Chhotey alias Shamsuddin and Another vs State of U.P.

Amreshwar Pratap Sahi, J.—This appeal arises out of a conviction of the appellants herein by the XIIth Additional Sessions Judge, Agra in Session Trial No. 99 of 1980, sentencing them to 5 years R.I. only vide judgment dated 22.11.1982. The two appellants before this Court along with one Chand Munna and Jainuddin were charged for having committed an offence punishable u/s 307 I.P.C., and further, the two other accused named above were additionally charged u/s 34 IPC for having assaulted one Waliuddin and Sharfuddin at about 6 p.m., on 12th of May, 1977 at the place of incidence as described in the first information report falling within the circle of Police Station, Firozabad North. They were tried by the learned 10th Additional District & Sessions Judge, Agra and were convicted for having committed an offence punishable u/s 307 IPC only and were sentenced to five years rigorous imprisonment. The other two co-accused Chand Munna and Jainuddin were acquitted. At the outset it may be noted that one of the injured Waliuddin died before the trial actually commenced with the recording of the statement of the witnesses which began after almost five years of the incident, and therefore the only injured witness who was examined by the prosecution is Sharfuddin. The first informant Riazuddin and the two victims Waliuddin and Sharfuddin are real brothers.

The incident as described in the first information report that was lodged on the same day at about 8.50 pm, narrates that both the injured along with one Ramji Lal were returning back from the hospital seated on one rickshaw where they had gone to see the wife of the first informant Riazuddin. As they reached in front of the shop of Usha Sewing Machine on Ghantaghar-Church Road, the accused forcefully stopped their Rickshaw and forced them to alight, and then the appellant No. 1-Chhotey alias Shamsuddin allegedly assaulted the injured Sharfuddin with a knife causing an injury on his head. The second appellant Salim with a Razor is said to have assaulted Waliuddin causing an injury on his neck. The role as-signed in the F.I.R. to the two acquitted was that they caught hold of Sharfuddin after the appellants had assaulted. On a hue and cry being raised by one of the witnesses Mohd. Hanif and some others, who had gathered at the scene of occurrence, the assailants escaped towards the lane besides an adjacent Cinema Hall.

The FIR further narrates a preceding incident of the morning on the same day between Parveen, the daughter of the informant Riazuddin, and one Anwari wife of Alimuddin. He also narrates that this incident which had taken place at about 8 a.m. in the morning resulted in a brawl between the appellant No. 1 Chhotey, the appellant No. 2-Salim, Alimuddin and Chand Munna who joined in a marpeet which was mediated by the first informant. In the said squabble his wife and the wife of his younger brother Afroj had suffered injuries about which a report was made in the Police Station South Firozabad whereafter the wife of the informant was admitted in hospital.

This appears to have been engrafted in the F.I.R. for reflecting the motive of the appellants to have caused harm to the family of the informant and it appears that the same was sought to be utilized for the said purpose by the prosecution. The informant however contradicted this fact to the extent that no report had been lodged nor any criminal proceedings took place as would appear from his cross-examination.

The first informant further narrates that the two injured Waliuddin and Sharfuddin had come to see his wife in the hospital from where they were returning back when the incident giving rise to this appeal occurred at about 6 pm. The first information report was lodged by Riazuddin after he came to know of the incident from his injured brothers who were examined in the S.N.M. Hospital, Firozabad. The F.I.R. also recites that the informant had gone to the hospital where the injured had been admitted.

On the lodging of the first information report the Investigating Officer is said to have proceeded and he recovered the blood stained clothes of the injured in the presence of P.W. 4-Mohd. Hanif. The memo of recovery is Exhibit-Ka-5. The medical examination was conducted at the Sarojni Naidu Hospital Firozabad by Dr. S.N. Datta, Medical Officer In charge who attended on both the injured Waliuddin and Sharfuddin. The injuries were indicated to have been caused by sharp edged weapons. The injured Sharfuddin was advised an X-ray as his injury was bone deep described as a clean cut on the right parietal bone area upto the right ear. There is no other injury on Sharfuddin. The second injured Waliuddin was examined and only one incised wound towards the right side of the neck muscle deep measuring 14 cm./1.5 cm. was reported, caused by a sharp edged weapon but simple in nature. There is no other supplementary report as from the evidence it appears that no X-ray was got done inspite of an advise of the Medical Officer so far as the injury of Sharfuddin is concerned.

The charges were framed on 13th January, 1982 and the accused withstood trial. The prosecution examined the first in formant Riazuddin, who appeared as P.W.-2, Munna Lal the chance witness as P.W.-1, the injured witness Sharfuddin as P.W.-3, the other chance witness Mohd. Hanif P.W.-4, the Medical Officer, Dr. S.N. Datta as P.W.-5 and the Investigating Officer, C.P. Dubey as P.W.-6. All the accused also examined themselves and their statements were recorded u/s 313 IPC.

Ultimately the trial court on an appreciation of the entire evidence disbelieved the participation and involvement of the two co-accused Chand Munna and Jainuddin and acquitted them, but relying on the deposition of the injured witness and the other chance witnesses and formal witnesses, convicted the appellants to undergo imprisonment for five years having committed an offence punishable u/s 307 IPC.

The prosecution first examined P.W.-1 Munnal Lal on 28th July, and his statement was recorded. Munna Lal narrated that at about 6 pm on the date of the incident he was coming from a Gaushala where he had gone to raise a demand of money and when he reached the shop of Usha Sewing Machine on Ghantaghar-Church Road, he saw both the injured Sharfuddin and Waliuddin coming on a Rickshaw and all the four assailants alongwith one other person whose name he did not remember, apprehended the Rickshaw. Salim, the appellant No. 2 assaulted Waliuddin with a Razor and the first blow was made on the abdomen of Waliuddin and the second on his neck causing injuries. The appellant No. 1-Chhote assaulted Sharfuddin with a knife. He further narrates that the other two co-accused Chand Munna and Jainuddin had held up the Rickshaw. He further described that a large number of people gathered which included Ramji Lal and one Salim. They all exhorted the assailants who ran away towards the Cinema Hall. He stated that he was a resident of Firozabad and that he resided in Mohalla Mewa Ram. He also stated that he was a permanent resident of village Dhan Khera of Jaswant Nagar District Etawah, but he resides for the past 20 to 25 years in Firozabad. He further states that he resided in Mohalla Mewa Ram in the premises owned by Mohd. Hanif who is the other witness of the crime, but he does not have any rent receipt with him. He did not pay any rent to Mohd. Hanif. At present he was residing in the house of one Chhote Lal but he does not pay any rent and as he is a labourer and does not have any ration card or any voter identification card.

The important part of his statement is that he specifically states that he was accompanied by Mohd. Hanif when he was returning from Gaushala and was proceeding towards his residence when he chanced to arrive at the scene of occurrence. He also states that the Investigating Officer had recorded his statement but he had not informed the Investigating Officer about Mohd. Hanif accompanying him. The fact of Mohd. Hanif accompanying him was being narrated for the first time before the Court at the time of deposition. He asserted clearly that he and Mohd. Hanif both had worked together. In his cross-examination he admitted that both of them were not coming on a Rickshaw and arrived at the scene of occurrence on foot.

He further narrates that as soon as he had gone five to six steps in front of the said shop the Rickshaw occupied by the injured was apprehended by the assailants and then he heard the screaming of the injured. The entire bazaar was open and the scene of occurrence is a prominent place of the main Bazaar of Firozabad which is a crowded area. The Cinema Hall is situate after eight to ten shops from the place of occurrence. He has also described the existence of various shops but was unable to name their owners. He further denied in his cross-examination that he had accompanied the injured Sharfuddin when he was coming back from the hospital.

There is another significant and categorical statement by the said witness that Ramji Lai, who is named in the F.I.R. to have accompanied the injured, was not alongwith him and he does not know him. He also expressed his inability to explain as to why his statement u/s 161 contained a reference of Ramji Lal and as to why the Investigating Officer wrote that. He did not chase the assailants.

He has also accepted that he knew the injured from before and that they are five brothers. After the incident he went back home. He did not remember the name of those other persons who had assembled at the time of the occurrence and his statement had been recorded by the Investigating Officer. He however described that the Investigating Officer was known to the other witness Mohd. Hanif and Mohd. Hanif had accompanied him. Hanif had taken the witness to the Investigating Officer.

The next statement that was recorded was of the first informant RW.-2 Riazuddin on 15.9.1982 and who is also the real brother of the two injured. The first informant admitted in his statement that there was a civil dispute going on with regard to the house occupied by the assailants. He then supported the version in the F.I.R. narrating that in the morning of the incident there was a dispute between his daughter and the wife of Waliuddin in which his wife had suffered injuries and was admitted in the hospital. His two brothers, Sharfuddin and Waliuddin who are the injured in the present case had gone to the hospital to see his wife from where they were returning on a Rickshaw and they were accompanied by Ramji Lal. He further narrates that all three of them were sitting together in one Rickshaw and when they arrived near the shop of Usha Sewing Machine at about 6 pm then all the four assailants apprehended the Rickshaw.

On the narration of facts made by his two brothers who are the injured, the informant went to the Police Station to dictate the F.I.R. The injured were in the hospital. The incident was transcribed through one Achhey Miyan and whatever was narrated by the informant was written down which was read-over to him whereupon he affixed his thumb impression thereon. He admitted that he was not a witness of the scene. The two injured had been examined by the doctor. In his cross-examination, the informant Riazuddin states that no report was lodged with regard to the dispute in the morning between Anwari and his daughter Parveen and no criminal case commenced. This was somewhat in contradiction to the recital contained in the FIR.

He got the information of the incident presently in question when he was at his house which is at a distance of three to four furlongs from the hospital. The information about the incident was given to him by one Sayeed at about 6 pm. In his statement he fixed the presence of Ramji Lal along with the two injured on the Rickshaw on which they were traveling. He denied having lodged the first information report on account of any enmity. He also stated that he does not know who admitted his brothers to the hospital. He explained his statement by saying that the F.I.R. narrates that his brothers have been admitted in hospital. He has supported the prosecution version of the incident as stated in the F.I.R. He is not an eye-witness or a chance witness of the occurrence.

The third and most crucial witness examined by the prosecution is the injured witness and one of the victims namely Sharfuddin P.W.-3. He proceeds to positively assert that he was accompanying his brother Waliuddin, and Ramji Lal, and all three of them were sitting on the same Rickshaw. As soon as the Rickshaw arrived at the place described by the other witnesses the accused immediately took hold of the rickshaw and stopped it. Chotey alias Shamsuddin assaulted him with a knife on his head. The other appellant Salim assaulted his brother Waliuddin with a razor causing an injury on the neck. He then describes that Chand Munna and Jainuddin, the two co-accused had caught hold of him. The other witnesses Hanif, Munnal Lal and others had arrived at the spot and on their raising a cry the assailants ran away. He then asserts that both the injured accompanied by Ramji Lal went to the hospital. It is at the (hospital that they met the first informant Riazuddin who was informed about the entire incident. The Investigating Officer had procured the blood stained clothes. In his cross-examination, he reasserted that he was accompanied by Ramji Lal who was sitting in the middle of the rickshaw and he and his brother Waliuddin were sitting in an escorting position.

He further stated that he had been caught hold by two persons which information had been given to the Investigating Officer but it is not known as to why this fact was not recorded. He further asserted that the rickshaw on which he was seated also had blood stains on it but the rickshaw puller appears to have vanished with his rickshaw immediately as a result whereof the injured had to take a different rickshaw to go to the hospital. The witness however fails to inform as to who was the rickshaw puller or his name.

The significant part of his statement is that one of the witnesses Hanif was just behind him in a rickshaw and a large number of people had gathered at the place of incident. He however admits that Ramji Lal used to work along with him and his brother Waliuddin and he belongs to Safipura where his father used to stay. He however denied having falsely implicated the accused.

The fourth witness P.W.-4 Mohd. Hanif entered the witness box on 22nd October, 1982. Mohd. Hanif in his initial description narrates that the injured along with Ramji Lal were going on a rickshaw. The witness was himself traveling alone in another rickshaw that came behind, two to four minutes after their departure. In short, he stated that he was all alone in a rickshaw behind the rickshaw of the injured. He then narrates the incident at the same place as the other witnesses and asserts that the two co-accused Chand Munna and Jainuddin had caught hold the Waliuddin and Sharfuddin. While narrating the assaults on the victims, he states that Salim hit Sharfuddin with a knife and Chhotey alias Shamsuddin assaulted Waliuddin with a knife. As soon as he alighted from his rickshaw the assailants ran away towards the Cinema. He described the injury on Sharfuddin on his head and that of Waliuddin on his neck. He also recites the presence of Ramji Lal and others on the spot.

The lower court categorically recorded that Hanif put his hands on the shoulder of Salim, the appellant No. 2 to positively assert that it was the said accused who had assaulted Sharfuddin with a knife. This part of the statement is very important as the identity of the assailants as stated by Hanif in clear terms is in contradiction to the statement of the other witness Munna Lal and the injured witness Sharfuddin. In his cross-examination, he has admitted his acquaintance with the accused and their enmity with him.

In his cross-examination he further admits again that Ramji Lal was sitting on the rickshaw in the middle. He however stated that he does not remember as to which of the injured were sitting on which side of the rickshaw. He then narrates the version of the two victims being dragged from the rickshaw on the road where they were assaulted and human blood was available on the road to corroborate the same. He has further categorically stated that he never saw Munna Lal coming on a rickshaw but he was present on the spot. He also admitted having brought the Investigating Officer to the spot and that he had acquaintance with the injured and his brothers. He however denied any enmity with the accused.

The next witness who has corroborated the medical examination report is Dr. S.N. Datta (Batra) who has stated that the injuries were examined by him and has also certified their duration as being of the same timing as narrated in the F.I.R. He stated that X-ray had been advised, and that the injury of Sharfuddin had been caused by a sharp edged weapon on the right hand side of his head. In his cross-examination he has stated that anybody can die of a head injury. He further states that the injury of Sharfuddin was kept under observation but since no X-ray Report was produced before him, therefore, he did not describe the injury as dangerous in the examination report. He also stated that he cannot definitely say about the positioning of the victim or the assailants. While describing the injury of Waliuddin he stated that the same was muscle deep in the middle of the neck and it is quite possible that it may have been caused by a Razor. He has categorically stated that the injury of Waliuddin on the neck was simple.

The other witness is RW.-6 C.P. Dubey, Sub-Inspector of Police who appeared as a formal witness on 19.11.1982. He narrates that he did not make any effort to discover the rickshaw or its puller on which the injured had arrived. He also stated that he has not recorded the statement of any other person from the crowd who gathered on the spot. There were very minutely scattered drops of blood on the road and therefore it was not possible to recover them for any examination. He did not take any samples. He also admitted that the blood-stained clothes were not sent for medical examination. He has taken the name of one Om Prakash whose statement he had recorded u/s 161 and was described as a Mechanic of the Usha Sewing Machine Shop. It is to be noted that Om Prakash was not produced as a witness.

The accused got themselves examined and their statements u/s 313 Cr. P.C. were recorded on the same day. They denied all incriminating suggestions made to them and pleaded a defence of false implication. The judgment convicting the appellants and acquitting the other two accused came to be delivered on 22.11.1982.

The trial court proceeded to narrate the incident, the statement of the witnesses including that of Hanif, but the trial court re-fused to believe the defence version that Hanif was an interested witness, inasmuch as, the incident was corroborated by the statement of the injured witness himself. The conclusion drawn by it begins at internal page 7 bottom and ends at page 8 of the judgment. However it opined that it appears, that the names of the other two co-accused Chand Munna and Jainuddin, have been mentioned in the F.I.R. since they are related to the accused, therefore they appear to have been falsely implicated and has held that the evidence does not lead to the conclusion of establishing the prosecution story against those two accused beyond reasonable doubt.

The learned Judge then goes on to discuss about the enmity part including the civil dispute of the house and the dispute that had taken place on the date of the incident in the morning. The trial court has recorded that even if the morning incident or the after-noon incident was not reported, it cannot be presumed that the incident in question had not taken place in the evening. It has further held that the first information report was registered promptly and does not appear to have been an afterthought as it was lodged shortly after the incident. The trial court further recorded that there was enough daylight in the month of May, 1977 at about 6 p.m. and therefore the identification of the assailants cannot be doubted. The lapses on the part of the Investigating Officer have been described as a dereliction of duty, but the same according to the trial court did not amount to dislodging the entire prosecution story and the incident. The conclusion of the trial court further is that no shopkeeper may have actually seen the assault, as it is only after a hue and cry raised that every body rushed to the spot. The defence version of disbelieving Munna and Hanif has been rejected by recording that merely because Hanif may be an interested person, he cannot be branded as a liar or a person who had not seen the incident. The judgment relied upon by the learned counsel for the appellants was also not found coming to their aid.

On the issue of evidence relating to the presence of Ramji Lal, it has been recorded that Ramji Lal appears to have been won over who had filed an affidavit that he had not seen the incident. The affidavit according to the learned trial court was not sufficient to disbelieve the prosecution story.

In the concluding part of the judgment the trial court came to the conclusion that since the injuries have been caused on a vital part of both the victims with sharp edged weapons, then the only inference that can be drawn is that it was with an intention to cause such an injury that could have resulted in death and as such the offence committed by the two appellants were punishable u/s 307 IPC. The argument in relation to the nature of injuries being not dangerous to life was also rejected on the ground that even if the version of the doctor is believed, then too the injuries being on the vital part of the body, the offence falls u/s 307 IPC.

This appeal was filed in the year 1982 and both the appellants are approximately aged about 60 years as of now. I have heard Sri Yogendra Mishra and Sri R.K. Rathore, learned counsel for both the appellants who have advanced their submissions categorically beginning from the delay in the F.I.R. to the perversities as alleged by them in the judgment of the trial court. The arguments were spread-over several days with the learned AGA giving his reply to the same.

Sri Mishra commencing with the F.I.R. urged that the incident is said to have occurred at about 6 p.m. and the injured instead of going to the Police Station which was hardly a couple of furlongs from the place of incident went to the hospital without informing the police. This itself was an unnatural conduct of the injured. The First Information Report was lodged at about 8.50 p.m. He therefore contends that the F.I.R. is substantially delayed which aspect has not been appropriately dealt with by the trial court. He further submits that the contents of the F.I.R. were not proved by the informant Riazuddin and as a matter of fact when he was cross-examined, the version contained in the F.I.R. about the preceding incident prior to the occurrence in question were contradicted. He then points out the infirmities in the investigation namely that there was no attempt made to recover the weapons said to have been used. Human blood that was said to have been found on the road, could have been collected, which was not done by the Investigating Officer nor the blood stained clothes taken into custody were sent for medical examination. He therefore submits that no forensic evidence including the identity of the weapon, the report of the laboratory and the existence of human blood were ever established.

He therefore submits that this major lapse on the part of the investigation should go to the advantage of the accused and should not be cursorily sidelined as done by the trial court treating it to be a minor lapse and non-performance of a duty attributable to the slackness of the Investigating Officer.

The third submission of Sri Mishra is that one of the major and prominent witnesses who could have been a possible witness to the incident namely Ramji Lal was never produced nor any attempt was made by the prosecution to bring him to the witness box. He contends that Ramji Lal has been universally narrated as the person accompanying the two injured. Even though one of the witnesses Munna Lal has not stated that he was seated on the rickshaw, yet his presence has been indicated, and therefore this lapse on the part of the prosecution to produce this prime witness should be read in favour of the appellants. He then comes to the conduct of the victims of not going to the Police Station and the nature of the injuries that were caused to them to contend that the injuries were not at all serious and could not have been said to have been caused with the intention to kill as neither any X-ray was conducted nor any further hospitalization was proved. He therefore submits that this element being absent the conclusion drawn by the trial court is perverse.

Sri Mishra then vehemently urged that once the prosecution story circles around the statement of the injured which also includes the presence of the other two witnesses Munna Lal and Hanif, then in that event all the statements have to be read together as a whole, and if that is done, the same results in serious contradictions in the prosecution version giving rise to serious doubts. He therefore submits that the prosecution has failed to prove the story beyond reasonable doubt and therefore their version has to fall through. In short the combined effect of the evidence led, being full of contradictions materially, leads to the conclusion of a concocted story supported by false depositions.

To substantiate his submissions, Sri Mishra has pointed out discrepancies, which he urged are material discrepancies, which go to the root of the matter, and he therefore contends that if these discrepancies are taken into account, this clearly establishes that neither the prosecution has been able to fix the place of occurrence or its timing, or even the presence of the prosecution witnesses. He further contends that the statement of Mohd. Hanif goes to the extent of describing a different identity of the assailants in the sense, that their victims have been interchanged. He has further invited the attention of the Court to the site plan to contend that the same does not give the correct direction of the arrival of the victims and there is nothing to conclusively establish the manner in which the witnesses are alleged to have arrived at the scene as chance witnesses. He further contends that had there been any intention to kill or cause any injury on account of the alleged old enmity, then in that event the appellants could not have possibly chosen a crowded place in the main market area for the said purpose. They would also not have attempted half-hearted blows and run away. He therefore submits that the entire story set up by the prosecution is a complete afterthought and is also highly improbable. His submission therefore is that no offence is made out against the appellants and they deserve to be acquitted.

To support his submission he further contends that on the same set of evidence the other two co-accused who are said to have apprehended the rickshaw or having caught hold of the victims, have been let off whereas the same set of evidence has been relied on by the trial court to convict the appellants which is unjustified. He therefore submits that the trial court committed a grave error in convicting the appellants who have been falsely implicated, hence, the appeal deserves to be allowed.

Alternatively he contends that the manner of the alleged assault and the injuries, coupled with serious doubts of the same being witnessed by the chance witnesses, the offence cannot travel beyond 324 IPC.

Sri Mishra has cited a number of decisions in support of his submissions, namely, Jagdish Murav Vs. State of U.P. and Others, ; Balwan Singh etc. Vs. State of Haryana, ; Rajendra and others v. State of U.P., 2004 (49) ACC 442 : 2004 All LJ 2368); Manohari Singh v. State of U.P., 2010 (68) ACC 597; Bisai v. State of U.P., 2000 (40) ACC 211.

Replying to the aforesaid submissions, Sri Mahendra Bahadur Singh, learned AGA contends that the injured witness is the most important witness and he has fully proved the prosecution case by corroborating the other evidence on record. He contends that the injury was such that was caused with an intention to kill. He submits that the discrepancies as alleged by Sri Mishra are minor discrepancies, if at all, and they do not in any way demolish or dilute the story of the prosecution. He contends that all the witnesses have categorically established the place of occurrence, namely, in front of the shop of Usha Sewing Machine and the timing of the incident has also been categorically stated by all the witnesses. This finds support from the medical examination report and the duration of injuries as explained by the doctor. He therefore submits that the prosecution story has been proved to the hilt and merely because the two co-accused who had been acquitted, the same does not in any way establish the absence or false implication of the appellants. He contends that they were very much present and caused the injuries for which they have been charged and the evidence corroborates each other proving the prosecution version beyond reasonable doubt. He submits that the nature of the injuries are clearly on vital parts of the body, and were undoubtedly caused with the intention and knowledge so as to kill the victims. The enmity is also borne out and therefore the motive to commit murder can also be inferred from this circumstance. The submission is that the injured had a providential escape. He therefore contends that in view of the nature of the injuries and the prosecution having established its version there is hardly any ground to dilute the judgment of the trial court. He submits that there is no scope for even reduction in the sentence as was claimed by the appellants before the court below and the same has been rightly rejected. The appellants were found guilty and have appropriately been sentenced commensurate to the guilt having been established. He therefore urges that this Court may not take any lenient view of the matter on account of the alleged lapse in investigation or the minor discrepancies as alleged by the learned counsel for the appellants in the statement of the prosecution witnesses.

He has further wound up his argument by contending that non-production of any witness will not be fatal for the prosecution so long as the injured witness, who is the core witness, has proved the story by narrating his version. He therefore contends that the appeal be dismissed without any modification. The learned AGA has relied on the following decisions to substantiate his submissions:

State of Maharashtra Vs. Balram Bama Patil and Others, ; Pt. Parmanand Katara Vs. Union of India (UOI) and Others, ; Himanshu @ Chintu Vs. State of NCT of Delhi, ; Nand Kishore Vs. State of Madhya Pradesh, ; State of U.P. Vs. Brahma Das, ; Ram Avtar Rai and Others Vs. State of Uttar Pradesh, ; State of U.P. Vs. Gokaran and Others, ; State of U.P. Vs. Naresh and Others, ; Brahm Swaroop and Another Vs. State of U.P., ; Suresh Pal and Others Vs. State of Uttar Pradesh, ; Pattad Amarappa and Others Vs. State of Karnataka, ; Suresh Vs. State of Haryana, ; Vishal Singh Vs. State of Rajasthan, ; Jarnail Singh and Others Vs. State of Punjab, ; Sri Sambhu Das @ Bijoy Das and Another Vs. State of Assam, ; State of Rajasthan Vs. Arjun Singh and Others etc., ; Bhajan Singh @ Harbhajan Singh and Others Vs. State of Haryana, ; State of U.P. Vs. Hari Chand, ; Munna @ Pooran Yadav Vs. State of Madhya Pradesh, ; Satvir Vs. State of Uttar Pradesh, ; Sheo Shankar Singh Vs. State of Jharkhand and Another, ; State of Madhya Pradesh Vs. Ghanshyam Singh, ; State of M.P. v. Kedar Yadav, 2009 17 SCC 280; Jameel Vs. State of U.P.,

The Principles to be observed by a court in order to interfere with an order of conviction have been observed by the Apex Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, at Page 222 : AIR 1983 SC 753. Even though, the same is a principle enunciated for a consideration by the Supreme Court itself the same would also apply in addition to other principles at the level of the High Court which is the second court of fact. The relevant passage of the Apex Court is extracted here in under:--

Such a concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established: (1) 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 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.

It is thus clear that the principles as laid down by the Apex Court have to be observed before proceeding to re-appreciate the same. In the instant case this is an appeal against conviction and not against acquittal, nonetheless before proceeding to take a different view the aforesaid principles have to be kept in mind especially where the trial court has taken pains to descriptively deal with the matter. However any vital omission or non-consideration of relevant evidence has to be kept in mind so as to prevent any substantial miscarriage of justice. This Court, in appeal, has the same powers as the trial court to reappreciate the evidence and arrive at its own conclusions for cogent and plausible reasons.

The accused should therefore not be let off for minor reasons but at the same time if the prosecution has been unable to establish the guilt beyond reasonable doubt the benefit does accrue to the accused. Nonetheless the learned AGA has rightly invited the observations in Para 35 of the Apex Court judgment in the case of State of U.P. Vs. Naresh and Others, quoted here in under:--

Page 35. The instant case is required to be examined in the totality of the circumstances and in the light of the aforesaid legal propositions. The Court has to strike a balance in the interest of all the parties concerned. Thus, there is an obligation on the court neither to give a long latitude to the prosecution, nor construe the law in favour of the accused.

This brings the court to the principles that have to be followed for appreciating the reliability or otherwise credibility of a sole witness. This has to be viewed in the light of a heavy reliance placed on the sole injured witness in the present case. The apex court in the case of Lallu Manjhi and Another Vs. State of Jharkhand, has observed in paragraph 10 as under:--

The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may, classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. {See- Vadivelu Thevar Vs. The State of Madras, }.

One of the principles that have been indicated to be observed in relation to the reliability of witnesses in the judgment of Himmat Sukhadeo Wahurwagh and Others Vs. State of Maharashtra, is extracted hereinbelow:--

We are also aware of the fact that the evidence in most of these cases is recorded after some delay and that in any case if every witness were to give an identical and parrot like statement, it would smack of tutoring and would lose credibility. Some inconsistencies are thus bound to arise particularly where a large number of victims, witnesses and accused are involved and the incident itself is spread out over a distance and period of time, as in the present case.

While proceeding to apply the said principles the Supreme Court has cautioned that there are certain principles to be observed in order to avoid what has been described as minor discrepancies. Reference be had to the decision of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, :--

We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned counsel for the appellant. Over much importance cannot be attached to minor discrepancies. The reasons are obvious:

(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person''s mind whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get contused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.

Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses.

The tendency of witnesses to improve and embellish their statements by way of exaggeration should not always be considered sufficient to discard the whole evidence. The courts are placed in a very precarious condition and this situation has been explained by the Apex Court in the case of Himmat Sukhadeo Wahurwagh and Others Vs. State of Maharashtra, quoted here in under:--

Before we embark on an appreciation of the evidence some thoughts come to mind. The criminal justice system as we understand it as of today in our country, is beset with major issues, sometimes unrelated to what happens in court, particularly in cases involving more than one accused. Fudged and dishonest first information reports, tardy and misdirected investigations and witnesses committing perjury with not the slightest qualm or a quibble make the decision of even the most diligent and focused of Judges particularly galling and difficult. Several other factors inhibit the proper conduct of proceedings in a trial.

As per "Crimes in India-1998" a total of 5,42,345 cases under the Indian Penal Code including those carried over from the previous years, and another 6,37,345 criminal cases under Special and Local Laws making a backlog of 11,79,690 cases were pending investigation. It has also been found that the delay in the investigation and disposal of a criminal case makes the possibility of acquittal that much higher as witnesses tend to turn hostile.

The Fourth Report of the National Police Commission (1980) Chapter XXVIII gives some alarming statistics inasmuch that a sample study of Sessions cases in a crime infested district revealed that out of 320 cases disposed off in the concerned Sessions Court during the 8 months working period in a year, only 29 ended in conviction while 291 ended in acquittal. In conclusion, the Commission observed:

As many as 130 cases, which included 21 murders, 58 attempts at murder, 17 decoities and 9 robberies, took more than 3 years for disposal, reckoning the time from the date of registration of First Information Report It was also noticed that the longer a case took for disposal the more were the chances of its acquittal. Protracted proceedings in courts followed by acquittal in such heinous crimes tend to generate a feeling of confidence among the hardened criminals that they can continue to commit crimes with impunity and ultimately get away with it all at the end of leisurely and long drawn legal battles in courts which they can allow their defence counsel to take care of. Such a situation is hardly assuring to the law abiding citizens and needs to be immediately corrected by appropriate measures even if they should appear drastic and radical.

We hasten to add that these alarming figures are not universally applicable to all districts, but they are undoubtedly indicative of the malaise that afflicts our criminal justice system and paint a grim picture. The Commission also found that one of the primary reasons for the failure of the prosecution was the propensity of prosecution witnesses to turn hostile and several reasons for this trend have been spelt out.

The Commission also quoted with approval from a letter of a senior Sessions Judge in which he wrote that:

A prisoner suffers for some act or omission but a witness suffers for no fault of his own. All his troubles arise because he is unfortunate enough to be on the spot when the crime is being committed and at the same time "foolish" enough to remain there till the arrival of the police. It is for these reasons that people do not take the victim of a road accident to hospital or come to the help of a lady whose purse or gold chain is being snatched in front of her eyes. If some person offers help in such cases he is to appear as a witness in a court and has to suffer not only indignities and inconveniences but also has to spend time and money for doing so. Sometime the witnesses incur the wrath of hardened criminals and are deprived of their lives or limbs.

In this pernicious state of affairs, the Judge, gravely handicapped, has to apply his knowledge of the law and his assessment of normal human behaviour to the facts of the case, his sixth sense based on his vast experience as to what must have happened, and then trust to God and good luck that he strikes home to come to a right conclusion. To our mind, the last two are undoubtedly imponderables but they do come into play in negotiating the judicial minefield. This is an undeniable fact whether we admit it or not.

On the aforesaid premise the Contradictions, improvements and embellishments have to be assessed for which guidelines have been indicated in the case of Appabhai and Another Vs. State of Gujarat, quoted herein under for ready reference:--

On the second contention, the learned Counsel highlighted many of the contradictions in the evidence of Devji (PW-4) as against his previous statement; one recorded by the Executive, Magistrate (Exh. 66) and another by the police during the investigation. We have, however, also examined the relevant evidence. It is true that there are many contradictions in the evidence of Devji. He has not attributed overt acts to individual accused in his statement before the police whereas he has attributed such overt acts in his evidence before the court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately he has survived. He must, therefore, be considered as the best eye-witness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jagamohan Reddy, J., speaking for this Court in Sohrab and Another Vs. The State of Madhya Pradesh, observed:--

This Court has held that falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered.

The same view has been further explained in the judgment of the Apex Court in the case of State of U.P. Vs. Anil Singh, in the following words:--

Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In 24 CWN 626 (Privy Council) , the Privy Council had this to say (at 628):

That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence.

In Abdul Gani and Others Vs. State of Madhya Pradesh, Mahajan, J., speaking for this Court deprecated the tendency of courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Court should make an effort to disengage the truth from falsehood and to sift the grain from the chaff.

It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.

Thus the principle laid down is to separate the grain from the chaff which has again been reiterated in the case of Mani @ Udattu Man and Others Vs. State rep. by Inspector of Police, quoted here in under:--

The stand taken before the High Court was reiterated. The present appeal is by A1, A3, A4 and A7. Learned counsel for the respondent supported the judgment of the trial Court and the High Court.

...It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient, or to be not wholly credible. Falsity of material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witness or witnesses cannot be branded as liar(s). The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called ''a mandatory rule of evidence''. (See Nisar Ali Vs. The State of Uttar Pradesh, . In a given case, it is always open to a Court to differentiate accused who had been acquitted from those who were convicted where there are a number of accused persons. (See Gurcharan Singh and Another Vs. State of Punjab, . The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab and Another Vs. The State of Madhya Pradesh, , and Ugar Ahir and Others Vs. The State of Bihar, . An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel Vs. State of Madhya Pradesh, and Balaka Singh and Others Vs. The State of Punjab, . As observed by this Court in State of Rajasthan Vs. Smt. Kalki and Another, , normal discrepancies in evidence are those which 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 those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party''s case, material discrepancies do so. These aspects were highlighted in Krishna Mochi and Others Vs. State of Bihar, , and in Sucha Singh and Another Vs. State of Punjab, . It was further illuminated in the Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, , Ram Udgar Singh Vs. State of Bihar, , Gorle S. Naidu Vs. State of A.P. and Others, , Gubbala Venugopalaswamy and Others Vs. State of Andhra Pradesh, , and in Syed Ibrahim Vs. State of Andhra Pradesh, ).

An injured eye-witness has not to be discarded as easily as at times urged by the defence. The Apex Court in the case of Dinesh Kumar Vs. State of Rajasthan, , while emphasising the aforesaid aspects has explained particularly with regard to the statement of an injured witness in paragraph 12 thereof which is quoted here in under:--

In law testimony of an injured witness is given importance. When the eye-witnesses are stated to be interested and inimically deposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically deposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witness appears to be clear, cogent and credible, there is no reason to discard the same. Conviction can be made on the basis of such evidence.

The said aspect has been explained in a detailed manner by a Division Bench of the Gujarat High Court in the case of State of Gujarat Vs. Bharwad Jakshibhai Nagribhai and Others, which is extracted here in under:

In our view, the approach of the learned Judge in appreciating the evidence of injured witnesses is on the face of it illegal and erroneous. For appreciating the evidence of the injured witnesses the Court should bear in mind that:

(1) Their presence at the time and place of the occurrence cannot be doubted.

(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons.

(3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects.

(4) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence.

(5) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereo-type investigation.

(6) It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story.

The aforesaid judgment has been affirmed by the Apex Court reported in Bharwad Jakshibhai Nagjibhai and others Vs. State of Gujarat, .

An eye-witness who is also described as an interested witness should not be ordinarily discarded as held by the apex court in the case of Himmat Sukhadeo Wahurwagh and Others Vs. State of Maharashtra, quoted here in under:--

The learned counsel for the State has also brought to our notice some observations in the judgment of this court in Dinesh Kumar Vs. State of Rajasthan, with respect to the evaluation of the evidence of an interested or related witnesses. They are:

...When the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically. The court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same. Conviction can be made on the basis of such evidence.

Nonetheless an independent witness even though available if not examined has been considered to be a major discrepancy as held by the Apex Court in the case of Hem Raj and Others Vs. State of Haryana, are quoted here in under:--

The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case having regard to the indisputable facts of this case. Amongst the independent witnesses, Kapur Singh was one, who was very much in the know of things from the beginning. Kapur Singh is alleged to have been in the company of PW 5 at a sweet stall and both of them after hearing the cries joined PW 4 at Channi Chowk. He was one of those who kept the deceased on a cot and took the deceased to hospital. He was there in the hospital by the time the first I.O.-PW 9 went to the hospital. The evidence of the first I.O. reveals that the place of occurrence was pointed out to him by Kapur Singh. His statement was also recorded, though not immediately but later. The I.O. admitted that Kapur Singh was the eye-witness to the occurrence. In the FIR, he is referred to as the eye-witness along with PW 5. Kapur Singh was present in the Court on 6.10.1997. The Addl. Public Prosecutor ''gave up'' the examination of this witness stating that it was unnecessary. The trial court commented that he was won over by the accused and therefore he was not examined. There is no factual basis for this comment. The approach of the High Court is different. The High Court commented that his examination would only amount to ''proliferation'' of direct evidence. But, we are unable to endorse this view of the High Court. To put a seal of approval on the prosecution''s omission to examine a material witness who is unrelated to the deceased and who is supposed to know every detail of the incident on the ground of ''proliferation'' of direct evidence is not a correct approach. The corroboration of the testimony of the related witnesses-PWs 4 & 5 by a known independent eye-witness could have strengthened the prosecution case, especially when the incident took place in a public place.

Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness-Kapur Singh, would assume significance. This Court pointed out in Takhaji Hiraji Vs. Thakore Kubersing Chamansing and Others,

[I] if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case, the court ought to scrutinize the worth of the evidence adduced. The Court of facts must ask itself whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the Court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein.

In the face of settled law traversed above, the court has to guide itself on the principles so laid down so as to accomplish the avowed object of doing justice, which is not only meant for the accused but to the actual victim as well, and to arrive at the truth to uphold the majesty of law.

Beginning with the FIR, the first informant Riazuddin who is the real brother of the injured, introduced the story of an incident in the morning of the same day when the occurrence took place, namely a dispute between two ladies of the families of the parties. This part of the FIR, which was to indicate an immediate cause of enmity enough to arouse the passions of the accused, was not proved substantially except for a bald statement by him. On cross-examination it was admitted that no report was registered nor any criminal action was initiated. Thus the fact of lodging a report or a criminal case being pursued with regard to the morning incident as stated in the FIR stood contradicted in the statement of the informant himself. Accordingly the reflection of this immediate preceding enmity was not proved by any cogent evidence. To the contrary the contradiction in the statement of Riazuddin raises sufficient doubt to discard this part of the prosecution version for presuming any recent enmity. Nothing material was brought forward by the prosecution to corroborate this version in the FIR. It was alleged by Riazuddin that his wife was injured in the morning incident but she was not produced to corroborate this fact nor any medical report etc. was produced to even prima facie establish the said occurrence. The authenticity of the aforesaid recital therefore was not proved but there was something that was brewing up that might have been some past feeling of animosity.

On the issue of some delay in FIR, the conduct of the injured appears to be natural to have gone to the hospital, instead of going to the police station, in view of the nature of the injuries. But there were other witnesses and the police station was at a very short distance in the same locality near the Ghantaghar. The witnesses did not state that they had accompanied the injured to the hospital. To the contrary the medical report states that the injured brought themselves to the hospital on their own. The only person named in the statement of the injured to have accompanied them on a rickshaw is Ramji Lal who was never produced. Thus there was a large crowd including the witnesses who have not cared to lodge a report or information with the police. The court however in such circumstances cannot treat this to be a material lapse so as to disbelieve the whole incident. A natural course of activity on such a stunning incident, all of a sudden happening in a crowded street, may deter any member of a crowd to come forward and engage himself in social service, that too of visiting a police station when there were no such communication facilities like a modern mobile.

Sri Singh, learned AGA rightly contends that when the victim has suffered injuries on a vital part, then it is but natural that the injured would first rush to hospital to protect and preserve himself medically than going to the police station for the formality of lodging an FIR. The panic of the incident and the injury, do suggest that the injured chose to attend to themselves first than to seek protection of law. He has rightly relied on the law expounded in the case of Gosu Jairami Reddy and Another Vs. State of A.P., . Thus the court does not find any good reason to record adversely on the ground of any delay in lodging the FIR.

Then comes the criticism of the lapses in investigation for which various loop holes were pointed out by Sri Mishra, learned counsel for the appellants. The lack of devoted-ness on the part of the investigator is a lapse neither condonable nor pardonable. The Officer entrusted with the investigation in his statement did not disclose as to why he did not choose to even search for the weapons used. He does not afford any explanation as to why the blood stained clothes were not sent for forensic examination. The only reason given for not collecting the samples of human blood was the scarce availability of a few drops on the road at the scene of occurrence that was not even capable of being scraped and preserved. There is also no explanation for having not searched the rickshaw or its driver on which the assault is said to have been picturised. Not only this, if the rickshaw puller had vanished with his vehicle from the scene, the second rickshaw and its puller, that took the injured to the hospital also remained untraceable as no effort was made to collect all this evidence. The prosecution was virtually abandoned by its own investigative machinery. It is in such circumstances that one remembers characters like Sherlock Holmes and their devotion and honesty of purpose as true investigators. Performance of duty with passion and due diligence helps to avoid such situations. Conversely non-performance encourages criminals and vagabonds to believe that the system is working to the advantage of evildoers.

Such lapses bury the mystery making the job of the court a little more complicated and complex. These lapses however do demand the court''s attention to assess the distinction between a minor and a material discrepancy. The court has to bear in mind that dearth of evidence, that could have been easily made available to support the prosecution story with a little of diligence and effort, causes suffocation for the prosecution. The guilty secret of the weapon used for a terrifying assault is still shrouded in partial mystery for want of any effort made for its recovery.

The evidence of the consequences of the use of such a weapon has however been described by the victim and other witnesses corroborated by the medical examination report. The injuries on both victims are caused by sharp edged weapons and their description matches with the wounds inflicted. But then the prosecution is not absolved of its lapses as noted above. Had there been an energetic and prompt effort made, a search could have yielded some result when the F.I.R. was lodged within 2 1/2 hours of the incident. However such failure of investigation has not been treated as fatal to the prosecution story as pointed out by Sri Singh learned AGA in the case of Sheo Shankar Singh Vs. State of Jharkhand and Another, .

The chance witnesses, as named by the prosecution in the F.I.R., namely Munna Lal and Hanif in the absence of Ramji Lal, have grouped together with the injured witness to parrot the narrative with their embellishments in an imprudent way. The court has therefore to assess the calibrated version of the statements with deftness and full caution so that a mere suspicion or a doubt does not take place of proof. The adulterated part needs to be segregated and it is here that experience, imagination and clarity of a judicial mind is put to test to unearth the unknown, and to either believe or disbelieve what has been discovered. The exact parody of the performers of the prosecution is punctured by contradictions. The perforations have been pointed out sharply and clearly by Sri Mishra learned counsel for the appellants to establish the fallacy in the prosecution version. This does happen when the real version is inflated and is sought to be blown up to proportions that the story starts appearing to be improbable. If any evidence is either sought to be created out of anxiety to get the accused punished or add spice for a more rigorous punishment, then some judicial antiseptic has to be applied to cleanse the unbelievable part of the evidence. One does not have to be obsessive about tidy evidence, but the probabilities have to be extracted hygienically with the utmost archaeological precision and authority. This method of trying investigated truth is the job of the trial court.

The trial Court did not, for reasons not known, venture upon to assess the discrepancies in the statements of the chance witnesses. Their arrival on the spot in the manner described by themselves creates a serious doubt. The contradiction in the accompaniment of the witnesses goes a step further. The absence of Ramji Lal as a prosecution witness adds to it. The trial court did notice that Ramji Lal appears to have been won over and reliance for such assumption is placed on an affidavit filed by him. The trial Court therefore avoided the said version on the basis of an affidavit the contents whereof was not proved and was inadmissible in evidence. It is therefore correct on the part of Sri Misra learned counsel for the appellant to place reliance on the decision of the Apex Court in the case of Jagdish Murav Vs. State of U.P. and Others, . Thus the trial court does not appear to have adopted a correct line of reasoning while convicting the appellants on the same ocular evidence which was applied to acquit the other two co-accused. The prosecution witnesses have time and again attempted to fix the presence of Ramji Lal, even though at variation as per the unclear version of Munna Lal, but no attempt to produce such a prominent person who is said to have accompanied the victims on the same rickshaw to the place of incident was ever made. This aspect did require a more serious enquiry by the trial court which was cursorily left out.

What is more curious, that the contradictions in the statements of Munna Lal, Hanif and Sharfuddin have not even been discussed to test their veracity and probative competence. The trial court therefore having failed to record its findings and opinion on these discrepancies committed an error resulting in failure of justice. This perversity of non-consideration of relevant material on record therefore is of such a nature that it can bring about a substantial difference at least on assessing the presence of the witnesses and the correct intention of assault, if not disbelieving the entire incident. This would also affect the sentencing part of the final judgment and therefore the judgment of the trial court can be interfered with on the principles laid down by the Supreme Court referred to hereinabove.

The witnesses profess to remember every minute detail, namely the place of incident, the timing, the assault and the injuries which includes an exaggeration by the mention of a non-existent additional injury on Waliuddin in the abdomen as per the statement of Munna Lal. In this background it is difficult to believe that they forgot the mode of travel undertaken by them on the day of the incident. P.W.-1 Munna Lal who was examined first, and Hanif RW.-4 who entered the witness box after one month during trial have acquaintance with each other. Munna Lal admits being the erstwhile tenant, without payment of rent of Hanif. He described his arrival on foot accompanied by Hanif. In his cross-examination, Munna Lal specifically stated that he and Hanif arrived on foot, and not on a rickshaw whereas Hanif stated that he arrived alone in a rickshaw.

Between the recording of evidence of Munna Lal on 29.7.1982 and that of Hanif on 22.10.1982, the statement of Sharfuddin the injured had been recorded on 15.9.1982 where he states the presence of Hanif without describing his mode of arrival. He states that Hanif was just behind his rickshaw.

On the other hand Hanif states that he was a solo rider in a separate rickshaw on which he was traveling 2 to 4 minutes behind the rickshaw of the injured. He asserts that as soon as his rickshaw, in which he was sitting alone, arrived in front of the shop of Usha Sewing Machine, he witnessed the incident.

The aforesaid clarity in the description of mode of arrival on the scene by Munna Lal and Hanif clearly contradict each other. One says that he was along with the other on foot whereas the other says that he alone arrived at the scene in a rickshaw after the injured had been apprehended by the accused and were being assaulted. When both these witnesses can remember every other detail, they cannot be presumed to have forgotten their accompaniment and their mode of arrival. The lapse of time does not appear to have diluted their memory so as to bring about forgetfulness about the manner they came to the place of occurrence. Hanif says that he came alone whereas Munna Lal states, that he was accompanied by him. The mode of travel is separate. This discrepancy is therefore very material to understand the effort of the prosecution to collect evidence and rely on the same which is a material contradiction that leads to a doubt about the place of occurrence and the presence of the aforesaid two witnesses. The true genesis of the occurrence so far as these two are concerned does not get corroborated and is rather contradictory raising grave doubts about their presence.

The statement of Hanif makes no mistake in identifying the appellants distinctly with a confident assertion that Salim assaulted Sharfuddin. This he physically demonstrated by putting his hand on the shoulder of Salim before the trial court. He has also confessed his past acquaintance with the accused. Thus he does not appear to have any doubt about the role of Salim. He is not claimed to be a hostile witness by the prosecution. Given this background, the said witness materially contradicts not only Munna Lal, the chance witness, but also the injured Sharfuddin himself about the person who assaulted the injured. Sharfuddin the injured, and Munna Lal both have assigned this role to Chhotey alias Shamsuddin and not to Salim who is alleged to have assaulted Waliuddin.

The injured has the unquenchable desire to nail the assailant-reason to exaggerate, embellish and add, but here it is Munna Lal P.W.-1 and not Sharfuddin the injured witness, who has enhanced the injury said to have been caused by Salim on Waliuddin. One specifically in the abdomen, and the other on the neck. This was trumped up without any corroborating evidence, either medical or by the surviving injured witness. This may have been done to reflect a repetition of the blow to cause an injury so as to bring the offence of Salim under the purview of Section 307 IPC. The statement of the injured Sharfuddin therefore on the one hand registers the presence of Munna Lal, but at the same time does not even remotely suggest of an injury on the abdomen of Waliuddin. The medical examination of Waliuddin and the statement of the doctor nowhere state any abdominal injury on Waliuddin. Thus the statement of Munna Lal becomes unreliable. This is therefore a material discrepancy in the statement of Munna Lal with regard to the number of injuries caused by appellant Salim on Waliuddin which has not been sifted by the trial court at all. This required a more well-merited consideration which appears to have been missed by the trial court.

This contradiction has to be seen in the light of the fact that the weapons assigned have not been recovered. This leads at least to the conclusion that Hanif and Munna Lal, the two chance witnesses may have not arrived at the time of occurrence so as to actually witness the commission of the offence. Their ocular testimony is therefore doubtful to a great extent and they might have come to know of the incident from the injured in the same way as the first informant. No other reliable witness is available to corroborate their stand. Ramji Lal who could have been a possible reliable testimony, is conspicuous by his absence during trial. In the said background, the statement of the injured Sharfuddin has to be partially discarded whereby he seeks to establish the presence of Munna Lal and Hanif.

The fact of arrival of the witnesses at the scene of occurrence and their actual presence when the incident took place may not be established as it is not beyond reasonable doubt. To this extent the prosecution story suffers from material laches as pointed out hereinabove. But the injuries clearly speak that the injured were assaulted on the day of the incident which is corroborated by the duration of injuries and being caused by sharp edged weapons. The weapons have not been recovered due to lapses in investigation but the statement of the injured about the injuries caused cannot be entirely discarded. They are not so intermixed that they cannot be segregated to support the prosecution version. The decision in the case of Rajendra (2004 All LJ 2368) (supra) relied on by the appellants'' counsel therefore does not apply on the facts as emerge in this case.

Having said so the nature of the injuries require a more careful examination as arguments on the issue of the intention of the accused are intermixed with this vital part of the evidence. The injuries on both the injured are by sharp edged weapons namely a knife and a razor. The size and shape have not been described by the witnesses and the weapons have not been recovered. The reliability of the witnesses Munnal Lal and Hanif is doubtful as their arrival and ocular testimony is under a serious cloud. Thus the court and the prosecution are left only with the sole surviving injured witness Sharfuddin. There is a corroboration by the doctor who has proved the medical report. His statement is clearly to the effect that the injury on Sharfuddin''s head was not reported as dangerous. The reason explained was that he had advised an X-ray which was never got done or reported. This therefore leads to a valid presumption that the injury was not dangerous to life. So far as the injury on the neck of Waliuddin is concerned that has been clearly reported as simple.

In this background the statement of the injured and the other witnesses also does not indicate any suggestion or the accused having uttered any exhortation to assault the injured with an intention to kill. There are no repetition of blows. The weapons are neither swords or spears or such that are undoubtedly lethal. One is a razor and the other a knife. The incident is reported at a crowded market place with not even a single witness of the market coming up to support the prosecution story. The assailants therefore do not appear to have carried their assault to an extreme length so as to bring about the end of the victims. The prosecution did make an effort with the help of the statement of Munna Lal to enhance the injury on Waliuddin but failed to corroborate it by medical testimony.

This entire description does not therefore bring in the elements of Section 300 IPC so as to constitute the offence u/s 307 IPC as the intention and knowledge of the assailants to the said extent is not established. At the same time the injuries are not self-inflicted. The question of false implication is difficult to believe in its entirety in the background of the enmity and other surrounding factors. The two accused acquitted by the trial court were shown contradictory roles of apprehending the rickshaw and catching hold the injured. The trial court rightly disbelieved the evidence against them. But the case of the appellants stand on a different footing. Their presence and their act is reflected in the testimony of the sole injured witness even if the statements of Munna Lal and Hanif are discarded. It is here that support can be had from the reasonings on somewhat similar facts in the case of Sarju Prasad Vs. State of Bihar, .

The gravity of the offence the given background, it appears that a neighbourly tussle may have brought about an enmity resulting in the incident. It may have generated on account of an oral dispute the same day, which was not proved and therefore the incident might have occurred at the spur of moment. There is no evidence of a premeditated planned attack so as to draw an inference of a motive to kill. It appears to be an irregular fight at an unexpected place and moment as in a sudden encounter. The manner of the assault and the escape of the accused without anything further establishes only an intent to cause hurt which in the background above does not travel to the length of an attempt to commit murder.

The accused, by age, have almost entered their fourth stage of life. The offence, in view of the discussions hereinabove does not appear to travel beyond the offence punishable u/s 324 IPC. There are no allegations or any reports of any other criminal antecedents of the accused. The accused do not by their overt act, as per the evidence, appear to have attempted a ghastly or merciless assault exhibiting extreme criminal prowess. The prosecution also does not come up with a case that anything had actually prevented the accused from carrying their act any further. The injured were not reported to be unconscious or to have been hospitalized for treatment of any grievous injury. Even otherwise if they intended to do so, they would have not chosen to arm themselves with the alleged weapons for an assault at a crowded place. They could have used more lethal weapons or they could have chosen a more quiet place to carry out their designs. They would not have sprinted away immediately from the scene of occurrence. The evidence could have disclosed further but as discussed above there were discrepancies that reflected embellishments in the absence of realities.

The witnesses and their statements indicate that they are half interested or inimical, as in the case of Hanif. Their independence is thus not creditable and their testimony is unconvincing. A prime witness, Ramji Lal, who was alleged to be squeezed between the two injured on the same rickshaw was not produced even though he was named in the FIR and the statements recorded. The genesis of the prosecution story of having the intention of kill, having not proved to the hilt, therefore adds to the old age of the appellants who have waited for 30 years before this Court to get their appeal heard. They can be punished for what they might have done, and not for what they have not done.

The injuries are not by chance and were certain but they do not appear to be an outcome of any cool or calculated attempt for murder. Nonetheless they do not allow the court to give any further elastic interpretation to the criminal intent of the accused who did this to cause hurt. They are perpetrators but do not appear to be desperate in their hurried act of hit and run. There are unexplained missions of the prosecution but the injured witness does not appear to be a compulsive liar. His testimony is not an entire gospel, but truth is stranger than fiction. The injuries speak for themselves and cannot be attributed to any one else. It is therefore a case where a reasonable doubt exists. The court in such cases should not step-off the road of experience and real imagination or it might result in injustice to the victims. The injuries are neither accidental nor caused by mere chance. In the circumstances it also cannot be said to be entirely unexpected. The knowledge and intention to cause murder on the part of the accused could not be culled out looking to the injuries that were termed as not dangerous and simple respectively. There was no internal damage to any vital organ. This is also a mitigating circumstance even though the seat of injury is on a vital part of the body.

There are three noticeable material discrepancies in the ocular testimony. The first is the injury said to have been caused by accused Salim on the abdomen of Waliuddin. There being no such injury in existence or reported or even stated before the Court, this part of the statement of Munna Lal becomes absolutely unreliable and untrustworthy. The second is the contradiction in the statement of Hanif and Munna Lal regarding their mode of arrival, and the third is the wrong identification of the assailant by Mohd. Hanif which is in direct conflict with the statement of the injured. These witnesses therefore do not border as eye-witnesses and their alleged presence by chance is highly doubtful for the reasons recorded hereinafter. Their evidence is therefore not sufficient to believe an attempt to murder by the accused. Ramji Lal''s absence had added to the disbelief. As pointed out by Sri Singh learned.-AGA that as per Para 30 of the decision in the case of State of U.P. v. Naresh, the prosecution story should not be discredited due to the said discrepancies, but the same paragraph also cautions not to safely rely on untruthful statements. In the instant case it is not the suggestion of the prosecution that the witnesses have tried to twist the story in favour of the accused. But the injured witness Sharfuddin cannot be entirely put in the bracket of untrustworthiness. There is a ring of truth between the injury, his statement and the medical evidence, even if the ocular testimony of the other witnesses is discarded. The injury is based on credible medical evidence. Sri Singh learned AGA is therefore right in placing reliance on the two decisions of State of U.P. Vs. Naresh and Others, , and Bhajan Singh @ Harbhajan Singh and Others Vs. State of Haryana, . This dimension of the case coupled with what has been discussed above has persuaded the court to treat the offence as punishable one u/s 324 I.P.C.

Applying the principles in the case of Sarju Prasad Vs. State of Bihar, and in the case of State of Maharashtra Vs. Balram Bama Patil and Others, , this Court is convinced that offence does not travel to the extent of being punishable u/s 307 IPC. Learned AGA has relied on the decision in the case of State of M.P. v. Kedar Yadav. In that case the injured had suffered serious multiple injuries of fracture and incised would caused by a sharp axe. The intention was gathered on the evidence found. The instant case is therefore distinguishable and is nearer to the ratio in the case of Sarju Prasad (supra) which is a three Judges decision and has been referred to in the case of State of M.P. v. Kedar (supra). The evidence in the present case is lacking and is not to the level desired as a result whereof the prosecution has failed to establish the real state of mind of the accused to unravel a real intention with knowledge to commit murder.

Learned counsel have then addressed the Court on sentence. Sri Mishra submits that the offence u/s 307 IPC having not been proved the appellants should be let off with a fine keeping in view there old age and other factors as discussed above. He has relied on the decisions of this Court in the case of State of U.P. v. Ram Chand 2005 (51) ACC 870 and Sukhram and Others Vs. State of U.P., . He submits that sending the appellants to prison to serve out any sentence of incarceration at his advanced age would neither prove to be corrective or deterrent. The leniency should also be seen from the point of view of two accused having been acquitted on the same set of evidence. The injury with no direct evidence of recovery of human blood having been proved, may be for a lapse of investigation should also be considered a mitigating circumstance.

Learned AGA has however vehemently urged that the participation having been established, neither the charging section should be reduced nor should the sentence be mild on account of age or any other factor. He submits that the court has discretion but it may not be exercised for which reliance is placed on the Apex Court judgment in the case of State of Madhya Pradesh Vs. Ghanshyam Singh, . Having considered the submissions and the law expounded as urged by the learned counsel, there are several mitigating factors including material discrepancies that indicated exaggerations and embellishments as discussed hereinabove. The assault does not have such a bearing on the social order of today that may require a very harsh punishment moreso when the appellants are approximately 60 years of age. On an overall assessment and the reduction in the charging section it would be appropriate to convict the appellants u/s 324 IPC with a sentence of six months R.I. and a fine of Rs. 5000/- each and in default to serve two months R.I. in lieu thereof. The appeal is partly allowed subject to the modification hereinabove. The appellants shall surrender to serve out the sentence with entitlement to statutory deductions including any period already undergone.