Babasahed Apparao Patil vs State Of Maharashtra

disclosed that the murder had been committed by

Babasaheb Patil - Accused No.1 and Tanaji Patil - Accused

No. 2. PW-28, after making the entry in the station diary

regarding the telephonic message, conveyed the information

to PSI Annasaheb Patil (PW-33), attached to the Taluka

police station within whose jurisdiction the murder had

been committed. On receiving the information, the police

sprung into action. At the place of occurrence, Panchnama

of the scene of occurrence was prepared, the jeep and some

articles alongwith the dead body were seized. The body of

Baburao was sent for post mortem. At the civil hospital,

5 Dr. Kanki (PW-20) performed the post mortem and found as

many as 15 injuries on the person of the deceased. The

injuries included a fire arm injury over abdomen near left

postal margin, four deep incised wounds over abdomen,

four stab wounds over chest, one incised wound over left

side at lumber region and exit wounds of pellets. Lungs,

kidneys, liver, spleen were also injured. Doctor opined that

these injuries were sufficient to cause death and the death

was caused on account of shock and haemorrhage and due

to injuries sustained by the deceased over abdomen, chest

and to visceral organs. On completion of investigations,

which included recording of confessional statements of

Accused No.2 and Accused No.4, who also produced the

weapons of offence (2 daggers and one country made pistol),

chargesheet was filed against all the accused.

6. The accused abjured their guilt and accordingly, the trial

was held. The prosecution examined as many as 33

witnesses to support its case. No evidence was produced in

defence. Upon consideration of the evidence, as noted

6 above, the trial court convicted all the four accused for

offence punishable under Section 302 read with Section 34

of the IPC. Appellant's (Accused No.1) conviction having

been confirmed by the High Court, he has come up before

us in this appeal. The other convict - Accused No.2 expired

during the pendency of his appeal in the High Court.

7. Learned counsel for the appellant contended that the trial

court as also the High Court committed serious error in

relying on the wholly unreliable testimony of PW-10 and

PW-11, examined by the prosecution as eye-witnesses,

inasmuch as there are contradictions and discrepancies in

their evidence. It was argued that the story of PW-10 going

to Hyderabad is inherently improbable and was a make up

to cover the delay of three days in recording of his

statement by police on 23rd June, 1986. It was also

submitted that it was very improbable that Prakash (PW-

11), an employee of the deceased, stated to have seen the

entire incident did not disclose the name of the accused to

his uncle Kisan Ingale (PW-18) when he met him

7 immediately thereafter and furthermore instead of reporting

the occurrence to the police he went to his uncle's house

and narrated the incident to him. It was pleaded that all

the accused had been falsely implicated on account of

rivalry between the two factions in the village.

8. Learned counsel appearing on behalf of the State, on the

other hand, supported the judgment of the High Court and

submitted that the evidence of the two eyewitnesses,

coupled with the medical evidence and the recovery of

weapons of offence clearly prove the case against the

appellant.

9. Having carefully gone through the judgments of the courts

below, we feel that in the light of the evidence on record, the

view taken by the High Court is correct.

10. As noted earlier, the mainstay of the prosecution is the

testimony of Sidram (PW-10) and Prakash (PW-11) who

claimed to be eye witnesses of the occurrence. Both the

courts below have found their evidence creditworthy and

8 have held that the minor contradictions in their testimony

were not sufficient to affect the credibility of their evidence.

The discrepancies in the evidence of PW-10 highlighted

before the High Court on behalf of the appellants were: (i)

his non-mentioning of non-availability of vegetarian food in

the hotel and drinking of beer as recorded in his statement

by police (ii) belabouring of Shivaji by Baburao after

returning to the hotel. Similarly, the alleged omissions on

which emphasis was laid were : (i) non-mentioning of the

deceased falling on his back after receiving the first jamiya

blow and (ii) the firing of bullets at the chest of the

deceased. As regards PW-11, the alleged contradictions

were again with regard to his going to the market to

purchase beer and the deceased, Sidram and Suresh

having beer at the hotel. The stated omission was again

about the bullet being fired at the chest of the deceased.

11.As already noted, the High Court has come to the

conclusion, and in our opinion, rightly, that the

contradictions brought on record pertaining to the bringing

9 and drinking of beer are not directly related to the incident

and cannot be said to be material contradictions. Similarly,

the alleged omission relating to the firing being on the chest

of the deceased has also been held to be not a material

omission because there is no omission in the statement as

regards the firing by the appellant on the deceased.

12. It is to be borne in mind that some discrepancies in the

ocular account of a witness, unless these are vital, cannot

per se affect the credibility of the evidence of the witness.

Unless the contradictions are material, the same cannot be

used to jettison the evidence in its entirety. Trivial

discrepancies ought not to obliterate an otherwise

acceptable evidence. Merely because there is inconsistency

in evidence, it is not sufficient to impair the credibility of

the witness. It is only when discrepancies in the evidence

of a witness are so incompatible with the credibility of his

version that the court would be justified in discarding his

evidence.

10

13. In State of U.P. Vs. M.K. Anthony1, this Court indicated

the proper approach which needs to be adopted while

appreciating the evidence of a witness. It was observed as

under:

"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."

1 (1985) 1 SCC 505

11

14. In Appabhai & Anr. Vs. State of Gujarat2, this Court

had again emphasized that while appreciating the evidence,

the court should not attach undue importance to minor

discrepancies. The discrepancies which do not shake the

basic version of the prosecution case may be discarded.

Similarly, the discrepancies which are due to normal errors

of perception or observation should not be given

importance. The Court by calling into aid its vast

experience of men and matters in different cases must

evaluate the entire material on record as a whole and

should not disbelieve the evidence of a witness altogether, if

it is otherwise trustworthy.

15. Having gone through the evidence of PW-10 and PW-11, we

are in complete agreement with the High Court that the

aforenoted contradictions are not directly relating to the

incident and cannot be said to be material contradictions

affecting the credibility of the evidence of both the eye

witnesses viz. PW-10 and PW-11. Similarly, the so-called

2 1988 (Supp) SCC 241

12 omission of not mentioning the exact portion of the body of

the deceased where the shot had been fired cannot be said

to be a significant omission because there was no omission

as regards the firing by the appellant on the deceased. In

his testimony, PW-10 has given graphic details of the

occurrence. Similarly, PW-11, the driver of the jeep, in his

evidence, has narrated the incidence which corroborates

with the version of PW-10. The evidence of these two

witnesses stands corroborated by the medical evidence,

which clearly shows that several blows were given to the

deceased by jamiya (dagger) and a fire arm injury was also

found over the abdomen of the deceased. The conduct of

PW-11 in going to the house of his uncle instead of

reporting the incident to the police cannot be said to be

unnatural, impairing the creditworthiness of his evidence.

The post-event conduct of a witness varies from person to

person. It cannot be a cast iron reaction to be followed as a

model by every one witnessing such event. Different

persons would react differently on seeing any serious crime

13 and their behaviour and conduct would, therefore, be

different. (See: Rammi @ Rameshwar Vs. State of M.P.3).

Therefore, having witnessed a dastardly murder, it was not

unnatural for the said witness to go to his uncle and,

therefore, the courts below were justified in not rejecting his

evidence merely on that score.

16.Thus, we are unable to agree with learned counsel for the

appellant that the trial court as well as the High Court have

failed to appreciate properly the evidence on record. We are

convinced that the conclusions of the courts below, that the

appellant had committed the offence of murder of Baburao

Vibhute, are supported by acceptable evidence. We do not

find any legal or factual infirmity in the impugned judgment

warranting interference. The appeal is dismissed

accordingly.

................................................J. (D.K. JAIN) 3 (1999) 8 SCC 649

14 .................................................J. (V.S. SIRPURKAR) NEW DELHI;

NOVEMBER 28, 2008.

15