Tarlok Singh Chauhan DECISION
Tarlok Singh Chauhan, J.
1. The appellant/accused was tried and convicted to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 10,000/- for commission of an offence punishable under Section 307 IPC and in default of payment of fine, to further undergo simple imprisonment for a period of six months.
2. The case of the prosecution, in brief, is that on 12.4.2004, the victim, namely, Bhutto Kapoor, resident of Village Asan Patt, Tehsil Palampur had gone to collect some revenue papers, which were to be appended along with Civil Suit regarding a boundary dispute with the appellant. After collecting these papers, the victim reached his village Asan Patt at about 9.00/9.15 P.M. and found that the appellant had kept bricks near his land. This initially led an oral altercation between the victim and the appellant. However, later on, the appellant allegedly hit a bat on the head of the victim and thereafter continued to give him beatings till the time he was eventually pushed down the Danga. As a result of this, the victim lost conscious and regained the same at about 3.00 A.M. in the intervening night of 13/14.4.2004. He then called his wife and was taken to Zonal Hospital Dharamshala, from where he was referred to PGI Chandigarh. Since the victim was unable to speak, therefore, the statement of his wife, to whom he had already revealed the entire sequence of events that had led to injuries on his person, was recorded, on the basis of which, an FIR was registered.
3. After completion of the investigation, final report, under Section 173 Cr.P.C. was prepared and presented in the Court with a prayer to take cognizance of the case to try the appellant for commission of the offence.
4. Consequently, the appellant was charged under Section 307 IPC.
5. The prosecution examined as many as 14 witnesses and upon closer of its evidence, statement of the appellant under Section 313 Cr.P.C. was recorded, wherein he pleaded not guilty and claimed trial. The appellant also examined one witness in his defence.
6. The learned trial court, after evaluating the evidence so adduced before it, vide judgment dated 6.7.2006, convicted and sentenced the appellant as aforesaid, constraining him to file the instant appeal.
7. It is vehemently argued by Mr. Anand Sharma, learned counsel for the appellant, that the findings recorded by the learned trial court are perverse, therefore, the appellant is entitled to be acquitted. On the other hand, Mr. Sudhir Bhatnagar, learned Additional Advocate General, would contend that the findings of the learned trial court being in order call for no interference.
8. I have heard the learned counsel for the parties and have also gone through the records of the case carefully.
9. At the outset, it needs to be reiterated that there is no difference between an appeal against conviction and an appeal against acquittal except that when dealing with an appeal against acquittal, the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the court below is reasonable one and the conclusion reached by it had its grounds well set on the materials on record. However, in case the findings of the court below are perverse, then irrespective of the findings, be it that of the acquittal or conviction, the same are liable to be set aside.
10. Thus, in this background, it would be necessary to have re-look on the material that has come on record by way of oral and documentary evidence in this case.
11. To substantiate its case, the prosecution, examined the victim as PW 5, who deposed that on 12.4.2004, he had gone to Patwari at Lahla to collect the revenue record for filing the civil suit. After collecting the revenue record, he proceeded to his village and reached there at about 9.00/9.15 P.M. and found the appellant to have collected bricks. He initially protested and later on oral altercation took place followed by the appellant hitting the victim with a bat on his head. The victim was hit twice with the bat and thereafter was pushed down the danga. Even thereafter, the appellant came down the danga and gave him beatings. He raised his hands to protect himself, but the appellant kept on administering beatings, as a result whereof, he lost his conscious. He regained his conscious at about 3.00 P.M. and called his wife from the house to provide water. On enquiry, he told that he was given beatings by the appellant. However, after taking water, he again fell unconscious and was shifted to Zonal Hospital, Dharamshala from where, he was referred to PGI Chandigarh.
12. The version put forth by the victim was duly corroborated by his wife, Kanchan, who appeared as PW 3 and deposed on similar lines as those of the victim.
13. As regards the injuries sustained by the victim, the same have been duly proved on record by PW 4 Dr. Sumanju Dhiman, who after detailing out the injuries had opined that the injuries were sufficient to attract the applicability of Section 307 IPC.
14. The version put forth by all these witnesses is duly corroborated by the Investigating Officer, who appeared as PW 14. However, learned counsel for the appellant would vehemently contend that there was no material placed by the prosecution on record so as to establish the presence of the appellant on the spot at the time of incident.
15. This contention being devoid of any merit deserves to be rejected. Not only the mode and manner in which the cross-examination of the prosecution witnesses has been conducted establishes the presence of the appellant beyond any shadow of doubt at the spot, but more importantly, in the complaint lodged by the appellant himself vide Ext. PW 9/A, his presence as also some kind of altercation having been taken between him and the victim is duly established on record.
16. The learned counsel for the appellant would then argue that there are material contradictions in the evidence led by the prosecution, therefore, the appellant deserves to be acquitted.
17. Even this ground is equally without merit, as it is more than settled that while appreciating evidence, the Court has to take into consideration whether the contradictions/omissions are of such magnitude that they materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case cannot be made a ground to reject the evidence in its entirety. The trial Court after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course of action, would not be justified in reviewing the same again without justifiable reasons. But the said provision where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the Court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. Even though the normal discrepancies are bound to be there due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition and would not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.
18. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
19. Bearing in mind the aforesaid parameters, only contradiction which the learned counsel for the appellant could point out was regarding the place where the victim had sustained injuries. He at pains would point out that there is a variance in the FIR recorded at the instance of PW 3 as also her statement recorded in the Court.
20. However, even this ground is without merit for more than one reason. Firstly, there is hardly any contradiction with regard to place of occurrence as is sought to be established by the learned counsel for the appellant. Secondly, even if so called contradiction is taken into consideration, the same is so trivial that it does not affect the core of the prosecution case because what was primarily required to be established by the prosecution was not the place of occurrence, but the offence under Section 307 IPC.
21. As regards the commission of the offence, there is more than ample evidence available on record. Not only the weapon of offence i.e. bat, has been recovered but even the suggestion put forth by the appellant to PW 4 Dr. Sumanju Dhiman that the injuries could have been sustained by fall has been clearly and unequivocally denied by her Importantly, the appellant has not even chosen to cross-examine the witness of the recovery, PW 9 HC Kushal Kumar except that the victim was under the intoxication, which suggestion was also denied by him.
22. Learned counsel for the appellant would then argue that the appellant has been falsely implicated because of ongoing civil litigation and as a matter of fact, the victim had gone to the house of one Meera Devi at about 2.30 A.M. that too under the influence of liquor and it is there, where he received injuries. He then took this Court to the entire statement of DW 1 Meera Devi, but I find nothing in her statement, which can establish the presence of the victim at the relevant time that too being under the influence of intoxication, rather close scrutiny of the testimony of DW 1 reveals that the appellant is her brother and it is for this precise reason that she chose to appear in the witness box to depose in his favour. Notably, DW 1 had in fact been cited as a prosecution witness, but was given up by the prosecution as being won over being real sister of the appellant as is evident from the order passed to this effect on 17.3.2005 by the learned trial court.
23. It is lastly argued by the learned counsel for the appellant that since the victim was himself an employee of Medical College Tanda, where he was working as Senior Lab Technician, therefore he had exercised his clout and influenced the entire case, more particularly, with regard to the nature of the injuries sustained by him and reflected in the MLC. He would further contend that since the investigating agency was bound by MLC, therefore a false case under Section 307 IPC has been fastened on the appellant.
24. It is not in dispute that the victim did not belong to high echelon of service as he was only a Senior Lab Technician that too in Medical College Tanda, therefore, it is difficult to assume that he would be in a position to influence and manipulate the Doctors to give a particular kind of MLC so as to falsely implicate the appellant. Additionally, it cannot be ignored that the investigation in this case has been carried out by an officer belonging to IPS cadre, who obviously would not easily come under anybody's influence much less the influence of the victim.
25. No other point urged.
26. In view of the aforesaid observations, it can conveniently be held that the findings recorded by the learned trial court are based on correct appreciation of material on record and in absence of perversity, these findings cannot be interfered with.
27. Consequently, I find no merit in this appeal and the same is accordingly dismissed. Pending application(s), if any, also stands disposed of. Bail bonds are discharged.
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