Munawwar Ali & others vs Union of India & others

This Criminal Appeal is directed against judgment and order dated 31/07/2000, whereby appellant - Bharatsingh has been convicted under Section 325 of IPC, while appellant - Gopalsingh and Prahladsingh have been convicted under Section 325 / 34 of IPC and each has been sentenced to undergo 2 years R.I. and to pay a fine of Rs.5,000/- with default stipulation.

Prosecution story, briefly stated, is that complainant - Darbar Singh (P.W.1), resident of Village- Kanvan, Police Station-Kanvan, while he was going to his agriculture field on 08/12/1998 at about 4.10 p.m. was

intercepted on his way by appellants - Gopalsingh and Prahladsingh. As per prosecution, the appellants threatened Darbar Singh (P.W.1) to put to death. Allegedly, on account of past enmity, they caught hold of Darbar Singh (P.W.1) and thereafter Bharatsingh assaulted him with ''Farsi'', thereby causing as many as 8 injuries on his body. Devendra Singh (P.W.2) and Shankarlal (P.W.3), who reached the place of occurrence, witnessed the incident. After this incident, Darbar Singh (P.W.1) was taken by one Sumer Singh to Police Station-Kanvan, where he lodged First Information Report Ex.P/1 regarding this incident against the appellants. Investigation ensued. Darbar Singh was sent for medical examination to Community Health Center, Badnawar, where on 08/12/1998 itself at around 5.40 p.m. Dr. Pushpendra Sharma (P.W.9) medically examined him and as per M.L.C. (Ex.P/12) found as many as 8 injuries on his body. Dr. Pushpendra Sharma (P.W.9) also subjected Darbar Singh to X-Ray examination in which fracture of nasal bone, maxilla bone and left ulna bone was detected with dislocation of left joint. Motiram Kher (P.W.6) visited the spot and prepared the spot map (Ex.P/2). The appellants were arrested. Witnesses were interrogated. In a query made by Anis Khan (P.W.8), Dr. Pushpendra Sharma (P.W.9) opined that nasal injury was dangerous to life. After investigation a charge-sheet for offence under Section 307, in alternate S.307/34 of IPC was filed against the appellants.

A charge under Section 307 in alternate 307/34 of

IPC was framed by the learned trial Court against the appellants, who abjured the guilt and claimed to be tried. The prosecution in order to bring home the guilt, examined as many as 9 witnesses including complainant/injured Darbar Singh (P.W.1). Devendra Singh (P.W.2) and Shankar Singh (P.W.3), are said to be the eyewitnesses, while Dr. Pushpendra Sharma is the M.L.C. Surgeon. Apart this, documents Ex.P/1 to Ex.P/10 were also marked in evidence. In defence, Natwarlal (D.W.1) was examined and documents Ex.D/1 to Ex.D/3 were marked in evidence. The circumstances appearing against the appellants in the prosecution evidence were brought to their notice. During their examination under Section 313 of the Cr.P.C., the defence was that of total denial and false implication on account of enmity. The learned trial Court, vide the impugned judgment acquitted the appellants for offence under Section 307 of IPC, in alternate S.307/34 of IPC, however, Bharatsingh was convicted under Section 325 of IPC, while remaining two appellants namely, Gopalsingh and Prahladsingh were convicted under Section 325 / 34 of IPC and sentenced as stated herein-above.

The conviction and sentence has been challenged on behalf of the appellants on the ground that serious contradictions and anomalies present in the prosecution evidence were overlooked; the prosecution story was not supported by independent witnesses and that the learned trial Court committed a serious error in relying upon the testimony

of Darbar Singh (P.W.1) and Devendra Singh (P.W.2) and in not accepting defence version. The submission is that finding of conviction is contrary to the evidence on record, therefore, the impugned judgment is liable to be set aside.

Per Contra, the learned Public Prosecutor has supported the impugned judgment, submitting that the learned trial Court on due consideration of the evidence on record has convicted and sentenced the appellants and, therefore, the appeal having no merit, deserves to be dismissed.

Heard the learned counsel for the parties and perused the record. The point for consideration is whether the conviction and sentence recorded by learned trial Court against the appellants is contrary to law and evidence?

Dr. Pushpendra Sharma (P.W.9), who examined Darbar Singh (P.W.1) on 08/12/1998 has testified that he as per Ex.P/2 found as many as 8 injuries on the person of Darbar Singh (P.W.1). This witness has further deposed that on X-Ray examination, 3 grievous injuries, (i) fracture of nasal bone, (ii) fracture of maxilla bone and (iii) fracture of left ulna bone were found on the person of Darbar Singh. Dr. Pushpendra Sharma (P.W.9) has been subjected to elaborate cross-examination but nothing could be elicited therein so as to discredit this witness, thus, from the testimony of Dr. Pushpendra Sharma, which is found to be reliable, it is well proved that on 08/12/1998, Darbar Singh (P.W.1) sustained as

many as 8 injuries in which three were grievous in nature.

The question arises whether the injuries in question were caused by the appellants? In this regard, we can advert to the testimony of Darbar Singh (P.W.1), the injured witness and Devendra Singh (P.W.2) and Shankarlal (P.W.3) who are said to be the eyewitnesses. Shankarlal (P.W.3) has been declared hostile as he has not supported the prosecution story on the point that Darbar Singh was assaulted by the appellants. He has been contradicted in this regard with his previous statement Ex.P/3.

Darbar Singh (P.W.1) has clearly deposed that on the date of incident when he was going to his agriculture field, near the shop of Pappu Parikh, he was intercepted by appellants - Prahladsingh and Gopalsingh, who caught hold of him and thereafter appellant Bharatsingh assaulted him with a stick fitted with ''Farsi'' in which he sustained injury over nose and other parts of the body. This witness has stated that he was also assaulted by appellants - Gopalsingh and Prahladsingh, however, there is an omission on this point in the First Information Report (Ex.P/1) lodged by this witness as well as his police statement (Ex.D/1), which was emerged in para-27 of the cross-examination. However, apart this anomaly which is in the nature of improvement, no other material omission or contradiction has emerged in the testimony of this witness. The law is well settled that if there is a ring of truth in the testimony of a witness then conviction

can be recorded on the basis of his testimony because it is general tendency among the witnesses to exaggerate and to make improvements in their statements, however, if such anomaly, omission or contradiction does not go to the root of the matter, then the same cannot be a ground to throw away the prosecution case in its entirety. In this regard, reference can be made to the observations of the apex Court in State of U.P. vs. Anil Singh, AIR 1988 SC Page 1998, which are as under:

" In Abdul Gani v. State of Madya Pradesh AIR 1954 SC 31 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.''''

In the instant case, it is not the defence of the appellants that either the injuries found on the person of Darbar Singh (P.W.1) were self inflicted or the same have been caused by some other person, therefore, there cannot be any reason to disbelieve the version put forth by Darbar Singh (P.W.1) that the injuries were caused to him by Bharatsingh and that during the incident Gopalsingh and Prahladsingh had caught hold of him, which is sufficient to fasten the liability upon them with the aid of Section 34 of IPC, which stipulates liability for offence committed in furtherance of common intention.

The testimony of Darbar Singh stands corroborated with the testimony of Devendra Singh (P.W.2), who has clearly deposed that he saw appellant Bharatsingh assaulting Darbar Singh with stick in which ''Farsi'' was also attached. A minor omission is there in the testimony of this witness with regard to assault by Gopalsingh and Prahladsingh, however, considering that the same is in nature of improvement, the entire prosecution story cannot be disbelieved. The testimony of Darbar Singh further stands corroborated with FIR (Ex.P/1), which is a corroborative piece of evidence under Section 157 of Evidence Act so also the medical evidence of Dr. Pushpendra Sharma (P.W.8).

It is contended on behalf of the defence that Devendra Singh (P.W.2) is cousin brother of Darbar Singh (P.W.1), therefore, his testimony cannot be believed and that there is no corroboration from independent source, therefore,

the finding with regard to conviction cannot be sustained. However, the plea raised in this behalf cannot be accepted as there is no law that testimony of a witness, who is otherwise found reliable cannot be acted upon unless corroborated by independent evidence. Also there is no proposition of law that testimony of a relative witness is to be rejected only on the ground that he happens to be a relative witness.

In view of the aforesaid, it cannot be said that the learned trial Court has committed any error in recording conviction against appellant - Bharatsingh under Section 325 of IPC and against appellants - Gopalsingh and Prahladsingh under Section 325 / 34 of IPC, therefore, the finding with regard to conviction deserves to be maintained.

As regards sentence, it is submitted by learned counsel for the appellants that the appellants are facing the trial for last about 20 years and that during this period, they have throughout remained present before the Court, therefore, a lenient view may be taken in the matter as regards imposition of custodial sentence. Each of the appellants have been sentenced to undergo 2 years R.I. and to pay a fine of Rs.5000/- with a further stipulation that in case of default in payment of fine each will suffer one month''s R.I. Considering the length of trial including the pendency of this appeal, it would be appropriate to reasonably reduce the custodial sentence. In the facts and circumstances of the case, in the considered opinion of this Court, a sentence of 6 months R.I. will serve the ends of of justice.

Accordingly, the custodial sentence is reduced from 2 years R.I. to 6 months R.I. qua each of the appellants. Apart this, each of the appellants shall also pay the fine of Rs.5000/- and in case of default in payment of fine, he will further undergo one month''s R.I.

The appeal stands accordingly partly allowed. The appellants are on bail. Their bail bonds are hereby cancelled. They are directed to surrender before the learned trial Court for being taken into custody to be sent to the jail to suffer remaining part of the custodial sentence.