Dallu vs State of M.P

This criminal appeal u/s 374(2) Cr.P.C. has been filed by the appellant being aggrieved by the judgment dated 30.04.1998 passed by learned Second

Additional Sessions Judge, Jabalpur in Session Trial No. 544/1995 convicting the appellant for the offence punishable u/s 324 IPC and sentenced to

undergo RI for 1 year with fine of Rs. 1,000/- also with default stipulation.

As per prosecution case, on a dispute regarding vacating the house, a quarrel took place between the accused/appellant and Bhajan Singh (PW-4)

on 06.08.1995. On refusal to vacate the house by Bhajan Singh, the accused assaulted him with axe, resulting into injuries on his head, left eye and

face. Thereafter, on intervention of Bedi Lal (PW-6), Milan Singh (PW-5) and Gopal, the accused ran away from the spot. An FIR was registered on

the same day for the offence punishable under Section 307 IPC. Medical Examination of the injured/complainant Bhajan Lal was also conducted by

the police and performed by Dr. Girish Bajpai (PW-2). The axe was also seized by the police vide Ex.-P/4. The police has also prepared the spot map

vide Ex.-P/2. After completing all other formalities, the police filed the charge-sheet. The learned trial Court has framed the charge of Section 307

IPC against the appellant. The appellant abjured his guilt, hence, the Court proceeded with trial. The learned trial Court did not find the appellant guilty

for the offence of Section 307 IPC but found sufficient evidence to convict him in lesser offence i.e. Section 324 IPC and passed the sentence as

aforesaid.

Learned amicus curiae for the appellant submits that the learned Trial Court erred in passing the judgment of conviction whereas the appellant did

not commit any offence and also there is no evidence available on record against him. The learned trial Court overlooked the fact that the evidence of

the complainant Bhajan Lal (PW4) is unreliable and contrary to the FIR, police statement as well as medical evidence. Furthermore, his evidence is

also not corroborated with the evidence of any other independent witness. The injury was sustained to Bhajan Lal due to falling down. He further

submits that while recording the conviction against the present appellant, the learned trial Court did not consider the evidence in proper manner. There

are material contradictions and omissions in the statement of prosecution witnesses, therefore, it prima facie appears that the appellant was falsely

implicated in the present case by the complainant with malafide intention. The prosecution has also failed to produce the seized axe before the Court

which was alleged to be seized from the possession of appellant. Apart from that, the learned Court also erred in not giving the benefit of probation to

the appellant as per Section 360 of Cr.P.C being first offender. In this regard, he also relied on the judgment of the Hon'ble Apex Court in the case of

Dilbag Singh Vs. State of Punjab reported in (1979) 2 SCC 103. With the aforesaid submissions, learned amicus curiae prays for allowing this appeal.

On the other hand, learned Panel Lawyer for the State opposes the arguments made by learned amicus curiae submitting that the learned trial Court

has rightly appreciated the evidence available on record. The learned trial Court did not make any error while passing the judgment of conviction

against the present appellant. The witnesses of the case are duly stable with their version and there is no reason to disbelieve them. The prosecution

has proved it's case beyond any reasonable doubt. With the aforesaid submissions, he prays for dismissal of this appeal.

Heard both the parties and perused the record.

This Court has to consider first whether the injuries sustained by victim-Bhajan Lal (PW-4) on 06.08.1995 has been caused by the accused with

sharp weapon? As per record, after registration of case, the complainant was also sent for medical examination which was conducted by Dr. Girish

Bajpai( PW-2). On perusal of MLC report of complainant as well as statement of Dr. Girish Bajpai (PW-2), there were four injuries found which

were simple in nature. The relevant paras of statement of Dr. Girish Bajpai (PW-2) are also quoted as under: -

1- ;‘‘-- :-

, 2 . . x . . ,

, 2 . .x 1 x 1 ।

, । 4 x 2

।

 4. 2 x .. 2 x 2 . . ।Â

2 4 Â

..........।Â Â

Further, in his cross examination, Dr. Girish Bajpai ( PW-2) specifically stated as under :-

।

..........।Â Â

It is true, doctor Girish Bajpai has opined that due to intoxication and fallen down upon some pointed article, said injuries could be sustained but in

the cross examination of complainant (Bhajan Lal), the appellant/accused did not give any suggestion in this regard so it can not be said that victim

was fallen down in some pointed article and sustained injuries or at the time of incident he was intoxicated. Therefore, it is apparent that the injuries

found on the person of the complainant were caused with hard and sharp object, however same were simple in nature.

Now the next question for consideration is whether the appellant/accused inflicted injury to victim Bhajan Lal (PW-4) ?

During trial, the learned trial Court has recorded the statement of six prosecution witnesses so also of accused under Section 313 of Cr.P.C. In

examination in chief, the complainant-Bhajan Lal (P.W.-4) stated that when he was in the house of elder brother of his father (Bade Pita Ji), the

accused was telling to the son of his father's elder brother to vacate the house. Then, the complainant requested the accused not to ask to vacate the

house in rainy season. Thereafter, the accused assaulted him with axe. He further stated that after first assault, he became unconscious for three

hours. Thereafter, he along with Bedi Lal, Milan Singh and Gopal Singh went to the police station to register the FIR. He also stated that he was sent

to Victoria Hospital, Jabalpur, and thereafter was referred to Medical College, Jabalpur, where he was admitted for 7-8 days, The FIR was lodged

promptly. In his cross examination, he admitted his relation of being maternal uncle of the accused. He narrated a different version than that of his

chief examination saying that the accused was telling to his elder mother (Badi Maa) to vacate the house. He also admitted that the disputed house is

in the name of mother of accused. Thus, some discrepancies are found in his statement and also on the point of his relation with the accused but it is

well settled principle of law that it is difficult for witness to depose exact version of incident revealing every minute detail of incident.

The complainant is found stable on the point that the accused assaulted him with axe on the dispute arose from vacating the house.

Further, according to the complainant, when the quarrel was going on, Milan Singh, Bedi Lal and Gopal Singh intervened and saved his life. Milan

Singh was examined as PW-5 but he has turned hostile. He stated that he saw the complainant in injured condition in front of the house of Bedi Lal.

He stated that when they reached Police Station, the accused was already there. In cross examination, Milan Singh has denied the fact that the

accused assaulted the complainant with an axe in his presence. He has also denied the fact of intervention with Bedi Lal as well as seizure of axe

from the possession of accused. Another witness Bedi Lal has also been examined by the prosecution as PW-6. He has also turned hostile and not

supported the case of prosecution. He has denied all the facts put forth by the prosecution. Gopal Singh who was also said to have seen the incident,

has not been examined by the prosecution.

Therefore, the question arose whether the appellant/accused can be convicted solely on the basis of testimony of injured witness. In the judgment

of the Hon’ble Apex court in the case of Bhajan Singh v. State of Haryana, reported in (2011) 7 SCC 421, has held as under:-

“36. The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is

generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an

injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he

was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee

of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. “Convincing evidence is required

to discredit an injured witness.†Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the

basis of major contradictions and discrepancies therein.â€​

Further, In the judgment of the Hon’ble Apex court in the case of Vadivelu Thevar v. State of Madras reported in AIR 1957 SC 614:-

“10………….High Courts in India in which the court insisted or corroboration of the testimony of a single witness, not as a proposition of law, but in view

of the circumstances of those cases. On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions may be safely

stated as firmly established:

(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a

number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single

witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence

is that of an accomplice or of an analogous character.

(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule

can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.

In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses,

is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that “no particular number of witnesses shall, in any case,

be required for the proof of any factâ€. The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not

be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act,

1872, there have been a number of statutes as set out in Sarkar's Law of Evidence â€" 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of

a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in Section 134 quoted above. The

section enshrines the well recognized maxim that “Evidence has to be weighed and not countedâ€. Our Legislature has given statutory recognition to the fact

that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the

presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial

evidence. If the legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime,

would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and

the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely

reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the

testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of

witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the

court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact.

Generally speaking, oral testimony in this context may be classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

In the first category of proof, the court should have no difficulty in coming to its conclusion either way â€" it may convict or may acquit on the testimony of a

single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no

difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material

particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral

evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.

Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully

such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty

to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of

the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral

testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of

the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of

the first witness, which is the only reliable evidence in support of the prosecutionâ€​

It is also stated by the Hon’ble Apex Court that where a witness to the occurrence has himself been injured in the incident, the testimony of

such a witness is generally considered to be very reliable, his presence cannot be doubted as he was injured in the incident. His deposition must be

given due weightage. His deposition cannot be brushed aside merely because there were some trivial contradiction or omission.

Therefore, as above found that in the deposition, the complainant is found stable on the point that the accused assaulted him with axe on the

dispute arose from vacating the house. the accused did not challenge his presence on the spot and the statement of the complainant and Milan Singh

show that some quarrel took place between the complainant and accused due to dispute of house which belongs to mother of accused. The

complainant did not want to vacate the same in rainy season. There is some family relation between the accused and complainant, hence, it can be

presumed that the quarrel had taken place for the house and the accused hurt the complainant. Therefore, the evidence adduced by the complainant is

wholly reliable.

It is evident from above discussion that evidence adduced by the complainant is corroborated with the medical evidence as well as FIR. In view of

the principle laid down by the Hon’ble Apex Court in the case of Bhajan Singh (supra), the evidence adduced by injured/complainant cannot be

discarded. Looking to the number of injuries, on the injured/complainant, there is no reason to dis-believe that the accused/appellant assaulted him with

axe which caused bodily pain to him. Therefore, in such circumstance, I am persuaded with the findings of learned trial Court regarding conviction

under Section 324 of IPC.

The learned amicus curie has also raised the ground that the learned Trial Court has not given the benefit of probation under section 360 Cr.P.C. It

is well settled principle of law that no offender can, as a matter of right, on fulfilling the conditions laid down in this Section 360 Cr.P.C, claim to be

released on probation of good conduct. It is a discretionary power of the Court given under this section. Therefore, I do not find any reason to

interfere in the discretionary power of the trial Court.

So far as sentence to the appellant is concerned, the incident took place in the year 1995. The incident was occurred all of sudden due to family

dispute regarding vacating the house. There is no pre-planned assault. The maximum punishment of three years is prescribed for the offence under

Section 324 of IPC, there is no minimum is prescribed. The appellant has suffered 39 days out of one year conviction. Looking to the circumstances of

the case, I am of the opinion that sentence be reduced to the period already undergone by him and fine be enhanced.

Accordingly, this appeal is partly allowed. The conviction of accused/appellant is hereby affirmed, but sentence of imprisonment of one year is

modified to the period already undergone by him. Fine of Rs. 10,000/- (Rupees Ten thousand) is enhanced in place of Rs. 1,000/- (Rupees One

thousand). In default of same, he would be liable to undergone 3 month R.I.. The fine amount shall be given to the complainant/victim as a

compensation.

I appreciate the assistance provided by learned amicus curiae. Registry is directed to send the copy of this judgment to Legal Services Authority

so that remuneration be paid to learned amicus curiae for his valuable legal assistance.