1 IN THE COURT OF SHRI S.K. SARVARIA ADDITIONAL SESSIONS JUDGE-01/SOUTH PATIALA HOUSE COURT [CASE NUMBER] [ENTITY] Son of Shri [ENTITY] R/o 2661/2, Mehrauli, New Delhi - 110030 Appellant Vs. [ENTITY] Respondent [CASE NUMBER] [ENTITY] Son of Shri [ENTITY] R/o Village Kondu, P.S. Kakor, District Bulandshahar, UP (Presently in Custody in Tihar Jail) Appellant Vs. [ENTITY] Respondent Date of Institution : 24/03/09 Date when the arguments were heard : 29/09/09 Date of Judgment : 07/10/09 2 JUDGMENT
By this common order I shall dispose of both the appeals bearing [SECTION] and [SECTION] as common questions of facts and law are involved in these two appeals arising out of same judgment of conviction of Ld. Court below. Criminal Appeal bearing [CASE NUMBER] is taken as the leading case and the common judgment is being dictated in it.
The present appeals are filed under [SECTION] of [ACT] against the Judgment dated 6/5/2008 and the order on sentence dated 17/5/2008, passed by the Ld. ACMM, whereby the appellants, in both the appeals herein, were convicted for offence under [SECTION]/[SECTION] [ACT] and were sentenced to undergo R.I. for a period of 5 years along with fine of Rs. 10,000/-, failing which they were directed to undergo further S.I. for 2 months period. PROSECUTION CASE The brief facts of the case relevant for deciding the cases are as under:
On 5/1/1997 at about 9:00 am when the complainant/injured [ENTITY] went in the jungle in front of Nuclear Science Centre, Aruna Asaf Ali Road, New Delhi and was easing out himself, at that point of time accused [ENTITY] armed with [ENTITY], accused [ENTITY] and accused [ENTITY] armed with [ENTITY], accused [ENTITY] with [ENTITY] and accused [ENTITY] armed with [ENTITY] attacked the complainant. The accused [ENTITY] hit him with pharsa causing amputation of his left leg and other accused persons also hit him with the weapons in their hand causing him multiple injuries. When the complainant shouted for help all the accused persons ran away. PCR van on receipt of message of the incident went to the place of offence and took the complainant to the Safdurjung Hospital. DD No. 18-B was registered and handed over to SI [ENTITY], I.O. of the present case. On the rukka sent by I.O. FIR No. 10/1997 was registered at P.S. Vasant Kunj under [SECTION] [ACT]. During investigation site plan was laid, MLC was collected, statements of witnesses were recorded and the accused persons were arrested and their disclosure statement was recorded. After completion of the investigation, charge-sheet was filed in the court of Ld. Metropolitan Magistrate. However, matter was committed to Sessions Court by Ld. MM. vide order dated 1/4/1998 the Sessions Court the matter was remanded back for trial to the court of Ld. MM as the charge-sheet disclosed commission of offence under [SECTION] [ACT] and trial proceeded in the court of Ld. MM. On completion of trial Ld. MM referred the matter under [SECTION] [ACT] for enhanced punishment to the court of Ld. ACMM. After hearing the matter vide Judgment dated 6/5/2008 and the order on sentence dated 17/5/2008, the Ld. ACMM, convicted the appellants, in both the appeals mentioned hereinabove, for offence under [SECTION]/[SECTION] [ACT] and were sentenced to undergo R.I. for a period of 5 years along with fine of Rs. 10,000/-, failing which they shall undergo further S.I. for 2 months period. Aggrieved with the said judgment and order on sentence, present appeals are preferred by the appellants. ARGUMENTS:
The contention of learned counsel for the appellants is that in the statements given by the appellants/accused persons under [SECTION] [ACT], the trial court did not put the questions regarding injuries to them. It was urged by the Ld. counsel that the doctor who examined the injured/complainant was not examined thus, the defence was not given right to cross-examine the said doctor. The Ld. counsel also pointed out that non-recovery of the amputated leg and the pharsa/weapon of offence is a good circumstance in favour of the defence. The Ld. counsel also contended that the complainant/victim on being shown the pieces of broken cricket wickets/[ENTITY] denied in his examination-in-chief that the same were not the [ENTITY] with which he was assaulted by the accused [ENTITY]. The Ld. counsel also averred that on mere statement of the complainant/victim, the accused persons cannot be held guilty especially when other three accused persons were acquitted and only present two appellants have been convicted. The Ld. counsel also pointed out that in another case the complainant was convicted u/[SECTION] [ACT] for causing injuries to appellant [ENTITY] & his parents and since upon testimony of mother of the appellant [ENTITY] he was convicted thus, herein as a counter-blast the complainant gave evidence falsely implicating the appellants. The Ld. counsel also stated that civil disputes between the appellants and the complainant are also pending adjudication.
The Ld. counsel submitted that the appellant [ENTITY] was not present at the site of the offence and was in the village, which is supported by the testimony of DW 2 [ENTITY]. The Ld. counsel also submitted that I.O., PW4 stated on oath that he did not know where he prepared the seizure memo of the amputated leg and later stated he did not make the seizure memo of the amputated leg, also the prosecution did not examine the PCR man PW 5 and did not put the question as to who caused the injuries to the complainant, nor does the MLC disclose as to who caused the injuries to the complainant, thus, the appellants/accused persons have been wrongly convicted by the Ld. Trial court. The Ld. counsel relied on decisions in [ENTITY] vs. State-1995 (1) C.C. Cases 199 (HC) (Del); [ENTITY] vs. State (Del. Admn.) - 1995 (2) C.C. Cases 57 (HC) (Del); [PRECEDENT]; [ENTITY] vs. State - (1) C.C. Cases 266 (HC) (Del); [PRECEDENT]; and [PRECEDENT], in support of his contentions.
Refuting the said contentions of Ld. counsel for the appellants, Ld. Addl. Public Prosecutor for the State submitted that as regards amputated leg of the complainant, the I.O. stated that he seized the amputated left leg and submitted it to the doctor at the time of preparation of the MLC. But since the said doctor expired during the trial of this case so he could not be examined. He further submitted that in any event of the matter, the statement of the PCR man wherein he stated that the left leg of the complainant, below knee was amputated proves that the left leg was amputated. It was also urged that the I.O. in the rukka also made an endorsement that he saw the amputated leg, which also proves the case of the prosecution. Furthermore, he submitted that [SECTION] [ACT] has no applicability and it was for the Ld. Magistrate to give gist of the case under [SECTION] [ACT] to appellants and record their replies. FINDINGS:
I have heard Ld. Counsel for the appellants and Ld. Addl.
Public Prosecutor for the State and perused the record and the judgments relied upon by the counsel for the appellants.
The hon'ble Punjab & Haryana High Court in [PRECEDENT], based upon the decisions of the Apex Court has beautifully explained the purpose and object of [SECTION] [ACT] as under:
"8. The provision is salutary and is not an idle formality. As already pointed above the same has been enacted to ensure that no prejudice is caused to the accused. The said purpose had been explained by the Supreme Court in the case of [PRECEDENT]. While noting that opportunity to explain the evidence appearing against the accused is not an idle formality and that it is a duty imposed on the Court, the Supreme Court explained the purpose of [SECTION] [ACT] (in fact [SECTION] of the [ACT]) in the following words :-
"Duty is thereby imposed upon the Court to question the accused generally in a case after the witnesses for the prosecution have been examined to enable the accused to explain any circumstance appearing against him. This is a necessary corollary of the presumption of innocence on which our criminal jurisprudence is founded. The object of the Section is to afford to the accused an opportunity of showing that the circumstance relied upon by the prosecution which may be prima facie against him, is not true or inconsistent with his innocence. The opportunity must be real and adequate. Questions must be so framed as to give to the accused clear notice of the circumstances relied upon by the prosecution, and must give him an opportunity to render such explanation as he can of that circumstance. Each question must be so framed that the accused may be able to understand it and to appreciate what use the prosecution desires make of the evidence against him. Examination of the accused under [SECTION] is not intended to be an idle formality; it has to be carried out in the interest of justice and fairplay to the accused: by a slipshod examination which is the result of imperfect appreciation of the evidence, idleness or negligence the position of the accused cannot be permitted to be made more difficult than what it is in a trial for an offence."
9. At the outset it deserves to be mentioned as noted above that purpose of examination of an accused under [SECTION] [ACT] is to enable him to explain the circumstances appearing in evidence against him. If the prosecution witnesses have deposed to any incriminating circumstances from which the guilt of the accused can be inferred, the accused person must be given an opportunity to explain the said incriminating circumstance. The accused need not be questioned about every important statement made by the witness in the witness box. It is only the portion of the evidence of the witness on which the accused person can give and explain that should be put to the accused. The questions should be put in such a manner as to be easily understandable and they should not be lengthy. In one of the earlier decisions of the Supreme Court in the case of [PRECEDENT] the importance of [SECTION] of the [ACT] was considered. It was stressed that questions should be put in such a manner that an ordinary person can understand the same. In paragraph 30 the Supreme Court held :-
"It is not a proper compliance to read out a long string of questions and answers made in the Committal Court and ask whether the statement is correct. A question of that kind is misleading. It may mean either that the questioner wants to know whether the recording is correct, or whether the answers given are true, or whether there is some mistake or misunderstanding despite the accurate recording. In the next place, it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material circumstance which is intended to be used against him. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questioning must therefore be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to the perturbed when he is facing a charge of murder."
Some question was again considered by the Supreme Court in the case of [PRECEDENT]. It was again emphasized that question should be put to the person in small precise form so that accused can explain each of the circumstances and evidence against him.
10. The effect of non-compliance of such a provision had also been noted in a string of judgments from the Supreme Court. Reference to some of them would be in the fitness of things. In the case of [PRECEDENT] (supra) the Supreme Court held that if there is an omission to comply with the provisions pertaining to recording the statement of the accused, then it would fall within the category of curable irregularity. It was held :-
"I am of opinion that errors of this type fall within the category of curable irregularities. Therefore, the question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned. In my opinion, the disregard to the provisions of [SECTION], [ACT], is so gross in this case that I feel there is grave likelihood of prejudice."
Same view prevailed with the Supreme Court in the subsequent decision of the Supreme Court in the case of [PRECEDENT]. In paragraph 17 the Court held :-
"It is necessary now to say a few words about the failure to comply with the provisions of [SECTION], [ACT] This Court has, on more than one occasion, stated that compliance with the provisions of [SECTION] is not a mere idle formality and we are in agreement with the comment made by the learned Judges of the High Court that in this case the examination of the appellants to enable them to explain the circumstances appearing against them was neither full nor very statisfactory. We also agree with them that no serious prejudice was caused - such as to vitiate the whole trial."
11. Similarly, in the case [PRECEDENT] detailed questions had been asked by the Magistrate. The Supreme Court noted that there was an omission to question the accused specifically about what the witnesses said. Finally, it was concluded that no prejudice was caused and in paragraph 8 held :-
"We do not think that the omission to question the appellant specifically about what the witnesses said about informing him of such collection has caused any prejudice to him. Even if there was any defect in his examination under [SECTION] [ACT], the defect amounts merely to an irregularity and is not such as to call for our interference with the orders passed by the Courts below - especially when no complaint on this ground was raised before the High Court."
In the same direction further light is thrown by the decisions in the case of [PRECEDENT] (supra). In the cited case the prosecution relied upon two circumstances against the accused. They were that when the accused came out of the house of one [ENTITY], she had blood-stained knife in her hands and that when she was arrested from the godown, the knife was in her hands. During the statement of the accused this matter of evidence was not put to her and her attention was not drawn towards it. The Supreme Court held that beyond a bare denial, there is nothing else that the counsel could suggest. There was no prejudice that had been caused and thereupon the conclusions drawn were :-
"Failure to comply with the provisions of [SECTION] is an irregularity; and unless injustice is shown to have resulted therefrom a mere irregularity is by itself not sufficient to justify an order of retrial. The appellate Court must always consider whether by reason of failure to comply with a procedural provision, which does not affect the jurisdiction of the Court, the accused have been materially prejudiced. In the present case, we are of the view, having regard to the circumstances, that the appellants have not been prejudiced because of failure to examine them strictly in compliance of the terms of [SECTION] of the Code and that view is strengthened by the fact that the plea was not raised in the High Court by their counsel who had otherwise raised numerous questions in support of the case of the appellants."
12. A year later in the case [PRECEDENT] (supra) one of the arguments pertaining to the defective recording of the statement of the accused under [SECTION] [ACT] was that long and involved questions were put to the accused and reference was made to a number of documents and the documents were not made available to the accused. After going through the record, the Supreme Court held that the accused understood the questions and no prejudice, therefore, was caused. In paragraph 42 it was held :-
"While we are disposed to agree with the learned counsel that the questions embrace a number of matters and that it would have been better if those matters had been made the subject of separate questions, the answers given by the respondents clearly show that they understood the questions and wherever possible they have given complete answers to those questions. That is to say, they have given their explanation regarding the circumstances appearing in the evidence set out in the questions and wherever that was not feasible they have said that they would do so in their written statements. In fact written statements have been filed by each of them in which every point left over has been fully answered."
13. In this regard the ratio of the decision in the case of [PRECEDENT] also is illuminating. While recording the statement of the accused, the trial Court had read out the statement made by the accused in the committal Court and asked them as to what they had to say about the prosecution evidence. The various circumstances and evidence was not put to the accused in different questions. Once again the Supreme Court noted that it was a curable irregularity and prejudice must be shown to have caused. In paragraph 15 the Court held :-
"In the instant case what the trial Court has done is that after reading out the statements made by the accused in the committal Court, it merely asked them as to what they had to say about the prosecution evidence recorded in their presence. This is a wholly unsatisfactory way of questioning the accused. The trial Court had a duty to put to each of the accused the various circumstances appearing against them and further put the prosecution case generally for the purpose of affording the accused an opportunity to explain the circumstances appearing against them. There is no doubt that the examination of the accused under [SECTION], [ACT] in this case is highly defective. But that does not by itself vitiate the trial. It is for the defence to satisfy the Court that because of the defect in the procedure adopted, accused have been prejudiced."
Reference with advantage may also be made to the subsequent decision of the Supreme Court in the case of [PRECEDENT]. In the cited case the prosecution alleged that the accused had committed a theft of the railway property. The said accused had denied the recovery of the same. It was not put to the accused that the said property was stolen and there was an omission in this regard. Once again the Supreme Court concluded that no prejudice had been caused and held :-
"Unless injustice results from an irregularity in complying with [SECTION], interference on this ground would not be justified. In the present case when the appellant denied the recovery of railway mirror in answer to question No. 1 no prejudice or injustice can be considered to have been caused to him by the Court's failure to refer to the fact of the mirror being stolen."
Same view prevailed with the Supreme Court in the case of [PRECEDENT] where the answer given to the said question was :-
"It is also open to the appellate Court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate Court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would not have been able to furnish any good ground to get out of the circumstances on which the trial Court had relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as regards compliance with [SECTION], [ACT] the omission has not been shown to have caused prejudice to the accused. In the present case, however, the High Court, though not the trial Court has relied upon the presence of blood on the pants of the blood group of the deceased. We have not been shown what explanation the accused could have offered to this chemical finding, particularly when we remember that his answer to the question regarding the human blood on the blade of the knife was 'I do not know'. Counsel for the appellants could not make out any intelligent explanation and the 'blood' testimony takes the crime closer to the accused. However, we are not inclined to rely overmuch on this evidentiary circumstance, although we should emphasise how this inadvertence of the trial Court had led to a relevant fact being argued as unavailable to the prosecution. Great care is expected of Sessions Judges who try grave cases to collect every incriminating circumstance and put it to the accused even though at the end of a long trial the Judge may be a little fagged out."
More close to the facts would be the decision of the Supreme Court in the case of [PRECEDENT]. Herein also the Supreme Court held that the Court has to determine whether the prejudice had been caused to the accused or not. In the cited case after recording the entire evidence, the accused was simply asked as to whether he had heard the evidence and what he has to say in this regard. He filed a reply in the trial Court. The Supreme Court noted that since the accused was fully aware of the nature of the allegations, no prejudice was caused and rejected a similar plea by holding :-
"It is clear to us that the appellant was fully aware of the nature of the allegations made against him. He had not merely given a detailed explanation under [SECTION] of the Act, of the circumstances in which he said he was arrested with the gold bars, but, he had also filed an elaborate written statement. He had indicated that this is the only form in which he would give his explanation. It is true that the general form of questions put does not strictly comply with the provisions of [SECTION], [ACT]. But, we are unable to hold that the appellant suffered any injustice for this reason. Indeed, he had not even raised such a question in the trial Court or before the High Court. If he had done so, the alleged defect could have been easily cured. The objection seems to us to be most technical and flimsy. The defect could not have possibly vitiated the conviction of the appellant.
The Hon'ble Apex court observed as under as regards [SECTION] [ACT] in [PRECEDENT]:
"29. Contextually we cannot bypass the decision of a three-Judge Bench of this Court in [PRECEDENT] as the Bench has widened the sweep of the provision concerning examination of the accused after closing prosecution evidence.
Learned Judges in that case were considering the fallout of omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence. The three-Judge Bench made the following observations therein :
"It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction."
30. The above approach shows that some dilution of the rigour of the provision can be made even in the light of a contention raised by the accused that non- questioning him on a vital circumstance by the trial court has caused prejudice to him. The explanation offered by the counsel of the accused at the appellate stage was held to be a sufficient substitute for the answers given by the accused himself.
31. What is the object of examination of an accused under [SECTION] of the Code ? The section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against helm". In [PRECEDENT] [ENTITY], J. (as he then was) speaking for a three-Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with. He observed thus :
"The ultimate test in determining whether or not the accused has been fairly examined under [SECTION] would be to inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity."
32. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion:
33. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in clause (a) of sub-section (1) in [SECTION] of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him."
Therefore, from the aforesaid discussion it is clear that it is well-settled that the statement under [SECTION], [ACT] must be specific and all the circumstances under which the accused are facing trial should be put so that a definite and clear explanation may come from the mouth of the accused/ appellants. It is also well established that the circumstances in respect of which an accused was not examined under [SECTION] of the [ACT] cannot be used against him. It is equally well settled that even if some question is omitted by the trial court during examination of the accused under [SECTION] [ACT], then unless any prejudice is shown to have been caused to the accused regarding circumstance not put to the accused, such omission would not be fatal to the prosecution case.
In the case at hand, the trial court had put question, viz. Question no. 2, regarding amputation of the leg of the complainant and also regarding disclosure statements of the appellants/accused persons. Although no direct question regarding injuries inflicted by appellants were put to the appellants/accused persons but considering the totality of the circumstances put to the accused under [SECTION] [ACT], facts stated in charges framed against the accused, I feel that the questions put to the accused were sufficient to explain them the case of the prosecution, more so, when the appellants have produced defence evidence also. The plea of alibi taken by the accused [ENTITY] and plea of false implication by accused [ENTITY] due to pending civil and criminal litigations with complainant certainly show that no prejudice is caused to the appellants by omission of such incriminating questions under [SECTION] [ACT]. In any event of the matter, the counsel for the defence did not show any prejudice having been caused to the appellants by not putting a direct question on injuries inflicted by appellants to the complainant and thus, I do not feel that this contention of counsel for the defence has any merits.
Non-recovery of weapon of offence, viz. pharsa/farsa is not fatal to the prosecution case. In this regard, the Hon'ble Apex court observed as under in [PRECEDENT]:
"6. Undoubtedly, the identification of the body, cause of death and recovery of weapon with which injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under [SECTION] [ACT]. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder. It would depend on the facts and circumstances of each case. A charge of murder many stand established against an accused even in absence of identification of body and cause of the death."
Similar view was taken in [PRECEDENT], the relevant para is as under:
"34. We also do not find any force in the submission of the learned counsel that the weapons of offences were not recovered. In any event, non-recovery of incriminating material from the accused cannot be a ground to exonerate them of the charges when the eye-witnesses examined by the prosecution are found to be trustworthy.
35. In [PRECEDENT], this Court held :
"It has been then submitted on behalf of the appellants that nothing incriminating could be recovered from them, which goes to show that they had no complicity with the crime. In my view, recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate them from the charges, more so when their participation in the crime is unfolded in ocular account of the occurrence given by the witnesses, whose evidence has been found by me to be unimpeachable."
Thus from the foregoing discussion and considering the facts of the present case, I do not find that mere non-recovery of pharsa/farsa with which the left leg of the complainant was amputated would not throw the case of the prosecution to the winds.
As regards the statement of the complainant in his examination-in-chief that the [ENTITY]'s shown to him, which were kept in duly sealed pulanda were not the one's with which he was assaulted, I feel that the same cannot lead to discrediting the testimony of the said witness/complainant. In the instant case, the incident took place on 5/1/1997 and the said complainant deposed as PW2 on 23/9/1998. Due to such a long gap of time, it is obvious that the complainant would not have remembered the exactness of the weapon of offence. But at the same time the I.O. of the case, PW 4 and PW 2 [ENTITY] [ENTITY] PW2 have proved that the said broken [ENTITY]'s/cricket wickets were found from the spot of the incident/offence and they duly proved it. Be that as it may, it is well settled that if the testimonies of the witnesses on the whole inspire confidence then the minor descrepancies do not affect the prosecution case. In [PRECEDENT], it was held that minor variations may be there but if on a perusal of the evidence in its entirety, it appears to be otherwise trustworthy, question of the evidence being non-trustworthy would not arise.
It was further observed as follows:
"It is now well settled that the Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence. This Court in [ENTITY] (dead) through Duli Chand v. State of Haryana (1999) 9 SCC 525 :
1999 AIR SCW 3756 : AIR 1999 SC 3717, relying upon an earlier decision of this Court in [PRECEDENT] observed : " There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reasons therefor should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence."
It was further observed:
"In [PRECEDENT], this Court further observed : [PRECEDENT] "24. When an eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non- discrepant. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."
This Court went on to state (SCC pp. 656-57, paras 25-27):
"25. It is a common practice in trial Courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt [SECTION] of the [ACT] provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below :
'155, Impeaching credit of witness.-The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him- (1) and (2) (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted:'
26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be 'contradicted' would affect the credit of the witness. [SECTION] of the [ACT] also enables the cross examiner to use any former statement of the witness, but it cautions that if it is intended to 'contradict' the witness the cross-examiner is enjoined to comply with the formality prescribed therein. [SECTION] of Code also permits the cross-examiner to use the previous statement of the witness (recorded under [SECTION] of the Code) for the only limited purpose i.e. to 'contradict' the witness.
To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide [PRECEDENT].
The Court held as follows:
"15. True, as noticed above there are lapses, but the question that arises for consideration is whether any prejudice has been caused by reason of such a lapse, if the answer thereto is in the affirmative obviously it will have a serious impact on to the trial but if in the event however, it is on the negative, no prejudice can be said to have been caused and correspondingly question of the trial being vitiated would not arise. The eye- witnesses account as available on record cannot but be termed to be trustworthy and by reason therefor, the lapses stand over-shadowed by the testimony of the eye-witnesses. The observations above obtain support from the decision of this Court in [PRECEDENT]."
As regards recovery of amputated leg of the complainant, although the doctor who prepared the MLC, wherein fact of amputation of left leg of the complainant was mentioned, expired during trial of this case, but from the rukka and statements of PW2 [ENTITY] [ENTITY] and PW 4, [ENTITY], I.O., it is manifest that the I.O. had seen the amputated leg of the complainant lying at the scene of offence. Furthermore, SI PW5 [ENTITY] deposed that even he saw the amputated leg of the complainant when he went in the jungle at the scene of offence, but he did not take the amputated leg of the complainant along with him and took the complainant to the hospital for treatment. Thus, from the aforesaid circumstances, it is manifest that the leg of the complainant was amputated and thus, the contention of the counsel for the defence in this regard is devoid of any merit. The decisions in [ENTITY] (supra); [ENTITY] (Supra) & [ENTITY] (supra), relied upon by the counsel for the appellants are of no assistance to the defence as the facts and circumstances therein were different from the present case. In [ENTITY]'s case (supra), the doctor who prepared the MLC was examined but his testimony was not found reliable; in [ENTITY]'s case (supra), the doctor who attended the injured was not called to give the evidence; in [ENTITY]'s case (Supra), the doctor who prepared the MLC was examined but the doctor who gave the x-ray report could not be examined but in the present case, the doctor who prepared the MLC has expired. This is a different situation and thus, the judgments relied upon by the counsel for the appellants do not benefit them as it is well settled that the decisions of the higher courts cannot be applied like [ENTITY]'s theorem and same should be applied having regard to the facts and circumstances of the case.
As regards the issue that the trial court based its judgment on the sole/solitary testimony of the complainant, the law as regards sole witness is explained by the Apex court as under in [PRECEDENT]:
"4. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinizing the evidence of the interested sole witness. The prosecution's non- production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."
Therefore, if the evidence of the solitary witness inspires confidence and has been duly corroborated by the testimony of other prosecution witnesses, then the same can be basis for the conviction of the accused persons. Injured in the incident is always an important witness in the criminal case. Be that as it may, it is well settled that it is not the quantity/count of the evidence but the quality/weight of the evidence, which is to be seen by the courts while appreciating evidence, in this regard, in [PRECEDENT], the Hon'ble Apex Court observed as under:
"9. [ENTITY]'s case (supra) was referred to with approval in the case of [PRECEDENT]. This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of [SECTION] of the [ACT] (in short the `[ACT]'). But, if there are doubts about the testimony the courts will insist for corroboration. It is for the Court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principles stands the edifice of [SECTION] of the [ACT]. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
Now what remains to be seen is what charges are proved against the accused persons. The accused [ENTITY] had hit the complainant with the [ENTITY]/cricket wicket and accused [ENTITY] had hit the complainant with pharsa/farsa and amputated the left leg of the complainant. In the MLC apart from amputation various other injuries and fractures on the body of the complainant have been mentioned. On use of farsa/pharsa, which is a sharp weapon of offence, the left leg of the complainant was amputated. But same injury cannot be caused with a [ENTITY]/cricket wicket. With the [ENTITY]/cricket wicket other injuries mentioned in the MLC like fracture of fingers etc. may be caused. Clearly, both the accused persons shared common intention although one has used sharp edged weapon and the other a blunt object to inflict injuries on the person of the complainant/victim.
[SECTION] [ACT] refers to common intention, in [PRECEDENT] the law as regards [SECTION] was explained as under:
The nature of participation under [SECTION] [ACT] has been considered in the case of [PRECEDENT] at p. 783 :
"[SECTION] is to be read along with the preceding [SECTION] which makes it clear that the "act"
spoken of in [SECTION] includes a series of acts as a single act. It follows that the words "when a criminal act is done by several persons" in [SECTION], may be construed to mean "when criminal acts are done by several persons". The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim, or may otherwise facilitate the execution of the common design. Such a person also commits an "act" as much as his co-participants actually committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application of [SECTION] that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation in the `criminal act'. The essence of [SECTION] is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result."
24. The emphasis is on physical presence, and promotion or facilitation of the crime."
Furthermore, in [PRECEDENT] the Apex Court held as under:
"10. [SECTION] has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under [SECTION] if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of [SECTION] , be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in [ENTITY] v. State of Punjab (1977 (1) SCC 746) the existence of a common intention amongst the participants in a crime is the essential element for application of this section . It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
11. The section does not say "the common intentions of all", nor does it say "an intention common to all". Under the provisions of [SECTION] the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in [SECTION] , when an accused is convicted under [SECTION] read with [SECTION] , in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy v. State of A.P. 1598 1993 Supp (3) 134) [SECTION] is applicable even if no injury has been caused by the particular accused himself. For applying [SECTION] it is not necessary to show some overt act on the part of the accused. [PRECEDENT] 12 . The above position was highlighted in [PRECEDENT]"
In [PRECEDENT], relied upon by the counsel for the defence, Supreme Court observed as under:
"18. [SECTION] has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under [SECTION] if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of [SECTION], be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in [ENTITY] v. State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
19. As it originally stood the [SECTION] was in the following terms :
"When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone."
20. In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of [SECTION] clear. This position was noted in [PRECEDENT].
21. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of [SECTION] the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in [SECTION], when an accused is convicted under [SECTION] read with [SECTION], in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in [PRECEDENT] [SECTION] is applicable even if no injury has been caused by the particular accused himself. For applying [SECTION] it is not necessary to show some overt act on the part of the accused."
In the facts and circumstances of the present case and considering the aforesaid decision, viz. [SECTION] [ACT], I am of the view that the Ld. ACMM committed no error in convicting the accused under [SECTION] [ACT].
As regards the plea of alibi of the appellant/accused [ENTITY], the said appellant examined DW2, [ENTITY]. In this regard, the concept of alibi has been explained by the Hon'ble Apex Court in [PRECEDENT], in following terms:
"22. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counterevidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide [PRECEDENT]; [PRECEDENT])."
Keeping in view, the aforesaid legal position, let us consider the statement of DW2. The said witness, DW2, deposed that the accused was in his village Kondu on the date of the incident and only when the mother of [ENTITY], who is mother-in-law of the sister of accused [ENTITY], came to the village and told that [ENTITY] has been falsely implicated in some case, then upon decision of Panchayat, the said witness along with one [ENTITY]. Brought accused to Delhi at his sister's residence from where he surrendered along with accused [ENTITY] before the Police. The said story of DW2 does not inspire any confidence for two reasons. Firstly, he did not bring on record any document/tickets to show that accused [ENTITY], [ENTITY]. and DW2 [ENTITY] travelled from village Kondu to Delhi and also the said other person, [ENTITY]. was not examined in this regard. Secondly, why did he take him to the residence of his sister instead of taking him straight away to the Police Station. Thus, the plea of alibi of appellant/accused [ENTITY] is not sustainable.
Result of the case:
In view of the above discussion, the impugned Judgment dated 6/5/2008 and the order on sentence dated 17/5/2008 of learned trial court are confirmed. Consequently, both the appeals are dismissed. A copy of this common judgment be placed in CA No. [SECTION]. The common judgment be sent to the server (www delhidistrictcourts.nic.in). The trial court record be returned along with the copy of this order. The file of the appeal be consigned to the record room.
Announced in the open court on this 7th day of October, 2009 ([ENTITY]) Addl Sessions Judge-01/South Patiala House Court