KATHI BHARAT VAJSUR & ANR.versusSTATE OF GUJARAT

                         [2012] 5 S.C.R. 850

A                 KATHI BHARAT VAJSUR & ANR.
                                   v.
                        STATE OF GUJARAT
                (Criminal Appeal No. 1042 of 2002)

                            MAY 08, 2012
B
              [H.L. DATTU AND ANIL R. DAVE, JJ.)

         Penal Code, 1860 - s. 302 rlw s. 34 - Armed assault -
     Gunshots - Blow on head with axe - Death of one person and
C   serious injury to PW6 - Acquittal of all three accused by trial
    court - Death of A 1 during pendency of appeal - A2 and A3
    convicted by High Court u/s.302 rlw s.34 and sentenced to life
    imprisonment - Justification - Held: From the evidence of
    PW5, PW6, PW7, PWB, PW12 and PW16, it is clear that A1,
D   A2 and A3 were present at the place of the incident and were
    carrying tamanchas (country pistols) and axe; that there was
    altercation between the accused persons and PW5, PW6 and
    the deceased; that gun shots were fired and that deceased
    died because of gun shot injuries and blow on the head with
E   axe by A3 - Trial Court took a hyper-technical view by primarily
    concentrating on minor contradictions to hold that the
    prosecution failed to prove the guilt of the accused beyond
    reasonable doubt - Though there were some discrepancies
    in the evidence given by PW5 and PW6, guilt of the accused
F   not in doubt - Injuries on PW6 and the deceased were
    consistent with the testimony of the evidence tendered by the
    eyewitnesses, namely PW5 and PW6 - When medical
    evidence is in consonance with the principal part of the oral/
    ocular evidence thereby supporting the prosecution story, no
G   question of ruling out the ocular evidence merely on the
    ground that there are some inconsistencies or contradictions
    in the oral evidence - The fact that the eyewitnesses did not
    recognize the weapons used, made no difference to the
    prosecution case in view of the entire evidence on record -

H                                850
    KATHI BHARAT VAJSUR & ANR. v. STATE OF                 851
                  GUJARAT

Guilt of appellants (A2 and A3) proved beyond doubt - High        A
Court correctly appreciated the evidence on record -
Conviction and sentence of appellants, as imposed by High
Court, accordingly upheld.

     Evidence - Oral/Ocular evidence - Appreciation of - B
Contradictions and inconsistencies - Effect of - Held: While
appreciating the evidence, the court has to take into
consideration whether the contradictions/omissions had been
of such magnitude that they may materially affect the trial -
Minor contradictions, inconsistencies, embellishments or C
improvements on trivial matters without effecting the core of
the prosecution case should not be made a ground to reject
the evidence in its entirety.

      Witness - Unusual reaction of eye-witness - Effect of -
Held: When an eyewitness behaves in a manner that perhaps         D
would be unusual, it is not for the prosecution or the Court to
go into the question as to why he reacted in such a manner -
There is no fixed pattern of reaction of an eyewitness to a
crime - When faced with what is termed as 'an unusual
reaction' of an eyewitness, the Court must only examine           E
whether the prosecution story is in anyway affected by such
reaction - If the answer is in the negative, then such reaction
is irrelevant.

     The prosecution case was that there was an
                                                                  F
altercation between the three accused persons (A1, A2
and A3) and PW5, PW6 and 'M', whereupon A1 opened
fire from his double bore tamancha (country pistol)
causing injuries to PW6 and in the meanwhile, A2 also
fired from tamancha on the person of 'M' due to which
he fell down, and thereafter A3 caused injury on the head         G
of 'M' with an axe. Due to the injuries caused, 'M' died on
the spot. Charge-sheet was filed against the three
accused persons for offences punishable under Sections
302, 307 read with Section 34 IPC. The trial court, however,
acquitted the accused persons, on the ground that the             H
    852      SUPREME COURT REPORTS             (2012] 5 S.C.R.


A prosecution failed to prove its case beyond reasonable
  doubt. The State preferred appeal before the High Court.
  During pendency of the appeal, A1 expired, and the
  appeal stood abated as against him. The High Court
  reversed the order of acquittal passed by the trial court
B and convicted A2 and A3 under section 302 read with
  section 34 IPC, sentencing them to imprisonment for life.
  Hence the present appeal by A2 and A3.

          Dismissing the appeal, the Court

C      HELD: 1. The circumstances in which an appellate
  court will interfere with the finding of the Trial Court are
  now well settled. The High Court is entitled to re-
  appreciate the evidence if it is found that the view taken
  by the acquitting Court was not a possible view or that it
D was a perverse or infirm or palpably erroneous view or
  the Trial Court has taken into consideration
  inconsequential circumstances or has acted with
  material irregularity or has rejected the evidence of eye-
  witnesses on wrong assumptions. [Paras 12, 13) [861-C-
E G-H]

          Narinder Singh v. State of Punjab 2000 Crl.LJ 3462 SC
    - relied on.

       Dwarka Dass v. State of Hayana (2003) 1 SCC 204: 2002
F (4) Suppl. SCR 150; State of UP, v, Krishna Gopa/ (1988) 4
  SCC 302: 1988 (2) Suppl. SCR 391 and Gurbachan Singh
  v. Satpal Singh (1990) 1 SCC 445: 1989 (1) Suppl. SCR 292-
  referred to.

G      2. In the instant case, it is not in dispute that one
  person 'M' was killed and the other person PW6 was
  seriously injured. From a perusal of the entire evidence
  on record, it is clear that Trial Court had erred in holding
  that the prosecution had not been able to prove the case
H beyond reasonable doubt. By relying on the evidence of
    KATHI BHARAT VAJSUR & ANR. v. STATE OF             853
                   GUJARAT
PW5, PW6, PW7, PW8, PW12 and PW16, there can be no            A
doubt that A 1, A2 and A3 were present at the place of the
incident and were carrying tamanchas and axe, and that,
there was an altercation between the accused persons
and PW5, PW6 and 'M', and that gun shots were fired and
'M' died because of the gun shot injuries and the blow        B
on the head with the axe by A3. Perhaps the Trial Court
took a hyper-technical view by primarily concentrating on
minor contradictions to hold that the prosecution has
failed to prove the guilt of the accused beyond
reasonable doubt. [Para 16) [864-8-F]                         C

     3. Though there were some discrepancies in the
evidence given by PW5 and PW6, there is no doubt about
the guilt of the accused. While appreciating the evidence,
the court has to take into consideration whether the
                                                              0
contradictions/omissions had been of such magnitude
that they may materially affect the trial. Minor
contradictions, inconsistencies, embellishments or
improvements on trivial matters without effecting the core
of the prosecution case should not be made a ground to
reject the evidence in its entirety. [Paras 17, 19) [864-G;   E
865-A; G-H]

     Leela Ram v. State of Haryana (1999) 9 SCC 525: 1999
(3) Suppl. SCR 435 and Sunil Kumar Sambhudaya/ Gupta
(Dr.) v. State of Maharashtra (2010) 13 SCC 657: 2010 (15)    F
SCR 452 - relied on.

    4. Moreover, the injuries on PW6 and 'M' are
consistent with the testimony of the evidence tendered
by the eyewitnesses, namely PW5 and PW6. When the             G
medical evidence is in consonance with the principal part
of the oral /ocular evidence thereby supporting the
prosecution story, there is no question of ruling out the
ocular evidence merely on the ground that there are
some inconsistencies or contradictions in the oral
evidence. [Paras 20, 21) [867-F-G; 868-C-D]                   H
    854      SUPREME COURT REPORTS                [2012] 5 S.C.R.


A         Rakesh v. State of M. P. (2011) 9 SCC 698 - referred to.

       6. The unusual behaviour of the injured eyewitness,
  PW6, did not, in anyway, aid the appellants to punch a
  hole on to the prosecution story. The trial judge was not
8 justified in disbelieving the evidence of PW6. When an
  eyewitness behaves in a manner that perhaps would be
  unusual, it is not for the prosecution or the Court to go
  into the question as to why he reacted in such a manner.
  There is no fixed pattern of reaction of an eyewitness to
C a crime. When faced with what is termed as 'an unusual
  reaction' of an eyewitness, the Court must only examine
  whether the prosecution story is in anyway affected by
  such reaction. If the answer is in the negative, then such
  reaction is irrelevant. [Paras 22, 23] [868-D-E; 869-F-H;
D 870-A]
          Appabhai v. State of Gujarat (1988) Supp. SCC 241 -
    relied on.

       7. When the entire evidence on record is considered,
E the fact that the eyewitnesses did not recognize the
  weapons used, makes no difference to the prosecution
  story. In the instant case, cumulative reading of the entire
  evidence makes the prosecution story believable, thereby
  proving the guilt of the accused-appellants beyond any
F doubt. The High Court in the impugned judgment has
  correctly appreciated the evidence on record, and there
  is no infirmity in the same, therefore the conviction of guilt
  and sentence imposed by the High Court is upheld.
  [Paras 25, 26] [870-F-G-H; 871-A]
G         Mahendra Pratap Singh v. State of U.P. (2009) 11 SCC
    334: 2009 (2) SCR 1033 - distinguished.
      8. The appellants had been enlarged on bail during
  the pendency of this appeal before this Court. Therefore,
H the Jurisdictional Jail Superintendent is directed that the
    KATHI BHARAT VAJSUR & ANR. v. STATE OF             855
                  GUJARAT

appellants be taken into custody forthwith to serve out       A
the sentence of life imprisonment. [Para 27] [871-B-C]

                    Case Law Reference.:
    2002 (4) Suppl. SCR 150 referred to          Para 12
                                                              B
    2000 Crl.LJ 3462 SC        relied on         Para 13
    1988 (2) Suppl. SCR 391 referred to          Para 14
    1989 (1) Suppl. SCR 292 referred to          Para 15
    1999 (3) Suppl. SCR 435 relied on            Para 18      c
    2010 (15) SCR 452          relied on         Para 19
    (2011) 9 sec 698           referred to       Para 20
    (1988) Supp. sec 241       relied on         Para 22      D
    2009 (2) SCR 1033          distinguished     Para 24

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1042 of 2002.
                                                              E
    From the Judgment & Order dated 15.07.2002 of the High
Court of Gujarat at Ahmedabad in Criminal Appeal No. 744 of
1985

     S.K. Dholakia, Pramit Saxena, Amit Kumar Sharma (for
E.C. Agrawala) for the Appellants.                            F

   Madhvi Diwan, Jesal Wahi, Nandini Gupta (for Hemantika
Wahi) for the Respondent.

    The Judgment of the Court was delivered by
                                                              G
    H.L. DATTU, J. 1. This appeal is directed against the
judgment and order passed by the Division Bench of the High
Court of Gujarat in Criminal Appeal No. 744/1985 dated
15.07.2002. By the impugned judgment and order, the High
Court has reversed the order of acquittal passed by the       H
    856      SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A Additional Sessions Judge, Amreli in Sessions Case No. 22/
  84 and convicted the two appellants for the offence punishable
  under section 302 read with section 34 of the Indian Penal
  Code, 1860 ["the IPC" for short], sentencing them to
  imprisonment for life and a fine of Rs. 1000/- each, in default
B of which they are directed to further undergo rigorous
  imprisonment for six months.

       2. At the outset, we note that initially there were three
  accused before the Trial Court, and they were all acquitted for
  the offences alleged against them. During the pendency of the
C appeal before the High Court, A1 (Kathi Fakira Vajsur) expired,
  and the appeal stood abated as against him. The other two
  accused, namely A2 (Kathi Bharat Vajsur) and A3 (Kathi
  Ramku Vajsur) are prosecuting this appeal. During the
  pendency of this appeal, this Court had enlarged the appellants
D on bail vide order dated 03.-12.2002.

         3. The factual scenario giving rise to the present appeal
    is as follows:

E       The case of the prosecution is that, a part of the adjoining
  land of the primary school in village Gigasan was leased out
  to A1, where he had constructed a storage tank for storage of
  kerosene. It was resolved by the Gigasan Panchayat to give
  the road between the school and the tank to the school for their
  use. Therefore, Panchayat had proposed to construct a wall on
F the land so granted. Prior to the date of the incident, when one
  Amra Pitha and other labourers had commenced the work on
  the said plot, A1 protested to it and did not permit them to carry
  out the proposed work, due to which Amra Pitha had to
  complain to the Sarpanch Jagu Dada and the Secretary of the
G Panchayat Shri. Kanubhai about the interference caused by A1.
  On the morning of the incident, i.e. 30th March 1984, when Jagu
  Dada (PW6), Mulu Dada (deceased) and Dhoha Vasta
  (Informant) informed the President of the Taluka Development
  Officer about the attitude of A1 towards Amra Pith a and other
H
    KATHI BHARAT VAJSUR & ANR. v. STATE OF                   857
            GUJARAT [H.L. DATIU, J.]
labourers, he directed Mulu Dada to ignore the threat and           A
complete the construction as resolved by the Panchayat.

      4. On the same day, at about 3.30 pm, PW6, the
deceased and two labourers, namely Jetha (PW8) and Natha
(PW7) went to the plot and began the construction work as
                                                                    8
directed and they were assisted by Manjibhai and Patel who
were teachers working in the Primary School. When they began
digging for laying the foundation, A 1 along with his brothers A2
and A3 came near the plot and asked them not to dig the pit.
After verbal exchange, A1 took out a double bore tamancha
from his pocket and pointed at PW6, and threatened him to           C
leave. On his refusal to leave, A 1 opened fire which caused
injury on his right hand and thereafter, again fired on the chest
of PW6. Meantime, A2 also fired from tamancha on the person
of Mulu Dada due to which Mulu Dada fell down, after which
A3 caused injury on the head with an axe which he was carrying      D
with him. Thereafter they fled from the place of incident. Due
to the injuries caused, Mulu Dada died on the spot. Immediately,
PW5 reported the incident to the Police Station, Dhari and on
the basis of the written report the Station Officer took-up the
investigation and on completion thereof charge-sheet was filed      E
against the accused persons for the offences punishable under
Sections 302, 307 read with Section 34 of the Indian Penal
Code (for short 'the IPC').

     5. To substantiate its accusation, prosecution examined        F
several witnesses to prove its case before the Trial Court. The
Trial Court, after considering the entire evidence on record,
acquitted the accused persons, on the ground that the
prosecution failed to prove its case beyond reasonable doubt.

     6. Aggrieved by the same, the State preferred an appeal        G
before the Gujarat High Court. The Court, after examining the
entire evidence on record, has set aside the judgment and
order passed by the Trial Court, and convicted A2 and A3
under Section 302 read with Section 34 of the IPC, sentencing
them to life imprisonment and a fine of Rs. 1000/- each.            H
    858     SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A   However, as far as A 1 was concerned, the appeal had abated
    due to his death. Aggrieved by the conviction and sentence
    passed by the High Court, the accused -appellants are before
    us in this appeal.

        7. Shri. Dholakia, learned senior counsel, submitted that
8
  the Trial Court was justified in acquitting the accused persons,
   as the Trial Court had recorded that there are material
  contradictions in the statements of PW5 and PW6 recorded by
  the police under section 161 of the Code of Criminal Procedure,
C 1973 [hereinafter referred to as "the Code"] and the evidence
  that was tendered in the Court during the trial. He further
  submits that the tamancha allegedly used, was a single barrel
  gun, which needs to be reloaded after firing a single shot and
  that there was no evidence of such reloading. By referring to
  the testimony of the ballistic expert (PW 18), the learned senior
D counsel would state that the answer given by him was not
  conclusive whether such a fire arm could have been used. He
  would submit that since the conviction and sentence is imposed
  under Section 302 r/w Section 34, it was required for the
  prosecution to prove which injury was caused by which accused
E and which injury was fatal to the life of the accused. He would
  emphasize that there must be a live link between all the alleged
  events, in order to prove the guilt of the appellants beyond
  reasonable doubt, which he would submit, is missing in this
  case.
F
       8. The four main contradictions/discrepancies that Shri.
  Dholakia points out in the prosecution story are: (a) The eye
  witnesses (PW5 and PW6), when they were shown the arms
  recovered, emphatically denied that those were not the arms
G used on the date of the incident; (b) the sequence of the
  shooting by A 1 and A2, and who shot whom was not clear from
  the testimony of PW5 and PW6 when read along with their
  statements recorded under section 161 of the Code; (c) that
  the clothes of PW5, which were seized and who is said to have
H carried the body of the deceased, had absolutely no blood
     KATHI BHARAT VAJSUR & ANR. v. STATE OF                  859
             GUJARAT [H.L. DATTU, J.]

stains on his clothes; and (d) the conduct of the injured witness   A
(PW6), in running away from the scene of the incident to a room
and locking himself, and then running back to the scene of the
incident, was suspicious and abnormal. Shri. Dholakia would
then submit that if two views are possible, then the one that was
in favour of the accused requires to be adopted. In conclusion,     B
it is submitted that the Trial Court, which had observed the
demeanour of the witnesses and considered all the facts and
circumstances, had rightly acquitted the appellants of all
charges. It is also contended that in the absence of any
perversity or omission to consider material evidence or             c
apparent error in law, the judgment of the Trial Court was not
open to interference in an appeal against acquittal.

      9. Smt. Madhavi Divan, learned counsel appearing for the
respondent-State would fairly submit that some contradictions
                                                                     0
or discrepancies could be found in the evidence recorded, but
would contend that if the evidence is read as a whole, there
would not be even an iota of dou~t left as to the guilt of the
appellants. She would further submit that even if portions of the
evidence of the hostile witnesses are eschewed from
consideration, still it is possible to arrive at the same conclusion E
as has been done by the High Court. The learned counsel would
rely on the testimony of PW6, who is an injured witness to
establish the presence of all the three accused at the time of
the incident. PW6 has further described the kind of injuries that
he had sustained, which, she would submit would corroborate F
with the medical evidence as well as the testimony of the doctor
who had treated the injured witness. The learned counsel would
submit that though, PW6 may be confused about the sequence
of the gun shots, there is absolutely no dispute as to who fired
the shots at the deceased person. Smt. Divan would further refer G
to the evidence of PW12 (Manjibhai), a teacher in the Primary
School, who has also testified that the three accused were
present at the scene of occurrence and they were carrying
tamanchas and one of them an axe, and that there was an
heated altercation between the accused persons and the H
    860      SUPREME COURT REPORTS                [2012] 5 S.C.R.


A   deceased (PW5 and PW6), when he (PW12) left the scene.
    She would also state that he had heard the gun shots, and when
    he came out, saw the corpse of the deceased in pool of blood.
    The learned counsel would then refers to the evidence of PW7
    and PW8, the labourers who were present at the place of the
B   incident, who have also testified that the accused had come to
    the place with tamanchas and axe, and that there was
    altercation between the accused and the deceased, PW5 and
    PW6. They also testified that they had heard the gun shots. She
    would then refer to the evidence of PW16 (Lakha), who had
c   also heard the gun shots fired, and was told about the incident
    by PW5.

       10. Smt. Divan would fairly submit that though PW?, PW8
  and PW12 are all declared hostile, yet, she would state that by
  reading their evidence with the evidence of PW5, PW6 and
D PW16, it is clear that the deceased, PW5 and PW6 were
  present at the place of the incident, and so were the accused
  appellants armed with tamanchas and axe. She would further
  submit that the factum of an altercation between the two parties
  was also established from the evidence on record, and that of
E the gun shots fired. With this evidence, Smt. Divan would
  submit, it is clear beyond any doubt that the death of the
  deceased was caused by the accused appellants, and strongly
  refuted the contention of Shri. Dholakia that two views were
  possible, stating that on this evidence no other view was
F possible, apart from the view taken by the High Court.

       11. Smt. Madhavi Divan, learned counsel, would submit that
  this Court must not give undue importance to the non-
  recognition of the weapons by PW5 and PW6 during the trial.
G According to the learned counsel, the panch witnesses have
  identified the weapons recovered at the instance of the
  accused during the trial. She would, for this purpose, refers to
  the evidence of PW10 (Vallabhbhai), who not only narrated the
  place and manner in which the axe and the other weapons were
  recovered at the instance of A2, but also identified the same
H
     KATHI BHARAT VAJSUR & ANR. v. STATE OF                    861
             GUJARAT [H.L. DATTU, J.]

when shown the same in Court. She would further state that it          A
is reasonable for the eyewitnesses, one of whom was injured
in the incident, not to have seen the weapons in the commotion
of the incident properly. To sum up, the learned counsel submits
that the High Court, after re-appreciating the entire evidence on
record, has come to the conclusion that the Trial Court has fallen     B
in error in magnifying the minor contradictions to arrive at a
conclusion that the prosecution has failed to prove the guilt of
the accused beyond all reasonable doubt.

     12. The circumstances in which an appellate court will            C
interfere with the finding of the Trial Court are now well settled
by catena of decisions of this Court. In Dwarka Dass v. State
of Haryana, (2003) 1 SCC 204, the dicta of all these decisions
has been crystallized thus:

     "2. While there cannot be any denial of the factum that the       D
     power and authority to apprise the evidence in an appeal,
     either against acquittal or conviction stands out to be very
     comprehensive and wide, but if two views are reasonably
     possible, on the state of evidence: one supporting the
     acquittal and the other indicating conviction, then and in that   E
     event the High Court would not be justified in interfering with
     an order of acquittal, merely because it feels that it, sitting
     as a trial court, would have taken the other view. While re-
     appreciating the evidence, the rules of prudence requires
     that the High Court should give proper weight and                 F
     consideration to the views of the trial Judge ... "

      13. In the case of Narinder Singh v. State of Punjab 2000
Crl. LJ 3462 (SC), this Court has held that the High Court is
entitled to re- appreciate the evidence if it is found that the view
taken by the acquitting Court was not a possible view or that it G
was a perverse or infirm or palpably erroneous view or the Trial
Court taken into consideration inconsequential circumstances
or has acted with material irregularity or has rejected the
evidence of eye-witnesses on wrong assumptions.
                                                                     H
    862       SUPREME COURT REPORTS                     (2012] 5 S.C.R.

A        14. It is also now well settled that in a criminal trial the guilt
    of the accused must be proved beyond reasonable doubt, in
    order to convict him. This court in the case of State of U.P. v.
    Krishna Gopal, (1988) 4 SCC 302, held:

B
          "25. A person has, no doubt, a profound right not to be
          convicted of an offence which is not established by the
          evidential standard of proof beyond reasonable doubt.
          Though this standard is a higher standard, there is,
          however, no absolute standard. What degree of probability
          amounts to "proof' is an exercise particular to each case.
c         Referring to the interdependence of evidence and the
          confirmation of one piece of evidence by another a learned
          Author says:

                 "The simple multiplication rule does not apply if the
D                separate pieces of evidence are dependent. Two
                 events are dependent when they tend to occur
                 together, and the evidence of such events may also
                 be said to be dependent. In a criminal case,
                 different pieces of evidence directed to establishing
E                that the defendant did the prohibited act with the
                 specified state of mind are generally dependent. A
                 juror may feel doubt whether to credit an alleged
                 confession, and doubt whether to infer guilt from the
                 fact that the defendant fled from justice. But since
F                it is generally guilty rather than innocent people who
                 make confessions, and guilty rather than innocent
                 people who run away, the two doubts are not to be
                 multiplied together. The one piece of evidence may
                 confirm the other."
G         Doubts would be called reasonable if they are free from a
          zest for abstract speculation. Law cannot afford any
          favourite other than truth. To constitute reasonable doubt,
          it must be free from an over- emotional response. Doubts
          must be actual and substantial doubts as to the guilt of the
H         accused person arising from the evidence, or from the lack
   KATHI BHARAT VAJSUR & ANR. v. STATE OF                     863
           GUJARAT [H.L. DATTU, J.]

    of it, as opposed to mere vague apprehensions. A                 A
    reasonable doubt is not an imaginary, trivial or a merely
    possible doubt; but a fair doubt based upon reason and
    common sense. It must grow out of the evidence in the
    case.
                                                                     B
    26. The concepts of probability, and the degrees of it,
    cannot obviously be expressed in terms of units to be
    mathematically enumerated as to how many of such units
    constitute proof beyond reasonable doubt. There is an
    unmistakable subjective element in the evaluation of the         C
    degrees of probability and the quantum of proof. Forensic
    probability must, in the last analysis, rest on a robust
    common sense and, ultimately, on the trained intuitions of
    the Judge. While the protection given by the criminal
    process to the accused persons is not to be eroded, at
    the same time, uninformed legitimisation of trivialities would   D
    make a mockery of administration of criminal justice."

    15. In the case of Gurbachan Singh v. Satpal Singh,
(1990) 1 sec 445, it is observed:
                                                                     E
    "4 ....... The standard adopted must be the standard
    adopted by a prudent man which, of course, may vary from
    case to case, circumstances to circumstances.
    Exaggeration devotion to the rule of benefit of doubt must
    not nurture fanciful doubts or lingering suspicions and
    thereby destroy social defence. Justice cannot be made           F
    sterile on the plea that it is better to let hundred guilty
    escape than punish an innocent. Letting guilty escape is
    not doing justice, according to law.

   5. The conscience of the court can never be bound by any          G
   rule but that is coming itself dictates the consciousness and
   prudent exercise of the judgment. Reasonable doubt is
   simply that degree of doubt which would permit a
   reasonable and just man to come to a conclusion.
                                                                     H
    864      SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A         Reasonableness of the doubt must be commensurate with
          the nature of the offence to be investigated."

        16. Now coming back to the facts of the case, it is not in
  dispute that in the incident, said to have taken place on 30th
8 March, one person is killed and the other person is seriously
  injured. In the trial, the injured has fully supported the case of
  the prosecution. His evidence finds support from the evidence
  of PW6 and the evidence of Doctor, PW 16. While hearing the
  learned counsel appearing for the parties, we have also
C perused the entire evidence on record, we are of the view that
  Trial Court had erred in holding that the prosecution had not
  been able to prove the case beyond reasonable doubt. We are
  inclined to agree with the submission of Smt. Madhavi Divan,
  learned counsel appearing for the respondent, that by relying
  on the evidence of PWS, PW6, PW?, PW8, PW12 and PW 16,
D there can be no doubt that the A 1, A2 and A3 were present at
  the place of the incident and were carrying tamanchas and axe,
  and that, there was an altercation between the accused
  persons and PWS, PW6 and the deceased, and that gun shots
  were fired and the deceased died because of the gun shot
E injuries and the blow on the head with the axe by A3. Perhaps
  the Trial Court took a hyper-technical view by primarily
  concentrating on minor contradictions to hold that the
  prosecution has failed to prove the guilt of the accused beyond
  reasonable doubt. We are not in agreement with the findings
F and conclusions reached by the Trial Court.

       17. The argument canvassed by Shri. S.K. Dholakia,
  learned senior counsel, appearing for the appellants, that there
  was material discrepancies in the evidence adduced by the
G eyewitnesses PWS and PW6, with regard to the sequence of
  shots fired and who shot whom. This, the learned senior counsel
  would submit, is enough to punch a hole in the prosecution story.
  He would further state that the High Court has brushed aside
  these contradictions merely terming them as minor
  contradictions. Per contra, Smt. Divan, learned counsel
H
    KATHI BHARAT VAJSUR & ANR. v. STATE OF                  865
            GUJARAT [H.L. DATTU, J.]
appearing for the respondent, while not denying that there were     A
some discrepancies in the evidence given by PW5 and PW6,
would state that on a complete reading of the evidence, there
is no doubt about the guilt of the accused. We are inclined to
agree with the learned counsel for the respondent.
                                                                    B
    18. In the case of Leela Ram v. State of Haryana, (1999)
9 SCC 525, this Court held:

    "12. It is indeed necessary to note that one hardly comes
    across a witness whose evidence does not contain some
    exaggeration or embellishment - sometimes there could           C
    even be a deliberate attempt to offer embellishment and
    sometimes in their overanxiety they may give a slightly
    exaggerated account. The court can sift the chaff from the
    grain and find out the truth from the testimony of the
    witnesses. Total repulsion of the evidence is unnecessary.      D
    The evidence is to be considered from the point of view
    of trustworthiness. If this element is satisfied, it ought to
    inspire confidence in the mind of the court to accept the
    stated evidence though not however in the absence of the
    same."                                                          E
    19. This Court, in the case of Sunil Kumar Sambhudaya/
Gupta (Dr.) v. State of Maharashtra, (2010) 13 SCC 657,
summarized the law on material contradictions in evidence thus:

    "Material contradictions                                        F

    30. While appreciating the evidence, the court has to take
    into consideration whether the contradictions/omissions
    had been of such magnitude that they may materially affect
    the trial. Minor contradictions, inconsistencies,               G
    embellishments or improvements on trivial matters without
    effecting the core of the prosecution case should not be
    made a ground to reject the evidence in its entirety. The
    trial court, after going through the entire evidence, must
    form an opinion about the credibility of the witnesses and
                                                                    H
    866        SUPREME COURT REPORTS                  [2012] 5 S.C.R.

A         the appellate court in normal course would not be justified
          in reviewing the same again without justifiable reasons.
          (Vide State v. Saravanan.)

          31. Where the omission(s) amount to a contradiction,
          creating a serious doubt about the truthfulness of a witness
B
          and the other witness also makes material improvements
          before the court in order to make the evidence acceptable,
          it cannot be safe to rely upon such evidence. (Vide State
          of Rajasthan v. Rajendra Singh.)

c         32. The discrepancies in the evidence of eyewitnesses, if
          found to be not minor in nature, may be a ground for
          disbelieving and discrediting their evidence. In such
          circumstances, witnesses may not inspire confidence and
          if their evidence is found to be in conflict and contradiction
D         with other evidence or with the statement already recorded,
          in such a case it cannot be held that the prosecution
          proved its case beyond reasonable doubt. (Vide
          Mahendra Pratap Singh v. State of U.P.)

          33. In case, the complainant in the FIR or the witness in
E
          his statement under Section 161 CrPC, has not disclosed
          certain facts but meets the prosecution case first time
          before the court, such version lacks credence and is liable
          to be discarded. (Vide State v. Salt.)

F         34. In State of Rajasthan v. Kalki, while dealing with this
          issue, this Court observed as under: (SCC p. 754, para
          8)

                 "8 .... In the depositions of witnesses there are
                 always normal discrepancies however honest and
G
                 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 such as shock and horror at the time of
                 the occurrence, and the like. Material discrepancies
H
    KATHI BHARAT VAJSUR & ANR. v. STATE OF                    867
            GUJARAT [H.L. DATTU, J.]

           are those which are not normal, and not expected           A
           of a normal person."

    35. The courts have to label the category to which a
    discrepancy belongs. While normal discrepancies do not
    corrode the credibility of a party's case, material
                                                                      8
    discrepancies do so. (See Syed Ibrahim v. State of A.P. 6
    and Arumugam v. State.)

    36. In Bihari Nath Goswami v. Shiv Kumar Singh this
    Court examined the issue and held: (SCC p. 192, para 9)
                                                                      c
            "9. Exaggerations per se do not render the
            evidence brittle. But it can be one of the factors to
            test the credibility of the prosecution version, when
            the entire evidence is put in a crucible for being
            tested on the touchstone of credibility."                 D

    37. While deciding such a case, the court has to apply the
    aforesaid tests. Mere marginal variations in the statements
    cannot be dubbed as improvements as the same may be
    elaborations of the statement made by the witness earlier.
    The omissions which amount to contradictions in material          E
    particulars i.e. go to the root of the case/materially affect
    the trial or core of the prosecution case, render the
    testimony of the witness liable to be discredited."

     20. Moreover, by reading the evidence of the PW1                 F
(Kamlesh), PW2 (Dr. Savjibhai) and PW3 (Dr. Shobhanaben),
the injuries on PW6 and the deceased have come to light.
These injuries are consistent with the testimony of the evidence
tendered by the eyewitnesses, namely PW5 and PW6. This
Court, in the case of Rakesh v. State of M.P.,(2011) 9 SCC            G
698, held:

    "13. It is a settled legal proposition that the ocular evidence
    would have primacy unless it is established that oral
    evidence is totally irreconcilable with the medical evidence.
    More so, the ocular testimony of a witness has a greater          H
    868       SUPREME COURT REPORTS                   [2012] 5 S.C.R.


A         evidentiary value vis-a-vis medical evidence; when
          medical evidence makes the ocular testimony improbable,
          that becomes a relevant factor in the process of the
          evaluation of evidence. However, where the medical
          evidence goes so far that it completely rules out all
B         possibility of the ocular evidence if proved, the ocular
          evidence may be disbelieved. (Vide State of U.P. v. Hari
          Chand, Abdul Sayeed v. State of MP. and Bhajan Singh
          v. State of Haryana. )"

C        21. When the medical evidence is in consonance with the
    principal part of the oral/ocular evidence thereby supporting the
    prosecution story, there is no question of ruling out the ocular
    evidence merely on the ground that there are some
    inconsistencies or contradictions in the oral evidence. We are
    not inclined to agree with Shri. Dholakia on this count.
D
       22. Shri. Dholakia would lay emphasis on the unusual
  conduct of PW6 after the occurrence of the incident and
  therefore submits that the learned trial judge was justified in
  disbelieving the evidence of PW6. We cannot agree. This
E Court, in the case of Appabhai v. State of Gujarat, 1988 Supp
  sec 241, held:
          "11 .... Experience reminds us that civilized people are
          generally insensitive when a crime is committed even in
          their presence. They withdraw both from the victim and the
F
          vigilante. They keep themselves away from the court unless
          it is inevitable. They think that crime like civil dispute is
          between two individuals or parties and they should not
          involve themselves. This kind of apathy of the general
          public is indeed unfortunate, but it is there everywhere
G         whether in village life, towns or cities. One cannot ignore
          this handicap with which the investigating agency has to
          discharge its duties. The court, therefore, instead of
          doubting the prosecution case for want of independent
          witness must consider the broad spectrum of the
H         prosecution version and then search for the nugget of truth
    KATHI BHARAT VAJSUR & ANR. v. STATE OF                  869
            GUJARAT [H.L. DATTU, J.]
    with due regard to probability if any, suggested by the        A
    accused. The court, however, must bear in mind that
    witnesses to a serious crime may not react in a normal
    manner. Nor do they react uniformly. The horror stricken
    witnesses at a dastardly crime or an act of egregious
    nature may react differently. Their course of conduct may      B
    not be of ordinary type in the normal circumstances. The
    court, therefore, cannot reject their evidence merely
    because they have behaved or reacted in an unusual
    manner. In Rana Pratap v. State of Haryana Chinnappa
    Reddy, J., speaking for this Court succinctly set out what     c
    might be the behaviour of different persons witnessing the
    same incident. The learned Judge observed: [SCC p. 330,
    SCC (Cri) p. 604, para 6]

    "Every person who witnesses a murder reacts in his own
    way. Some are stunned, become speechless and stand             D
    rooted to the spot. Some become hysteric and start wailing.
    Some start shouting for help. Others run away to keep
    themselves as far removed from the spot as possible. Yet
    others rush to the rescue of the victim, even going to the
    extent of counter-attacking the assailants. Every one reacts   E
    in his own special way. There is no set rule of natural
    reaction. To discard the evidence of a witness on the
    ground that he did not react in any particular manner is to
    appreciate evidence in a wholly unrealistic and
    unimaginative way.""                                           F

     23. We are in agreement with the above observations.
When an eyewitness behaves in a manner that perhaps would
be unusual, it is not for the prosecution or the Court to go into
the question as to why he reacted in such a manner. As has G
been rightly observed by his lordship 0. Chinnappa Reddy, J.,
in Rana Pratap's case (supra.) there is no fixed pattern of
reaction of an eyewitness to a crime. When faced with what is
termed as 'an unusual reaction' of an eyewitness, the Court must
only examine whether the prosecution story is in anyway H
    870       SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A   affected by such reaction. lf,the answer is in the negative, then
    such reaction is irrelevant. We are afraid that the unusual
    behaviour of the injured eyewitness, PW6, will not, in anyway,
    aid the appellants to punch a hole on to the prosecution story.

       24. Shri. Dholakia, learned senior counsel, would
8
  emphasis on the fact that when the eyewitnesses PW5 and
  PW6 were shown the weapons recovered, they explicitly stated
  that these were not the weapons used for by the accused. He
  would state that this was a major discrepancy in the case of
  the prosecution. In support of this, he would rely on the case of
C Mahendra Pratap Singh v. State of UP, (2009) 11 SCC 334.
  In reply, Smt. Divan, learned counsel, would submit that it would
  be more reliable to rely on the evidence of the Panch witness
  (PW10) and the PSI (PW20) than on the eyewitnesses for the
  purpose of identifying the weapons, especially when the
D weapons were recovered at the instance of the accused
  persons. She would further state that in the commotion of the
  incident, it is possible that the eyewitnesses might not have
  clearly seen the weapons. We find that the argument of the
  learned counsel for the respondent is reasonable and therefore,
E we accept the same.

          25. When the entire evidence on record is considered, the
    fact that the eyewitnesses did not recognize the weapons used,
    makes no difference to the prosecution story.
F         26. We are afraid the decision of this Court in the case of
    Mahendra Pratap Singh (supra.) cited by Shri. Dholakia would
  not help t.he appellants, as in the case not only were the
  weapons used identified, but also the evidence on record did
  not inspire confidence in the story of the prosecution. In that
G case, this Court came to conclude that two views were possible,
  and therefore gave the benefit of the same to the accused. In
  the instant case, cumulative reading of the entire evidence
  makes the prosecution story believable, thereby proving the
  guilt of the accused appellants beyond any doubt. The High
H



                                                                        .•.
    KATHI BHARAT VAJSUR & ANR. v. STATE OF                   871
            GUJARAT [H.L. DATTU, J.]

Court in the impugned judgment has correctly appreciated the        A
evidence on record, and we do not find any infirmity in the same,
therefore we uphold the conviction of guilt and sentence
imposed by the High Court.

     27. In the light of the above discussion, we see no merit
                                                                    8
in the appeal and accordingly, the same is dismissed. The
appellants have been enlarged on bail during the pendency of
this appeal before this Court. Therefore, the Jurisdictional Jail
Superintendent is directed that the appellants herein be taken
into custody forthwith to serve out the sentence of life
imprisonment.                                                       C

B.B.B.                                      Appeal dismissed.