Gannaur, to deposit the amount. He has also stated that 4-5 persons attacked him. He has also stated that they gave knife blows to him and snatched the bag from him. This statement is well corroborated by the injuries suffered by him on his person, which is proved by PW-5 as well as seizure of the bag along with the money. PW-2 even denied that he had gone to the bank with PW-9 Ramesh Batra. The statement of PW-2 was belied by the statement of PW-9 who categorically stated that he had gone to the bank along with P.W.2 Baldev Raj. The next submission of the counsel for the appellants is that the allegation of snatching of Rs. 62,000/- by the accused is not proved inasmuch as only Rs. 15,000/- has been recovered from the bag. This contention in our view has also no substance. The factum of recovery of pistol along with cartridges and the currency notes of the denomination of Rs. 50/- amounting to Rs. 5000/- from the possession of Surender and the currency notes of the denomination of Rs. 50/- each amounting to Rs. 10,000/- from the bag which was being carried by Vikas is proved. The other contention of the learned counsel for the appellants that the money so recovered from the accused Vikas and Surender was not the amount, which is stated to have been snatched away from PW-2 as the whereabouts of rest of Rs.47,000/- has not been explained by the prosecution but it was implanted by the police for false implication. It is nobody’s case that the accused and the police had any previous enmity. It is also nobody’s case that the complainant PW-9 and the injured PW-2 had any previous enmity with the accused which would warrant for foisting a false complaint against the accused. While it is true that the prosecution has failed to explain the whereabouts of rest of the amount, this itself would not vitiate the factum of recovery of Rs. 15,000/- from the possession of the accused along with other incriminating materials. It must be grasped that the two appellants herein were apprehended along with the incriminating materials while fleeing and the accused No. 2 Dharmender was apprehended on the spot. (Para 9)

Judgment

H.K. Sema, J.—Leave granted in S.L.P. (Crl.) No. 1491 of 2005.

2. Criminal Appeal No. 345 of 2005 is preferred by Surender Singh (A-1) and Criminal Appeal 74 of 2006 @ S.L.P. (Crl.) No. 1491 of 2005 is preferred by Vikas (A-3). The appellants Surender Singh and Vikas were convicted by the Trial Court along with one accused Dharmender (not before us) for an offence under Section 392 and sentenced to undergo RI for seven years and to pay a fine of Rs. 5000/- each and in default of payment of fine to further undergo RI for one year. They were also convicted for an offence under Section 394 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 5000/- each and in default of payment of fine to further undergo RI for one year. They were further convicted for an offence under Section 397 IPC and sentenced to undergo RI for ten years and to pay a fine of Rs. 5000/- each and in default of payment of fine to further undergo RI for one year. The appellant Surender Singh was also convicted for an offence under Section 25 of the Arms Act and was sentenced to undergo RI for two years and to pay a fine of Rs. 2000/- and in default of payment of fine to further undergo RI for six months. All the sentences, however, were ordered to run concurrently. The High Court, on appeal, preferred by the accused, reduced the sentence to seven years under Sections 394 and 397 IPC albeit without assigning any reasons. The sentence of the appellants under Sections 392 IPC and 25 of the Arms Act were, however, maintained. Aggrieved thereby, the accused-appellants preferred these appeals by special leave.

3. Briefly stated the facts are as follows :-

On 7.2.2000 at about 12.20 p.m. complainant Ramesh Batra (PW-9) along with Baldev Raj (PW-2) were going to deposit the sale proceeds of the petrol pump amounting to Rs. 62,000/- with Oriental Bank of Commerce, Gannaur. When they were in front of the bank, three young boys confronted them. One of them was armed with pistol, another was having knife and the third one was empty handed. The scooter by which they were travelling was stopped and the boy who was empty handed tried to snatch the bag from Baldev Raj (PW-2). When PW-2 resisted, the boy who was armed with knife gave a knife blow on his person. Thereafter, the unarmed boy snatched the bag and tried to run away. On alarm being raised many persons came at the spot and overpowered the boy armed with knife. The boy who was caught at the spot told his name as Dharmender A-2 (not the appellant). He also disclosed the names of other two boys who had escaped with the bag as Vikas (Appellant in Crl. Appeal No. 74/06 @ S.L.P. (Crl.) No. 1491/05 and Surender (Appellant in Crl.A.No. 345/05). Thereafter, PW9 Ramesh Batra after sending PW-2 to the hospital went to lodge the complaint and also produced accused-Dharmender. The knife stained with blood was taken into possession by SI Jagdish Chander and on his statement FIR was recorded. At the same time when Inspector Prithvi Singh (PW-13) was coming from Lalheri side in a jeep, he received a wireless message that the accused Vikas and Surender fled with bag and they are being chased by the public. Then he saw the two accused Vikas and Surender being chased by the public. He apprehended them and took them into custody and they disclosed their names as Surender and Vikas. It was further disclosed from the search of Surender, a pistol, two live cartridges of 12 bore and a bundle of currency notes of the denomination of Rs. 50/- each total amounting to Rs. 5000/- having a chit of Oriental Bank of Commerce were recovered while two bundles of currency notes of the denomination of Rs. 50/- each having the chit of Oriental Bank of Commerce, total amounting to Rs. 10,000/- were recovered from the bag which was being carried by Vikas.

4. These two appeals are directed against a concurrent finding of facts recorded by two courts. In the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983 Supreme Cou

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2006 Supreme(SC) 45

Cases Referred (1)