The complainant as well as the State have approached this Court by way of the above two appeals, which were admitted and leave was granted on 26.09.2008. They were as follows :- (1) Jethnath having an ‘axe’ (2) Dhurnath having a ‘dang’ (3) Meghnath having a ‘farsi’ (4)
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Rughnath having Favda (Shovel) (5) Babunath having a ‘dang’ (6) Malanath having an ‘axe’ and (7) Devnath having a ‘dang’ All the above named accused, who were armed, started assaulting the aunt and uncle of the complainant- Birbalnath, in which both were grievously injured. In their statement under Section 313 of CrPC, all the accused denied the charges and the evidence against them and also presented defence witnesses in the form of – Birmaram (DW-1), Hanutaram (DW-2), Khemaram (DW- 3), Dr. The examination-in-chief and cross examination of Rami was done before the Trial Court on 27.11.2001. In her examination-in-chief PW-2 consistently held the position that she and her husband were working on their field, and each of the accused was armed with either ‘axe’, ‘farsi’ or other weapon and that they were seven in number, who assaulted her and her husband.
Apart from Rami (PW-2) and Rampyari (PW-3) there are other eye witnesses as well (PW-6 and PW-7), who had reached the spot after they heard an alarm raised by Rami.
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The post mortem report shows the following ante mortem injuries: “(i): Lacerated wound in the size of 1 12” X 12” bone deep over the left parietal region of scalp.
The injuries sustained by Rami as per her injury report dated 22.05.2001 is as follows: 1.Incised wound in the size of 2 12 ” x 12 ” x bone deep, deep/over anterior portion of scalp trans- vertically placed, simple in nature; Advised for X-Ray Report, by Sharp weapon.
4.Bruise in the size of 1 12 ” x 12 ” on middle of left arm laterally, simple in nature, by blunt object. PW- 2 is an injured witness and wife of the deceased, who has given her clear and unambiguous statement in her examination-in-chief and though she was cross-examined at length this witness stood her ground.
Jeth Nath having been assigned an axe and there being no axe injury, the beginning of the story as given by the prosecution witness, PW/2 Rami injured eye witness, does not appear to be correct. No doubt statement given before police during investigation under Section 161 are “previous statements” under Section 145 of the Evidence Act and therefore can be used to cross examine a witness. Even if the defence is successful in contradicting a witness, it would not always mean that the contradiction in her two statements would result in totally discrediting this witness.
But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.” In the same case, how far a contradiction in the two statements can be used to discredit a witness has also been discussed. Impeaching credit of witness.—The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him— (1)-(2)*** (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;” 26.
Section 145 of the Evidence Act also enables the cross- examiner to use any former statement of the witness, but it cautions that if it is intended to “contradict” the witness the cross-examiner is enjoined to comply with the formality prescribed therein.
Even assuming for the sake of argument that there is a difference in the two statements of PW-2 as she evidently does not disclose in her examination-in-chief that Jethnath was also working in the adjacent field and there was altercation between the two, this may discredit the witness only so far as the beginning of the incident; how it started.
The Trial Court on the other hand had examined this aspect in detail and ultimately did not find the evidence placed by defence as credible. The Trial Court held that the medical report of this witness (DW-4) to be “suspicious”, for the reasons that there was no explanation as to how the two accused had sustained these injuries. Mansingh and Others (2003) 10 SCC 414 where conviction of the accused by the trial court, inter alia, under Section 302, was set aside by the High Court on the so called discrepancies of an injured witness this court while allowing the State’s appeal against the acquittal said this : “9. The reasons assigned for disbelieving the statement of PW-2 by the High Court are not correct. This determination of the High Court is based on primarily on two aspects, first that the assailants too had sustained injuries and secondly the discrepancies in the evidence of PW-2.
Case Title: BIRBAL NATH Vs. THE STATE OF RAJASTHAN
Case Number: Crl.A. No.-001587-001587 / 2008
