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1993 DIGILAW 714 (RAJ)

HARI SHANKAR SHARMA v. STATE OF RAJASTHAN

1993-11-03

MILAP CHANDRA

body1993
Judgment MILAP CHANDRA JAM, J. ( 1 ) THIS revision petition has been filed against the judgment of the learned Munsiff-cum-Judicial Magistrate, Bhilwara dated August 13, 1986 by which he has acquitted the accused-non-petitioners No. 2 to 5 under Sections 147 and 323, I. P. C. and ordered to initiate proceedings against Satya Narain P. W. 1 and Han Shankar Advocate P. W. 8 under Section 344, Cr. P. C. for punishing them under Section 193, I. P. C. The facts giving rise to this revision petition may be summarised thus. ( 2 ) THE petitioner Han Shankar Sharma lodged report Ex. P/7 in the police station, Banera (Bhilwara) on 31. 03. 1977 under Sections 147 and 323, I. P. C. against the non-petitioners No. 2 to 5 that on March 29, 1977 at about 8 P. M. the accused persons formed an unlawful assembly to cause injury to him and inflicted injuries. After necessary investigation, the challan under Sections 147 and 323, I. P. C. was filed against the accused Ram Niwas, Ganesh, Sausar Bai and Pyari Bai (nonpetitioners No. 2 to 5) and Daulat Ram who died during the trial. After recording the evidence, examining the accused persons and hearing the parties, the learned Magistrate passed the said judgment. In compliance thereof, notices were issued to the petitioners to show cause as to why they should not be convicted and sentenced under Section 193, I. P. C. ( 3 ) AT the outset, the learned counsel for the petitioners submits that he does not press for setting aside the order of acquittal of the accused non-petitioners No. 2 to 5 and he challenges the portion of the order by which the learned Magistrate has ordered for the initiation of the proceedings under Section 344, Cr. P. C. read with Section 193, I. P. C. only. He contend that specific portions of the statements found to be false or incorrect are not mentioned either in the judgment dated August 13, 1986 or in the notices issued under Section 344, Cr. P. C. He further contends that simply on the basis of statements recorded under Section 161, Cr. P. C. and the report Ex. He contend that specific portions of the statements found to be false or incorrect are not mentioned either in the judgment dated August 13, 1986 or in the notices issued under Section 344, Cr. P. C. He further contends that simply on the basis of statements recorded under Section 161, Cr. P. C. and the report Ex. P17 it could not be said that statements given on oath before the trial Court were false as the former were not part of the judicial proceedings and on this ground alone the proceedings launched under Section 344, Cr. P. C. deserve to be quashed. He relies upon Badullah v. State. He lastly contends that under the facts and circumstances of the case it is neither expedient nor necessary in the interest of justice to allow to continue proceedings under Section 344, Cr. P. C. after a decade of the statements. He relies upon Chhajoo Ram v. Radhey Shyam and another, Santokh Singh v. Izhar Hussain and another and Dr. S. P. Kohli v. ( 4 ) THE learned P. P and learned counsel for the accused-non-petitioners No. 2 to 5 support the said order of the learned Magistrate. ( 5 ) IT is not in dispute that the specific portions of the statements of Satya Narain P. W. 1 and Han Shankar P. W. 8 (petitioners) which according to the learned Magistrate were false or incorrect are not mentioned either in the judgment dated August 13, 1986 or in the notices, issued to them under Section 344, Cr. P. C. In respect of the statement of Han Shankar P. W. 8, the learned Magistrate has observed at page 4 of his judgment as follows: hindi Matter In respect of Satya Narain P. W. 1, the trial Court has observed at pages 4 and 5 of the judgment asunder:hindi Matter ( 6 ) IT is common experience that the discrepancies do occur even in the statements of perfectly honest witnesses which are really due to differences in individual faculties with regard to observations, recollection and recital of details and unless there is any good ground to indicate that they are due to deliberate attempt to suppress or depart from the truth, it is unfair to discard the direct testimony of witnesses merely on account of such discrepancies, when there is general agreement as to material circumstances. Photographic picturisation is not possible (Shivaji Sahabrao Bobade v. State of Maharashtra) Witness is not like a tape recorder (Kishan Narain v. State of Maharashtra ). There is a tendency amongst witnesses in our country to back up a good case by an exaggerated version (A. I. R. 1988 S. C. 1998 ). There is difference between rural and urban witnesses. Rural witnesses generally make exaggerations. It has been observed in Shivaji Sahebrao Bobade v. State of Maharashtra (supra), as follows: now to the facts. The scene of murder is rural, the witnesses to the case are rustics as so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments, contradictions in narrations and embellishments in essential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. ( 7 ) IT has been observed in State of UP. v. Shanker, as follows: but the mere fact that the witness had not told the truth in regard to a peripheral matter would not justify a wholesale rejection of his evidence. Time and again, this Court has pointed out that in this country it is rare to come across the testimony of a witness, which does not have arranger an embroidery of untruth although his evidence may be true in the main. It is the function of the Court to separate the grain from the chaff and accept what appears to be true and reject the rest. It is only where the testimony of a witness is tainted to the core, the falsehood and the truth being inextricably intertwined, that the Court should discard his evidence in toto. ( 8 ) IT has been observed in Rana Pratap v. State of Haryana, as follows: yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. ( 8 ) IT has been observed in Rana Pratap v. State of Haryana, as follows: yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spat. 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. Everyone reacts in his own special way. There is no rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealised and unimaginative way. T as such it cannot be said that the witnesses gave false statements intentionally or deliberately. ( 9 ) SIMILAR notices have been issued to both the petitioners. They run as under: hindi Matter ( 10 ) IT is not in dispute that specific portions of the statements said to have been false or incorrect have not been mentioned in these notices. It has been observed in Dr. SP. Kohli v. The High Court of Punjab and Haryana (supra) as follows: the notice besides being not happily worded is laconic. It does not satisfy the essential requirements of law. Nor does it specify the offending portions in the appellants lengthy statement, which in the opinion of the High Court were false. In cases of this nature, it is highly desirable and indeed very necessary that the positions of the witnesss statement in regard to which he has, in the opinion of the Court, perjured himself, should by specifically set out in or form annexure to the notice issued to the accused so that he is in a position to furnish an adequate and proper reply in regard thereto and be able to meet the charge. On this ground alone, the said notices issued under Section 344, Cr. P. C. deserve to be quashed. ( 11 ) THE statement of Satya Narain P. W. 1 was recorded on 06. 07. On this ground alone, the said notices issued under Section 344, Cr. P. C. deserve to be quashed. ( 11 ) THE statement of Satya Narain P. W. 1 was recorded on 06. 07. 1983 and of Han Shankar Advocate P. W. 8 on 08. 07. 1986 in respect of the occurrence which took place on March 29,1977, more than 6 years ago. Order can be passed under Section 344, Cr. P. C. if the Court is satisfied that it is necessary and expedient in the interest of justice that the witnesses should be tried summarily for giving false or fabricated evidence deliberately and consciously and conviction is reasonably probable or likely. It has been observed in Chhajoo Ram v. Radhey Shyam and another (supra), as follows: lastly, there is also the question of long lapse of time of more than ten years since the filing of the affidavit which is the subject matter of the charge. This factor is also not Holly irrelevant for considering the question of expediency of initiating prosecution for the alleged perjury. In view of the nature of the alleged perjury in this case this long delay also militates against expediency of prosecution. And then by reason of the pendency of these proceedings section 1962 and earlier similar proceedings before the District Magistrate also the appellant must have suffered both mentally and financially. ( 12 ) LEARNED counsel for the petitioners rightly did not press the revision petition so far it has prayed for the conviction of the accused non petitioners No. 2 to 5 in view of A. I. R. 1986 S. C. 1721. ( 13 ) ACCORDINGLY, the revision petition is partly allowed. The order of the learned Munsifcum Judicialmagistrate, Bhilwara dated August 13, 1986 ordering the initiation of the proceedings under Section 344, Cr. P. C. for punishing the petitioners under Section 193, I. P. C. is set aside and the notices issued in pursuance thereof are quashed. Petition allowed.