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1997 DIGILAW 167 (ALL)

HARIHAR YADAV v. STATE OF U P

1997-02-18

C.A.RAHIM

body1997
C. A. Rahim, J.- This Revision has been directed against the judgment and order of Sessions Judge, Ghazipur, dated 27-6- 1984 in Criminal Appeal No. 26 of 1984. By that judgment he convicted the appellant under Section 3231. P. C. and sen tenced to suffer R. I. for six months. 2. An Appeal was preferred before the Sessions Judge, Ghazipur, against the con viction and sentence passed by the IVth Munsif Magistrate, Ghazipur, on 30-1-1984 under Section 332 I. P. C. and sentenced to suffer R. I. for one year. 3. The prosecution case, in brief, is that N. L. Vishwakarma, Assistant Engineer of Bridge Construction Unit while on surprise duty on 2-6-1980 in the night at about 10 p. m. found the accused- appellant, a Chaukidar of the said firm, sleeping. Shri Vishwakarma thereupon chastised the ac cused who apologised but on the next morn ing at about 7. 10 a. m. when Sri Vishwakar ma was going to supervise the work was beaten on the way by the accused with a lathi on the allegation that Sri Vishwakarma was trying to take away the service of the ac cused. He suffered injuries. On being at tracted by the alarm raised by him Ishwar Chand Verma came there and intervened and snatched the lathi from the hands of the accused. 4. An oral report of the incident was lodged at the police station after half an hour of the incident. The police registered a non-cognizable case under Section 323 I. P. C. On the following day a written com plaint was sent. Thereafter the case was con verted to a case under Section 332 I. P. C. The investigation ensued followed by filing a charge-sheet. The learned Magistrate after considering the materials on record con victed the accused and sentenced him in the aforesaid manner. On Appeal Section 332 (sic) was altered to section 323 I. P. C. and the sentence was reduced to six months R. I. on the ground that at the initial report the complainant did not mention that he was on official duty at the relevant time. 5. Sri S. K. Verma, learned counsel ap pearing for the appellant, has submitted that both the eye witnesses having not cor roborated the prosecution story, the solitary statement of P. W. 1 (complainant) should not be believed. 5. Sri S. K. Verma, learned counsel ap pearing for the appellant, has submitted that both the eye witnesses having not cor roborated the prosecution story, the solitary statement of P. W. 1 (complainant) should not be believed. He has submitted that there was doubt as regards the date of permission the written report which was at first dated 3-6-1980 and thereafter altered to 4-6-1980. So existence of the said report was He has also submitted that both the courts below did not consider the provision of Section 360 Cr. P. C. and convicted the appellant illegally. 6. With regard to assessment of evidence of hostile witness, Sri Verma has relied on the case of Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202 and the case of Sat Paul v. Delhi Administration, AIR 1976 SC 294 . In both the cases it was held that when a witness is declared hostile that fact does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon the testimony if corroborated by other reliable evidence. 7. In the present case P. W 2 did not support the prosecution story. P. W. 3 has only stated that he heard the occurrence. It is true that both the courts below kept aside the evidence of P. Ws. 2 and 3 but that did not prejudice the accused in anyway. Since ratio of the decisions referred by the learned counsel is that if part of the evidence, is corroborated by any reliable evidence, con viction can be based upon it. I do not con sider that these two decisions will help the appellant in any way to caste doubt on the prosecution case. 8. Both the courts below have relied on the evidence of the complainant being cor roborated by the G. D. entry, based on an oral report of the complainant, lodged after half an hour of the occurrence and the medi cal evidence which supported the prosecu tion version. 9. The learned counsel has relied on the case of V. Thevar v. The State of Madras, AIR 1957 SC 614 , wherein it has been held that if such a testimony is found by the court to be entirely reliable, there is no legal im pediment to the conviction of the accused persons on such proof. 9. The learned counsel has relied on the case of V. Thevar v. The State of Madras, AIR 1957 SC 614 , wherein it has been held that if such a testimony is found by the court to be entirely reliable, there is no legal im pediment to the conviction of the accused persons on such proof. So the conviction can be based on the testimony of sole wit ness but in the instant case, I find that though P. Ws. 2 and 3 did not support the prosecution story, it was amply cor roborated by the G. D. entry and the injury report. A close proximity of the G. D. entry and the medical report (prepared by the Medical Officer within an hour of the occur rence) are sufficient to hold that the prosecution has been able to prove the guilt of the accused. 10. The learned lower appellate court has rightly discarded Section 332, I. P. C. based on the written report lodged on the next day, which has been vehemently criticised by Sri Verma. The said report when not relied upon by the lower appellate court, then any other view is not possible to drawn in favour of the accused- appellant. 11. With regard to application of Sec tion 360, Cr. P. C. The learned counsel has referred the case of Bishnu Deo Shaw v. State of West Bengal, AIR 1979 SC 964 , wherein it has been held: ". . . . . . to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. . . . . . . " 12. So apart from the facts and cir cumstances of the alleged incident there are other materials to be considered while rejecting the application of the provision embodied in Section 360, Cr. P. C. I do not consider that both the courts below have approached the matter from proper angle. 13. It appears that the Assistant En gineer was assaulted by a lathi by a Chaukidar who was found neglecting his duty at the site of the works which is no doubt a grave offence. P. C. I do not consider that both the courts below have approached the matter from proper angle. 13. It appears that the Assistant En gineer was assaulted by a lathi by a Chaukidar who was found neglecting his duty at the site of the works which is no doubt a grave offence. But considering that it is his first offence I find that the accused-appellant is entitled to get benefit of Section 360, Cr. P. C. 14. The Revision is, therefore, allowed in part. The conviction and sentence under Section 323i. P. C. are hereby affirmed but in view of Section 360, Cr. P. C. the sentence be kept in abeyance and instead of it the accused-appellant be released on his entering into a bond with two sureties, to appear and receive sentence when called upon during a period of six months as the Court may direct and in the meantime to keep the peace and be of good behaviour. If within a period of six months his behaviour and conduct does not become in conformity with the said sec tion the trial court shall issue process and be detained in imprisonment to serve out the period of his sentence. Revision partly allowed. .