Aditya Nath Mittal, J.@mdashHeard learned Counsel for the appellant, learned A.G.A. and perused the record. This criminal appeal has been filed against the judgment and order dated 25.1.2003 passed by the Additional Sessions Judge, Raebareli in Session Trial No. 621 of 2001, by which the appellant has been convicted for the offence punishable u/s 324 I.P.C.
2. As per prosecution case, the First Information Report was lodged by Sunil Kumar on 3.12.1998 stating that when his brother Shiv Dutt was chaining the child buffalo (Padiya), then at about 6.30 a.m. Ram Narayan armed with lathi and Satya Dev armed with country made pistol came from the window of Banwari and upon the exhortation of Ram Narayan, Satya Dev had opened the fire with the intention to cause death upon the brother of the complainant, which attacked him on his buttocks. The accused persons had escaped from the spot and the incident was seen by Mewalal, the daughter and wife of Jaggan Nath Tewari. The incident was committed due to old enmity and a dispute day before the incident. The case was registered at crime No. 337 of 1998 for offence punishable u/s 307 I.P.C. After the investigation, the charge-sheet was filed for the offence punishable u/s 307 I.P.C., for which the appellant along with Ram Narayan was charged. The appellant denied the charge and claimed trial.
3. Prosecution has examined Sunil Kumar (complainant) as P.W. 1, Shiv Dutt (injured) as P.W. 2, S.I. Ashok Kumar (Investigating Officer) as P.W. 3, Dr. V.P. Gupta as P.W. 4 and Dr. S.L. Sharma as P.W. 5. After recording the prosecution evidence, the statement of the appellant was recorded u/s 313 Cr.P.C. in which he had stated that the complainant and his brother wanted to make forcible possession on his land due to which he has been falsely implicated.
4. In the defence, the appellant had examined Mewalal as D.W. 1, Mamta Trivedi as D.W. 2 and Annpurna Devi as D.W. 3.
5. After appreciating the evidence on record, learned Court below came to the conclusion that the charges against co-accused Ram Narayan were not proved, therefore, he was acquitted. The charges against the present appellant were proved for the offence punishable u/s 324 I.P.C. and accordingly, the appellant has been convicted for the offence punishable u/s 324 I.P.C. with a rigorous imprisonment of two years along with fine of Rs. 1000/-.
6. Learned Counsel for the appellant has submitted that complainant Sunil Kumar P.W. 1 is not the eyewitness and the witnesses, named in the First Information Report i.e. Annpurna Devi and Mewalal have not been examined by the prosecution, therefore, they have been examined as defence witnesses. It has also been submitted that the appellant has been falsely implicated due to enmity. The blood stained soil was not taken from the spot and the site-plan is also wrong. It has also been submitted that except the statement of Shiv Dutt (injured), no other eye-witness or the villager has been examined by the prosecution. In fact, no such incident has taken place on the spot and the possibility cannot be ruled out that the injured while going for call of nature, might have been attacked by some unknown person due to which he might have received injury. It has also been submitted that on the person of the injured, two injuries have been found, which can not come by one fire. It has also been submitted that the injuries are not on the vital part and the appellant has been falsely implicated. It has also been submitted that the solitary statement of Shiv Dutt (injured) has so many contradictions, therefore, it can not be relied upon.
7. Learned A.G.A. has defended the impugned order and has submitted that as per the medical examination report, there were three injuries on the person of the injured, who was examined on the same day at 8.05 a.m. It has also been submitted that there is no reason to disbelieve the statement of injured, who has specifically stated that the said firearm injury was caused by Satya Dev. It has also been submitted that the appellant has been rightly convicted.
8. As per the medical examination report of Shiv Dutt (injured), the following injuries were found upon his medical examination which was conducted on 3.12.1998 at 8.05 a.m.
1. Multiple rounded lacerated wounds size varying from (0.3 c.m. to 0.5 c.m. in diameter) in an area of 13 c.m. x 13 c.m. on lateral surface and back of left buttock 3.5 c.m. behind left iliac crest (depth varying from skin deep to muscle deep) (numbers are about 50) blacking present.
2. Oval lacerated wounds 0.2 c.m. x 0.1 c.m. x bone deep on lacerated surface of midth of rt. Index finger.
3. Rounded lacerated wounds 0.2 c.m. in diameter on back of root of rt. Middle finger. (Two in number).
9. In the x-ray report, multiple radiopaque shadows of metallic density were seen on left buttock and right hand. The aforesaid medical examination report as well as the x-ray report have been proved and has been marked as Exts. Ka. 6 and 7. The x-ray plate has been proved and marked as material Ext. 1 and Ext. 2.
10. As per the First Information Report, the incident was seen by Mewalal and wife as well as daughter of Jagganath Tewari. The prosecution has not examined all these three witnesses and all the three witnesses have been examined as defence witnesses. As per statement of Sunil Kumar (complainant) P.W. 1, he had not seen the incident himself and report has been lodged as per story narrated to him by his brother. Sunil Kumar P.W. 1 has proved the First Information Report as Ext. Ka. 1.
11. It is true that there is solitary evidence of injured Shiv Dutt P.W. 2 which requires careful scrutiny. The law is settled that the evidence of injured witness can not be discarded only on the ground that no other witness has been examined.
12. In
When there is a sole witness to the incident, his evidence has to be accepted with an amount of caution and after testing it on the touch stone of the evidence tendered by other witnesses or evidence as recorded.
Further, it was held that section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a Court to record and sustain a conviction on the evidence of a solitary eye witness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when prosecution case rests mainly on the sole testimony of an eye-witness, it should be wholly reliable.
13. In
26. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. 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, as he is a witness that 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". (Vide
27. While deciding this issue, a similar view was taken in,
Darshan Singh (P.W. 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In
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28. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
14. The above view has also been reiterated in
15. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is therefore open to a competent Court to fully and completely rely on a solitary witness and record conviction.
16. Shiv Dutt P.W. 2, in his statement has stated that on the date of incident, at about 6.30 a.m., when he was chaining his child buffalo (Padiya) then from the window of Banwari, Ram Narain armed with lathi and Satya Dev armed with country made pistol came out. Upon the exhortation of Ram Narayan, Satya Dev has opened the fire upon him due to which he got the injuries on the left buttock and right hand. This witness has also stated that one day prior to the incident, Ram Narayan has beaten his wife by axe regarding which the report was lodged on the same day. He has further stated that after the said injuries, the villagers were taking him to the police station and on the way his brother Sunil Kumar had met him. He has further stated that on the way at a hotel, the report was dictated by him and then they went to police station to lodge the report. He has further stated that after lodging the report, he was brought to the Government hospital for treatment and the Investigating Officer has taken his statement. He has further stated that x-ray was also conducted on the day of incident.
17. This witness has been cross-examined at length and in the cross-examination also, this witness has supported his statement u/s 161 Cr.P.C. as well as the contents of the First Information Report. Much cross-examination has been done about the place of incident while it is admitted that both the parties are residents of the same village. This witness has further stated that the Investigating Officer has taken his statement at Sareney hospital on the date of incident. Regarding the incident, he has further explained that when he was chaining child buffalo (Padiya), he was in the bend position and the fire was caused from the side of east towards the side of west. He has further stated that after causing the fire arm injury, the accused had escaped from the side of north of his house. It has also been stated in the cross-examination that apart from the cases of his family, the appellant is also facing other cases. This witness has denied that somebody else might have caused the fire arm injuries and the appellant is being falsely implicated.
18. S.I. Ashok Kumar Singh P.W. 3 has proved the investigation of the case and the formal papers of the prosecution including the site-plan as Ext. 2 and charge-sheet as Ext. 3. The chick First Information Report and copy of G.D. have been proved as Exts. Ka. 4 and Ka 5. This witness has also been cross-examined at length and nothing has come in the cross-examination so as to believe that the investigation was not done fairly or that the charge-sheet has been submitted due to any pressure. The minor contradictions has come in the statement u/s 161 Cr.P.C. and the statement of the injured that whether it was a ''Bchchiya'' or ''Padiya'', but this contradiction is not material because in all circumstances it was a child cow or child buffalo.
19. Dr. V.P. Gupta P.W. 4 has proved the medical examination of the injured on 3.12.1998 at about 8.05 hours and has proved the medical examination report as Ext. Ka. 6. This witness has further stated that the said injuries were possible on 3.12.1998 at about 6.30 a.m. Nothing adverse has come in the cross-examination so as to believe that the injury report is false or that there were no injury on the body of the injured.
20. Dr. S.L. Sharma P.W. 5 who is the Radiologist, has proved the x-ray report as Ext. Ka. 7 and the x-ray plate as material Exts. 1 and 2. In the cross-examination, this witness has admitted that the pellets were not on the vital part.
21. As far as the statement of Mewalal D.W. 1 is concerned, he has stated in his statement that Satya Dev and Ram Narain has not caused any firearm injury to Shiv Dutt and when complainant Sunil Kumar had told him that his name has been mentioned as witness, then he has objected for it. He has further stated that Investigating Officer has not asked anything from him. In the cross-examination, this witness has admitted that his father had contested the election of Pradhan and in that election Sunil Kumar (complainant) and Shiv Dutt (injured) had supported Kewal Singh, who was opponent of his father. This witness has further admitted in his cross-examination that he had seen the firearm injury on the buttock of the injured Shiv Dutt and he resides near the house of Shiv Dutt. Mamta Trivedi D.W. 2 has also stated in her statement that Satya Dev and Ram Narain has not caused any fire arm injury to the injured. In her cross-examination, she admits that she resides near the house of Sheo Dutt and when the fire was opened, she was at her door. She has further admitted in her cross-examination that the fire arm injury was in the legs and she has seen the bleeding.
22. Smt. Annapurna Devi D.W. 3 has also not supported the prosecution and has stated that Satya Dev has not caused fire arm injury to Shiv Dutt.
23. All these three defence witnesses are named in the First Information Report, but they have not been examined by the prosecution. The possibility cannot be ruled out that these witnesses might have been won over. But as a whole, all these witnesses have stated that there was fire arm injuries on the person of Shiv Dutt. Had there been any intention to mention the names of these witnesses falsely, it was very easy for the injured, to mention the name of his brother Sunil Kumar as eye-witness, but that has not been done so. All these three defence witnesses are next door neighbours of the injured Shiv Dutt and it is proved beyond reasonable doubt that Shiv Dutt had received fire arm injuries on his buttock and right hand. Shiv Dutt (injured) PW-2 has specifically stated in his statement that the said firearm injury was caused by Satya Dev.
24. As far as the question of enmity is concerned, as per the statement of Shiv Dutt (PW-2), the enmity was with Ram Narain, who had caused injuries to his wife by axe, just one day before the incident and the matter was reported to the police. Had the intention been to implicate falsely, Shiv Dutt could have easily implicated Ram Narain for attacking by the country made pistol, but he has not done so. There appears to be no reason to believe that the said injury has been caused by somebody else while attending the call of nature, and it is not probable that injured Shiv Dutt will sphere the real assailant and will implicate the present appellant. The statement of the injured cannot be brushed away merely on the ground that the witnesses mentioned in the First Information Report have not been examined by the prosecution and they have been examined in defence. The possibility cannot be ruled out that these witnesses might have been won over by the appellant. One more thing is also relevant that witness Mewa Lal has admitted in his statement that his father has contested the election of Pradhan against Kewal Singh and Sunil Kumar (Complainant) and Shiv Dutt (injured) had supported Kewal Singh, who was the opponent of his father. This fact goes to show that Mewa Lal (DW-1) has purposely avoided to support the prosecution due to said fact. But, however, he has admitted that he had seen the injury on the buttock of the injured. Similarly, Mamta Trivedi D.W. 2 and Annapurna Devi D.W. 3 are also neighbours of the injured and they have also admitted in their statement that there was injury on the person of Shiv Dutt. These defence witnesses have also not stated in their statement that somebody else had caused the said fire arm injuries to the injured Shiv Dutt. All these witnesses have shown their presence at their homes at the time of incident. In all these circumstances, the statements of these defence witnesses cannot be relied upon. Learned Additional Session Judge has also considered the statement of these witnesses and has rightly drawn the conclusion that because the said witnesses have been won over by the accused persons, therefore, they have not supported the prosecution version. The statement of injured Shiv Dutt is supported by the statement of Dr. V.P. Gupta and Dr. S.L. Sharma, who have proved that they had examined the injured on 3.12.1998 at about 8.05 A.M. and the aforesaid injuries, which were fresh, were found on the person of Shiv Dutt. It also cannot be believed that just to implicate the appellant falsely, the injuries could be self-inflicted. Although, Sunil Kumar is not the eyewitness, but Shiv Dutt P.W. 2 has specifically stated in his statement that when he was going to lodge the report, then Sunil Kumar had met him on the way and he had dictated the report to Sunil Kumar.
25. Sunil Kumar P.W. 1 has also supported the fact that he had written the report upon the dictation of his brother and he was also examined by the Investigating Officer on the same day. This witness has further stated that he had got the spot inspection done. Shiv Dutt P.W. 2 has stated that he could not go for spot inspection because he was in the hospital for his treatment. The fact that the blood stained mud has not been taken from the spot, do not go to disbelieve the incident. Nothing has been asked from the Investigating Officer as to why the blood stained mud was not taken from the spot. Moreover, none of the witnesses has stated that the blood had fallen on the earth. Therefore, I do not find any substance in the submission of the learned Counsel for the appellant that because the blood stained mud was not taken from the spot, therefore, the prosecution story is not reliable.
26. As far as the site-plan is concerned, Sunil Kumar P.W. 1 has stated in his statement that he had got inspected the spot and the Investigating Officer Ashok Kumar Singh has also proved the site-plan and I do not find any wrong in the site-plan. I also do not find any substance in the submission of the learned Counsel for the appellant that all these three injuries cannot come by one fire. As per prosecution case, the fire was caused by country made pistol and the pellets were seen in the injuries. In case of firearm injury by country made pistol, it is quite natural that all the pellets will not accumulate at one place and they will spread on all such parts, which come into contact with that pellet. The x-ray has also been conducted on the same day and the pellets have been seen in the injuries of Shiv Dutt.
27. I do not find any material contradictions in the statement of Shiv Dutt P.W. 2, who is injured witness and there appears to be no reason to disbelieve his statement. It is also not proved that the appellant is being falsely implicated due to enmity because as per the statement of the injured, the enmity was with Ram Narain, who has caused injury by axe to the wife of Shiv Dutt which has been stated by Sunil Kumar as well as by Shiv Dutt in their Examination-in-Chief, therefore, the said enmity could have been with Ram Narain who has already been acquitted. Appellant has failed to prove his defence version that because the complainant and his brother wanted to grab his property, he has been falsely implicated. Despite of his best efforts, learned Counsel for the appellant has also failed to point out any material contradiction in the statement of the witnesses.
28. The statement of Shiv Dutt (P.W. 2) who is injured, do not contain any material contradiction so as to disbelieve his statement. The evidence tendered by Shiv Dutt (P.W. 2) is cogent, reliable and in tune with probabilities and inspires implicit confidence. It is further supported by the medical evidence and by the statements of other formal witnesses.
29. For the facts and circumstances mentioned above, there is no reason to disbelieve the statement of Shiv Dutt P.W. 2 that appellant Satya Dev has caused firearm injuries to him on 3.12.1998 at about 6.30 a.m. Learned Additional Sessions Judge, Raebareli has also considered all the aspect of the matter in detail and has convicted the appellant for the offence punishable u/s 324 I.P.C. because the injuries were not on the vital part. I agree with the findings of the learned Additional Sessions Judge and from the perusal of the evidence on record independently, I am also of the view that the prosecution has succeeded in proving the guilt of the appellant beyond reasonable doubt. The conviction of the appellant is upheld.
30. As far as the quantum of sentence is concerned, the appellant has been sentenced to two years rigorous imprisonment along with fine of Rs. 1000/-. The incident took place in the year 1998 and at the time of statement u/s 313 Cr.P.C., the appellant was aged about 28 years. Considering the submissions of the learned Counsel for the appellant, the sentence is modified to one year rigorous imprisonment along with fine of Rs. 10,000/- and in default of payment of fine, the appellant shall further undergo an imprisonment of three months. In case, the fine is realized, a sum of Rs. 8000/- shall be paid to injured Shiv Dutt as compensation.
31. Appeal is accordingly dismissed along with the aforesaid modifications. The appellant is directed to surrender before the Trial Court within a period of 15 days from today to serve out the remaining sentence, failing which, the Trial Court shall be at liberty to take coercive steps against the appellant. Office is directed to send the certified copy of this order to the Sessions Judge, Raebareli along with the lower Court record at an early date.
