Discrepancies exist. And particularly when they come to test of human memory, they exist in a big way. The law recognizes this aspect and therefore the law of evidence provides adequate latitude in this respect. The Supreme Court in a recently reported decision [State of U.P. v. Krishna Master, AIR 2010 SC 3071] was dealing with a similar issue wherein the evidence of a witness was discarded by the High Court as being inconsistent.
Holding that minor discrepancies in evidence were condonable and that too particularly in cases of rustic witnesses, the Supreme Court declared the law to this effect inter alia as under;
10. This Court finds that the abovestated reasons are the only reasons specified by the High Court to disbelieve the eyewitness account given by PW1, Jhabbulal. In order to find out whether the reasons assigned by the High Court to disbelieve the episode of five murders narrated by witness Jhabbulal, are sound, this Court has undertaken the exercise of going through the entire testimony of witness Jhabbulal recorded before the Trial Court. As far as the incident which had taken place in the house of Guljari is concerned, it was mentioned therein that at about 12 O’clock, in the night, Master Shri Krishna holding ponia gun and Ram Sewak as well as Kishori holding country-made pistols tresspassed into the house of Guljari after jumping over southern side wall of the house of Gulzari and committed murder of Guljari, his wife Ramwati and son Rakesh by firing gun shots. He also mentioned in his testimony that because of the firing of gun-shots Umesh and Dharmendra who were sons of Gulzari were injured. According to him, on witnessing the said incident, he with his wife Leelawati left his home and went into the house of Khemkaran rasing hue and cry. It was further mentioned by the witness that the respondents had tried to trace his family and they had gone inside the shop of his brother Baburam and gunned him down after dragging him out of the shop. What was claimed by this witness was that the incident was also witnessed by Sarla Devi, daughter of Guljari, Rakesh and Madan Lal, sons of Guljari and his brothers Mohanlal, Rajaram and Kailash who were sons of Jiwan. It was asserted by him that he had witnessed the incident in the light of electric bulb. It was frankly admitted by him that no one had dared to go near to the respondents because they were carrying with fire arms. It was further asserted by him that after the respondents had left the place opposite the shop of his brother, he had gone near his injured brother who was alive and had tried to learn from Baburam as to who had assaulted him and thereupon his brother had informed him that Shrikrishna (respondent No.1), Ram Sewak (Respondent No.2) and Kishori (Respondent No. 3) had assaulted him with fire arms. It is also mentioned by him that at his instance, FIR was reduced into writing by Radhey Shyam as dictated by him and that he had filed the same at the police station. The record of the case shows that this witness was cross-examined at great length. He was subjected to grueling cross-examination which runs into 31 pages. The first and firm impression which one gathers on reading the testimony of this witness is that he is a rustic witness. A rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross-examined at length for days together. Therefore, the discrepancies noticed in the evidence of a rustic witness who is subjected to grueling cross-examination should not be blown out of proportion. To do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness. When the respondents were firing from their respective fire arms, the High Court should not have expected PW1 Jhabbulal to mention description of the whole episode which had happened in a few minutes. The rustic witnesses cannot be expected to have an exact sense of time and so cannot be expected to lay down with precision the chain of events. In the instant case, this Court is of the firm opinion that the High Court gravely erred in not accepting evidence of PW1, Jhabbulal. Jhabbulal being a rustic witness is not expected to always have an alert mind and so have an idea of direction, area and distance with precision from which he had witnessed the incident. It is well to notice that in his examination in chief, Jhabbulal never claimed that he was standing by the side of the wall of courtyard nor it was claimed by him that he had witnessed the incident through mokhana, i.e. holes in the intervening walls. Though the witness was cross-examined for days together, he was never confronted with his statement recorded under Section 161 of the Code of Criminal Procedure wherein he had allegedly stated before the Police Officer that he had witnessed the incident through holes in the intervening wall. The witness having not been confronted with his earlier police statement wherein he had reportedly stated that he had seen the incident through the holes in the intervening wall, this Court fails to understand as to how the said statement allegedly made before the police during the investigation could have been pressed into service by the High Court to reject the substantive evidence of this witness tendered before the Court wherein it was specifically asserted that while in his house, he had witnessed the incident of killing of five members of Guljari’s family by the respondents by firing gun shots. The prosecution has satisfactorily established that Baburam who was brother of Jhabbulal, PW1, had lost his life because of gun shots fired at him. The suggestion made by the defence to the witness that he was making a false claim that Baburam was alive and that on enquiry by him, Baburam had told him that the respondents had assaulted him with fire arms, as he was tutored by the police outside the court room was emphatically denied by him. It is interesting to note that to confuse this witness he was cross-examined for days together on the point as to where and in which direction houses of Kailash, Rajaram Subedar, Darbari etc. were situated. Such an attempt by defence lawyer can hardly be approved. On re-appreciation of evidence of Jhabbulal, this Court finds that he has not made major improvements in his testimony before the Court and the so-called discrepancies which are blown out of proportion by the High Court are minor in nature and do not relate to the substratum of the prosecution story. To say the least, this Court finds that the approach of the High Court in appreciating evidence of PW1 Jhabbulal who was a rustic witness is not only contrary to the well settled principles governing appreciation of evidence of a rustic witness but is perverse. At this stage, it would be well to recall to the memory the weighty observations made by this Court as early as in the year 1988 relating to appreciation of evidence and the duties expected of a Judge presiding over a criminal trial. In State of U.P. v. Anil singh, AIR 1988 SC 1998, it is observed as under :
“In the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. The indifferent attitude of the public in the investigation of crimes could also be pointed. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. It is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.”
11. There appears to be substance in the argument of the learned counsel for the State that the feeble and insubstantial reasons have been given to disbelieve the trustworthy evidence of eye-witness, Jhabbulal as High Court had decided to give undeserved benefit of doubt to the respondents and had appreciated the evidence of PW1 Jhabbulal to find out drawbacks and shortcomings in his evidence when, in fact, there were none.
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