TMI Blog2011 (3) TMI 1562X X X X Extracts X X X X X X X X Extracts X X X X ..... count to rigorous imprisonment for 2 years. However, all the sentences were directed to run concurrently. 2. Facts and circumstances giving rise to this appeal are that on 16.10.1979, in the morning Naresh, respondent no.1 herein, started digging the (Chak Road) 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve. 7. Being aggrieved, all the four convicts preferred Criminal Appeal No.2866/1980, before the High Court which has been allowed vide judgment and order dated 19.5.2004 (impugned) and all the four convicts stood acquitted. Hence, this appeal. 8. During the 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) injur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arameters. Thus, there is no cogent reason for this Court to interfere with the same. Prosecution suppressed the true genesis of the incident and enroped the respondents due to pre-existing enmity. The prosecution failed to prove its case beyond reasonable doubt. 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 follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and sealing thereof, he reached Fatehgarh Police line along with Constable Ram Chand in a Tonga and got the entry made in the Rojnamcha. Post-mortem was conducted on 18-10-1979 at about noon on his identification of the dead body. The dead body remained in sealed condition throughout 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (PW.5) as one of them had stated that the I.O. reached the place of occurrence at 10.15 p.m. and another has stated that he reached about mid night. The incident occurred in mid October 1979. This is the time when the winter starts and in such a fact-situation no person is supposed 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 mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to either of the star witnesses, when they were cross-examined. 21. The High Court has further found a material contradiction in the statements of Subedar (PW.1) and Balak Ram (PW.5) and had made this one of the grounds for the acquittal of the accused observing: To meet 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made and the Court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. [Vide Jarnail Singh (supra), Vishnu Ors. v. State of Rajasthan, (2009) 10 SCC 477; and Balraje @ Trimbak (supra)]. 25. In all criminal cases, normal discrepancies 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a human right subject to the statutory exceptions. The said principle forms the basis of criminal jurisprudence in India. The law in this regard is well settled that while dealing with a judgment of acquittal, an appellate court must consider the entire evidence on record so as to arrive 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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