IMPORTANT POINTS
1. Some discrepancies or some variations in minor details of the incident would not demolish the case of the prosecution unless it affects the core of the prosecution case.
2. Unless the discrepancy in the statement of witness or the entire statement of the witness is such that it erodes the credibility of the witness himself, it may not be appropriate for the Court to completely discard such evidence.

Headnote:Indian Penal Code,1860- Sections 302/149, 148, 324/149 and 449-Prosecution of accused persons for causing death of two persons and injuries to one another by assaulting them with deadly weapons-Conviction by Trial Court-On Appeal , High Court acquitted all the accused persons-State Appeal-Injured witness PW 7 made statements which fully aided the case of the prosecution and his statement recorded on adjourned date before trial court which was at variance could not be treated as gospel truth- Identity of the accused was fully established by statements of PW3, PW4, PW5 and PW6- No reason, as to why PW4 and PW5 neighbours of deceased who were otherwise independent witnesses, and doctor would involve the accused falsely- There was no animosity between the parties-No reason for Court to hold that PWs 4 and 5 were not trustworthy- Their statements described the occurrence in its proper course and was compelling evidence of the same- Incident in question involved a mob but only few persons had entered the house of the deceased, out of which 7 to 8 persons could be identified including the three accused as having inflicted injuries on the body of the deceased and were duly identified by prosecution witnesses- The injury on the head duly found corroboration from the statement of the Doctor i.e. Ex.P4- It was not a case where medical evidence not supported ocular evidence- Some discrepancies or some variations in minor details of the incident would not demolish the case of the prosecution unless it affects core of prosecution case-The core of the prosecution case was that when the mob came, PWs 4 and 5 ran to their houses, locked their doors, went to the roof of the houses which were adjacent to the house of deceased and watched some members of the mob, of whom they could identify a few, assault the deceased- This statement clearly showed trustworthiness of these witnesses as they had stated that there were some other persons whom they could not identify- However both these witnesses and complainant clearly identified persons who had entered and assaulted the deceased persons- Cumulative effect of the ocular evidence and documentary evidence was that prosecution had been able to establish its case beyond reasonable doubt-Impugned judgement of High Court set aside-Appeal allowed (Paras 18, 23)
        Indian Penal Code,1860- Sections 302/149, 148, 324/149 and 449-Prosecution of accused persons for causing death of two persons and injuries to one another by assaulting them with deadly weapons-Conviction by Trial Court-On Appeal , High Court acquitted all the accused persons-State Appeal-Plea of accused persons that there was no common object to commit murder-The case of prosecution was not that the entire mob had entered the house of the deceased- Out of the mob of 50-60 persons only 7 to 10 persons had broken the door of the house and some of them had climbed the wall to enter the house of the deceased-These persons had raised the slogan ‘maro! maro!’ and thereafter had inflicted the injuries upon the body of deceased- The common intention could even develop at the spur of the moment when the three accused, as duly identified, were actively inflicting injuries on the body of deceased- They, therefore, not only caused injuries to the vital body parts of the deceased, including head injury, but kept on inflicting injuries even after the deceased had fallen to ground- Thus, in the present case, it had been established that more than five persons constituted an unlawful assembly and in furtherance to their common object and intent, assaulted and caused injuries to vital parts of the bodies of the deceased, ultimately resulting in their death-No merit found in contention of accused (Para 20)
       Facts of the Case :
        A. Accused persons were prosecuted herein in the instant case for causing death of two persons and injuries to one another by assaulting them with deadly weapons. Trial Court convicted accused persons. On Appeal , High Court acquitted all the accused persons.
        B. Present appeal has been preferred by State against impugned judgment of High Court.
       Findings of the Court :
        A.Injured witness PW 7 made statements which fully aided the case of the prosecution and his statement recorded on adjourned date before trial court which was at variance could not be treated as gospel truth. Identity of the accused was fully established by statements of PW3, PW4, PW5 and PW6. There was no reason, as to why PW4 and PW5 neighbours of deceased who were otherwise independent witnesses, and doctor would involve the accused falsely. There was no animosity between the parties.No reason for Court to hold that PWs 4 and 5 were not trustworthy. Their statements described the occurrence in its proper course and was compelling evidence of the same.
        B. Incident in question involved a mob but only few persons had entered the house of the deceased, out of which 7 to 8 persons could be identified including the three accused as having inflicted injuries on the body of the deceased and were duly identified by prosecution witnesses. The injury on the head duly found corroboration from the statement of the Doctor i.e. Ex.P4. It was not a case where medical evidence not supported ocular evidence.
        C. Some discrepancies or some variations in minor details of the incident would not demolish the case of the prosecution unless it affects core of prosecution case.The core of the prosecution case was that when the mob came, PWs 4 and 5 ran to their houses, locked their doors, went to the roof of the houses which were adjacent to the house of deceased and watched some members of the mob, of whom they could identify a few, assault the deceased. This statement clearly showed trustworthiness of these witnesses as they had stated that there were some other persons whom they could not identify. However both these witnesses and complainant clearly identified persons who had entered and assaulted the deceased persons.
        D. Cumulative effect of the ocular evidence and documentary evidence was that prosecution had been able to establish its case beyond reasonable doubt-Impugned judgment of High Court was set aside. Appeal was allowed

JUDGMENT

Swatanter Kumar J.

1. These appeals are directed against the judgment of the High Court of Rajasthan, Bench at Jaipur dated 15th March, 2005 in a case of communal violence. The trial court vide its judgment dated 7th September, 1999 returned a finding that charge against three accused namely Abdul Mannan, Afzal and Abdul Zabbar under Sections 302/149, 148, 324/149 and 449 of the Indian Penal Code (for short ‘IPC’) was fully established beyond reasonable doubt and sentenced them as follows:

a For committing an offence under Section 302/149 IPC, all three accused were awarded rigorous imprisonment for life along with fine of Rs.5,000/- each and in default of payment of fine to suffer six months’ simple imprisonment.

b Under Section 148 IPC, all the three accused were awarded one year’s rigorous imprisonment.

c Under Section 324/149 IPC, all the accused were awarded one year’s rigorous imprisonment each and

d Lastly, under Section 449 IPC, they were awarded three years’ of rigorous imprisonment each along with fine of Rs.1,000/- each, in default of payment of fine, to undergo simple imprisonment for three months.

2. Aggrieved by the judgment of the trial court, all the three accused preferred an appeal before the High Court, raising various issues in relation to the appreciation of evidence, false implications, contradiction in statements of witnesses and that no evidence had been led against them. On these premises, they prayed for setting aside of the judgment of the trial court and claimed acquittal. The High Court vide its judgment dated 15th March, 2005, acquitted all the accused and passed the following order:

“9. That takes us to the evidence of the eye witnesses examined at the trial. Coming to the testimony of Mahesh (PW-

4) we notice that in his examination in chief he deposed that a mob of around 70 persons of muslim (sic) attacked the house of Govind Narayan, but he could identify only Mehboob, Hanif and Zabbar. He however, could not identify Afzal and Mannan. In his cross-examination Mahesh stated that he did not narrate the incident to anybody for 5-7 days. He did not go to jail or other place for the purpose of identification of accused Kanhaiya Lal (PW5) deposed that mob of 60-70 persons belonging to Muslim community entered the house of Govind Narayan. He could identify Afzal, Kadir, Islam, Bada Bhaiya, two brother of Noor Tractorwala, Zabbar Tractorwala, Mannan, Hanif and Mehboob. In the cross examination he however stated that he did not narrat the names of these persons to police. Satya Narayan (PW-7) in his deposition stated that a mob of 60 persons attacked the house. Afzal, Motal, Lakhara, Hanif, Mehboob, Zabbar Ahmad Tractorwala were the members of the mob. He could not say as to who inflicted the injury on his person. This witness was declared hostile by the prosecution. He could not identify Abdul Mannan in the court. Having closely scrutinized the evidence of Mahes, Kanhaiya Lal and Satya Narayan we are of the opinion that element of consistency is missing from their testimony. A through and scrupulous examination of the facts and circumstances of the case leads to an irresistible and inexplicable conclusion that the prosecution has not established the charge leveled against all the three accused by producing cogent, reliable and trustworthy evidence. Testimony of Mahesh (PW-4), Kanhaiya Lal (PW5) and Satya Narayan (PW7) is ambulatory and vacillating and it is not safe to reply upon. Variations, infirmities, additions, and embellishments in the evidence of these witnesses are of such nature that could undermine the substratum of the prosecution case. The prosecution could only able to establish that an unruly mob of Muslims attacked the house of deceased but could not prove beyond reasonable doubt that the three appellants were the members of unruly mob and they inflicted injuries. On examination of testimony of these three witnesses Mahesh (PW4), Kanhaiya Lal (PW5) and Satya Narayan (PW-7) from the

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2011 Supreme(SC) 632

Cases Referred (6)