Minor discrepancies in witness’s statement will not make it entirely inadmissible: High Court of Orissa

 State of Orissa … Respondent HIGH COURT OF ORISSA CUTTACK CRLA NO.49 0F 2002 From the judgment and order of conviction dated 15.7.2002 passed by the learned Additional District and Sessions Judge Nuapada in S.C. Case No.41 101. Mohan Sabar & others … Appellants Versus For Appellant : Mr. Trilochan Nanda For Respondent : Mrs. Saswata Pattnaik Addl. Government Advocate P R E S E N T : MR. JUSTICE S.K.MISHRA AND MISS JUSTICE SAVITRI RATHO Date of Hearing:24.2.2021& 11.6.2021 and Date of Judgment: 11.6.2021 S.K.Mishra J. The appellants have assailed their conviction and order of sentence for the offence under Section 302 34 of the Indian Penal Codeby the learned Addl. Sessions Judge Bhanjanagar in S.C. Case No.41 14 of 2001. The learned Addl. Sessions Judge has convicted them on 15.7.2002 and sentenced them to undergo imprisonment for life. 2. The gravamen of the charges against the appellants is that on 3 4.10.2000 in the night the deceased Brajasundar Sabar after taking his dinner went to sleep on a cot in front of his house on the Varandah. He had no foreboding that it was his last night. His wife and children were sleeping inside the room by keeping the doors open. At the dead of the night his wife heard an unusual sound and noticed that the appellants were assaulting her husband by means of an axe which each of them were holding by their own hands. Accused Durje assaulted her husband on his neck by his axe and her husband fell down. P.W.14 the Investigating Officer has stated in his deposition that P.W.1 did not state in her statement that each of accused persons were armed and accused Durje cut the throat of her husband and other accused persons assaulted by their axe and her husband and fell down on the ground and accused Durje cut the throat. P.W. 2 has also not stated before the I.O. that her father was assaulted and the accused persons ran away from the spot. Learned Amicus has stated that the I.O. said in his deposition that at the time of inquest no witnesses stated the name of the accused persons to be involved in the crime. Learned Amicus further mentioned that in the recitals of the FIR the weapon of offence has been described as “Tabil” but in the evidence the weapon of offence has been stated by P.W.1 as Tangi18 OCR (SC)34 the Hon’ble Supreme Court held that it is indeed necessary to note that hardly one comes across a witness whose evidence does not contain some exaggeration or embellishment and sometimes in the over anxiety they may give slightly exaggerated account. The Court can shift the chaff from the corn and find out the truth from the testimony of witnesses. Total repulsion of evidence is unnecessary. The evidence is to be considered from the point view of trustworthiness. If this element is satisfied they ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same. 16. In the case of Appabhai and another v. State of Gujurat reported in AIR 19988 SC 696 the Hon’ble Supreme Court held that the Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may not be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witnesses. When a doubt arises in respect of certain facts alleged by such witnesses the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire story. The witnesses go on embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts however should not disbelieve the evidence of such witnesses if they are otherwise trustworthy. 17. In the case of State of U.P. v. Ballabh Das reported in AIR 1985 SC 1384 the Hon’ble Supreme Court has examined the law relating to appreciation of evidence of a related witness or interested witness it has observed that there is no law which says that in the absence of any independent witness the evidence of interested witnesses should be thrown out at the behest of or should not be relied upon for convicting an accused. What the law requires is that where the witnesses are interested the Court should approach their evidence with care and caution in order to exclude the possibility of false implication. The evidence of interested witness is not like that of an approver which is presumed to be tainted and requires corroboration but the said evidence is as good as any other 19. 20 18. In the case of State of Rajasthan v. Teja Ram and other reported in AIR 1999 SC 1776 the Hon’ble Supreme Court has held that over insistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happens in a dwelling house the most natural witnesses would be inmates of the house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have seen the occurrence. In applying the aforesaid principles of law in appreciation of evidence this Court keeps in mind that criminal trial cannot be equated to a mock scene of a stunt film. It is about the real people witnessing the gruesome being committed offences in their presence. Learned Amicus in this case has emphasized upon the so called discrepancy between the evidence of P.W.1 P.W.9 and P.W.14 the Investigating Officer regarding the place where the F.I.R. which was prepared and affixed with L.T.I. So there appears to be some confusion regarding this aspect. But from the recorded materials available on record that is the F.I.R. itself and the case diary which was referred by the I.O. at the time of his deposition in the Court nothing substantially could be brought out to show that actually the F.I.R. was written in the Police Station at first was not registered and suppressed and a second F.I.R. was prepared in village Bijayapur. So only on the basis of some statements during the course of cross examination of P.W.9 that the F.I.R. was not read over to P.W.1 and in P.W.1’s statement that she put her L.T.I. in village Bijayapur the evidence regarding lodging of the F.I.R. cannot be doubted and cannot be held that the original F.I.R. has been suppressed in this case. 21. The second issue is relating to the spot. The Investigating Officer P.W.9 in cross examination at paragraph 10 stated that the deceased was sleeping on the open verandah of the case house and the informant was sleeping in ‘the parchi’ which is adjacent to the verandah and covered up by a roof and the dead body of the deceased was found in the open verandah of a house and there appears to be no discrepancy regarding the same. Moreover the I.O. has collected the blood stained earth sample earth blood stained bed sheet and napkin as per the seizure list Ext.10. It was sent for post mortem examination and it was found that the sample blood stained earth collected from the spot was stained with human blood of Group ‘A’. Similarly the bed sheet and napkin seized from the spot were moderately stained with human blood of Group ‘A” origin. The said blood group i.e. found on the lungi of the deceased as in the Axes i.e produced in this case on being seized by the I.O. as well as Dhoti and Napkin of two accused persons which have been seized in this case. So there appears to be no plausible reason to come to a conclusion that there is a discrepancy regarding the spot as put forth by the prosecution in this case. 22. The learned Amicus would further argue that though the prosecution alleges that the appellants gave blows by means of Tabli or Tabal the prosecution produced two Axes. He argued that Axe and Tabli are two different kind of weapons. We are unable to agree with the same because ‘Tabil’ is a variety of Axe and the distinction between the two is very minor. Both Tabli and axe have an iron portion with a sharp cutting edge and on the back of it a handle is appended. The only difference between Tabli and Axe which is known as ‘Tangia’ in western parts of Odisha is the length of the cutting edge. ‘Tabli’ generally has wider cutting edge and axe has a smaller cutting edge. But this aspect can be reconciled by the fact that the accused Mohan gave a discovery statement that lead to the discovery and seizure of one of the Axes. The other Axe was seized on production by the accused. Both the axes were found to be stained with deep spurs of human blood of group ‘A’ human blood was found on the wearing apparels of the deceased. Thus we are of the opinion that the learned Amicus though advanced his argument in a very attractive manner there is hardly any reason to accept the same. 23. On the final analysis we find the evidence of P.W.1 is quite trustworthy having ring of truth. Her is duly corroborated by the objective determination of the spot which is verandah of their house where from the I.O. seized blood stained earth etc. Her evidence also gets corroboration from the evidence of P.W.6 the Doctor. The Doctor found incised injury on the dead body of the deceased in course of post mortem examination which could have been caused by the axes seized in this case. The recovery of one of the weapon of offence at the instance of the appellant Mohan Sabar admissible under Section 27 of the Indian Evidence Act lends further corroboration by principle of confirmation that the appellants did the deceased to death. The final stand in the case of the prosecution is the result of the chemical examination which supports the case of the prosecution. 24. Thus in the ultimate analysis we find that the learned Addl. District and Sessions Judge Nuapada had a clear and perspicacious view of the evidences available on record he noticing the demeanor of the witnesses while recording their evidence held that the prosecution has proved its case beyond reasonable doubt. There is no plausible or reasonable basis for disturbing such finding of fact which in our opinion are in the line of the various pronouncements of the Hon’ble Supreme Court on this aspect of appreciation of evidence of witnesses in a criminal trial. 25. In the result the appeal is dismissed. The judgment of conviction and order of sentence passed by the learned Addl. District and Sessions Judge Nuapada in S.C. No.41 101 are hereby confirmed. .…. …..….. Savitri Ratho J. S.K.Mishra J I agree. Savitri Ratho J …. Orissa High Court Cuttack Dated 11th June 2021 A.K.Behera. .…. …..….. Savitri Ratho J. S.K.Mishra J I agree. Savitri Ratho J …. Orissa High Court Cuttack Dated 11th June 2021 A.K.Behera. 

Summary: Statements of witnesses are used to connect different aspect of a case together and to establish the truth in a trial. Minor discrepancies in matters not central to the crime need not be given too much importance because witnesses cannot be expected to have a perfect memory of the incident. This was held in the judgement passed by a bench consisting of Justice S.K Mishra and Justice Savitri Ratho of the High Court of Orissa in the case of Mohan Sabar and others v State of Orissa [CLRA No.49 of 2002] on 11th June 2021. On 4th October 2000, Brajsundar Sabar was lying on a cot in his house while his wife and children were sleeping in the next bedroom. In the middle of the night, the appellant, Mohan Sabar and his accomplices, Prahlad and Durja were seen assaulting Brajsundar using an axe but the victim’s wife was not able to leave her room out of fear. After the victim’s death, the appellants fled the scene. The deceased’s wife filed a first information report for the offence of murder under Section 302/34 of the Indian Penal Code. A total of 14 witnesses were questioned in the criminal trial including the family of the deceased who identified the faces of the appellants, doctors who conducted the autopsy and also other people from the village who had seen the appellant with a similar axe earlier that day. Considering all the evidence against them which built a strong case, the appellants were convicted by an Additional Sessions Judge in S.C. Case No, 41/14 of 2001 on 15th July 2002 for murder under Section 302/34 of the Indian Penal Code and sentenced to life imprisonment. The appellants assailed their conviction and stated that the statement made by the deceased’s wife should not be considered as it was contradictory. The appellants contended that the deceased’s wife stated that it was a very dark night yet she was able to identify the faces of her husband’s murders which should make her statement invalid before the court. The court cited the case of Bharwada Bhoginibhai Hirjibhai v State of Gujarat [AIR 1983 SC 753] where the Supreme Court of India held that “Too much importance cannot be attached to minor discrepancies and a witness cannot be expected to possess a photographic memory to recall the details of an incident”.