Dismissed

Boddaram v. State Of Chhattisgarh

Chhattisgarh HC2 Nov 2022CRA/81/2018

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh dismissed criminal appeals filed by appellants convicted of murder. The court upheld the conviction based on the credible testimony of the deceased's family members, citing Supreme Court precedents that such witnesses are natural witnesses whose evidence does not require corroboration if intrinsically reliable, and held that minor discrepancies in their statements we

What did the court decide?

Appeals by Halkuram and Boddaram against conviction and sentence were dismissed; original judgments of conviction and sentence were affirmed.

Boddaram Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2022)

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AFR

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Judgment reserved on 29.08.2022 Judgment pronounced on 02.11.2022

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No.1419/2015

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Halkuram @ Alku S/o Paklu, Caste Muriya, Aged about 46 years, R/o Village Mophalnar, Patelpara, P.S. Gidam, District – Dantewada (C.G.) Civil & Revenue District South Bastar Dantewada (C.G.)

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…… Appellant

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Versus

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State of Chhattisgarh, Through :- P.S. Gidam, District – Dantewada (C.G.) Civil & Revenue District South Bastar Dantewada (C.G.)

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……. Respondent

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And

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Criminal Appeal No.81/2018

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Boddaram son of Lachchhu, aged about 45 years, resident of Village Mofalnar, Patelpara, Police Station Geedam, District – South Bastar Dantewada (C.G.)

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…… Appellant

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Versus

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State of Chhattisgarh, through the Incharge, Police Chowki-Lodam, Police Station - Geedam District – South Bastar Dantewada (C.G.)

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……. Respondent

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For Appellant in Cr.A No. 1419/2015: Ms. Aditi Singhvi, Advocate For Appellant in Cr.A No. 81/2018 : Mr. Mohd. Azad Siddiqui Advocate For Respondent/State : Mr. Kapil Maini, Panel Lawyer

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Hon’ble Shri Sanjay K. Agrawal and Hon’ble Shri Sachin Singh Rajput, JJ

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C A V Judgment

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Sachin Singh Rajput, J.

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1. Criminal Appeal No. 1419/2015 has been filed assailing the legality, validity, correctness and judicial propriety of the judgment of

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conviction & order of sentence dated 07.08.2015 passed by learned Sessions Judge, South Bastar District – Dantewada in Sessions Trial No. 96/2006 (C.G.) and Criminal Appeal No. 81/2018 has been filed assailing the legality, validity, correctness and judicial propriety of the judgment of conviction & order of sentence dated 21.11.2017 passed by learned Sessions Judge, South Bastar District – Dantewada (C.G.). By the impugned judgments, the appellants were held guilty for causing homicidal death amounting to murder of deceased Raju Ram Bhaskar in furtherence of common intention with other accused persons. Appellant-Halkuram was convicted for offence punishable under section 302/34 of the Indian Penal Code, 1860 {for short ‘IPC’} and sentenced for life imprisonment. Appellant Boddaram was convicted for offence under section 302/34 of IPC and sentenced for life imprisonment and fine of Rs.500/- in default of payment of fine, 2 months additional rigorous was imposed. Since both the appeals are arising out of same sessions trial, it is being decided by this common judgment.

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Facts of the case

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1. The appellant Halkuram was put to trial for charge of committing murder of deceased Raju Ram Bhaskar in furtherance of common intention with co accused persons Dukaru Ram, Raghu Bhaskar, Bomda Ram and Boddaram which is punishable under section 304 read with section 34 of IPC. He was further charge for voluntarily causing hurt to Tuman, Phulmati with Knife { Gupti } punishable under section 324 of IPC. He was also charged for offence punishable under section 25 of Arms Act, 1959 for keeping in his possession an iron rod and knife { Gupti }. Appellant Boddaram was also put to trial for charge of committing murder of deceased Raju Ram Bhaskar in furtherance of common intention with co-accused persons Dukaru Ram, Halku Ram, Raghu Bhaskar, Bomda Ram which is punishable under section 304 read with section 34 of IPC.

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1. It is to be noted at this juncture that initially total 5 accused persons namely Boddaram, Dukaru Ram, Raghu Bhaskar, Bomda Ram and Halkuram were put to trial but during the pendency of trial, Halkuram and Boddaram absconded and they were declared

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absconder. Rest of the accused faced the trial and were convicted under Section 302 read with Section 34 of IPC and sentenced to life imprisonment with fine of Rs.100/-, in default of payment of fine to further undergo Rigorous Imprisonment for one month vide judgment dated 31.03.2009 in Sessions Trial No.96/2006 by the Sessions Judge, South Bastar Dantewada, (C.G.). These accused persons preferred an appeal against their conviction before this Court and vide Judgment dated 11.02.2014 their appeals bearing Cr.A. No. 321/2009 Dukaru Ram Vs. State of Chhattisgarh, Cr.A. No. 322/2009 Raghu Bhaskar Vs. State of Chhattisgarh, Cr.A. No. 323/2009 Bomda Ram Vs. State of Chhattisgarh came to be dismissed and their conviction was affirmed.

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The prosecution case, in brief, is that in the night of 15.01.2006 Guddiram Bhaskar (PW-3), his father Rajuram Bhaskar, his mother Smt. Kohle Bhaskar (PW-4), his brothers Balram and Masram, his wife Manki, his sister-in-law Ramli were sleeping in different rooms after taking dinner in his house at Village Mophalnar, Patelpara, P.S. Gidam. In the morning of 16.01.2006 at about 4 AM upon hearing the Rooster Crow complainant Guddiram Bhaskar (PW-3) came out of his house and in the moonlight, he saw Boddaram Bhaskar (Appellant in Cr.A No. 81/2018) was holding bow and arrow in his hands, Dukaruram Bhaskar (convicted accused) holding rod, Halkuram ((Appellant in Cr.A No. 1419/2015) holding knife, Raghu Bhaskar (convicted accused) holding bow and arrow in his hands, Bomdaram (convicted accused) holding axe ( tangiya) standing in front of his house in the verandah. They said to him that his father is engaged in witchcraft and confined him in a room by bolting the room with shackles. They assaulted the deceased Rajuram Baskar and he heard the cries of deceased Rajuram Bhakar. Family members of complainant were pleading the assailants to spare the deceased Rajuram Bhaskar. After about one hour his mother Smt. Kohle Baskar (PW-4) opened the door and he saw his father lying wounded in the verandah and was moving but unable to speak. All the five accused came back at about 6 AM with the aforesaid weapons and again assaulted the deceased and caused his instantaneous death on the spot. Halkuram ((Appellant in Cr.A No.

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1419/2015) also caused injury to Phulmati (PW-5) sister of complainant Guddiram Bhaksr (PW-3) when she tried to intervene.

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Guddiram Bhaskar (PW-3) son of the deceased went to the Police Station-Gidam and lodged the First Information Report vide Ex-P/9. Merg was recorded vide Ex-P/8. Investigating officer reached the scene of occurrence and after summoning the witnesses vide Ex-P/22 prepared the inquest over the body of deceased vide Ex-P/23. Bloodstained and plain soil were recovered from the spot vide Ex-P/21. Spot map was prepared vide Ex-P/1. Dead body of the deceased Rajram Bhaskar was sent for post mortem to Community Health Centre, Gidam. Dr. V.S. Thakur (PW-2) performed the autopsy of the deceased Raju Ram Bhaskar and gave his report vide Ex-P/2. During the course of investigation, Boddaram Bhaskar (Appellant in Cr.A No. 81/2018) was taken into custody and he gave memorandum statement vide Ex-P/11. At his instance, bow and arrow was recovered vide Ex-P/16. Halkuram (Appellant in Cr.A No. 1419/2015) gave memorandum statement vide Ex-P/13. At his instance, knife was recovered vide Ex-P/18. Dukaruram Bhaskar (convicted accused) made disclosure statement of iron rod vide ExP/12 and at his instance, iron rod was recovered vide Ex-P/17. Raghu Bhaskar (convicted accused) made disclosure statement of bow and arrow vide Ex-P/14 and at his instance, bow and arrow was recovered vide Ex-P/19. Bomda Ram (convicted accused) made disclosure statement of axe vide Ex-P/15 and at his instance, bow and arrow was recovered vide Ex-P/20. Cloths of the deceased was seized vide Ex-P/25.

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Statement of the witnesses were recorded under section 161 of the Code of Criminal Procedure, 1973 {for short Cr.P.C.}. After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, South Bastar Dantewada (C.G.) who in turn committed the case to the Court of Sessions, South Bastar Dantewada (C.G.). Appellants were charged as aforesaid and they abjured their guilt and claimed to be tried. All the accused were put to trial. During the pendency of trial two accused Halkuram ((Appellant in Cr.A No. 1419/2015) and Boddaram Bhaskar

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(Appellant in Cr.A No. 81/2018) absconded and were declared absconder. They were later apprehended and convicted by the impugned judgments.

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1. That the prosecution has examined as many as eight witnesses to prove its case and to bring home the guilt of the appellants. The prosecution exhibited 26 documents in support of their case. Statements of appellants under section 313 of the Cr.P.C. were recorded, in which they denied the evidence against them and pleaded to be innocent and falsely implicated. They examined Bomdaram (DW-1) and Barsa Manki (DW-2) in their defence. She happens to be the wife of Guddiram Bhaskar (PW-3). She deposed that Guddiram Bhaskar (PW-3) was not in the house at the time of incident. She also deposed that 40-50 people came to the house and after assaulting the deceased, Raju Ram Bhaskar ran away.

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1. Learned trial court after giving due opportunity of hearing to the parties and after appreciation of evidence and material on record, convicted and sentenced the appellants as aforesaid by the impugned judgments. The same is being assailed before this court by the appellants.

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Submissions of the appellants and respondent/state

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Learned counsels for the appellants Ms. Aditi Singhvi and Mr. Mohd. Azad Siddiqui vehemently argued that the learned trial court committed a gross illegality in convicting the appellants on the statement of interested eyewitnesses. The learned trial court failed to appreciate the testimony of the eyewitnesses to its proper perspective and too much credence has been given to the alleged eyewitnesses. They further submitted that the alleged eyewitnesses are close relatives of the deceased hence their testimony do not inspire confidence and it ought to have been discarded by the learned trial court. The presence of Guddiram Bhaskar (PW-3) at the scene of occurrence is doubtful. In order to buttress their submission they relied upon the statement of Barsa Manki (DW-2) who is the wife of Guddiram Bhaskar (PW-3) to contend that Guddiram Bhaskar (PW-3) was not present at the time of commission of offence. They further submitted that the appellants

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have been falsely implicated in the crime in question. They further argued that the seizure witnesses have not supported the case of the prosecution hence, the credibility of prosecution witnesses looses significance. There are major contradiction and omission in the statements of eyewitnesses with regard to time of incident and the weapons used by the appellants. Therefore, the appeal may be allowed and the appellant may be acquitted from all charges giving benefit of doubt to them.

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Shri Kapil Maini, learned counsel for the State refuting the submissions of the counsels for the appellants vociferously argued that the conviction of the appellants is based upon the proper appreciation of evidence brought by the prosecution. Even though the eye witnesses are closely related to the deceased, it would not make their testimony incredible. He further submits that the statement of the eye witnesses inspire confidence as their presence is natural at the time and place of incident. He goes on to submit that they have categorically named the appellants as assailants and also properly described their role in commission of the crime. He submits that minor omission or contradiction would not make their testimony untrustworthy. He relies on the judgment of this Court dated 11/02/2014 passed in Cr.A No. 321/2009 & Cr.A No.322/2009 by which the appeals filed by other co-accused have been dismissed on the same set of evidence. Therefore he submits that the case of the appellants is not different and the appeal is liable to be dismissed.

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Analysis and conclusion

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1. We have heard the learned counsels for the respective parties and examined the records meticulously with utmost circumspection. The first question which needs determination by this court is whether the death of the deceased Rajuram Bhaskar was homicidal or not. Though homicidal death of the deceased is not seriously disputed by the counsels for the appellants, however we have carefully examined the testimony of Dr. V.S. Thakur (PW-2) who conducted the autopsy of the deceased Rajuram Bhaskar and found the following injuries:-

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(i) Incised wound over scalp with fracture of bone of 3” x 2”. Blood clotted over mouth, ear and nose.

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(ii) Incised wound of 4” x 2” over back of head with fracture of occipital bone.

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(iii) Deep incised wound below occipital bone 3” x 1”.

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In the internal examination skull bone was found fractured and hematoma present in brain and it was congested. In the opinion of this witness the cause of death was excessive external and internal hemorrhage and cardio-respiratory shock due to injuries nos.1,2,3. The nature of death was homicidal. Looking to the statement of this witness this court has no hesitation to hold that the death of the deceased Rajuram Bhaskar was homicidal in nature.

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The next question before this court is whether the appellants are the author of the crime or not and whether the prosecution was able to bring home the guilt of the appellants beyond reasonable doubt. The prosecution case basically rested upon the eyewitnesses account of Guddiram Bhaskar (PW-3), Smt. Kohle Bhaskar (PW-4) and Fulmati (PW-5), son, wife and daughter of the deceased. They are the close relative of the deceased Rajuram Bhaskar. Hence, there testimonies have to be examined with utmost caution and responsibly.

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1. Hon’ble Supreme Court in a recent judgment Rajesh Yadav Vs. State of U.P. reported in 2022 SCC Online SC 150 held as under:-

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“ Related and Interested Witness :

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A related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstood the rigor of cross examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose.

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When the Court is convinced with the quality of the evidence produced, notwithstanding the classification as

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quoted above, it becomes the best evidence. Such testimony being natural, additing to the degree of probability, the Court has to make reliance upon it in proving a fact. The aforesaid position of law has been well laid down in Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591 :

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“32. Coming back to the appreciation of the evidence at hand, at the outset, our attention is drawn to the fact that the witnesses were interrelated, and this Court should be cautious in accepting their statements. It would be beneficial to recapitulate the law concerning the appreciation of evidence of related witness. In Dalip Singh v. State of Punjab, 1954 SCR 145: AIR 1953 SC 364 : 1953 Cri LJ 1465], Vivian Bose, J. for the Bench observed the law as under : (AIR p.366, para 26)

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A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.”

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In Masalti v. State of U.P., (1964) 8 SCR 133: AIR 1965 SC 202: (1965) 1 Cri LJ 226], a five – Judge Bench of this Court has categorically observed as under: (AIR pp. 209-210, para 14)

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…. There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground

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that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.”

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In Darya Singh v. State of Punjab [ (1964) 3 SCR 397 : AIR 1965 SC 328 : (1965) 1 Cri LJ 350], this Court held that evidence of an eyewitness who is a near relative of the victim, should be closely scrutinised but no corroboration is necessary for acceptance of his evidence. In Harbans Kaur v. State of Haryana [(2005) 9 SCC 195 : 2005 SCC (Cri) 1213 : 2005 Cri LJ 2199], this Court observed that : (SCC p.227, para 6)

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“6. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused.”

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The last case we need to concern ourselves is Namdeo v. State of Maharashtra [(2007) 14 SCC 150 : (2009) 1 SCC (Cri) 773], wherein this Court after observing previous precedents has summarised the law in the following manner: : (SCC p. 164, para 38)

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“38. … it is clear that a close relative cannot be characterised as an “interested” witness. He is a “natural” witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the “sole” testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.”

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From the study of the aforesaid precedents of this Court, we may note that whoever has been a witness before the court of law, having a strong interest in

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result, if allowed to be weighed in the same scales with those who do not have any interest in the result, would be to open the doors of the court for perverted truth. This sound rule which remains the bulwark of this system, and which determines the value of evidence derived from such sources, needs to be cautiously and carefully observed and enforced. There is no dispute about the fact that the interest of the witness must affect his testimony is a universal truth. Moreover, under the influence of bias, a man may not be in a position to judge correctly, even if they earnestly desire to do so. Similarly, he may not be in a position to provide evidence in an impartial manner, when it involves his interest. Under such influences, man will, even though not consciously, suppress some facts, soften or modify others, and provide favourable colour. These are most controlling considerations in respect to the credibility of human testimony, and should never be overlooked in applying the rules of evidence and determining its weight in the scale of truth under the facts and circumstances of each case.”

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Once again, we reiterate with a word of caution, the trial court is the best court to decide on the aforesaid aspect as no mathematical calculation or straightjacket formula can be made on the assessment of a witness, as the journey towards the truth can be seen better through the eyes of the trial judge. In fact, this is the real objective behind the enactment itself which extends the maximum discretion to the court.”

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1. In light of the above principles with regard to interested and related witnesses as enumerated by the Hon’ble Supreme Court, we shall now proceed to evaluate the credibility of the eyewitnesses put forth by the prosecution. The star eyewitnesses of the prosecution are Guddiram Bhaskar (PW-3), Kohle Bhaskar (PW4) and Fulmati (PW-5). We have carefully and meticulously examined the testimonies of these eyewitnesses. Guddiram Bhaskar (PW3) in his statement deposed that he knows the appellants (present appellants and other convicted accused persons). All 5 accused came to his house and told his father that he is doing the witchcraft. Boddram (Appellant in Cr.A No. 81/2018) was holding bow & arrow, Halkuram (Appellant in Cr.A No. 1419/2015) was holding tangiya, Dukaru (Convicted accused) was holding iron rod and sword, Bomda (Convicted accused) was holding bow & arrow, Raghu (Convicted accused) was holding bow & arrow and knife. They demanded Rs. One Lakh else they would murder his father Rajuram. They held his fa-

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ther and took him outside from home. They assaulted his father. Bodda, Raghu and Bomda assaulted his father by bow & arrow, Alkuram with tangiya , Dukaru with iron rod and sword. His father suffered injuries on his head, stomach and shoulder. After assaulting they went from his house. In the morning at about 6 AM all accused came back with arms and again assaulted his father and continued assaulting for one hour. His younger sister Fulmati (PW-5) was also assaulted by Halkuram with knife on her hand. He further deposed that the accused assaulted his father on Sunday at 11 PM and on Monday morning at about 6-7 AM. He proved merg intimation Ex-P/8 and First Information Report Ex-P/9. This witness was subjected to lengthy cross examination. In cross examination he stated that did not report to police with regard to demand of Rs. One Lakh else his father would be murdered. He deposed that he has informed the police that accused came in 11 in the night. However he could not explained why it is not mentioned in his statement Ex-D/ 1. He further deposed that he has informed that Halkuram was holding tangiya and cannot explain if it is not mentioned in Ex-P/8 and Ex-P/9. He himself deposed that Halkuram was holding bow & arrow, tangiya and knife. He further deposed that he informed during lodging report that Bomda (Convicted Accused) was holding bow & arrow and he cannot give any reason if it is not mentioned in ExP/8 and Ex-P/9. He further deposed that he informed during lodging report that Raghu (Convicted Accused) was holding knife and he cannot give any reason if it is not mentioned in Ex-P/8 and Ex-P/9. He denied that accused persons did not assault his father before him. He further denied that on Sunday & Monday he was not present in Mopalnar. There are some contradictions or omission in the testimony of this witness. However in considered opinion of this court these contradiction or omission is not sufficient or glaring to discard the credible testimony of this witness as he stood firm during the course of his examination with regard to complicity of the appellant in the crime.

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1. Another important eyewitness is Kohle Bhaskar (PW-4) wife of deceased. She deposed that one year back they were sleeping in their house. At 12 in the night, 5 accused came to the house and

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shouted. They entered the house and assaulted his husband. Bodda was holding sword and bow & arrow, Halku was holding tangiya and sword, Bomda was holding tangiya and bow & arrow, Dukaru was holding bow & arrow and tangiya, Raghu was holding tangiya and bow & arrow. Accused persons assaulted his husband and went away. In the morning i.e. on Monday at 6-7 AM all five accused came back to house and again assaulted his husband because of which he died. In the cross examination she denied that she has not seen the accused persons assaulting her husband. She also denied that 40-50 people came to her house and assaulted her husband. She stated that she has informed to police that Bodda was holding sword, Bomda was holding bow & arrow, Dukaru was holding bow & arrow, Raghu was holding tangiya, Halku was holding sword and she cannot give any reason if it is not mentioned in her statement Ex-D/2. This witness also stood firm with regard to involvement of the appellant in the crime. Likewise Fulmati (PW-5) also corroborated the testimony of Guddiram Bhaskar (PW-3). She deposed that Boddaram was holding sword and tangiya, Dukaru was holding sword and tangiya, Halkuram was holding sword and bow & arrow, Raghu was holding bow & arrow and sword, Bomda was holding tangiya. Halkuram was assaulting her father with sword and when she intervened she sustained sword injury on her left hand. Next morning all accused came back armed with weapons and again assaulted her father because of which he died. In her cross examination she stated that she has informed to police that Bodda was holding sword, Dukaru was holding sword, Halku was holding bow & arrow and sword, Raghu was holding sword, and she cannot give any reason if it is not mentioned in her statement Ex-D/3. She denied that the accused persons did not assault her father. Apart from some minor discrepancy this witness remained firm in her statement.

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1. On deep analysis of the above stated eye witnesses some discrepancy with regard to time of incident mentioned in the First Information Report and the court statements. There are some discrepancy with regard to weapons the appellants and convicted accused were holding. It is to be noted that the eyewitnesses appear to be rustic

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villagers. The Hon’ble Supreme Court in case of State of Uttar Pradesh Vs. Krishna Master and others (2010) 12 SCC 324 observed in paragraph 15 to 17 as under:-

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“15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks 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 and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or 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 the evidence as a whole.

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16. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/Trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a short-coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.

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17. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case.

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In light of the above principles, it is to be seen that the discrepancies in the statement of the eyewitnesses does not go to the root of the case and on such discrepancies the entire prosecution case can be discarded branding the eyewitnesses incredible and untrustworthy. Major discrepancy in the statement of Guddiram Bhaskar (PW-3) is with regard to the fact that he reported in the FIR that first assault was made by the accused persons in the morning at the time of Rooster Crow and the second assault was made at 6 in the morning. Whereas in his court statement he stated that the first assault was made at 11 PM on Sunday night. However on close scrutiny of all the three eyewitnesses it is aptly apparent that the first assault was made in the Sunday night at 11-12 PM and second assault was made on Monday morning at 6-7 AM. The deceased died in the morning during the second assault. Therefore this not a discrepancy which could be fatal to prosecution and to throw away the credible eyewitnesses testimonies. Another discrepancy is with regard to holding of different weapons by appellants as differently stated by eyewitnesses. This court cannot lose sight of the fact that the eyewitness is rustic villagers and it cannot be expected from them to differentiate with the kind of weapon used by appellants. Even if some variation is found, it would not make their credible statement incredible. On close examination their testimonies inspire confidence and they would not implicate an innocent person leaving the real culprit

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to get off scot free. The defense witnesses examine by appellants do not inspire confidence in light of the credible eyewitnesses who denied that 40-50 people came and assaulted the deceased and Guddiram (PW-3) was not present in the spot. It is pertinent to mention here that the appeals of other co accused person namely Dukaru Ram, Raghu Bhaskar and Bomda Ram have been dismissed by this court vide judgment dated 11/02/2014 in Cr.A. No. 321/2009, in Cr.A. No. 322/2009, in Cr.A. No. 323/2009 respectively on same set of evidence.

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1. As a fallout of the above discussion, we do not find any merit in these appeals. The appeals are liable to be and are hereby dismissed.

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Sd/Sd/(Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge

Boddaram v. State Of Chhattisgarh

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Boddaram v. State Of Chhattisgarh

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