Testimony of key Witnesses cannot be discredited when consistent, trustworthy, and natural, irrespective of omissions: Supreme Court

Crl.A.No.2115 etc All these criminal appeals are filed against the common Crl.A.No.2115 etc such they are heard together and disposed of by this common Criminal Appeal No.290 of 2018 is filed by accused no.1 Vajashibhai Ramshibhai Kachhot Criminal Appeal arising out of S.L.P.(Crl.)No.3227 of 2015 is filed by accused no.2 Mulubhai by accused no.3 Kalabhai Hamirbhai Kachhot. For the sake of The aforesaid appellants were the accused in FIR no.I­ 215 2006 dated 11.11.2006 on the file of Keshod Police Station for the aforesaid offences in Sessions Case No.14 of 2007. All the Crl.A.No.2115 etc Vajashibhai Ramshibhai Kachhot was found guilty for offence undergo life imprisonment and to pay fine of Rs.10 000 ­ and in default to undergo further S.I. for 12 months. He was also found guilty for offence punishable under Section 324 IPC and was S.I. for six months. He was also found guilty for the offence and in default to undergo further S.I. for ten days. Accused no.2 Mulubhai Markhibhai Nandaniya was found guilty for offence further undergo S.I. for 12 months. He was also found guilty for offence punishable under Section 135(1) of Bombay Police Act and was sentenced to undergo S.I. for four months and to pay fine of no.3 Kalabhai Hamirbhai Kachhot was found guilty for offence further undergo S.I. for 12 months. He was also found guilty for Crl.A.No.2115 etc offence punishable under Section 135(1) of Bombay Police Act and was sentenced to undergo S.I. for four months and to pay fine of Rs.100 ­ and in default to further undergo S.I. for 10 days. The 3 of the charges under Sections 326 and 324 read with 34 IPC The High Court by the impugned common judgment while that all the sentences imposed against the accused shall run On 10.11.2006 one Rajshibhai Maldebhai Karangiya resident of Bamnasa Ghed Taluka Keshod gave complaint before the Crl.A.No.2115 etc Karangiya Mitesh Hardasbhai and Gokalbhai Karsanbhai went to Keshod for some work on Gokalbhai’s Hero Honda motorcycle Gokalbhai was riding the motorcycle. While returning when they were waiting with axe and knives. In order to stop Rajshibhai Maldebhai Karangiya Mulubhai gave axe blow which hit on Gokalbhai’s head due to which Rajshibhai Maldebhai Karangiya Thereafter the three accused have attacked the deceased Gokalbhai The three accused then ran away towards Akha on Kalabhai’s motorcycle. Thereafter relatives of the deceased and injured were was declared dead and Rajshibhai Maldebhai and Miteshbhai were quarrel between Vajshibhai and Mulubhai with Gokalbhai. He has Crl.A.No.2115 etc after necessary investigation chargesheet was filed before the Addl Sessions Judge Junagadh. Learned Sessions Judge framed charges against the accused. When the accused pleaded not guilty to the charges and claimed trial they were tried for the offences alleged has examined in all 32 witnesses and marked 61 documents and at Section 313 Cr.PC and after hearing the arguments of prosecution and defence learned Additional Sessions Judge held appellant­ accused were guilty for the offences and awarded sentence as imposed on the appellant­accused the accused nos.1 and 3 have The High Court while confirming the conviction has extended the benefit of Section 428 Cr.PC and allowed the appeals partly by Crl.A.No.2115 etc We have heard Sri Harin P. Raval learned senior counsel appearing for the appellant in Criminal Appeal No.216 of 2015 Sri D.N. Ray learned counsel appearing for the appellant in Criminal Appeal No.290 of 2018 and Sri Nachiketa Joshi learned counsel appearing for the appellant in Criminal Appeal arising out of S.L.P the conviction of the appellant­accused is mainly based on the major contradictions. It is submitted that they are the chance of the appellant­accused. Further it is submitted that there is no motorcycle used in the crime was not recovered. It is further a head injury caused by the accused on the deceased there is no corresponding medical injury in the postmortem Report of the deceased. It is submitted that the medical records including Crl.A.No.2115 etc extend the benefit of doubt to the accused and set aside their conviction. In support of his arguments learned counsel has relied Chougule etc. v. Sidarai Laxman Chougala & Ors.1 Akula Veera Criminal Appeal No.290 of 2018 has contended that though a fatal injury was attributed on the deceased caused by one of the appellants there were no blood marks on PWs­18 and 19 who are stated to be injured witnesses and were travelling on the same suffered by them are superficial. It is further submitted that the alleged incident happened at about 07:30 p.m. in the month of November as such there was no possibility of identifying the accused 18 SCC 50 215 SCC 246 312 SCC 311 Crl.A.No.2115 etc payable to the deceased was no basis to record the guilt of the Shri Nachiketa Joshi learned counsel appearing for the record the appellant was convicted for the offences alleged. He has submitted that if overall evidence is taken into consideration the by the appellant­accused in proper perspective and dismissed the Per contra Ms. Vishakha learned counsel appearing for the Crl.A.No.2115 etc the offences alleged and there are no grounds to interfere with the hitting on his head with axe when all three were travelling on motorcycle. It is submitted that murder of the deceased was such they were rightly found guilty by the Sessions Court. Further person first to reach the place of occurrence i.e. the brother of the on the lower back side of the head. Further submitting that the contended that discrepancies if any in the depositions are minor and 47 SCC 606 54 SCC 324 Crl.A.No.2115 etc In reply Sri Harin Raval learned senior counsel and Sri D.N Ray learned counsel appearing for the appellant­accused have on 10.11.2006 and even according to evidence PWs­18 and 19 unusual. It is submitted that in a situation like this PWs­18 and 19 who suffered injuries should have made an attempt to shift the deceased to the nearest hospital immediately. Referring to the deposition of PWs­18 and 19 in cross­examination it is submitted are major hence benefit of doubt has to go to the appellants and Having heard the learned counsel on both sides we have perused the judgment of the trial court as well as that of the High Upon close scrutiny of the evidence on record and the findings recorded by the trial court as confirmed by the High Court Crl.A.No.2115 etc To prove the charges framed against the appellants the exhibits during the trial. Among the other witnesses examined on behalf of the prosecution Rajshibhai Maldebhai Karangiya who was in the evening on Bamnasa­Akha road on 10.11.2006. On that day he along with Miteshbhai and Gokalbhaiwent to Keshod on Hero Honda motorcycle at about 05:00 O’clock in the evening near the farm of Kalabhai a policeman Vajshibhai Ramshibhai Hamirbhai armed with knife were standing across the road to stop When Gokalbhai slowed down the vehicle Mulubhai Markhibhai gave axe blow on the head of Gokalbhai and therefore Crl.A.No.2115 etc incident with vehicle. Therefore after sometime Rajubapu Bavaji Rajubapu. Even as per the say of this witness the reason for the occurrence of which complaint was lodged in Junagadh Police Station. Other person who was with the deceased on the day of were with the deceased on the day of occurrence and who were was not possible to identify the assailants in the darkness at the Crl.A.No.2115 etc as the identification of the accused is concerned the same is well in Civil Hospital Junagadh on 10.11.2006. On that day at about his nephew Hitesh Hardas for treatment with the complaint and stated that Vajshi Ramshi attacked him and gave knife blow. The witness doctor has issued injury certificate which is exhibited as “i) There was one cut incised wound which was ii) There was cut incised wound over left chest left 6th inter­coastal space starting from mid clavicular line wound track is tapering and infiltrated with blood Crl.A.No.2115 etc over the neck posteriorly measuring 3 inch long extending transversely to the right. The wound is ½ inch wide cuts through skin muscles and grazes the vii) There was incised wound over right scapula region skin and muscle next to vertebral margin transverse viii) There was incised wound over right scapula region ix) There was incised wound over right chest just below right scapula vertically and at border of scapular parallel to above wound 2” distant from it and Crl.A.No.2115 etc xi) There was incised wound and lateral and parallel to above 2” distant from it measuring 1 ½ “x 1”x 1 2” xii) There was incised wound over right back 10th xiii) There was incised wound over left scapula at the base vertical wound measuring 2” x 1” x ½” deep xiv) Incised wound at level of T12 transverse wound measuring 3 ½ “x 1” and cutting through skin xv) Incised wound at level of L2 transverse wound xvi) Incised wound at level of L5­S1 transverse wound xvii) Incised wound over sacral region vertical midline xviii) Incised wound over sacral region vertical midline measuring 1”x ½” x ½” 2” below above wound xix) Incised incised wound about 1” below injury no 16 In his deposition with reference to abovesaid injuries he has also Crl.A.No.2115 etc the panchmana of the dead body was examined as PW­5. Sri Hardasbhai Bhikhabhai Bhetariya was examined as PW­6 who was panch witness to the scene of offence. The prosecution has also examined Masharibhai Govindbhai Karangiya as PW­20. In his the evening stating the incident and assault on them and he was contacted Rajubapu on phone and requested him to come with his also stated that there was a lamp in the field of Kalabhai light of which was falling on the road. The brother of the deceased was examined as PW­21. In his deposition he has also stated that as required by him to go out of station on the motorcycle he made a Crl.A.No.2115 etc unloaded the soil in the field of Vajashibhai Ramshi through his tractor and the amount of Rs.15000 ­ towards rent thereof was regard the incident has occurred which resulted in the murder of Gokalbhai. Sri Rajeshbhai Jethabhai Parmar who has investigated The submission of the learned counsels that there was no 19 is to be discarded cannot be accepted for the reason that the report. At this stage it is to be noted that the attack was made on Crl.A.No.2115 etc were ante mortem. If the entire evidence of all the witnesses is as well as the deposition of investigation officer. Though the key witness were cross­examined at length nothing adverse was elicited If the testimony of PW­20 i.e. Masharibhai is examined same is fully supported by the evidence of PW­18 19 and 21. It is clear from the evidence on record that their testimony is natural and trustworthy 19 are not self­inflicted as per the opinion of the medical expert Further it is also clear from the opinion of the doctor who was examined that all the injuries were possible with muddammal knife the accused nos.1 and 2 is the same. Even with regard to the Crl.A.No.2115 etc We also do not find any substance in the argument of the of PWs­18 and 19. The contradictions which are sought to be projected are minor contradictions which cannot be the basis to discard their evidence. The judgment of this Court in the case of Mohar4 relied on by the learned counsel for the respondent­State “11. The testimony of an injured witness has its own place of occurrence and has seen the occurrence by himself. Convincing evidence would be required to discredit an injured witness. Similarly every discrepancy discrepancy which does not affect the prosecution case and the cross­examination of PW 1 has been amply brother Ram Awadh had three sons:Jagdish PW 4 Suresh. This witness however stated that Jagarjit had only one name. PW 2 Vibhuti however stated that at the time of occurrence the son of Ram Crl.A.No.2115 etc Learned counsel for the respondent­State has also relied on the cannot be brushed aside without assigning cogent reasons Paragraphs 27 and 30 of the judgment which are relevant read as weightage being a stamped witness thus his presence place of occurrence and this lends support to his testimony that he was present during the occurrence to let his actual assailant go unpunished merely to discrepancies therein. 9 SCC 719 : 1 SCC 3 SCC 211] and Abdul Sayeed v. State of Crl.A.No.2115 etc to occur in the depositions of witnesses due to normal errors of observation namely errors of memory due to such evidence cannot be safe to rely upon. However minor contradictions inconsistencies embellishments or Singh 9 SCC 186 p. 192 para 9 material particulars i.e. go to the root of the case render the testimony of the witness liable to be AIR 2009 SC 152] Arumugam v. State15 SCC 590 : 3 SCC 1130 : AIR 2009 SC 331] Mahendra Pratap Cri) 1352] and Sunil Kumar Sambhudayal Gupta Dr.) v. State of Maharashtra13 SCC 657 : JT 4 SCC 580 Crl.A.No.2115 etc Further in the case of Narayan Chetanram Chaudhary & Anr. v State of Maharashtra6 this Court has considered the effect of the minor contradictions in the depositions of witnesses while it is held that only contradictions in material particulars and not witnesses. Relevant portion of Para 42 of the judgment reads as in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the the prosecution becomes doubtful and not otherwise Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes to be of trivial details as in the present case the same there is contradiction of statement of a witness on any By applying the aforesaid ratio as laid down by this Court 68 SCC 457 Crl.A.No.2115 etc beyond reasonable doubt. The omissions like not seizing the itself is no ground to discredit the testimony of key witnesses who were examined on behalf of the prosecution whose say is consistent appellants as confirmed by the High Court. Therefore no the motive for the crime. As such the prosecution has established beyond reasonable doubt that all the accused have committed the any error in law or on facts as such the same are required to be upheld by this Court. As far as the judgments relied on by the Crl.A.No.2115 etc

Summary: While hearing appeals against the conviction order of the High court, the Supreme court held that one cannot discredit or disregard the statements of injured witnesses or because there minor contradictions. This judgment was passed in the case of Kalabhai Hamirbhai Kachot vs. State of Gujarat [Crl.A.No.216/2015] by a Double Bench consisting of Hon’ble Justice Ashok Bhushan and Hon’ble Justice R. Subhash Reddy.  The present appeals were preferred against the common judgment of the High Court of Gujarat. The appellants were accused of offenses under the section 326, 324 and 34 of IPC and section 135 of Bombay Police Act. The offenses were tired in the Additional Sessions Judge and were convicted for the offenses under section 320 r/w 34 IPC and section 135(1) of the Bombay Police Act. The informant file a complaint stating that his family is engaged in agricultural work three other persons while returning on an evening were hit by the accused with an axe and knives. One person died and others injured. As per the investigation, the incident took place due to rivalry. The learned sessions judge acquitted the accused no.2 and no.3 of the charges under sections 326 and 324 r/w section 34 of IPC. The High Court while hearing the appeal held that all the sentences imposed against the accused would run concurrently and by extending the benefit of section 428 CrPC, ordered the period of detention of the accused as under trial prisoners be set off against the sentence. The supreme court after hearing the parties observed that there was no ground for the court to interfere with the decision of the High Court. it was observed that as part of proving the charges framed against the appellants, the prosecution examined 32 witnesses and marked 61 documents as exhibits during trial. The doctor who performed the post mortem held that all injuries were ante-mortem. The Court held that an attempt was able to assault the deceased with an axe and therefore the submission that there was no head injury would be discarded. The supreme court held that contradictions that are sought as minor contradictions cannot be the basis to discard the evidence. The court also held that the evidence of injured witnesses cannot be brushed aside without assigning cogent reasons. Furthermore, only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the witness. The Supreme Court held that the prosecution proved the case against all the appellant-accused beyond a reasonable doubt. When the key witnesses’ testimony is trustworthy, consistent, and natural, based on certain omissions one cannot discredit them.