minor discrepancies are natuaral
State vs 1. Dharambir, on 13 August, 2009
Author: Ms. Pratibha Rani
IN THE COURT OF SMT. PRATIBHA RANI,
ADDL. SESSIONS JUDGE, TIS HAZARI COURTS,
DELHI
SC No.36/08
State Vs 1. Dharambir,
S/o Sh. Sudan Singh,
R/o B-538, Pandav Nagar,
Delhi.
2. Vicky,
S/o Sh. Ram Kumar,
R/o T-173, Illahibux Road,
Nai Wala, Karol Bagh,
Delhi.
3. Raju,
S/o Sh. Panni
R/o B-535, Pandav Nagar,
Delhi.
FIR No.284/05
U/s 308/323/324/341/34 IPC
PS : Patel Nagar
Date of Institution : 1.3.08
Arguments heard on : 2.1.09
Order pronounced on : 2.1.09
***
JUDGMENT
21. So far as certain discrepancies regarding the colour of the polythene or of the substance is concerned, both these witnesses have identified the case property i.e. explosive material Ex.P1, three polythenes containing Kishmish, Kaju and badaam and steel box containing dry fruit polythenes as Ex.P2 (Colly), a white colour plastic dibbi containing two detonators wrapped in cotton as Ex.P4/1-2, the bag and the clothes as Ex.P5 to be the same which were recovered from the bag of the accused. When the witnesses appear in the Court after lapse of certain time, they may not be able to recollect the sequence of events which had taken place unexpectedly long before. A public witness hardly gets any ooportunity to see the explosive substance and detonators with his own eyes as generally such news are read by them in newspaper only. There was every possibility for them to confuse about the colour of the polythene or colour of the substance but after seeing, correctly identified. So far as the occurrence is concerned, they have deposed in a natural and truthful manner as to what they had seen when accused was apprehended by the police officers of Special Cell. These minor discrepancies cannot be a ground to disbelieve their testimony especially when they had shown the courage to come forward and join the search of the bag knowing that the person apprehended was claimed to be a terrorist. In the case Zamir Ahmed Vs. The State 1996 Cri.L.J. 2354 while discussing the provisions of Section 3 of the Evidence Act, it was held as under:-
It would be a hard nut to crack to find out a case which is bereft of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such contradictions and inconsistencies are bound to creep in with the passage of time. If the witnesses are not tutored they would come out with a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnessed with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in his own words according to his own perception and in proportion to his intelligence power of observation.
22. The discrepancies pointed out by ld. Defence counsel are insignificant and bound to occur due to lapse of time especially when the witness is not tutored. As the so called discrepancies do not go to the root of the case, the accused cnnot derive any benefit out of that. In the case Bharuda Broginbhai Harjibhai vs. State of Gujrat, AIR 1983 SC 753 it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Their Lordships have enumerated following reasons for arriving at this conclusion :-
By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. Thus mental faculties, therefore, cannot be expected to be attuned to absorb the details.
3) The powers of observance differ from person to person, what one may notice, another may not. An object or movement might emboss image on one person's mind, whereas it might go unnoticed on the part of another.
4) By and large people cannot accurately recall a conversation and reproduce the very words used by them on heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
5) In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guess-work at spur of moment, at the time of interrogation and one cannot expect people make very precise or reliable estimates in such matters. Again, it depends upon the time-sense of individuals which varies from person to person.
6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
7) A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix-up facts, get confused regarding sequence of events, or fill up details of imagination at the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved, though the witness is giving a truthful and honest account of the occurrence witnessed by him, perhaps it is a sort of psychological moment.
23. In another case State of U.P. vs. M.K. Anthony, AIR 1985 SC 48 following guidelines have been laid down by the Apex Court for the appraisal of the evidence :
While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether, it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies of trivial matter, not touching the core of the case, hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of evidence as a whole.
Their Lordships further observed :
Unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross-examination is an unequal dual between the rustic and refined lawyer.
24. In the case law reported as Ramesh Vs. State 1986, CR.L.J. 1101, it was held as under:
In appreciating oral evidence, the question in each case is whether the evidence is truthful witness and whether there is anything to doubt his veracity in any particular matter about which he deposes, where the witness is found to be a untruthful on material facts that the end of the matter. Where the witness is found to be partly truthful or to spring from ........... tainted sources, the court may take the prosecution of seeking some corroboration, adequate and reasonable to meet the demands of the situation.
25. Reverting to the facts of the present case, testing the testimony of two public witnesses on the touch stone of basic human probabilities, I find that intrinsic worth of their testimony remained unchallenged during cross examination and their version is natural, truthful and inspiring confidence. So far as testimony of police officials i.e. PW-1 SI Ramesh Lamba, PW-4 SI Rajinder Shehrawat and PW-11 ACP Sanjeev Kumar Yadav, who apprehended accused from Seelam Pur Metro Station is concerned, there is no reason to disbelieve their testimony as they were only discharging their duties without any animus towards the accused who was a total stranger to them in Delhi. In Catena of judgments, it has been held that testimony of police officials cannot be disbelieved merely for the reason that they may be interested in success of their case. In the case State of Kerala vs. M.M. Mathew and another, AIR 1978 SC 1571 it was held :-
The evidence of the IO's cannot be branded as highly interested on ground that they want that the accused are convicted. Such a presumption runs counter to the well-recognised principle that prima- facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case.
26. In another case Sanjay Vs. NCT (2001) 3 SCC 190, the Apex court had observed that the mere fact that no independent witness was associated with recoveries is not a ground and that the investigation officer's evidence need not always be disbelieved and that of course, closer scrutiny of evidence is what is required.