REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    330      OF 2009 (Arising out of SLP (Crl.) No. 7557 of 2008)

Prithu  @  Prithi Chand and Anr.  ..Appellants

Versus

State of H.P.   .. Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Himachal Pradesh High Court setting aside the acquittal recorded by learned

Additional  Sessions Judge, Kangra,  Dharamshala. Three accused persons,

Bhola,  Pruthu and Dharmu faced trial  for alleged commission of offence

punishable under Sections 302 read with 34 of the Indian Penal Code, 1860

(in short the ‘IPC’). The High Court by the impugned judgment  set aside

the order  of  acquittal  and directed each of  the  accused persons guilty of

offence punishable under Section 304 Part I, IPC read with Section 34 IPC

and sentenced each to undergo rigorous imprisonment for seven years and

to pay a fine of Rs.5,000/-.

2. Background facts in a nutshell are as follows:

Fandi Ram (hereinafter  referred to as the ‘deceased’)  owed certain

amount to Prehlad Chand (PW-10), merchant of village Boh  on account of

purchases made on credit.  Appellant is son of PW-10. On 14.2.1992 at 8.00

a.m.  the  accused  appellant  visited  house  of  Fandi  Ram  and  demanded

payment due to his father.  Fandi Ram told Bhola that he had to take loan

from the society and would make payment. Bhola who was carrying a bottle

of liquor asked Fandi Ram to go to society shop after visiting the house of

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accused Prithu.  Both of  them went  to  the house of  Prithu located  in  the

village of Fandi Ram. All the three sat in the house and started consuming

liquor in which his  brother  Dharmu also  joined.  At about  2 p.m. Singhu

(PW-4) son of deceased was sent by his widow Kailasho Devi (PW-3) to see

if Fandi Ram had gone to society shop. Singho reminded his father, but all

the  three  accused  told  that  they  would  accompany  him to  society  shop.

Singho then came and left for village Kathla and Sardair Lal (PW-5) another

son of deceased went to water mill (Gharat).

At about  3.30 p.m Kailasho and her  son  Jagdish  from their  house

noticed all the three accused giving fist blows to Fandi Ram near the school,

located  in  front  of  their  house,  separated  by  a  drain  from  the  school.

Kailasho shouted why her husband was being beaten and she accompanied

by Jagdish rushed to the place of occurrence where her husband was being

given a beating. Bhola accused in her presence gave a stone blow on the

head of Fandi Ram and ran away. Remaining accused also hit him with the

stone on the head. Jagdish (PW-2) intervened but the accused Dharamu and

Prithu also gave beatings to him. The sleeve of the shirt of Jagdish got torn

and one sleeve was left on the spot. Jagdish tied a cloth around the head of

his father, which was bleeding due to injuries. They took Fandi Ram to the

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shop of Prehlad Chand (PW-10).  On the way Sardari Lal (PW-5) who was

coming from water mill met them. He inquired about the cause of injuries

from his father.  Fandi Ram told him of the accused beating him with stones

with all the other accused due to the enmity of Panchayat elections. Then on

the way to the shop of  Prehlad Chand, Janam Singh, Nambardar (PW-6)

met them who was also told  by the  deceased that  he was  beaten  by the

accused with stones  due to Panchayat  elections.  Prehlad Chand was also

told by the deceased that he was beaten by the accused, who then tried to get

the matter compounded and settled for Rs.600/-. But accused did not agree

to make payment. Thereafter in the shop of Prehlad Chand, Fandi Ram fell

unconscious. On way a Compounder Desh Raj (PW -12) provided him first

aid.

Fandi  Ram at  about  11.00 p.m. succumbed to  the  injuries.  Further

case revealed is that during night due to distance, injured could not be taken

to hospital  at  Shahpur located at a distance of 25 Kilometers,  nor police

could be informed. In the morning of 15th February, 1992, Sardari Lal came

to Shahpur to lodge report but when he reached village Darini, the bus had

already  left.   Therefore,  Darini  informed  police  station  Shahpur  on

telephone about the occurrence upon which information A.S.1. Feru Ram

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(PW-15) recorded Rapat Ex.P.19 and proceeded to the spot. In village of the

deceased he recorded statement Ex.P-5 of Jagdish Singh (PW-2), sent the

same for registration of a. case. Prepared inquest report Ex. P. 2 and took

Parna  Ex.  P.  10  vide  memo Ex.  P.  8  in  possession.   Investigation  was

undertaken.  After completion of investigation charge sheet was filed.   

Trial Court did not accept the evidence to be credible and directed

acquittal.  State questioned the acquittal.    

The  High  Court  found  that  the  trial  Court  has  over  looked  the

evidence of the eye witnesses, more particularly, PWs 2 to 5. It was also

noted that PW-10 the father of accused Bhola accepted that Kailasho Devi

accompanied by her son and the deceased in injured condition came to his

shop and  on enquiry Fandi Ram and his wife informed him that he was

beaten by accused Dharmu and Fundi Ram also nodded his head supporting

the  version  of  his  wife.  The  High  Court  noted  that  the  evidence  clearly

established that the accused persons took liquor with the deceased in the

house  of  accused  Bhola.  There  was  election  dispute.  PW-10  who  was

Pradhan proclaimed that he did not vote for a winning party and this was the

bone of  contention between the  accused  persons  and the deceased.   The

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accused persons were also drunk. They started quarreling with the deceased

and gave him a fist blow and assaulted him with some stones which was

witnessed by Kailasho Devi and her son Jagdish Singh from their house.

Therefore, the order of acquittal was set aside.  

3. In support of the appeal, learned counsel for the appellant submitted

that the evidence of the eye witnesses was not reliable and, therefore, the

order of acquittal should not have been set aside.  

4. Learned counsel  for the State on the other hand submitted that the

High Court had rightly held that in course of sudden quarrel the occurrence

took place and,  therefore, had convicted the accused persons in terms of

Exception 4 to Section 300 IPC by altering the conviction to Section 304

Part I IPC.  

5. It is to be noted that the accused persons pleaded that the evidence of

the  eye  witnesses  cannot  be  accepted  as  there  were  omissions,

contradictions and discrepancies in the evidence of most of the prosecution

witnesses.  In the effort to false implication prosecution made introduction

of PW-9 an eye witness. It is fairly settled position in law that even if there

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are  some omissions,  contradictions  and  discrepancies  the  entire  evidence

cannot  be  discarded.  After  exercising  care  and  caution  and  sifting  the

evidence to separate the truth from untruth, exaggeration, embellishments

and improvements  the court  can come to a conclusion as to  whether  the

residual  evidence is sufficient to convict the accused. (See Sohrab and Anr.

V.  The  State  of  M.P. (AIR  1972  SC 2020)  and  State  of  U.P. v.  M.K.

Anthony (AIR 1985 SC 48).   

6. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (AIR 1983 SC

753),  it  was  observed  that  undue  importance  should  not  be  attached  to

omissions, contradictions and discrepancies which do not go to the root of

the  matter  and  shake  the  basic  version  of  the  prosecution  witnesses.   A

witness cannot be accepted to possess a photographic memory and to recall

the deals of an incident verbatim. Ordinarily, it so happens that a witness is

overtaken  by  events.  A  witness  could  not  have  been  anticipated  the

occurrence  which  very  often  has  an  element  of  surprise.   The  mental

faculties  cannot,  therefore,  be  expected  to  be  attuned  to  absorb  all  the

details. Thus, minor discrepancies were bound to occur in the statement of

witnesses.  

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7. The  High  Court  has  analysed  the  evidence  in  the  aforesaid

background and  has  rightly  come to  the  conclusion  that  the  guilt  of  the

accused persons has been established.  

8. The appeal is, therefore, dismissed.

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, February 18, 2009

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