TaxTMI 
TaxTMI 
2011 (3) TMI 1562
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....to create a passage from the field of the informant Subedar (PW.1). He was stopped by Balak Ram (PW.5). Naresh, respondent no.1, not only abused Balak Ram (PW.5), but also assaulted him and threatened him that he would face dire consequences. With regard to this, Balak Ram (PW.5) lodged the complaint of the incident at about 9.30 a.m. in Police Station, Kampil, District Farukhabad. Balak Ram (PW.5) was accompanied to the police station by the informant Subedar (PW.1) and their uncle Sri Ram (deceased). Balak Ram (PW.5) and Sri Ram (deceased) had a rifle and a gun with them. 3. After lodging the complaint in the police station, Kampil, one of them, went to the market to make some purchases and, subsequently, they returned to their village in the evening. While coming back to their village Karanpur, from Kampil, at about 5 p.m. on Kampil - Aliganj Road, as soon as they approached the fields of Gajraj and Ganga Ram; they found the four accused (respondents herein) emerging out from the bushes armed with gun and country made pistols. They hurled abuse at them and also opened fire. Sri Ram and Balak Ram (PW.5) received gun shot injuries. Sri Ram died on the spot, however, Subeda....
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....pendency of this appeal before this Court, Bharat, one of the accused died and his name stood deleted from the array of parties vide order of this Court dated 5.5.2006. Thus, we have to deal with three accused, namely, Naresh, Jagpal and Shyam Singh. 9. Shri R.K. Gupta, learned counsel appearing for the appellant- State has submitted that the High Court has erred in reversing the well reasoned judgment of the trial court giving unwarranted attention to minor contradictions on trivial matters and taking into consideration non-existent facts. The High Court has held that the FIR was ante- timed and ante-dated without giving any reason whatsoever. The High Court held that the FIR was subject to doubt, though such a finding does not get any support from any material on record. The FIR has been lodged most promptly considering the distance between the place of occurrence and the police station. Balak Ram (PW.5) injured witness had been examined by Dr. R.C. Gupta (PW.3) within a few hours of the incident. Therefore, the finding that the FIR was ante-timed and ante-dated is erroneous and contrary to the documents on record. The High Court without giving any cogent reason held tha....
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.... Thus, no interference is warranted, the appeal lacks merit and is liable to be dismissed. 11. We have considered the rival submissions made by learned counsel for the parties and perused the record. 12. The admitted facts of the case remained that the incident occurred on the morning of 16.10.1979 in respect of which the NCR was recorded by the police station in Kampil, naming Naresh as one of the accused. The FIR, in respect of the incident that occurred on the same day in the evening, was lodged within 3-1/2 hours of the time of incident at police station, Kampil at a distance of about 6 miles from the place of occurrence; the I.O. reached the place of occurrence at 10.15 p.m. Balak Ram (PW.5) injured, had been examined in the Public Health Centre, Kayamganj at 10.30 p.m. on the same day by Dr. R.C. Gupta (PW.3) at a distance of 20 k.m. from the place of occurrence. 13. Dr. R.C. Gupta (PW.3) found the following injuries on the person of Balak Ram (PW.5): (i) Two abrasions in a area of 1 cm x < cm over outer side of right forearm, lower part. Scab not formed. (ii) Gun shot wound of entry 4 cm x 2 cm x through and through over inner aspect of right thigh middle part. Margins ....
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.... and nobody had any occasion to touch it. Record further reveals that Constable Sughar Singh (PW.9) was not cross-examined by any of the respondents accused nor any such question had been put to Dr. A.K. Dubey (PW.2) who had conducted the post-mortem in this regard. According to Dr. Dubey, Sri Ram could have died on 16.10.1979 at about 5-7 p.m. He has not been cross-examined as to under what circumstances the postmortem could not have been conducted at an earlier point of time. 15. The High Court has believed the theory put forward by the defence that the guns looted from the victims had been recovered from the dacoits who were killed in an encounter on 14-15 November, 1979 in Etah District. Therefore, there had been some manipulation in the prosecution's case. None of the respondents accused had taken this defence in their statement under 313 Cr.P.C. Naresh, respondent no.1 had stated that he was not aware of the same. When a specific question was put to him he replied that he had also heard that in an encounter 6 dacoits had been killed in District Etah and some arms and ammunitions had been recovered from them. He had not stated anywhere that the said arms and ammunit....
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....ed to keep record of exact time particularly in a rural area. Everybody deposes according to his estimate. More so, the statement had been recorded after a long lapse of time. Therefore, a margin of 1-1/2 hours remained merely a trivial issue. The High Court had taken a very serious note of the statement of Balak Ram (PW.5) in respect of the first incident wherein he had stated that Naresh, the accused, had initially abused him and then beaten him with danda but in the FIR he had stated that accused Naresh had given blow with butt-end of the spade. There was minor contradiction in the statements of Subedar (PW.1) and Balak Ram (PW.5) in respect of the first incident of the same date and minor variations in their statements which persuaded the High Court to disbelieve the presence of Subedar (PW.1) in the morning incident. 18. The trial Court had taken note of the first incident that occurred in the morning and considered the same in correct prospective, that in the morning incident Balak Ram (PW.5) got an injury on his arm as has been found by Dr. R.C. Gupta (PW.3) and not on the head. The statement made by Balak Ram (PW.5) may not be correct in this regard for the reason th....
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....eet the situation Balak Ram claims that he fell unconscious little after receipt of his injury, whereas Subedar Singh stated that he immediately fell unconscious. Therefore, it is not possible for him to see and notice his assailants. For the said contradictions the testimony of this witness cannot be given adequate weightage." In the facts of this case, time gap could be only of few minutes, thus, it was not even worth taking note of by the High Court. 22. The High Court has doubted the prosecution version also on the ground that Subedar (PW.1) did not suffer any injury in the said incident without appreciating his deposition that all of them were walking at some distance and he was about 7-8 steps behind Sri Ram (deceased) and Balak Ram (PW.5) and immediately after seeing the accused persons, he ran backward. After taking 15-20 steps, he saw that persons working in the surrounding fields had started coming and then he stopped, and saw the accused taking away the arms and ammunitions from Sri Ram (deceased) and Balak Ram (PW.5). 23. The High Court has disbelieved Balak Ram (PW.5), who had suffered the gun shot injuries. His evidence could not have been brushed aside by the High....
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....screpancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be....
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....at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. An appellate court must also consider whether the court below has placed the burden of proof incorrectly or failed to take into consideration any admissible evidence or had taken into consideration evidence brought on record contrary to law? In exceptional cases, whether there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of acquittal. So, in order to warrant interference by the appellate court, a finding of fact recorded by the court below must be outweighed evidence or such finding if outrageously defies logic as to suffer from the vice of irrationality. [Vide: Babu v. State of Kerala, (2010) 9 SCC 189; and Dr. Sunil Kumar Sambudayal Gupta & Ors. (supra)]. 28. The instant case is required to be examined in the totality of the circumstances and in the light of the aforesaid legal propositions. The Court has to strike a balance in the interest of all the parties concerned. Thus, there is an obligation on the court neither to give a long latitude to the prosecution, nor construe the law in favour....