Court affirms conviction under sec 307 IPC, acquits of sec 302; stresses testimony credibility

The High Court upheld the conviction and sentence of accused No. 5 and 6 under section 307 read with 149 of the Indian Penal Code but acquitted them of the offense under section 302 IPC. The court rejected the appellants' contentions regarding the failure of the prosecution to examine independent witnesses and contradictions in the evidence of a key witness, emphasizing that minor discrepancies should not undermine the credibility of the testimony. The appeals of the other accused were dismissed.

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Issues Involved:
1. Failure of the prosecution to examine independent witnesses.
2. Contradictions in the evidence of Devji (PW-4).

Summary:

Issue 1: Failure of the prosecution to examine independent witnesses
The appellants contended that the prosecution failed to examine independent witnesses present at the bus stand during the incident. The High Court examined this contention and found no infirmity in the investigation. The Court noted that the absence of independent witnesses does not necessarily discredit the prosecution's case. The Court emphasized that the general public often refrains from involving themselves in criminal cases, and this apathy is a common handicap for investigating agencies. The Court cited previous judgments to support the notion that witnesses to serious crimes may not react uniformly, and their evidence should not be rejected merely because they behaved unusually. The Court concluded that the prosecution's case should be evaluated based on the broad spectrum of evidence presented, and the absence of independent witnesses does not warrant discarding the prosecution's version. Therefore, the first contention was rejected.

Issue 2: Contradictions in the evidence of Devji (PW-4)
The appellants highlighted numerous contradictions in Devji's evidence, particularly between his statement recorded by the Executive Magistrate (Exh. 66) and his subsequent statement to the police. The Court acknowledged these contradictions but emphasized that minor discrepancies should not lead to the rejection of the entire testimony. The Court noted that Devji, as a victim and survivor of the assault, is considered the best eyewitness. The Court stressed that discrepancies due to normal errors of perception, observation, or lapse of memory should not be given undue importance. The Court cited previous judgments to support the principle that witnesses' evidence should be evaluated in its entirety, excluding exaggerated versions. The Court concluded that the critical evidence from Jadav (PW-9) and Devji (PW-4) was credible. Jadav's complaint (Exh. 17) corroborated the presence of accused A-2, A-3, and A-7 at the bus stand with deadly weapons. Devji's dying declaration (Exh. 66) named accused 1, 2, 3, 5, 6, and 7 as attackers. The Court found that accused No. 5 and 6 must have attacked only Devji, not Trikam, and thus acquitted them u/s 302 IPC but upheld their conviction u/s 307 r/w 149 IPC. The second contention was also rejected.

Conclusion:
The appeals were allowed in part. Accused No. 5 and 6 were acquitted for the offence u/s 302 IPC but their conviction and sentence u/s 307 r/w 149 IPC were upheld. The appeals of the other accused were dismissed.

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