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Madhya Pradesh High Court · body

2002 DIGILAW 927 (MP)

State of M. P. v. Chhagan

2002-10-04

DEEPAK VERMA, N.K.JAIN

body2002
JUDGMENT Jain, J. -- 1. This appeal, filed with the leave of the Court, under section 378 of the Code of Criminal Procedure is directed against the judgment dated 9.2.1995, rendered by 1st Additional Sessions Judge, Dhar, camp Sardarpur, in Session Trial No. 151/1991, acquitting accused respondent Chhagan of the charge under section 307 of the Indian Penal Code. 2. Briefly stated the case of the prosecution against the respondent accused in the trial Court was that on 1.3.1991, around 11.00 O'clock in the forenoon, Kesu (PW 1), accompanied by Bandu (PW 2) and others were on way to village Tirla when they were intercepted by the accused respondent who gave one arrow shot to Kesu in his stomach and then attacked him by means of a phalia causing extensive injuries on his head, ear and shoulder right side. Bandu had also received injury at the hands of the accused. A report of the incident was lodged by Kesu the same day at 12.30 p.m. at Police outpost, Keshvi. The Police registered a crime u/s 307 of IPC and the investigation followed : Kesu and Bandu were referred to District Hospital, Dhar, for examination and treatment. The Police visited the spot and prepared spot map. The accused was arrested on 2.3.1991 and the weapons of offence used by him were recovered from his possession. After other necessary investigation he was charge sheeted for his trial which, however, ended into his acquittal, thus, giving rise to this appeal by the State. 3. We have heard Shri Girish Desai, learned Additional Advocate General for appellant-State and Shri Qyamuddin, learned counsel for respondent -accused. 4. Shri Desai, learned Public Prosecutor strongly criticized the impugned judgment and submitted that the impugned judgment in the case though turns on the facts, is clearly wrong and involved miscarriage of justice. He dealt with the evidence of complainant-injured Kesu (PW 1) together with the medical evidence on record almost threadbare in his endeavour to show that the learned trial Judge was altogether wrong in acquitting the accused-respondent. As against it, Shri Qyamuddin vehemently defended the finding of not guilty returned in favour of the respondent and contended that this being appeal against acquittal, it is not open for this Court to reverse the finding which is based on appreciation of evidence. 5. As against it, Shri Qyamuddin vehemently defended the finding of not guilty returned in favour of the respondent and contended that this being appeal against acquittal, it is not open for this Court to reverse the finding which is based on appreciation of evidence. 5. At the outset it may be stated that the power of this Court while hearing appeal under section 378 of CrPC, against acquittal, to review at large the evidence upon which acquittal is founded, and to reach to a different conclusion other than the one arrived at by the trial Court, is in no manner limited and is as extensive as may be exercised while hearing appeal against conviction. This legal position laid down by the Privy Council in Sheo Swarup (AIR 1935 PC 227), has been reaffirmed by the Supreme Court in number of cases. [see: Narayan ( AIR 1953 SC 478 ); Shiv Bahadur ( AIR 1954 SC 322 ); and, Banshidhar ( AIR 1955 SC 585 )]. However, the Apex Court cautioned that in exercising the aforesaid power and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as : (i) the view of the trial Court as to the credibility of the witnesses : (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial : (iii) the right of the accused to benefit of any doubt; and (iv) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. 6. We have in the background of the aforesaid legal position, very carefully examined the evidence on record land we are constrained to hold that the finding of not guilty returned in favour of the accused-respondent by the trial Court, is wholly unsupportable by the evidence on record. 7. The prosecution has examined Kesu (PW 1), Bandu (PW 2), Balu (PW 3) and Kesharbai (PW 4) to depose of the incident or the circumstances attaining thereto. However, all other witnesses except Kesu turned hostile to the prosecution and more or less resiled totally from their earlier statements made to the police under section 161 of CrPC. 7. The prosecution has examined Kesu (PW 1), Bandu (PW 2), Balu (PW 3) and Kesharbai (PW 4) to depose of the incident or the circumstances attaining thereto. However, all other witnesses except Kesu turned hostile to the prosecution and more or less resiled totally from their earlier statements made to the police under section 161 of CrPC. Evidently these witnesses were suppressing the truth and their testimony cannot be, therefore, pressed in service to record any finding one way or the other i.e. regarding the guilt or innocence of the accused. The best course would be to proceed to analyse the remaining evidence on record ignoring the evidence of the aforesaid hostile witnesses altogether of consideration. 8. The leaves us with the testimony of Kesu (PW 1) who is himself the complainant-injured. He has given vivid description of the entire incident and testified that it was the accused respondent Chhagan and he alone who first gave an arrow shot in his stomach and then dealt with a number of Phalia blows on him causing injuries on his head, right ear and both the shoulders. The complainant explained that on receiving arrow shot injury he tried to run away and save himself but the accused chased him and gave Phalia blows causing injuries, as aforesaid. We have very carefully examined his testimony and we find that the same could not be challenged successfully by the defence in his cross-examination. He has successfully stood the test of rather lengthy cross-examination. 9. Complainant Kesu immediately after the incident had himself gone to Police-out-post Keshvi and lodged report Ex. P-1 with the Police at 12.30 p.m. He finds full corroboration from this report Ex. P-1, wherein also the accused respondent was named as the assailant who caused injuries to the complainant by means of arrow shot and Phalia blows. 10. Yet another and more important corroboration is found from the medical evidence of Dr. A.K. Shrivastav (PW 6) who had examined the complainant the same day after the incident and found that the latter had a perforated piercing wound on the left side of stomach and cutting wounds on the head, shoulder and the left scapular region, as detailed in the report Ex. P-5. As opined by Dr. A.K. Shrivastav (PW 6) who had examined the complainant the same day after the incident and found that the latter had a perforated piercing wound on the left side of stomach and cutting wounds on the head, shoulder and the left scapular region, as detailed in the report Ex. P-5. As opined by Dr. Shrivastav, the piercing wound in the stomach could be caused by an arrow shot while the other injuries were caused by a cutting weapon like Phalia. Ocular evidence of Kesu is found to be fully in tune with the medical evidence of Dr. Shrivastava. It cannot be denied that Kesu on the relevant day, had received injuries caused by weapons like arrow and Phalia and for which a report was lodged by him with the Police without any unreasonable delay naming the accused respondent as assailant. This leaves no manner of doubt that it was the accused-respondent and he alone who had caused the said injuries to the complainant. 11. The learned trial Judge has disbelieved the testimony of Kesu mainly on two grounds : firstly, because no independent corroboration was available to his interested testimony; and, secondly, that the description of the incident given by him rather appeared unnatural inasmuch as it was not natural for the accused-respondent to carry and use two weapons -- the bow and arrow and Phalia -- together. We are afraid, the approach adopted by the Court below was wholly misconceived and contrary to the well established rule of evidence as also of prudence. 12. Section 134 of the Evidence Act clearly mandates that no particular number of witnesses shall in any case be required for the proof of any fact. Needless to say that the testimony of a single witness, if believed, is sufficient to establish any fact. It is aptly said "Evidence is to be weighed, not counted". Dealing with same principle and departing from English Law, the Privy Council in the case of Mohammad Suqal Esa (AIR 1946 PC 3), held: "In England ... ... ... it has always been provided that the evidence must be corroborated in some material particulars implicating the accused. But, in India, there is no such provision and the evidence is made admissible whether corroborated or not. Corroboration is a rule of prudence not of law" 13. ... ... it has always been provided that the evidence must be corroborated in some material particulars implicating the accused. But, in India, there is no such provision and the evidence is made admissible whether corroborated or not. Corroboration is a rule of prudence not of law" 13. The aforesaid decision was considered by the Apex Court in Vadi Velu ( AIR 1957 SC 614 ) and it was observed: "On consideration of relevant authorities and the provisions of the Evidence Act, the following provisions may be safely stated as firmly established: (1) As a general rule, a Court can and may act on the testimony of a single witness though uncorroborated. One credible witness out weights the testimony of a number of other witnesses of indifferent character;" (2) Unless corroboration is insisted upon by statute, Courts should not insist on corroboration except in cases where the nature of testimony of single witness itself requires as a rule of prudence that corroboration should be insisted upon ....; (3) Whether corroboration of the testimony of a single witness is or not necessary, must depend upon the facts and circumstances of each case and no general rule can be laid down ...." 14. The above position is followed consistently in Ramratan ( AIR 1962 SC 424 ), Badri ( AIR 1974 SC 276 ), Vahula ( AIR 1989 SC 236 ), Jagdish ( AIR 1994 SC 1251 ) and finally in Kartik (1996) 1 SCC 614 . In Kartik (supra), it was held: "On a conspectus of these discussions it clearly comes out that there has been no departure from the principles in Vadivelu Thevar case and, therefore, conviction can be recorded on the basis of the statement of a single eye witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the Court, at the same time, is convinced that he is a truthful witness." 15. In the instant case also, testimony of Kesu inspired confidence. As already pointed out, he was corroborated fully by the FIR and the medical evidence on record. There was nothing unusual on the part of the accused-respondent to carry two weapons and use them one after the another. He is a member of scheduled tribe and it is quite common amongst these tribes to carry such weapons even in normal course. There was nothing unusual on the part of the accused-respondent to carry two weapons and use them one after the another. He is a member of scheduled tribe and it is quite common amongst these tribes to carry such weapons even in normal course. The Court below was apparently wrong in entertaining doubt as to the veracity of the evidence of Kesu on that count. 16. The accused is the brother-in-law of this complainant Kesu. Former has contracted second marriage with the sister of the latter. It is true that some dispute has arisen between the two and it is said that the respondent-accused has been demanding some money from the complainant and threatened to desert his sister if the demand was not fulfilled. It could be thus, said that the relations between the two were strained. However, such strained relationship is a double edged weapon, while it could be a ground for the complainant to implicate the latter falsely, it could as well as be a reason for the accused to assault the complainant. In the instant case, there is convincing evidence to show that the accused did assault the complainant. Evidence of Kesu could not be, therefore, rejected on the ground of it being interested. It would be rather unnatural on the part of the complainant injured to implicate the accused falsely at the cost of screening the real culprit. 17. It will be thus seen that inference of guilt was irresistible from the evidence on record. The accused did give an arrow shot to the complainant and also gave a few Phalia blows causing injuries to him. The arrow had penetrated deep into his stomach so much so that the omentum was coming out. The Phalia blows also landed on head and shoulders. From the evidence it further transpires that after receiving arrow shot, the complainant tried to run away but was given chase by the accused and then assaulted him by means of Phalia. Treating Doctor has opined the injuries of the complainant as serious. It would not be unreasonable to infer that the accused respondent had attempted on the life of the complainant and was, thus, guilty under section 307 of IPC. 18. We have also heard learned counsel for the respondent on the point of sentence. The respondent is a first offender and the case against him is now more than 10 years old. 18. We have also heard learned counsel for the respondent on the point of sentence. The respondent is a first offender and the case against him is now more than 10 years old. Under these circumstances, a sentence of three years rigorous imprisonment with fine Rs. 2,000/- would, in our opinion, meet the ends of justice. 19. Accordingly we allow this appeal, reverse the judgment of acquittal passed by the trial Court and hold the respondent-accused guilty u/s 307 of IPC. He is sentenced to undergo three years rigorous imprisonment and pay fine Rs. 2,000/-. In default of payment of fine, he shall suffer additional R.1. for six months. The amount of fine, on realization, be paid to the complainant injured by way of compensation. 20. The accused-respondent is on bail and he shall surrender to his bail before the trial Court to suffer the sentence as aforesaid.