Dhoori @ Balbir Singh vs State of Uttaranchal

Hon''ble Servesh Kumar Gupta, J.—In this case, previously Mr. S.S. Negi, Advocate was representing the appellant but he expressed his inability to argue the matter due to lack of instructions, despite of the communications extended by him to the appellant several times. So, this Court has heard Mr. Asif Ali, learned amicus curiae for the appellant and Mr. Nandan Arya, AGA for the State and also perused the entire material available on record.

This appeal challenges the judgment and order of conviction dated 9/11.7.2002 rendered by the Additional Sessions Judge, Dehradun in S.T. No. 3/1999, State Vs. Ghuri @ Balbir Singh. The accused/appellant was found guilty for the offence of Section 307 IPC and was sentenced to undergo seven years'' R.I. with fine of Rs. 5,000/-. Out of the fine, so deposited, an amount of Rs.3,000/- was directed to be paid to the injured Subhash Chandra.

The FIR adverts that complainant/injured Subhash Chand Sharma lodged this report on 7.11.1997 at 10 PM stating that on the same day at about 8:15 PM, when he was returning to his home, he came across with the accused Ghoori Sardar in front of Bhana Lal''s dairy. Shri Sharma demanded his debt from the appellant/accused, who replied in turn, to give the same within a day or two. Shri Sharma reacted that six months have already been passed with the similar promises, rendered by the appellant time and again. At this, appellant repelled and began to stab Sri Sharma with knife. Hearing the commotion at the spot, the witnesses, Pankaj Sharma and Rajendra Kumar, came at the spot to the rescue of Sri Sharma. The appellant, noticing the arrival of the witnesses, took to his heels in a nearby street. This FIR is Ex.Ka-1 while the Chik Report is Ex.Ka-2. After investigation, the chargesheet was submitted against the appellant/accused bearing crime no.746/97. The charge was levelled against the appellant/accused by learned Sessions Judge, Dehradun on 8.4.1999 u/s 307 IPC, which the appellant abjured. Prosecution has examined PW1 Subhash Chand Sharma, who is the complainant/injured and PW2 Pankaj Sharma, who is the witness of the fact.

It would be relevant to mention at this stage the injuries which were found on the body of injured on 7.11.1997 at 8:45 PM, which were found within just half an hour of the incident. The injuries recorded in the injury report Ex.Ka-4 are as under: -

"Incised wound 2 cm x 0.5 cm muscle deep on right side neck, 7 cm below right ear.

Incised wound 2 cm x 0.5 cm x muscle deep on right side face just away right ear.

Incised wound 1 cm x 0.5 cm x muscle deep on right side face, 4 cm below right ear.

Incised wound 3 cm x 0.5 cm x muscle deep on base of left little finger.

Incised wound 2.5 cm x 0.5 cm x scalp deep on left side head, 11 cm above left ear.

Incised wound 0.5 cm x 0.5 cm on the head, 7 cm above right ear.

In the opinion of the doctor, the injuries were caused by sharp edged object and duration whereof was fresh. Injury nos.4, 5 and 6 were kept under observation and x-ray of left hand and skull was advised.

Supplementary medical report is Ex.Ka-5 wherein it was stated by the doctor that no fracture was seen in the bones. So the injuries were not found grievous in nature.

PW1 Subhash Chand Sharma, who is the injured/ complainant, has supported the entire version which he got recorded in his FIR verbatim.

PW2 is the eyewitness Pankaj Sharma, whose arrival at the spot has been proved in his examination-in-chief. It was this witness who accompanied PW1 Subhash Sharma for lodging the FIR and he was also the scriber of the same. In the cross-examination, this witness has become hostile. So, the argument has been advanced by the learned amicus curiae that the evidence of complainant is not corroborated by any witness. This argument is not tenable for the reason that now it has been well settled that the evidence of hostile witness cannot be discarded by any Court altogether. In this regard, the Hon''ble Apex Court in the case of "State of U.P. Vs. Chet Ram and others reported in 1989 Cri.L.J. 1785 " has held that merely on the ground that a witness had been declared as hostile one, his entire evidence does not get excluded or rendered unworthy of consideration. This view was further reiterated by the Apex Court in the case of Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, , Full Bench", wherein the Hon''ble Apex Court was of the view that it is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence.

This witness Pankaj Sharma has admitted the fact of seeing the injured wounded on the spot. He has also admitted that he scribed the FIR, but on the directions of Diwan Ji (police constable). Naturally, this witness is deliberately avoiding to pose the truth, because in the beginning of his statement, he has admitted that the accused as well as complainant, both are his neighbours. So, it is but natural for him not to invite the wreath of accused for all the times to come.

The next contention of learned counsel in defence is that the second eyewitness Rajendra Kumar has not been produced by the prosecution. This argument also does not hold water because it has been categorically proved by the prosecution that the whereabouts of Rajendra Kumar could not be known. Besides, it has been held time and again in the several judgments of the Apex Court that plurality of witnesses is not required in a prosecution case. In this regard, reference is made to another judgment of Hon''ble Apex Court in the case of "Babu Ram Vs. State of U.P. reported in 2002 All L.J. 1996 S.C. D.B." wherein it was held that "It is settled law that non-examination of an eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. An effort should be made at appreciating the worth of such evidence as has been adduced. If the evidence coming from the mouth of the eye-witnesses examined in the case is found to be trustworthy and worth being relied on so as to form safe basis for recording a finding of guilt of the accused persons then non-examination of yet another witness who would have merely repeated the same story as has already been narrated by other reliable witnesses would not cause any dent or infirmity in the prosecution case".

That apart, it is also a settled law of appreciation of evidence that number of witnesses, to be examined by the prosecution, is not relevant. It is only the quality of the testimony which is to be assessed and evaluated by the Court. No prosecution version can be thrown aside, just for the reason that there were some other witnesses, who were not put to test under cross-examination by the prosecution.

The medical officer has proved the entire injuries which are undoubtedly fatal one, notwithstanding the nature of the same being non-grievous, but those were on the vital part of the injured and that the said injuries are enough to infer the intention of the accused/appellant. The doctor has opined that if there might have been excessive bleeding from the injuries, then those could have been fatal to the life. The complainant Subhash Chand Sharma immediately rushed to the hospital where he was medically treated, only because of which his life could be saved.

Learned amicus curiae has pointed out some minor contradictions here and there, but these are not of such a degree as to create a reasonable doubt in the prosecution case. Minor discrepancies or contradictions or incongruities in every criminal case are bound to occur.

So, in view of the above, this Court is of the view that the appeal is devoid of any merit and liable to be dismissed. Appeal is, accordingly, dismissed. Bail of the appellant/ accused is hereby cancelled. His personal bonds and sureties are discharged. Let the arrest warrant be issued against the appellant to take him into custody to serve out the sentence as awarded by the trial court. A copy of this judgment along with the trial court record be sent back for compliance forthwith.