Holding

The conviction is upheld because the minor discrepancies and hostile witnesses do not create infirmity, and the injured witness’s testimony remains reliable; special leave jurisdiction is not warranted.

Summary

Surender Singh and Vikas were convicted under IPC sections 392, 394, 397 and Arms Act section 25 for robbing a bank deposit bag, snatching a pistol and money. The prosecution’s case rested on the testimony of complainant PW‑9, injured witness PW‑2, and two panch witnesses PW‑3 and PW‑4, some of whom turned hostile during trial. The appellants argued that the hostile witnesses and minor inconsistencies in their statements, as well as the fact that only Rs 15,000 of the alleged Rs 62,000 was recovered, rendered the conviction unsafe. The Supreme Court held that the discrepancies were minor, did not materially affect the prosecution case, and that the injured witness’s testimony retained evidentiary value despite his hostile stance. The Court also ruled that the special leave jurisdiction was not attracted, and therefore dismissed the appeals, upholding the convictions.

Issues considered

The effect of hostile and turned‑hostile witnesses on the validity of a conviction
Whether minor discrepancies in witness statements create infirmity in the prosecution case
The evidentiary value of an injured witness who turns hostile
Whether the recovery of a lesser amount than alleged undermines the charge of robbery
Whether the case merits interference under Special Leave Petition jurisdiction

Legislation cited

Indian Penal Code, 1860s. 392, s. 394, s. 397

Subjects

robberydacoityarms possessionhostile witnessesevidence discrepancyinjured witnessspecial leave petitionconviction upheld

Judgment

.. SURENDER SINGH A
' v.
STATE OF HARYANA

JANUARY 17, 2006

[H.K. SEMA AND DR. AR. LAKSHMANAN, JJ.) B

'f Penal Code, 1860-Sections 392, 394 and 397/Arms Act, 1925-Section
25-Prosecution under-Accused apprehended with incriminating material-
Panch-witness, injured witness and complainant turning hostile during trial-
Discrepancy in statements of witnesses--.::onviction by Courts below-On
c
appeal, held: Conviction justified-Though the witnesses turned hostile in
some aspects, their statements otherwise proved the prosecution case-The
discrepancies in the statements of witnesses are minor and are not of such
nature creating infirmity in prosecution case-Jn view of the facts and
circumstances of the case, interference with the concurrent finding offact in D
"' ~ Special Leave Petition not warranted-Constitution of India, I950-Article
' I36.

Criminal Trial:

Discrepancy in evidence ofprosecution witnesses-Effect of-Held: Every E
discrepancy in the. witness statement cannot be treated as fatal-The
discrepancy which does not affect the prosecution case materially, doe· not
create infirmity.

Testimony of injured witness-Evidentiary value of-Held: Testimony of F
injured witness has its own relevancy and efficacy-Injury to the witness lends
support to the testimony that witness was actually present during occurrence.

Appellants-accused alongwith another accused-A-2 were charged for
offences u/ss. 392, 394 and 397 IPC and oqe of the appellants-accused was
charged u/s. 25 of the Arms Act. G
The prosecution case was that complainant (PW-9) and PW-2, when
were going to deposit Rs. 62,000 with Bank, the accused confronted them.
One of the appellants-accused was armed with pistol and A-2 was having
knife. One of the appellants-accused tried to snatch the bag, and on
431 H
432 %PRl::ME COuRT REPORTS [2006] I S.C.R.

A resistance, A-2 gave knife blow on PW-2. Appellants-accused snatched the •,
bag and ran away, while A-2 was caught by the public. PW-2 was
medically examined. Police Inspector (PW-13) saw the appellants-accused
being chased by public, and he apprehended them. From one appellant-
accused a pistol, hrn live cartridges and currency notes amounting to
B Rs.5000/- was recovered. From another appellant-accused currency notes
amounting to Rs.10.000/- was recovered. PWs-3 and 4 were the Panch
witnesses. During trial PWs2 and 9 and PWs 3 and 4 turned hostile. Trial
Court convicted the accused for the offences charged. In appeal, High
Court maintained the conviction but reduced the sentence u/ss. 394 and ,. '
397 IPC. In appeal to this Court, appellants contended that conviction was
C not justified as PWs 2,3,4 and 9 had turned hostile; that there was
discrepancy in statements of the witnesses; that allegation of snatching
Rs.62,000/- was not proved inasmuch only Rs.15,000/- was recovered; and
that the recovered amount was not that which was alleged to have been
snatched and the same was implanted by Police for false implication.

D Dismissing the appeals, the Court

HELD: I. The present case, in view of its evidence, is not of such a
nature which would require interference of this Court under Special Leave
jurisdiction. The finding of guilt recorded by the trial court and confirmed
E by the High Court has been challenged mainly on the basis of PWs 3 and
4 who are panch witnesses turned hostile and even PW-2 who is an injured
witness and PW-9 the complainant turned hostile. The challenge to the
concurrent finding of guilt is also on the basis of minor discrepancies in
the evidence of prosecution witnesses. (436-A-B(

F 2.The minor discrepancy is not of such a nature, which creates
infirmity in the prosecution's case. Every discrepancy in the witness
statement cannot be treated as fatal to the prosecution case. The
discrepancy, which does not affect the prosecution case materially, does
not create infirmity. (436-B-C]

G 3. With regard to PWs 3 and 4 panch witnesses being turned hostile,
the courts below held that their statements did not affect materially the
prosecution story. Both the witnesses though stated that pistol or cartridges
or currency notes mentioned in the Exhibits were not recovered in their
presence, but they admitted their signatures over the Exhibits. Therefore,
H both the courts correctly held that the Exhibits were recovered in the
SURENDER SINGH v. STATE OF HARY ANA 433
presence of PWs 3 and 4 who were panch witnesses. 1436-C-DI A
4. The testimony of an injured witness has its own relevancy and
.efficacy. The fact that the witness is injured at the time and in the same
occurrence lends support to the testimony that the witness was present
during occurrence and he saw the happening with his own eyes. Although
PW-2 was declared hostile, he has categorically stated that he had gone B
to the Bank to deposit the amount. He has also stated that 4-5 persons
attacked him. He has also stated that they gave knife blows to him and
y' snatched the bag from him. This statement is well corroborated by the
injuries suffered by him on his person, which is proved by PW-5 as well
as seizure of the bag along with the money. PW-2 even denied that he had C
go,.e to the bank with PW-9. The statement of PW-2 was belied by the
statement of PW-9 who categorically stated that he had gone to the bank
along with P.W.2. 1437-C-FI

5. The plea that the allegation of snatching of Rs.62,000/- by the
) accused is not proved inasmuch as only Rs.15,000/- has been recovered D
from the bag is without any substance. The factum of recovery of pistol
along with cartridges and the currency notes from the bag which was being
carried by the ap:>ellants-accused is proved. 1437-F-Gl

6. It is nobody's case that the accused and the police had any previous
enmity. It is also nobody's case that the complainant PW-9 and the injured E
PW-2 had any previous enmity with the accused which would warrant the
foisting a false complaint
I
against . the accused. While it is true t~at the
prosecution has failed to explain the whereabouts of rest of the amount,
-J., this itself would not vitiate the factum of recovery of Rs. 15,000/- from
the possession of the accused along with other incriminating materials.
F
1438-A-DI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 345
of 2005.

From the Judgment and Order dated 20.09.2004 of the High Court of G
Punjab and: Haryana in Crl. Appeal No. 453-DB of 2002.
WITH
Criminal Appeal No. 74/06.

R.C. Kaushik, Ujjal Singh, J.P. Singh and A.S. Pundir for the Appellant. H
434 SllPREME COURT REPORTS [2006) I S C.R.

A Rajeev Gaur Naseem and T.V. George for the Respondent.

The Judgment of the Court was delivered by

H.K.SEMA, J. Leave granted in S.L.P (Crl.) No. I49 I of 2005.

B Criminal Appeal No. 345 of 2005 is preferred by Surender Singh (A-
I) and Criminal Appeal 74 of 2006 @ S.L.P. (Crl.) No. 1491 of 2005 is
preferred by Vikas (A-3 ). The appellants Surender Singh and Vikas were
convicted by the Trial Court along with one accused Dharmender (not before
us) for an offence under Section 392 and sentenced to undergo RI for seven ~

years and to pay a fine of Rs.5000/- each and in default of payment of tine
<:; to further undergo RI for one year. They were also convicted for an offence
under Section 394 IPC and sentenced to undergo life imprisonment and to
pay a fine of Rs.5000/- each and in default of payment of fine to further
undergo RI for one year. They were further convicted for an offence under
Section 397 IPC and sentenced to undergo RI for ten years and to pay a fine
of Rs.5000/- each and in default of payment of fine to further undergo RI for
D ..
one year. The appellant Surendcr Singh was al~o convicted for an offence
under Section 25 of the Arms Act and was sentenced to undergo RI for two ~

years and to pay a fine of Rs.2000/- and in default of payment of fine to
further undergo RI for six mon;hs. All the sentences, however. were ordered
to run concurrently. The High Court, on appeal. preferred by the accused.
E reduced the sentence to seven years under Sections 394 and 397 !PC albeit
without assigning any reasons. The sentence of the appellants under Sections
392 IPC and 25 of the Arms Act were, however, maintained. Aggrieved
thereby. the accused-appellants preferred these appeals by special leave.
;..-
Briefly stated the facts are as follows:-
F
On 7.2.2000 at about I 2.20 p.m. complainant Ramesh Batra (PW-9)
along with Baldcv Raj (PW-2) were going to deposit the sale proceeds of the
petrol pump amounting to Rs.62.000/- with Oriental Bank of Commerce.
Gannaur. When they were in front of the bank, three young boys confronted
G them. One of them was am1ed with pistol, another was having knife and the
third one was empty handed. The scooter by which they were travelling was
stopped and the hoy who was empty handed tried to snatch the bag from
Baldev Raj (PW-2). When PW-2 resisted. the boy who was armed with knife
gave a knife blow on his person. Thereafter, the unanned boy snatched the
bag and tried to run away. On alarm being raised many persons came at the
H spot and overpowered the boy armed with knife. The boy who was caught
-I
I

SUREN DER SINGH v. STATE OF HARV ANA ISEMA. J.] 435
at the spot told his name as Dharmender A-2 (not the appellant). He also A

' disclosed the names of other two boys who had escaped with the bag as
Vikas (Appellant in Crl.Appeal No.74/06 @ S.L.P (Crl.) No.1491/05 and
Surender (Appellant in Crl.A.No.345/05). Thereafter, PW9 Ramesh Batra
after sending PW-2 to the hospital went to lodge the complaint and also
produced accused-Dharmender. The knife stained with blood was taken into
possession by SI Jagdish Chander and on his statement FIR was recorded. At B
the same time when Inspector Prithvi Singh (PW-13) was coming from Lalheri
side in a jeep, he received a wireless message that the accused Vikas and
y Surender fled with bag and they are being chased by the public. Then he saw
the two accused Vikas and Surender being chased by the public. He
apprehended them and took them into custody and they disclosed their names c
as Surender and Vikas. It was further disclosed from the search of Surender,
a pistol, two live cartridges of 12 bore and a bundle of currency notes of the
denomination of Rs.50/- each total amounting to Rs.5000/- having a chit of
Oriental Bank of Commerce were recovered while two bundles of currency
notes of the denomination of Rs.50/- each having the chit of Oriental Bank
/< of Commerce, total amounting to Rs. I 0,000/- were recovered from the bag D
l< which was being carried by Vikas.
'

These two appeals are directed against a concurrent finding of facts
recorded by two courts. In the case of Bharwada Bhoginhhai Hirjibhai v.
State of Gujarat, AIR ( 1983) Supreme Court 753, it has been held by this .
Court:
E

"A concurrent finding of fact cannot be reopened in an appeal by
special leave unless it is established: (I) that the finding is based on
-~ no evidence or (2) that the finding is perverse, it being such as no
reasonable person could have arrived at even if the evidence was F
taken at its face value or (3) the finding is based and built on
inadmissible evidence, which evidence, if excluded from vision, would
negate the prosecution case or substantially discredit or impair it or
(4) some vital piece of evidence which would tilt the balance in
favour of the convict has been overlooked. disregarded. or wrongly
discarded." G
Learned counsel for the appellants has taken us through the evidence
-{ and we do not find that the circumstances as laid down by this Court as
referred to above are available in the present case. The present case is not of
such a nature, which would require our interference in Special Leave. The
H
436 SUPREME COURT REPORTS 120061 I S.l'.R.

A finding of guilt recorded by the Session's Court and confirmed by the High
Court has been challenged mainly on the basis of PWs 3 and 4 who are pan ch
witnesses turned hostile and even PW-2 who is an injured witness and PW-
'
9 the complainant turned hostile. The challenge to the concurrent finding of
guilt is also on the basis of minor discrepancies in the evidence of prosecution
witnesses.
B
So far the minor discrepancy, which has been pointed to us. we are of
the view that it is not of such a nature, which creates infirmity in the
prosecution's case. It is a well-established principle of law that every 1
discrepancy in the witness statement cannot be treated as a fatal to the
C prosecution case. The discrepancy, which does not affect the prosecution
case materially, does not create infirmity.

With regard to PWs 3 and 4 panch witnesses being turned hostile, this
contention was also well considered by the Trial Court and the High Court.
And both the courts held that their statements do not affect materially the
O prosecution story. PW-3 stated that pistol or cartridges or currency notes
mentioned in Ex.PC were not recovered in his presence. He. however, admitted
his signatures over Ex.PC and Ex.PD. PW-4 also stated that the pistol.
cartridges or currency notes mentioned in Ex.PC were not recovered in his
presence. He also admitted that Ex.PC and Ex.PD bear his signatures.
Therefore, both the courts correctly held that the Ex.PC and Ex.PD were
E recovered in the presence of PWs 3 and 4 who were panch witnesses.

P.W.2 who is an injured witness was examined by P.W.5 (Dr.) on
7.2.2000 and found the following injuries on his person:

"l. An incised wound 2 cm x Y, cm on the left side of the back 24
F cm from left shoulder joint. 17 ems from left axillary line. Fresh
bleeding present. Advised x-ray.

2. An incised wound 2 cm x Y, cm on left side of the back 2 cm from
midline 5 cm medial to first injury. Fresh bleeding present. Advised
x-ray.
G
3. An incised wound 2 cm x Y, cm on left side of the back 12 cm
from the left illisecrast 8 cm from midline fresh bleeding present.
Advised x-ray.

4. An incised wound 2 cm x 'Ii cm on the right side of the back 2 cm
H
SU RENDER SINGH 1•. STATE OF HARY ANA [SEMA, J.] 437
right to the midline 5 cm away from injury No.2. Fresh bleeding A
present. X-ray advised.

5. An incised wound 2 cm x '/, on the right side of the chest 19 cm
from anterior superior alliscrast 30 cm from midline. Fresh bleeding
present. Advised x-ray.
B
6. An incised wound 2 cm x '/, cm on the nght side of the chest 31
cm from mid line I0 cm from anterior superior illise spins. Fresh
bleeding present. Advised x-ray."
' y
The testimony of an injured witness has its own relevancy and efficacy.
The fact that the witness is injured at the time and in the same occurrence C
lends support to the testimony that the witness was present during occurrence
and he saw the happening with his own eyes. Curiously enough even the
injured witness PW~2 has turned hostile. Learned counsel for the appellants
strenuously urged that PW-2 Baldev Raj stated that the accused were not the
persons who attacked him and, therefore, the appellants are entitled to the
J
benefit of doubt. This submission was considered by both the Trial Court and D
the High Court and rejected, in our view. rightly. Although PW-2 was declared
hostile, he has categorically stated that he had gone to Oriental Bank of
Commerce, Gannaur, to deposit the amount. He has also stated that 4-5
persons attacked him. He has also stated that they gave knife blows to him
and snatched the bag from him. This statement is well corroborated by the E
injuries suffered by him on his person, which is proved by PW-5 as well as
seizure of the bag along with the money. PW-2 even denied that he had gone
to the bank with PW-9 Ramesh Batra. The statement of PW-2 was belied by
the statement of PW-9 who categorically stated that he had gone to the bank
along with P.W.2 Baldev Raj. The next submission of the counsel for the
appellants is that the allegation of snatching of Rs.62,000/- by the accused is F
not proved inasmuch as only Rs.15,000/- has been recovered from the bag.
This contention in our view has also no substance. The factum of recovery
of pistol along with cartridges and the currency notes of the denomination of
Rs.50/- amounting to Rs.5000/- from the possession of Surender and the

-
currency notes of the denominatior:J of R.s.50/- each amounting to Rs.10,000/ G
- from the bag which was being carried by Vikas is proved. The other
' contention of the learned wunsel for the appellants that the money so recovered
from the accused Vikas and Surender was not the amount, which is stated to
have been snatched away from PW-2 as the whereabouts of rest ofRs.47,000/
- has not been explained by the prosecution but it was implanted by the
H
438 SUPREME COURT REPORTS (2006( I S.C.R.

A police for false implication. It is nobody's case that the accused and the I
police had any previous enmity. It is also nobody's case that the complainant
PW-9 and the injured PW-2 had any previous enmity with the accused which
would warrant for foisting a false complaint against the accused. While it is
true that the prosecution has failed to explain the whereabouts of rest of the
B amount, this itself would not vitiate the factum of recovery of Rs.15,000/-
from the possession of the accused along with other incriminating materials.
It must be grasped that the two appellants herein were apprehended along
with the incriminating materials while fleeing and the accused No.2
Dharmender was apprehended on the spot.

C For the reasons afore stated the two appeals are devoid of merits and
are accordingly dismissed.

K.K.T. Appeals dismissed.

-