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2020 Supreme(All) 830
IN THE HIGH COURT OF ALLAHABAD
SURESH KUMAR GUPTA, J.
Muluwa – Appellant
Versus
State – Respondent
Criminal Appeal No. 79 of 1991
Decided On : 06-08-2020
Advocate Appeared:
For the Appellants : S.K. Srivastava, Vijay Bahadur Shivhare.
Point of Law: If there are no material discrepancies or contradiction in the testimony of the witness, his evidence cannot be disbelieved merely on the basis of some normal, natural or minor contradictions, inconsistencies, exaggerations, embellishment etc. The distinction between material discrepancies and normal discrepancies are that, minor discrepancies do not corrode the credibility of a party's case but material discrepancies so
Headnote:
Penal Code, 1860 – Sections 34, 307 – Chargesheet – Criminal appeal has been preferred against the judgment and order passed by IIIrd Additional Sessions Judge, Hamirpur, District Hamirpur in Sessions Trial convicting the appellants under section 307/34 I.P.C. and sentenced them to 3 years rigorous imprisonment. – Complainant/Ghasita, lodged an F.I.R. Ex.Ka-1 alleging that he is resident of village Subasa, Police Station Lalpura, District Hamirpur and complainant was returning to his home after casting his vote on the way, when he reached near house of Gangadeen Kumhar, accused, Bhagwan Deen S/o Kartarey Singh and Ram Bahadur Singh, having ballam, Shiv Bahadur Singh was holding gun, Raj Bahadur Singh S/o Sri. Bhagwan Deen Singh was holding lathi. Buddan Singh, Muluwa and Gopi Chand were also armed with lathi. Since the aforesaid person consider enmity with complainant on exhortation of accused Bhagwan Deen Singh, Shiv Bahadur Singh opened fire on complainant with intention to kill the complainant, when complainant raised alarm, witness Sughar Singh, Kallu Singh and Nathu Singh rushed towards the spot and rescued Ghasita. Accused persons were fled outside the village. – The F.I.R. was registered against Bhagwan Deen, Buddan Singh, Ram Bahadur, Shiv Bahadur Singh, Raj Bahadur Singh, Muluwa and Gopi Chand under section 307/34 I.P.C. at 9.00 P.M. on same day. – After registration of F.I.R. investigation of this case was handed over to Sub Inspector K.M. Sinha (PW-4). – IO received injury report of injured Ghasita and recorded statement of injured Ghasita and on pointing out of Ghasita prepared site plan which is proved as Ex.Ka-5. – After recording evidence of other witnesses charge-sheet filed by Investigating Officer only against accused Muluwa and Gopi Chand under section 307 I.P.C. and other named five co-accused Bhagwan Deen Singh, Ram Bahadur Singh, Shiv Bahadur Singh, Raj Bahadur Singh, Baddan Singh was exonerated by prosecution. – Chargesheet was submitted before the Magistrate and Magistrate has taken cognizance and committed the case to sessions court where it is registered as S.T. and thereafter, it was transferred to IIIrd Additional Sessions Judge, Hamirpur where the appellants face trial –
Finding of the Court:
If there are no material discrepancies or contradiction in the testimony of the witness, his evidence cannot be disbelieved merely on the basis of some normal, natural or minor contradictions, inconsistencies, exaggerations, embellishment etc. – The distinction between material discrepancies and normal discrepancies are that, minor discrepancies do not corrode the credibility of a party's case but material discrepancies so. – Oral evidence of injured witness is not corroborated with medical report. There are several discrepancies and contradictions which corrodes the credibility of prosecution case. – So the evidence adduced by these witnesses are not cogent and reliable and also does not inspire confidence. – Thus, this court is of the considered opinion that there is no scope to sustain conviction of the accused/appellants for the offences under section 307/34 I.P.C. – The accused/appellants are entitled to benefit of doubt. – As the prosecution has not been able to prove its case beyond all shadow of doubts. –
Result: Appeal Allowed.
JUDGMENT :
SURESH KUMAR GUPTA, J.
1. This criminal appeal has been preferred against the judgment and order dated 18.1.1991 passed by IIIrd Additional Sessions Judge, Hamirpur, District Hamirpur in Sessions Trial No. 31 of 1990, convicting the appellants under section 307/34 I.P.C. and sentenced them to 3 years rigorous imprisonment.
2. Brief facts of this case are as follows:-
The complainant/Ghasita, lodged an F.I.R. Ex.Ka-1 alleging that he is resident of village Subasa, Police Station Lalpura, District Hamirpur and on 24.11.1989 at 4.30 P.M. complainant was returning to his home after casting his vote on the way, when he reached near house of Gangadeen Kumhar, accused, Bhagwan Deen S/o Kartarey Singh and Ram Bahadur Singh, having ballam, Shiv Bahadur Singh was holding gun, Raj Bahadur Singh S/o Sri. Bhagwan Deen Singh was holding lathi. Buddan Singh, Muluwa and Gopi Chand were also armed with lathi. Since the aforesaid person consider enmity with complainant on exhortation of accused Bhagwan Deen Singh, Shiv Bahadur Singh opened fire on complainant with intention to kill the complainant, when complainant raised alarm, witness Sughar Singh, Kallu Singh and Nathu Singh rushed towards the spot and rescued Ghasita. Accused persons were fled outside the village. The F.I.R. was registered against Bhagwan Deen, Buddan Singh, Ram Bahadur, Shiv Bahadur Singh, Raj Bahadur Singh, Muluwa and Gopi Chand under section 307/34 I.P.C. at 9.00 P.M. on same day. After registration of F.I.R. investigation of this case was handed over to Sub Inspector K.M. Sinha (PW-4). On 3.12.1989, IO received injury report of injured Ghasita and recorded statement of injured Ghasita and on pointing out of Ghasita prepared site plan which is proved as Ex.Ka-5. After recording evidence of other witnesses charge-sheet filed by Investigating Officer only against accused Muluwa and Gopi Chand under section 307 I.P.C. and other named five co-accused Bhagwan Deen Singh, Ram Bahadur Singh, Shiv Bahadur Singh, Raj Bahadur Singh, Baddan Singh was exonerated by prosecution. Chargesheet was submitted before the Magistrate on 29.1.1990 and Magistrate has taken cognizance and committed the case to sessions court where it is registered as S.T. No. 31 of 1990 and thereafter, it was transferred to IIIrd Additional Sessions Judge, Hamirpur where the appellants face trial.
3. Learned A.S.J. Hamirpur framed charge against the appellants under section 307 I.P.C. read with 34 I.P.C. The charge read over to the appellants and appellants denied the charge and claimed to be tried. In order to substantiate charge levelled against the appellants, prosecution examined PW-1 Ghasita as complainant and injured witness, who proved F.I.R. as Ex.Ka-1. PW-2 Km. Ranno, examined as eye-witness of incident. PW-3 Dr. Satya Prakash, examined the injured witnesses, who proved the injury report of Ghasita as Ex.Ka-2 and injury report of scriber Bhura Singh as Ex.Ka-3. PW-4 K.M. Sinha, Investigation Officer of this case, who proved site plan as Ex.Ka-5 and charge-sheet as Ex.Ka-6. He also proved by means of secondary evidence Chick F.I.R. as Ex.Ka-7 and G.D. Entry as Ex.Ka-8. PW-5 Bhura Singh, who is scriber of written report also supported Ex.Ka-1.
4. PW-3, Dr. Satya Prakash examined the injured Ghasita and during examination following injuries were found on the body of injured Ghasita:-
1. Multiple fire arm injury on back of chest, neck and back of skull. Size of each wound 0.2 cm x 0.2 cm. Depth not taken. No blackening no talloing seen.
2. Contusion 2 cm x 3 cm on right thumb.
3. Face is flushed, smell of alcohol present in expesole air. Gout speed normal, orientation of time and place is present.
4. Result: Injury no. 1 caused by fire arm and injury no. 2 caused by blunt object. Injury no. 1 kept under observation advise X-ray Injury no. 2 is simple in nature.
Duration is fresh. Patient has consumed alcohol at present is not in state of intoxication. He proved injury report of Ghasita as Ex.Ka-2.
He furthe
