Prithu @ Priti Chand
& ANR. Vs. State of H.P.  INSC 362 (18 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 330 OF 2009
(Arising out of SLP (Crl.) No. 7557 of 2008) Prithu @ Prithi Chand and Anr.
..Appellants Versus State of H.P. ..
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Himachal Pradesh
High Court setting aside the acquittal recorded by learned Additional Sessions
Judge, Kangra, Dharamshala. Three accused persons, Bhola, Pruthu and Dharmu faced
trial for alleged commission of offence punishable under Sections 302 read with
34 of the Indian Penal Code, 1860 (in short the `IPC'). The High Court by the
impugned judgment set aside the order of acquittal and directed each of the
accused persons guilty of offence punishable under Section 304 Part I, IPC read
with Section 34 IPC and sentenced each to undergo rigorous imprisonment for
seven years and to pay a fine of Rs.5,000/-.
facts in a nutshell are as follows:
(hereinafter referred to as the `deceased') owed certain amount to Prehlad
Chand (PW-10), merchant of village Boh on account of purchases made on credit.
Appellant is son of PW-10. On 14.2.1992 at 8.00 a.m. the accused appellant
visited house of Fandi Ram and demanded payment due to his father. Fandi Ram
told Bhola that he had to take loan from the society and would make payment.
Bhola who was carrying a bottle of liquor asked Fandi Ram to go to society shop
after visiting the house of accused Prithu. Both of them went to the house of
Prithu located in the village of Fandi Ram. All the three sat in the house and
started consuming liquor in which his brother Dharmu also joined. At about 2
p.m. Singhu (PW-4) son of deceased was sent by his widow Kailasho Devi (PW-3)
to see if Fandi Ram had gone to society shop. Singho reminded his father, but
all the three accused told that they would accompany him to society shop.
Singho then came and
left for village Kathla and Sardair Lal (PW-5) another son of deceased went to
water mill (Gharat). At about 3.30 p.m Kailasho and her son Jagdish from their
house noticed all the three accused giving fist blows to Fandi Ram near the
school, located in front of their house, separated by a drain from the school.
Kailasho shouted why
her husband was being beaten and she accompanied by Jagdish rushed to the place
of occurrence where her husband was being given a beating. Bhola accused in her
presence gave a stone blow on the head of Fandi Ram and ran away. Remaining
accused also hit him with the stone on the head. Jagdish (PW-2) intervened but
the accused Dharamu and Prithu also gave beatings to him. The sleeve of the
shirt of Jagdish got torn and one sleeve was left on the spot. Jagdish tied a
cloth around the head of his father, which was bleeding due to injuries. They
took Fandi Ram to the shop of Prehlad Chand (PW-10). On the way Sardari Lal
(PW-5) who was coming from water mill met them. He inquired about the cause of
injuries from his father. Fandi Ram told him of the accused beating him with
stones with all the other accused due to the enmity of Panchayat elections.
Then on the way to the shop of Prehlad Chand, Janam Singh, Nambardar (PW-6) met
them who was also told by the deceased that he was beaten by the accused with
stones due to Panchayat elections. Prehlad Chand was also told by the deceased
that he was beaten by the accused, who then tried to get the matter compounded
and settled for Rs.600/-. But accused did not agree to make payment. Thereafter
in the shop of Prehlad Chand, Fandi Ram fell unconscious. On way a Compounder
Desh Raj (PW -12) provided him first aid.
Fandi Ram at about
11.00 p.m. succumbed to the injuries. Further case revealed is that during
night due to distance, injured could not be taken to hospital at Shahpur
located at a distance of 25 Kilometers, nor police could be informed. In the
morning of 15th February, 1992, Sardari Lal came to Shahpur to lodge report but
when he reached village Darini, the bus had already left. Therefore, Darini
informed police station Shahpur on telephone about the occurrence upon which
information A.S.1. Feru Ram (PW-15) recorded Rapat Ex.P.19 and proceeded to the
spot. In village of the deceased he recorded statement Ex.P-5 of Jagdish Singh
(PW-2), sent the same for registration of a. case. Prepared inquest report Ex.
P. 2 and took Parna Ex. P. 10 vide memo Ex. P. 8 in possession. Investigation
was undertaken. After completion of investigation charge sheet was filed.
Trial Court did not
accept the evidence to be credible and directed acquittal. State questioned the
The High Court found
that the trial Court has over looked the evidence of the eye witnesses, more
particularly, PWs 2 to 5. It was also noted that PW-10 the father of accused
Bhola accepted that Kailasho Devi accompanied by her son and the deceased in
injured condition came to his shop and on enquiry Fandi Ram and his wife
informed him that he was beaten by accused Dharmu and Fundi Ram also nodded his
head supporting the version of his wife. The High Court noted that the evidence
clearly established that the accused persons took liquor with the deceased in
the house of accused Bhola. There was election dispute. PW-10 who was Pradhan
proclaimed that he did not vote for a winning party and this was the bone of
contention between the accused persons and the deceased. The accused persons
were also drunk. They started quarreling with the deceased and gave him a fist
blow and assaulted him with some stones which was witnessed by Kailasho Devi
and her son Jagdish Singh from their house.
Therefore, the order
of acquittal was set aside.
3. In support of the
appeal, learned counsel for the appellant submitted that the evidence of the
eye witnesses was not reliable and, therefore, the order of acquittal should
not have been set aside.
counsel for the State on the other hand submitted that the High Court had
rightly held that in course of sudden quarrel the occurrence took place and,
therefore, had convicted the accused persons in terms of Exception 4 to Section
300 IPC by altering the conviction to Section 304 Part I IPC.
is to be noted that the accused persons pleaded that the evidence of the eye
witnesses cannot be accepted as there were omissions, contradictions and
discrepancies in the evidence of most of the prosecution witnesses. In the
effort to false implication prosecution made introduction of PW-9 an eye
witness. It is fairly settled position in law that even if there are some
omissions, contradictions and discrepancies the entire evidence cannot be discarded.
After exercising care and caution and sifting the evidence to separate the
truth from untruth, exaggeration, embellishments and improvements the court can
come to a conclusion as to whether the residual evidence is sufficient to
convict the accused. (See Sohrab and Anr. V. The State of M.P. (AIR 1972 SC
2020) and State of U.P. v. M.K. Anthony (AIR 1985 SC 48).
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (AIR 1983 SC 753), it was
observed that undue importance should not be attached to omissions,
contradictions and discrepancies which do not go to the root of the matter and
shake the basic version of the prosecution witnesses. A witness cannot be
accepted to possess a photographic memory and to recall the deals of an
incident verbatim. Ordinarily, it so happens that a witness is overtaken by
events. A witness could not have been anticipated the occurrence which very
often has an element of surprise. The mental faculties cannot, therefore, be
expected to be attuned to absorb all the details. Thus, minor discrepancies
were bound to occur in the statement of witnesses.
High Court has analysed the evidence in the aforesaid background and has
rightly come to the conclusion that the guilt of the accused persons has been
appeal is, therefore, dismissed.
(Dr. ARIJIT PASAYAT)