REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1264 OF 2005

BABASAHEB APPARAO PATIL — APPELLANT (S)

VERSUS

STATE OF MAHARASHTRA — RESPONDENT (S)

J U D G M E N T

D.K. JAIN, J.:

1. This  appeal  arises  out  of  the  judgment  rendered  by  the

High Court  of  Judicature  at Bombay,  in Criminal  Appeal

No. 686 of 1988, confirming the conviction of the appellant

for  offence  under  Section  302  read  with  Section  34  of

Indian Penal Code, 1860 (for short ‘IPC’).

2. As many as  four  accused  came  to  be  tried  by  the  Addl.

Sessions Judge, Solapur in Sessions Case No.198 of 1987.

These  persons  were  Babasaheb  Apparao  Patil  –  Accused

No.1,  Tanaji  Manikrao  Patil  -  Accused  No.2,  Appasha

Dharmarao  Patil  -  Accused  No.3  and  Prakash  Limbanna

Koli  –  Accused  No.4.    The  Trial  Court  convicted  all  the

accused for the said offence and sentenced them to suffer

rigorous  imprisonment  for  life  and  to  pay  a  fine  of

Rs.1000/- each, with default stipulation.  All the convicts

preferred an appeal to the High Court.  Although accused

No.2 and 4 expired during the pendency of the appeal, yet

the High Court dealt with their appeals as well.  The High

Court confirmed the conviction of the appellant herein and

accused  No.2  but  acquitted  the  remaining  two  accused,

giving them the benefit of doubt.

3. According to the prosecution in village Boramani, District

Solapur, there are two rival parties.  Manikrao Patil was the

leader  of  one party and the  deceased  -  Baburao  Vibhute

was the leader of the other party.  Tanaji Manikrao Patil –

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Accused  No.2  is  the  son  of  Manikrao  Patil.   Babasaheb

Apparao Patil–Accused No.1 and Appasha Dharmarao Patil

–  Accused  No.3  are  cousin  brothers  of  Tanaji.   Prakash

Limbanna Koli-Accused No.4 is not related to other three

accused but was known to them.  On 7th June, 1989, one

Abhimanyu  Rama  Bhagare  had  assaulted  the  said

Manikrao Patil, father of Accused No.2 by using a Sattur.

Abhimanyu  was  a  good  friend  of  the  deceased  Baburao

Vibhute.   Manikrao  suspected  that  assault  on  him  by

Abhimanyu had been instigated by the deceased Baburao

and therefore, he held a grudge against him.

4. On  19th June,  1986,  the  deceased  –  Baburao  Vibhute,

Sidram  Birajdar  (PW-10)  Sarpanch  of  village  Boramani,

Prakash Rajguri  (PW-11),  driver  of  the deceased  and one

Suresh  Rokade  left  for  Solapur  by  jeep  because  the

deceased had some work there.  On completion of the work,

at around 3.00 p.m. they started the return journey.  On

their way, they stopped at hotel Khansaheb to take some

snacks.   But  since  vegetarian snacks  were  not  available,

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they procured beer from outside and had it in the hotel.  At

the  hotel,  Prakash  (PW-11)  saw Shivaji  Rajguru (PW-26),

who was in the service of the deceased and had owed some

money to him. He, accordingly informed the deceased, who

demanded money from Shivaji but on his failure to oblige

him, he belaboured him and made him sit in the jeep to

take him to his village.  When the jeep came near the village

of Shivaji,  his wife (PW-19) stopped it.  The deceased got

down from the jeep and was talking with the wife of Shivaji.

While  the  conversation  was going  on,  another  jeep  came

from the side of Solapur.  All  the four accused got down

from  the  jeep.   Accused  No.1  was  armed  with  a  pistol;

Accused No.2 got down wielding an instrument like jamiya

(dagger); Accused No.3 came to the rear side of the jeep of

the deceased and grabbed him from behind; Accused A-2

gave a dagger blow on his stomach.  When the deceased fell

down on the ground, Accused No.1 fired a bullet shot at his

chest.  On seeing the assault, Sidram (PW-10) ran away out

of fear.  At a nearby petrol pump, he boarded a truck and

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reached Hyderabad.  Prakash (PW-11) the driver of the jeep,

also fled from the scene and on reaching Solapur, he went

to the house of his uncle (PW-18) and narrated the entire

incident to him.

5. On 19th June, 1986 itself, at about 9.10 p.m., a phone call

was  received  by  CPI  Bhaskar  Patil  (PW-28)  from  an

unknown  person  informing  him  about  the  murder  of

Baburao  Vibhute.   The  said  informant  is  stated  to  have

disclosed  that  the  murder  had  been  committed  by

Babasaheb Patil - Accused No.1 and Tanaji Patil – Accused

No. 2.  PW-28, after making the entry in the station diary

regarding the telephonic message, conveyed the information

to  PSI  Annasaheb  Patil  (PW-33),  attached  to  the  Taluka

police  station  within  whose  jurisdiction  the  murder  had

been committed.  On receiving the information, the police

sprung into action.  At the place of occurrence, Panchnama

of the scene of occurrence was prepared, the jeep and some

articles alongwith the dead body were seized.  The body of

Baburao was sent for post mortem.  At the civil  hospital,

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Dr. Kanki (PW-20) performed the post mortem and found as

many as 15 injuries on the person of the deceased.   The

injuries included a fire arm injury over abdomen near left

postal  margin,  four  deep  incised  wounds  over  abdomen,

four stab wounds over chest, one incised wound over left

side at lumber region and exit wounds of pellets.  Lungs,

kidneys, liver, spleen were also injured.  Doctor opined that

these injuries were sufficient to cause death and the death

was caused on account of shock and haemorrhage and due

to injuries sustained by the deceased over abdomen, chest

and  to  visceral  organs.   On completion  of  investigations,

which  included  recording  of  confessional  statements  of

Accused  No.2  and Accused  No.4,  who also  produced  the

weapons of offence (2 daggers and one country made pistol),

chargesheet was filed against all the accused.

6. The accused abjured their guilt and accordingly, the trial

was  held.    The  prosecution  examined  as  many  as  33

witnesses to support its case.  No evidence was produced in

defence.   Upon  consideration  of  the  evidence,  as  noted

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above,  the  trial  court  convicted  all  the  four  accused  for

offence punishable under Section 302 read with Section 34

of  the  IPC.  Appellant’s  (Accused  No.1)  conviction  having

been confirmed by the High Court, he has come up before

us in this appeal.  The other convict - Accused No.2 expired

during the pendency of his appeal in the High Court.

7. Learned counsel for the appellant contended that the trial

court  as  also  the  High Court  committed  serious  error  in

relying  on the  wholly  unreliable  testimony of  PW-10 and

PW-11,  examined  by  the  prosecution  as  eye-witnesses,

inasmuch as there are contradictions and discrepancies in

their evidence.  It was argued that the story of PW-10 going

to Hyderabad is inherently improbable and was a make up

to  cover  the  delay  of  three  days  in  recording  of  his

statement  by  police  on  23rd June,  1986.   It  was  also

submitted that it was very improbable that Prakash (PW-

11), an employee of the deceased, stated to have seen the

entire incident did not disclose the name of the accused to

his  uncle  Kisan  Ingale  (PW-18)  when  he  met  him

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immediately thereafter and furthermore instead of reporting

the occurrence to the police he went to his uncle’s house

and narrated the incident to him.  It was pleaded that all

the  accused  had  been  falsely  implicated  on  account  of

rivalry between the two factions in the village.   

8. Learned counsel  appearing on behalf  of the State, on the

other hand, supported the judgment of the High Court and

submitted  that  the  evidence  of  the  two  eyewitnesses,

coupled  with  the  medical  evidence  and  the  recovery  of

weapons  of  offence  clearly  prove  the  case  against  the

appellant.

9. Having carefully gone through the judgments of the courts

below, we feel that in the light of the evidence on record, the

view taken by the High Court is correct.

10. As  noted  earlier,  the  mainstay  of  the  prosecution  is  the

testimony  of  Sidram  (PW-10)  and  Prakash  (PW-11)  who

claimed to be eye witnesses of the occurrence.  Both the

courts  below have  found their  evidence  creditworthy and

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have held that the minor contradictions in their testimony

were not sufficient to affect the credibility of their evidence.

The  discrepancies  in  the  evidence  of  PW-10  highlighted

before the High Court on behalf of the appellants were: (i)

his non–mentioning of non-availability of vegetarian food in

the hotel and drinking of beer as recorded in his statement

by  police  (ii)  belabouring  of  Shivaji  by  Baburao  after

returning to the hotel.  Similarly, the alleged omissions on

which emphasis was laid were : (i) non-mentioning of the

deceased falling on his back after receiving the first jamiya

blow  and  (ii)  the  firing  of  bullets  at  the  chest  of  the

deceased.   As  regards  PW-11,  the  alleged  contradictions

were  again  with  regard  to  his  going  to  the  market  to

purchase  beer  and  the  deceased,  Sidram  and  Suresh

having beer at the hotel.   The stated omission was again

about the bullet being fired at the chest of the deceased.

11.As  already  noted,  the  High  Court  has  come  to  the

conclusion,  and  in  our  opinion,  rightly,  that  the

contradictions brought on record pertaining to the bringing

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and drinking of beer are not directly related to the incident

and cannot be said to be material contradictions.  Similarly,

the alleged omission relating to the firing being on the chest

of  the  deceased  has also  been held  to be  not  a  material

omission because there is no omission in the statement as

regards the firing by the appellant on the deceased.

12. It  is to be borne in mind that some discrepancies  in the

ocular account of a witness, unless these are vital, cannot

per se  affect the credibility of the evidence of the witness.

Unless the contradictions are material, the same cannot be

used  to  jettison  the  evidence  in  its  entirety.   Trivial

discrepancies  ought  not  to  obliterate  an  otherwise

acceptable evidence.  Merely because there is inconsistency

in evidence, it is not sufficient to impair the credibility of

the witness.  It is only when discrepancies in the evidence

of a witness are so incompatible with the credibility of his

version that the court would be justified in discarding his

evidence.

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13. In  State of U.P.  Vs.  M.K. Anthony1, this Court indicated

the  proper  approach  which  needs  to  be  adopted  while

appreciating the evidence of a witness.  It was observed as

under:

“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, 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 given by the witness 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, hyper-technical 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.  If  the  court before  whom  the  witness  gives  evidence  had  the opportunity to form the opinion about the general tenor of 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  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.”

1 (1985) 1 SCC 505

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14.  In  Appabhai & Anr.  Vs.  State of Gujarat2,  this Court

had again emphasized that while appreciating the evidence,

the  court  should  not  attach  undue  importance  to  minor

discrepancies.  The discrepancies which do not shake the

basic  version  of  the  prosecution  case  may  be  discarded.

Similarly, the discrepancies which are due to normal errors

of  perception  or  observation  should  not  be  given

importance.   The  Court  by  calling  into  aid  its  vast

experience  of  men  and  matters  in  different  cases  must

evaluate  the  entire  material  on  record  as  a  whole  and

should not disbelieve the evidence of a witness altogether, if

it is otherwise trustworthy.

15. Having gone through the evidence of PW-10 and PW-11, we

are in  complete  agreement  with the  High Court  that  the

aforenoted  contradictions  are  not  directly  relating  to  the

incident and cannot be said to be material contradictions

affecting  the  credibility  of  the  evidence  of  both  the  eye

witnesses  viz. PW-10 and PW-11.  Similarly, the so-called

2 1988 (Supp) SCC 241

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omission of not mentioning the exact portion of the body of

the deceased where the shot had been fired cannot be said

to be a significant omission because there was no omission

as regards the firing by the appellant on the deceased.   In

his  testimony,  PW-10  has  given  graphic  details  of  the

occurrence.  Similarly, PW-11, the driver of the jeep, in his

evidence,  has  narrated  the  incidence  which  corroborates

with  the  version  of  PW-10.   The  evidence  of  these  two

witnesses  stands  corroborated  by  the  medical  evidence,

which clearly  shows that several  blows were given to the

deceased by jamiya (dagger) and a fire arm injury was also

found over the abdomen of the deceased.  The conduct of

PW-11  in  going  to  the  house  of  his  uncle  instead  of

reporting  the  incident  to  the  police  cannot  be  said  to be

unnatural, impairing the creditworthiness of his evidence.

The post-event conduct of a witness varies from person to

person.  It cannot be a cast iron reaction to be followed as a

model  by  every  one  witnessing  such  event.   Different

persons would react differently on seeing any serious crime

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and  their  behaviour  and  conduct  would,  therefore,  be

different. (See:  Rammi @ Rameshwar Vs. State of M.P.3).

Therefore, having witnessed a dastardly murder, it was not

unnatural  for  the  said  witness  to  go  to  his  uncle  and,

therefore, the courts below were justified in not rejecting his

evidence merely on that score.

16.Thus, we are unable to agree with learned counsel for the

appellant that the trial court as well as the High Court have

failed to appreciate properly the evidence on record.  We are

convinced that the conclusions of the courts below, that the

appellant had committed the offence of murder of Baburao

Vibhute, are supported by acceptable evidence.  We do not

find any legal or factual infirmity in the impugned judgment

warranting  interference.   The  appeal  is  dismissed

accordingly.  

…………………………………………J.    (D.K. JAIN)  

3 (1999) 8 SCC 649

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                              ..….…………………………………….J.   (V.S. SIRPURKAR)

NEW DELHI; NOVEMBER 28, 2008.

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