Saturday, 8 April 2017

Whether evidence on eye witness can be rejected on ground of minor inconsistency?

The next part of the episode is giving a fatal blow to deceased Firoz Nimbargi. Evidence of Dr. Rajendra Parmar (PW8) and report of postmortem examination (Exhibit 99) of dead body of Firoz Nimbargi shows that he had suffered only one blow of the knife which ultimately proved fatal. Except PW1 Abhijit Nikude, rest of the three witnesses viz., PW2 Anwar Nimbargi, PW3 Tanvir Qureshi and PW4 Noor Mohd., are attributing fatal blow on Firoz Nimbargi by appellant/accused No. 1 Kasam only. It appears that except this inconsistency in evidence of PW1 Abhijit Nikude, rest of the part of his version regarding the entire episode of murder of Firoz Nimbargi and assault on prosecution witnesses, is consistent with version of injured eye witnesses as well as PW4 Noor Mohd. The entire incident as stated in foregoing paragraphs took place in rapid succession in a short span of time as seen even from cross-examination of PW1 Abhijit Nikude. There was an element of shock and surprise to PW1 Abhijit Nikude because of this incident wherein one person of his acquaintance was murdered and atleast two persons suffered injuries. Even power of observation differs from person to person. Merely because informant PW1 Abhijit Nikude has stated that appellant/accused No. 2 Rahim had also given blows of chopper on deceased Firoz Nimbargi, his evidence cannot be jettisoned on this count by branding him as a liar. It is well settled that "falsus in uno falsus in omnibus" (false in one thing, false in everything) is neither a sound rule of law nor a sound rule of practice. It is inapplicable to criminal cases in India, as witnesses may be partly truthful and partly false in their evidence. Experience shows evidence of many witnesses contains a grain of untruth or some exaggeration or embellishment. This many a times happens perhaps due to fear in the mind of witnesses that their testimony may be rejected. The court should not disbelieve evidence of such witnesses altogether if they are otherwise trustworthy. Discrepancies in deposition of witnesses are always there however honest or truthful they may be. Discrepancies caused due to normal error of observation, normal error of memory due to lapse of the time, due to mental disposition, impaired mental faculty due to impact or shock caused due to incident needs to be ignored. The prosecution case would fall only where inconsistencies in it goes to the root of the case. Otherwise, it becomes the duty of the court to sift truth from falsehood by culling out nuggets of truth from evidence of witnesses examined by the prosecution. If such exercise is possible, their evidence cannot be discarded wholly.
Criminal Appeal Nos. 956, 1069, 1127 of 2005 and 624 of 2006
Decided On: 06.12.2016
Kasam Alisha Shaikh and Ors.

The State of Maharashtra

Hon'ble Judges/Coram:

V.K. Tahilramani and A.M. Badar, JJ.

Citation:2017 ALLMR(CRI)1100
Read full judgment: Click here

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