@JUDGMENTTAG-ORDER
T. Ch. Surya Rao, J.@mdashThe revision petitioner assails his conviction and sentence passed by the trial court for the offences u/s 337 and 338
IPC, and as confirmed by the Appellate court by its judgment dated 2.4.1999, in Crl. Appeal No.75 of 1997.
2. The substance of the accusation was put to the revision petitioner at the time of commencement of the trial, that he was alleged to have been
responsible for the offences under sections 337 and 338 IPC for having driven the Milk van in a rash and negligent manner, which resulted in the
accident and sustaining injuries by the inmates of the van. When he abjured the guilt and denied of having committed the offence, the trial
commenced and during the course of trial, nine witnesses were examined and Ex.P1 to Ex.P18 were got marked. The plea of the revision
petitioner-accused, when he was examined u/s 313 Cr.P.C. was that there was a mechanical defect in the vehicle and therefore, the accident was
beyond his control.
3. There upon after appreciating the evidence on record, both oral and documentary, the trial court convicted him for both the offences, after
having found him guilty for the said offences and sentenced him to suffer Simple imprisonment for six months and further sentenced him to pay a
fine of Rs.1000/- and in default to suffer simple imprisonment for two months for the offence u/s 338 of the Indian Penal code. Since a sentence
was inflicted for the aggravated form of offence u/s 338 IPC, no separate sentence had been inflicted for the other offence u/s 337 IPC, although
the revision petitioner had been found guilty for the said offence. Having been aggrieved by the conviction and sentence passed against him, he
preferred an appeal before the Sessions Court, Vizianagaram. The learned Additional Sessions Judge by his judgment impugned in the present
revision upheld both the conviction and sentence passed against him. The revision petitioner assails the same before this court.
The learned counsel for the revision petitioner Sri T. Niranjan Reddy contends that there is no legal evidence in support of the accusation, for
which the finding of guilt has been arrived at by the Trial court and confirmed by the Appellate court and therefore, the conviction and sentence
passed against the revision petitioner are quite unsustainable under law.
4. To substantiate the said contention, the learned counsel for the revision petitioner seeks to place reliance upon some of the admissions made by
the witnesses during the cross-examination.
5. PW.1 is the Defacto complainant and an eyewitness to the occurrence. PWs.2 and 3 are the injured witnesses. PWs. 1 to 3 sustained injuries
during the course of accident. According to the case of the prosecution, as can be seen from the testimony of these witnesses, the Milk van dashed
against a Tamarind tree by the side of the road. The Motor Vehicle Inspector who inspected the van, when it was at the relevant place i.e., at the
place of accident, opined that the accident was not due to any mechanical defects. It has been sought to be elicited from the evidence of PW.2 that
the driver cautioned the inmates of the van. But on account of defective Tyron rod of the steering he lost control of the steering. Placing very much
reliance on these statements of the witnesses, the learned counsel seeks to assail the finding of the trial court to the effect that although, the
witnesses made some statements in the cross examination the chief examination can be relied upon and contends that the conviction and sentence
passed against the revision petitioner cannot be upheld. In support of the said contention, the learned counsel for the revision petitioner relied upon
a judgment of the Apex court in BALDEV SINGH VS. STATE OF PUNJAB.1 In para-6 of the said judgment, the Apex court observed as
follows: -
It is seen from the judgment of the High Court that though PW.10 in his chief examination has supported the prosecution version in all its material
particulars has given a complete go-by and struck a death-knell to the prosecution in his cross examination stating that due to darkness he could
not identify the culprits. The High Court was inclined to place reliance on his evidence on the ground that this witness in his statement before the
police, evidently referring to the statement recorded u/s 161 of the Code of criminal procedure during the investigation as well in the first
information report Exh. P.O. has narrated all the relevant facts and had not whispered in those statements that he could not identify the appellant
due to darkness. This reasoning of the High Court in our view is erroneous. Needless to stress that the statement recorded under S.161 of the
Code of Criminal Procedure shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to Sec.
162(1) and that the fist information report is not a substantial piece of evidence. The High Court has misled itself into relying upon these two
statements and thereby has fallen into a serious error"".
6. Turning to the oral evidence of PWs.1 to3, PW.1 in his cross-examination deposed that as he got into the Van from the backside and as he was
sitting on the backside of the van, he did not know who was driving the van at the time of accident. This witness further made an admission in the
cross examination that the van was going at a normal speed at the time of accident, but not at a high speed. PW.2 deposed in the chief examination
about the manner in which the accident occurred and how the inmates of the van sustained injuries. In the cross examination he stated that the
crime van dashed against the tree due to damage to the Tyron rod of the van and that the accused cautioned the passengers to have tied, as he lost
control over the vehicle due to the damage to the Tyron rod. When the witness made such statement in the cross-examination the learned A.P.P.
sought for the permission of the court to put questions in the nature of cross examination to the witness u/s 154 of the Evidence Act and having
been permitted, he proceeded to put the questions in the nature of cross examination. In the cross examination, the witness again stated that he did
not have any mechanical knowledge about the functioning of the cars and vans, and that ten minutes prior to the accident, the accused lost control
over the vehicle and during that ten minutes he heard some noise. The same is the type of evidence from PW.3. Placing reliance upon the
statements made by the witnesses PWs.1 to 3, it is now sought to be contended before this court that the testimony of none of these witnesses can
be relied upon, so as to legally base a finding of guilt against the revision petitioner-accused.
7. The learned counsel for the revision petitioner sought to invite my attention to certain observations made by the Appellate court in para-15 of the
judgment. For brevity and better understanding of the matter, it is expedient to extract the relevant passage from the judgment:
The learned counsel for the appellant-accused pointed out that when there is no evidence on record as PWs.1 to 3 did not speak about the
accused the accused can not convicted, But the legal position on this aspect is quit different as referred in the above paras. Merely because the
witness turned hostile in his cross-examination, the accused is not entitled for acquittal when the evidence in chief, consistent pointing out the guilt of
the accused. The accused might have won over the witnesses due to gap of time in between the chief examination and cross examination, so the
same can not be a ground for acquitting the accused.
8. Laying much emphasis on the said observation of the Appellate court as aforesaid, the learned counsel for the revision petitioner contends that
the Appellate court has fallen into error in having observed, so, which is against the canons of law, a fortiori the judgment of the Apex court in
Baldev Singh''s case (1 supra). I am afraid I cannot accept the said contention of the learned counsel for the revision petitioner. It is a matter of
appreciation of evidence by the Criminal courts, which are concerned with the criminal administration.
9. The evidence of a witness has to be appreciated on the touchstone of probabilities and the surrounding circumstances, which are the two
important yardsticks among others. There is the evidence of PWs.1 to 3 available on record in support of the allegations made against the revision
petitioner. It is not a case of considering the evidence in chief and omitting the admissions made in the cross-examination. Before proceeding
further, pausing for a moment here, it may be mentioned here that PWs. 2 and 3 according to the learned counsel for the revision petitioner are the
hostile witnesses. I am afraid that the word used ""Hostile Witnesses"" has no reasonable historical base. Although the learned A.P.P. has been
permitted to put questions in the nature of cross-examination u/s 154 of the Indian Evidence Act, the witness cannot be dubbed as a hostile
witness. The description of the word ''hostile witness'' alludes any amount of clarity. The fact remains that they have been put questions in the
nature of cross examination by the learned counsel who called them as a witness which is permissible in view of the provisions of section 154 of the
Indian Evidence Act. In such a case, it is now established by a catena of decisions of the Apex court that any part of the statement of the witness,
can be taken into consideration. It is not the question of accepting one part in preference to other part of the deposition of the self-same witness.
But when the question of appreciation comes, the court has to seek to reconcile the said statement and try to sift the evidence. Merely because a
statement of witness is false to some extent and true to the remaining extent, there is no law which says that the entire statement of the witness shall
have to be discarded. As a matter of fact, we have yet to see a witness whose statement can be implicitly relied upon on the premise that the whole
statement is true. Discrepancies and embellishments in the statement of witnesses do occur in the natural course. Therefore, it is the plain obligation
of the court to disengage the truth from the evidence available on record by trying to sift the grain from the Chaff.
10. With these legal principles bearing in mind, although it is a revision, let us now seek to appreciate the evidence of PWs. 1 to 3, since questions
of law have been raised by the learned counsel for the revision petitioner, on the premise that the finding of the Appellate Court is erroneous.
Indubitably the Motor vehicle Inspector is the competent witness to speak about any mechanical defect in the vehicle. It may be mentioned here
that the competence of the witness shall be the first consideration of the court, before adverting to the relevancy and admissibility and then
credibility of the oral testimony of a witness. It goes without saying that none among PWs.1 to 3 is competent to speak about the mechanical
defect in the vehicle, he being a layman. So that part of the statement shall have to be eschewed from consideration.
11. The attempt on the part of the learned counsel for the revision petitioner in trying to show before this court is that the evidence of PWs.1 to 3,
suffers from this vice of illegality and when their evidence is eschewed from consideration there remains no legal evidence on record. The attempt
made on the part of PWs.2 and 3 to show that the driver cautioned the inmates of the van, and that there has been a mechanical defect in the
vehicle and he lost control on account of the same cannot for a moment be relied on without any pinch of salt, more particularly in the wake of the
evidence of the Motor Vehicle Inspector, who is competent and who can authoritatively speak. When there is a clear and unequivocal evidence of
the Motor Vehicle Inspector that there is no mechanical defect in the vehicle, the statements made by these two witnesses, cannot be taken into
consideration, as they are lay men, and cannot authoritatively speak about the mechanical defects in the vehicle particularly without testing the
same. Therefore, I, do not see any merit in the contention of the learned counsel for the revision petitioner that the Appellate court has fallen into
serious error. It is not the question as can be seen from the evidence on record that it is a case of preference of chief examination to that of the
cross-examination. The judgment of the Apex court in Baldev Singh''s case (1 supra) is a typical case, where inadmissible evidence has been relied
upon by the High Court, so as to appreciate the evidence of the witnesses and therefore, it has no application to the facts and circumstances of this
case.
12. After having scanned the evidence, I am of the considered view that there is no error either on the part of the trial court or on the part of the
Appellate court in appreciating the oral testimony of PWs. 1 to 3. Therefore, there are no compelling circumstances emanating from the record,
which can persuade this court to come to a different conclusion than what has been arrived at concurrently by both the Courts below. For the
foregoing reasons, there is nothing to interfere with the conviction part of the judgments of both the courts below.
13. Coming to the sentence, the conviction against the revision petitioner is one u/s 338 IPC. The revision petitioner has already undergone 25
days imprisonment either as an under-trial prisoner or after the conviction. Having due regard to the length of time occupied from the date of
offence till date, and having due regard to the other circumstance that there has been no record of previous conviction or bad antecedents, taking
into consideration the sentence the revision petitioner has already undergone, it is expedient in the interest of justice to limit the sentence to that
period only, while upholding the sentence of fine as imposed by the trial court and upheld by the Appellate court. Therefore, the judgments of the
trial court as well as the appellate court stand modified to that extent by allowing the revision petition partly.