Variation In Evidence Of Prosecution Witnesses Due To Normal Errors Of Observation Or Memory Can’t Be Accepted As Material Discrepancies: Kerala HC

The Kerala High Court observed that the variation in evidence only due to normal errors of observation or memory cannot be accepted as material discrepancies touching the core of the case.

An accused had filed an appeal challenging the conviction and sentence imposed on him for the offence under Section 302 of the Indian Penal Code (IPC).

A Division Bench comprising Justice P.B. Suresh Kumar and Justice Johnson John held, “We find that the variation in the evidence of PWs 1 to 3 regarding the exact time of occurrence are only due to normal errors of observation and normal errors of memory due to lapse of time and such discrepancies and errors will always be there and the same cannot be accepted as material discrepancies touching the core of the case.”

Advocate T.U. Sujith Kumar appeared on behalf of the appellant while Public Prosecutor E.C. Bineesh appeared on behalf of the respondents.

Facts of the Case -

As per the prosecution case, the accused and the deceased were working as employees in a restaurant and in connection with a dispute regarding cooking and supply of foods in the restaurant, there occurred a quarrel between both. For the reason that the deceased beat the accused in the said quarrel, there was enmity between the accused and the deceased who were natives of Bengal. Hence, one night, while the deceased was in the restaurant’s kitchen, the accused, with the intention to kill him, stabbed on his chest with a steel knife and committed his murder.

Therefore, an FIR was registered. When the accused was produced before the Trial Court, after hearing both sides, a charge was framed under Section 302 IPC. Since it was found that the accused was not entitled for an acquittal under Section 232 of the Criminal Procedure Code (CrPC), he was called upon to enter on his defence, but no evidence was adduced from his side. After considering the oral and documentary evidence on record, the Trial Court convicted him and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 50,000/-.

The High Court after hearing the contentions of the counsel said, “In State of Uttar Pradesh vs. M.K. Anthony [AIR 1983 SC 48], the Honourable Supreme Court held that 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.”

The Court added that it is well settled that when a material witness is examined at length, it is possible for him to make some discrepancies and no true witness can possibly escape from making some discrepant details.

“In this case, the proved circumstances clearly shows that the accused and the deceased were working in the kitchen of the restaurant and immediately on getting information about the quarrel inside the kitchen and when PWs 1 to 3 rushed to the kitchen, they saw the deceased lying there in a bleeding condition and at that time, the accused also was standing there and it is in evidence that it was CW2, Pintu Barman, who informed PWs 1 to 3 regarding the quarrel between the accused and the deceased and the proceedings of the court below shows that in spite of repeated issuance of summons, the presence of CW2, Pintu Barman, could not be secured and hence he could not be examined”, it noted.

Furthermore, the Court said that the proved circumstances are of a conclusive nature and tendency excluding every other hypothesis, except the one pointing to the guilt of the accused. Therefore, on an overall analysis of the circumstances proved, it found that the prosecution has succeeded in proving the case against the accused.

Accordingly, the High Court dismissed the appeal and confirmed the conviction.

Cause Title- Thapas Berman @ Thapas v. State of Kerala (Neutral Citation: 2024:KER:1821)

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