Variations In Evidence Due To Normal Errors Of Observation Or Memory Are Not Material Discrepancies Touching Core Of Case: Kerala High Court

A division bench of Justice P B Suresh Kumar and Justice Johnson John was hearing the case.

The case concerned a conviction under Section 302 of IPC. The appellant filed the present appeal before the court challenging the conviction and sentence imposed on him for the offence under Section 302 IPC.

The prosecution submitted that the accused and the deceased were working together when a quarrel occurred in connection to their employment leading to enmity and on 22.08.2016, when the deceased was in the kitchen of the restaurant where they worked, the accused stabbed his chest with a steel knife and murdered him.

An FIR was registered, and the Additional Sessions Judge, in a decision dated 09.05.2019 convicted the accused and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 50,000/-.

The issue before the court was whether the conviction and the sentence imposed against the accused were legally sustainable.

The counsel for the appellant submitted that there was no direct witness to the occurrence, and as such, the evidence adduced from the prosecution was circumstantial, and the prosecution had not succeeded in fully establishing the circumstances from which the conclusion of guilt is to be drawn.

It was argued that the evidence of PWs 1 to 3 connecting the accused to the alleged occurrence was based on the information they received from CW2 and could only be treated as hearsay evidence being not admissible under Section 60 of the Indian Evidence Act, 1872.

The respondent by referring to Section 6 of the Evidence Act, which speaks to the relevancy of facts forming part of the same transaction, argued that the principle of res gestae was an exception to the hearsay rule.

When it came to issues in the testimony, the court noted that “the variation in the evidence of PWs 1 to 3 regarding the exact time of occurrence are only due to normal errors of observation and normal errors of memory due to lapse of time and such discrepancies and errors will always be there and the same cannot be accepted as material discrepancies touching the core of the case."

It referred to the decision in State of Uttar Pradesh v. MK Anthony (1984) and stated that in trivial matters which do not concern the core of the case, a hyper-technical approach would not permit rejection of the evidence as a whole.

As such, the court accepted the evidence submitted by the prosecution and dismissed the appeal.

Counsel for Petitioner: Advocate Sujith Kumar

Counsel for Respondent: Advocate EC Bineesh

Citation: 2024 LiveLaw (Ker) 39

Case Title: Thapas Berman v. State of Kerala

Case Number: Crl A No. 870 of 2020

Click here to read/download judgment