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IN THE HIGH COURT OF JUDICATURE AT PATNA
SHIVAJI PANDEY, ANJANI KUMAR SHARAN, JJ.
Amir Singh S/O Late Munna Singh - Appellants
Versus
The State Of Bihar - Respondents
CRIMINAL APPEAL (DB) No.130 of 2013 with CRIMINAL APPEAL (DB) No. 617 of 2008, CRIMINAL APPEAL (DB) No. 647 of 2008
Decided On : 29-05-2020
Indian Penal Code, 1860 – Sections 302/34 – Arms Act, 1959 – Section 27 – Murder – Life sentence – Merely because family members have not been examined by police or before court below has not caused any fatal blow to prosecution case – Opinion of doctor would hardly erode credibility or doubt about incident which took place and evidence of prosecution witness – All accused persons in furtherance of common intention came at place of occurrence and committed crime causing death of deceased – Prosecution has proved place of occurrence – Prosecution has succeeded in proving its case beyond all reasonable doubts and trial court has rightly convicted and sentenced appellants – Impugned judgment of conviction and order of sentence affirmed – Appeals dismissed. (Paras 4 and 5)
Criminal Law – Appreciation of evidence – Whole evidence will be tested on touchstone of credibility and if some incongruity with medical evidence is found, ocular evidence is to be the basis for deciding prosecution case – When version given by witness in court is different in material particulars from that disclosed in his earlier statements, case of prosecution becomes doubtful and not otherwise – Minor contradictions are bound to appear in statements of truthful witnesses as memory sometimes plays false and sense of observation differ from person to person – Omissions in earlier statement if found to be of trivial details, same would not cause prejudice to any testimony – Even if there is contradiction of statement of a witness on any material point, that is no ground to reject whole of testimony – Mere congruity or consistency is not sole test of truth in depositions – Depositions of witnesses are always normal discrepancies, however, honest and truthful they may be – Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence – Material discrepancies are those which are not normal and not expected of a normal person – While deciding the issue, Court has to keep in mind that different witnesses react differently under different situations – Discrepancies are comparatively of a minor character and does not go to root of prosecution story, they need not be given undue importance – Mere congruity or consistency would not be touchstone to test of truth in depositions – Mere marginal variations in statements cannot be dubbed as improvements as same may be elaborations of statement made by witness earlier – Though ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes ocular testimony improbable, that becomes a relevant factor in process of evaluation of evidence. (Paras 52 to 57)
Criminal Law – Appreciation of evidence – It is quality of evidence and not quantity of evidence which is required to be judged by court to place credence on the statement – It is also important to see that if witness is a related witness, after proper scrutiny is found to be chance witness, it is to be ascertained as to whether that witness was present at the scene or not – Serious contradictions and omissions which materially affect case of prosecution have to be understood in clear contradistinction to mere marginal variations in statement of witnesses – In a murder case, when evidence is given by near relatives of victim and murder is alleged to have been committed by enemy of family, criminal courts must examine evidence of interested witnesses, like relatives of victim very carefully, but where witness is a close relation of victim and is shown to share victim's hostility to his assailant, that naturally makes it necessary for criminal courts to examine evidence given by such witness very carefully and scrutinize all infirmities in that evidence before deciding to act upon it. (Paras 61, 62 and 67)
Code of Criminal Procedure, 1973 – Sections 161 and 164 – Conviction of accused who committed offence is dependent on quality of evidence and not quantity – In deciding a criminal case, it has to be seen that material value provided by witness as opposed to multiplicity or plurality of witnesses – It is also considered value of statement recorded under Section 164 of Cr.P.C. for the purpose of corroborating statements made by witnesses in committal court or even to contradict the same – As defence had no opportunity to cross-examine witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence – Magistrate is not required to record evidence under Section 164 Cr.P.C. of witness having not been sponsored by Investigating Agency – Where it is a genuine attempt on part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where contradiction is of such a nature that it impairs his evidence in its entirety. (Paras 63, 64 and 67)
Criminal Law – Chance witness – While assessing evidence of partisan and interested witnesses, court should be very careful in weighing such evidence – Mechanical rejection of such evidence on sole ground that it is partisan would invariably lead to failure of justice – Branding a witness as a chance witness cannot be looked into by any suspicion, if the person was there at the time of commission of crime, he cannot be viewed suspiciously and it will have same value as that of natural witnesses and will carry same weight like other witnesses – Where criminal court has to deal with evidence pertaining to commission of offence involving large number of offenders and a large number of victims, it is usual to adopt test that conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of incident – Evidence of any witness cannot be rejected merely on the ground that interested witnesses admittedly had enmity with persons implicated in the case. (Paras 70, 72, 73 and 78)
(1994) 5 SCC 188 ; 2006 Cri.L.J. 4087 ; AIR 2001 SC ; 2000 Cri.L.J.2983 ; (2014) 12 SCC 261 ; (2016) 16 SCC 418 ; AIR 2005 SC 1132 ; 2004 Cri.L.J. 3854 ; AIR 1983 SC 680 ; (2013) 14 SCC 266 ; (2016) 10 SCC 537 ; AIR 1965 SC 20 ; AIR 1999 SC 2565 ; (2012) 7 SCC 646 – Referred.
(2000) 8 Supreme Court Cases 457 ;(2000)1 SCC 247; (2016) 10 SCC 220; (2005) 10 SC 374; (2014) 12 SCC 261;(2016) 10 SCC 537; 2006 Cri.L.J. 4087; (2016) 16 SCC 418; (2013) 14 SCC 266; AIR 1999 SC 2565;(2012) 12 SCC 406; (2014) 11 SCC 335; (2012) 7 SCC 646; (2012) 4 SCC 722; AIR 1983 SC 680; AIR 1965 SC 202;(1994) 5 SCC 188; (2017) 11 SCC 85; (2017) 11 SCC 129; (2012) 9 SCC 1; (2016) 12 SCC 76; (1978) 4 SCC 161 – Relied.
AIR 2005 SC 1132; 2000 Cri.L.J.2983 – Distinguished.
In his cross-examination, he has stated that dispute of plucking ‘Khesari’ was not taken in his presence. He was present at the time of auction of ‘Aahar’ as he was interested for the same. He has stated that name of his grandfather is Anandi Singh. He has four sons, namely, Surendra Singh, Rajaram (his father), Satish and Devendra. Surendra had two sons, namely, Dharmendra and Sujit, both lived in village. Devendra Singh was a deed writer in court and mother used to stay in house. Mother of Dharmendra is working at Balika Vidyapeeth, Lakhisarai. On the date of incident, she was not in the village. The wives of Dharmendra and Sujit are own sisters. Dharmendra has one daughter. The wives of Dharmendra and Sujit and mother of Sujit are not the witnesses in this case. He does not know their whereabouts, wife of Satish, namely, Sheelam Devi is a witness. There is none in the family of Dharmendra. He has denied the suggestion that he has made a wrong statement that wives of Sujit and Dharmendra and mother were present on the date of incident, at present the wife of Dharmendra was living at Belhar and she has entered into the second marriage. It is not a fact that they have persecuted and expelled her from the village. Mukhiya had gone to take her back, after the incident, the wife of Dharmendra and wife of Sujit have entered into the second marriage, whereafter he has partially retracted that wife of Sujit is staying in the village. Already a separation in the family of his father has taken effect 2-3 years earlier. The alleged place of occurrence is 100 yards from the house of Dharmendra and the same is not directly visible from his house as houses of other persons fall, but from the roof, place of occurrence would be visible. The house of the informant is hardly 250 yards from south west from the place of occurrence. At the time of occurrence, for 2-3 minutes hot discussion took place between them. In the meantime, apart from the informant, father and others remained standing. He failed to give the name of all persons, but it is said that he had seen Gorelal Singh, Manoj Singh, Rajaram. Amir Singh remained absconded. When he remained in jail then only the witnesses would give their evidence. He himself said that due to terror, he remained in Sheikhpura and in any way he is giving evidence. It is not a fact that for compromise, his father namely Rajaram Singh claimed Rs. 2 lacs and the money was deposited to Mukhiya Jai Ram Singh that he would not support the case. When the mother of Dharmendra had demanded the money from Mukhiya then Raja Ram said that he has filed the case, hence, he would take the money. He said that he is unemployed matric pass and his brother is also unemployed. Father is staying in the village. There is no idol in the Shivala, which turned to ruins. The houses of Damodar Upadhaya, Jahar Singh and Hardev Narayan are adjacent to Shivala. There are no fighting. Their family members would have seen the occurrence. He said that he does not know as to whether Dharmendra was an accused of kidnapping, murder, extortion case. He does not know that any case of dacoity is pending against Dharmendra. The electric pole is hardly 3-4 feet away from the house of Chandra Prabha Devi. He was hardly 10 yards away from the place of occurrence. No missed firing was made before the bullet hit the deceased. He has seen about the hitting the bullet to Dharmendra. Dharmendra received the bullet hardly 2-3 feet away from the electric pole. He fell down and died. The police has seen the dead body of Dharmendra and he had not touched the body, though he was willing, but not touched the dead body. The dead body was not shifted. At that time, Dharmendra was wearing ‘Ganji’ and trouser and he was also wearing black colour ‘Badhi’ in his neck. There was two holes in the ‘Ganji’ stained with blood and he cannot say the size of hole in ‘Ganji, but from both sides of ‘Ganji’, there was hole. The bullet received in the elbow remained inside.
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