D.N. PATEL, J. - (1.) The present interlocutory application has been preferred under Section 389 of the Code of Criminal Procedure for suspension of sentence awarded to this appellant by the Principal District and Sessions Judge, Godda in Sessions Case No. 1 of 2010 whereby, this appellant has been convicted mainly for the offence under Section 302 of the Indian Penal Code to be read with Section 34 thereof and punished for life imprisonment for causing murder of Mahesh Kant Jha.
(2.) Having heard counsels for both the sides and looking to the evidences on record, there is prima facie case against this appellant-accused. As the criminal appeal is pending, we are not much analysing the evidences on record, but, suffice it to say at this stage looking to the depositions given by P.W.1, P.W.2, P.W.5 and P.W.6 there is prima facie case against this appellant. P.W.1 and P.W.2 are the eye witnesses. They have clearly narrated the role played by this appellant in causing head injury upon the deceased which is the cause of death as per the medical evidence. Looking to the medical evidence given by P.W.6Dr. Pradeep Kr. Sinha, injury no.2 was sufficient in ordinary course of nature to cause the death of the deceased. This injury is prima facie, tallying with the nature of weapon used by this appellant-accused in causing head injury upon the deceased as narrated by P.W.1 and P.W.2.
(3.) Much has been argued out by the counsel for the appellant about contradictions in depositions of P.W.1 and PW.2 because one is not showing the presence of another. This contention is of no help to this appellant mainly for the reasons that: (a) discrepancy in evidence is different from contradiction. (b) it ought to be kept in mind that contradictions cannot be verified vis-a-vis depositions given by the two eye witnesses or two prosecution witnesses. (c) "contradiction" has its own meaning, as given under Section 162 of Cr.P.C. more particularly explanation thereof. (d) contradiction has to be seen from the statement given by the witness under Section 161 Cr.P.C. to be read with the deposition given by the very same witness. Contradiction has to be proved by the Investigating Officer. (e) if the two witnesses are giving different type of depositions, it is not a contradiction at all. It is a discrepancy in the evidence. (f) the two witnesses are giving two different versions with slight variation that is so because the deposition in the court is given after few months and sometimes after few years. The deposition in the court depends upon: (i) capacity of observation; (ii) capacity of memory; and (iii) capacity of reproduction of what witness has observed and what he has memorized. (g) if the two witnesses are giving different depositions of any occurrence with slight deviation that reflects the truth and not the falsehood because of their different capacities of observation, memory and reproduction. (h) slight variation in the deposition of two witnesses is not a contradiction at all and the trustworthiness of these witnesses is to be judged by the cross examination of these witnesses. (i) it has been held by Hon'ble Supreme Court in the case of State of H.P. v. Lekh Raj and Another reported in (2000)1 SCC 247 especially in paragraph nos. 7 and 8 as under: "7. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrotlike statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of M.P. this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such 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 occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person. 8. Referring to and relying upon the earlier judgments of this Court in State of U.P. v. M.K. Anthony, Tahsildar Singh v. State of U.P., Appabhai v. State of Gujarat, Rammi v. State of M.P. and this Court in a recent case Leela Ram v. State of Haryana held: " There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.... The court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise." (Emphasis Supplied) (j) it has been held by Hon'ble Supreme Court in the case of Chaudhari Ramjibhai Narasangbhai v. State of Gujarat and others reported in (2004) 1 SCC 184 especially in paragraph no. 11 as under:" 11. Coming to the plea that the contradictions noticed by the trial court were ocular vis-a-vis the medical evidence, we find on reading of the judgment it is not to be so. Section 145 of the Indian Evidence Act, 1872 (in short "the Evidence Act") applies when the same person makes two contradictory statements. It is not permissible in law to draw adverse inference because of alleged contradictions between one prosecution witness vis- -vis statement of other witnesses. It is not open to the court to completely demolish the evidence of one witness by referring to the evidence of other witnesses. Witness can only be contradicted in terms of Section 145 of the Evidence Act by his own previous statement and not with the statement of any other witness. (See Mohanlal Gangaram Gehani v. State of Maharashtra.) As was held in the said case, Section 145 applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding. If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under Section 145 of the Evidence Act only. Section 145 has no application where a witness is sought to be contradicted not by his own statement but by the statement of another witness." (Emphasis supplied) (k) it has been held by Hon'ble Supreme Court in the case of State v. Saravanan and another reported in (2008) 17 SCC 587 especially in paragraph no.18 as under: "18. The High Court also held that as there were some discrepancies and improvements in the statement of the witnesses, their evidence should not be relied upon. In State of U.P. v. M.K. Anthony this Court has laid down the approach which should be followed by the court in such cases: (SCC pp. 51415, para 10) "10. 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, 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. 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. Cross-examination is an unequal duel between a rustic and refined lawyer." Even otherwise, it has been said time and again by this Court that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies." (Emphasis supplied) Hence, the contention raised by the counsel for the appellant that there is slight deviation in the depositions of P.W.1 and P.W.2 is a contradiction is not accepted by this Court because discrepancy and contradiction are different. Even otherwise also, we have perused the cross examination of P.W.2. There is no suggestion in the cross-examination to P.W.2 that P.W.1 was never present. Hence, the arguments cannot be canvassed by this appellant that P.W.2 when came at the place of occurrence, P.W.1 was not present nor it can be argued that when P.W.1 was present P.W.2 was absent. There is no such suggestion in their cross examination. ;