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2019 DIGILAW 44 (JK)

Karan Dass Alias Billu v. State of J & K

2019-02-01

SANJAY KUMAR GUPTA

body2019
JUDGMENT : Sanjay Kumar Gupta, J. This criminal appeal has been filed against the judgment dated 25.10.2004 passed by the learned Sessions Judge, Kathua in File No. 58/Sessions entitled State vs. Karan Dass, by virtue of which the Court below has convicted the accused-appellant and has sentenced him on 28.10.2004 to undergo rigorous imprisonment of ten years with a fine of Rs. 5000/- for offence under Section 307 RPC. 2. Appellant has challenged the impugned judgment of conviction and order of sentence on the ground that trial court has not appreciated the facts in proper manner; that trial court has not properly appreciated the statements of witnesses; that trial court has not appreciated the statement of witness Tarsem Lal S/o Chajju Ram that injured Tarsem Lal S/o Roop Lal told him that accused hit him, so question of not recording his statement did not arise. That injured was in a position to talk, still his statement was not recorded. That Doctor has not stated that injured was not in position to talk; that motive has not been established; that court below has relied upon statements of interested witnesses; that there was material contradiction in statements of witnesses. 3. Brief facts of the case are that on 23.10.1995 one Pritam Singh S/o Jaimal Singh R/o Tikkri, Udhampur, the then conductor of Matador bearing Registration No.6696/JK02C, accompanied by one Tarsem Lal S/o Chhajju Ram produced Tarsem Lal S/o Roop Lal R/o Muthi Jagir, the injured, in an unconscious state in Matador No.6696/JK02C in Police Post, Parole; he verbally reported that Karan Dass alias Billu S/o Milkhi Ram, the accused was conductor with the matador in question prior to Pritam Singh and had enmity with the owner of the Matador Tarsem Lal regarding the accounts. The accused usually used to threaten Tarsem Lal to do away with him. That on that day viz. 23.10.95 in the evening at 7 pm accused Karan Dass was travelling in the matador in question on its roof from Kathua towards Padyari; he used to vomit on the roof of the matador for which driver of the matador Manohar Lal, the real bother of Tarsem Lal, asked him not to vomit or spit; this enraged Karan Dassaccused. 23.10.95 in the evening at 7 pm accused Karan Dass was travelling in the matador in question on its roof from Kathua towards Padyari; he used to vomit on the roof of the matador for which driver of the matador Manohar Lal, the real bother of Tarsem Lal, asked him not to vomit or spit; this enraged Karan Dassaccused. When matador reached at Padyari and was halted, there Tarsem Lal was on his shop, the accused Karan Dass alias Billu s/o Mulkhi Rarn, on the basis of previous enmity, came armed with Bamboo lathi on the shop and started calling names. On being questioned, Karan Dass with intention to kill and commit murder hit with a bamboo lathi on the head of Tarseem Lal s/o Roop Lal and that struck Tarsem Lal on the head over the left ear. Complainant and others intervened, Tarsem Lal got injured and fell on the ground unconscious so has been produced in that state in the police for action as warranted under law. 4. On the basis of this report, a case FIR No.280/95 for offence under Section 307 RPC was registered with Police Station, Kathua on 24.10.95 and the investigation has been conducted at the initial stage by Sub-Inspector, In-charge Police Post, Parole who proceeded on spot, prepared the site plan and recorded the statement of complainant. Thereafter In-charge Head Constable recorded the statements of witnesses to the occurrence and has seized lathi as weapon of offence, sought opinion thereof from the Medical officer. The injured Tarsem Lal remained admitted in DMC, Ludhiana from the date of occurrence and on 13.12.95 was discharged from the Hospital in an unsatisfactory condition and was brought home. The injured continued to be in critical condition, so his statement could not be recorded and Medical Officer of the Parole Hospital issued a certificate after examining the injured at his residence to the effect that the injured can neither hear nor can speak; he was not in a position to make any statement. After investigation, challan against accused was produced before CJM, Kathua on 01.01.1996. 5. The then learned CJM has committed the case to the Sessions Court as offence under S.307 RPC was exclusively triable by the Court of Sessions. On 15.02.96 accused was charge-sheeted for offence under S. 307 RPC. Accused pleaded not guilty and claimed trial. After investigation, challan against accused was produced before CJM, Kathua on 01.01.1996. 5. The then learned CJM has committed the case to the Sessions Court as offence under S.307 RPC was exclusively triable by the Court of Sessions. On 15.02.96 accused was charge-sheeted for offence under S. 307 RPC. Accused pleaded not guilty and claimed trial. Prosecution in order to establish the case has examined Pritam Singh, Manohar Lal, Tarsem Lal S/o Chhajju Ram, Bishember Dass, Dr. Bal Krishan, Mohinder Sharma, Prabh Dayal HC, Pran Nath Sharma SI Police, Bachan Lal HC, who were cited as PWs 1, 2, 3, 5, 6, 7, 8, 9 and 10 in the challan. 6. During course of trial P.P. has moved an application with the prayer that in view of the medical record from Daya Nand Medical College, Hospital, Ludhiana where the injured had remained admitted and hospitalized, the witness from that Hospital be summoned which petition was allowed vide order dated 27.03.1998 and Sh. Ram Sevak PandaySupervisor Daya Nand Medical Collage, Hospital Ludhiana, was examined as prosecution witness on 19.05.98. After closure of the evidence, the accused was examined under S. 342 Cr.P.C. on 10.03.99. The accused thereafter was directed to produce his defense witness on 10.08.99, but did not produce any witness till 12.8.2000, when right to produce witness was closed. Court below after appreciating the evidence on record convicted the appellant under section 307 RPC and sentenced him as above. 7. I have heard arguments and considered the material on record. Learned counsel for appellant has reiterated the grounds taken in memo of appeal and has relied upon judgments of Apex Court in cases reported in, case titled Sudhakar vs. State Rep. by The Inspector of Police Srirangam Police Station, Trichy, Tamil Nadu, (2018) 3 Supreme 725 ; and case titled State of Rajasthan vs. Kishan Singh and ors., (2001) 8 Supreme 477 Whereas counsel for State has supported the judgment and has stated that prosecution has proved its case beyond reasonable doubts. 8. Before re-appreciating the evidence on record the summary of prosecution evidence as recorded by trial court reads as under:- 1. PW Pritam Singh has stated that accused is known to him and is also known by the name of Bilu. On the date of occurrence i.e. 23-10-95 he was Conductor with Matador No.6696/JK02C of one Roop Lal and Manohar Lal was the driver of said Matador. PW Pritam Singh has stated that accused is known to him and is also known by the name of Bilu. On the date of occurrence i.e. 23-10-95 he was Conductor with Matador No.6696/JK02C of one Roop Lal and Manohar Lal was the driver of said Matador. The matador started at 6.30 in the Village for Padyari village. The accused travelled on the roof of that matador up to Padyari. The matador stopped at Padyari in front of the shop of Tarseem injured, the passengers alighted from the vehicle. The accused was vomiting on the roof of the matador whereupon driver of the matador Manohar Lal-witness asked accused to desist from it, but accused started calling names. At that time one Roop Lal, father of Tarsem Lal-injured, was also on the shop of injured. The accused came down from the matador and went towards his house and returned after 2 minutes from his home along with a lathi and hit with that lathi on the head of Tarsem Lal in consequence where of Tarsem Lal became unconscious and fell on the ground. The accused started running towards his own home but father of the injured tried to catch hold of him but was able to snatch lathi from his hand and accused managed to escape from that place. The injured was immediately shifted from that place in the matador that very time which was plied by one Tarsem S/o Chhajju Ram-a driver by profession and was present on spot. The injured was taken in the matador to Nagri Parole Police Post where the witness informed the police and his verbal report was entered in the Roznamcha and the signatures were taken thereupon, besides, Tarsem, driver of the matador, also affixed his signatures. The contents of the report have been admitted as correct by him, that has been marked as EXPW-PS. The copy of the report is with the file which is correct as per entry No. 16 of the Roznamcha and same has been also marked as ExPW-PS. Thereafter one police person boarded the matador and the injured was taken to Nagri Hospital. The injured Tarsem Lal s/o Roop Lal was taken inside the Hospital and the doctor started his treatment but referred the injured to Kathua Hospital and the condition of injured was serious and was unconscious. Injured Tarsem did not talk on spot. Thereafter one police person boarded the matador and the injured was taken to Nagri Hospital. The injured Tarsem Lal s/o Roop Lal was taken inside the Hospital and the doctor started his treatment but referred the injured to Kathua Hospital and the condition of injured was serious and was unconscious. Injured Tarsem did not talk on spot. After the infliction of injury the injured had not talked. The accused had inflicted the injury with the lathi on the head of Tarseem at 7 in the evening. The father and brother of injured Tarsem Lal namely, Manohar Lal and Roop Lal had not come with them in the matador from Padyari to Nagri as they had to close the shop but had come to Nagri hospital. It was the day of Diwali. The injured was shifted to Kathua Hospital in the same matador. Besides this witness, Roop Lal, Manohar Lal and wife of injured Tarsem had come to Kathua Hospital and that time also Tarsem S/o Chhajju Ram plied the matador upto Kathua hospital. In the Kathua Hospital the doctors examined the injured and found his condition critical, advised for shifting him to Ludhiana hospital. Because of the injury no blood had oozed from the head of the injured but the blood had oozed from his ear. The injured was shifted in that very matador from Kathua to Ludhiana and Roop Lal, Manohar Lal and wife of injured had accompanied. The injured was admitted in DMC, Ludhiana and next day the witness returned in the evening alongwith Manohar Lal, Tarseem Lal plied the matador. Next day Manohar Lal again went to Ludhiana Hospital. The lathi present in the court has been identified by the witness as the same that had been used by the accused to inflict injury upon Tarsem Lal. 5-6 days after the occurrence the police had again enquired from him and recorded of his statement. The witness knew the accused prior to the occurrence as well as the accused was conductor of the matador of Manohar Lal. In cross-examination, he has stated that he had not gone inside the Hospital at Ludhiana. What was the sign-board of the Hospital he does not know as he has studied only up to 2nd Class and can only affix his signatures in Hindi. In cross-examination, he has stated that he had not gone inside the Hospital at Ludhiana. What was the sign-board of the Hospital he does not know as he has studied only up to 2nd Class and can only affix his signatures in Hindi. He could not make out as to which route was adopted upto Ludhiana Hospital as he had gone to Ludhiana for the first time. It is correct that he had gone to Ludhiana with the injured. The Hospital gate at Ludhiana is on the western side. He had stated before police that accused first went to his home then returned on spot with a lathi in his hand but it is not mentioned in the statement under S. 161 Cr.P.C. At the time of infliction of injury with the lathi by accused to Tareeem Lal, he was preset on spot. The accused and injured were facing each other at the time of occurrence. Roop Lal and Manohar Lal were also present there, besides 3- 4 other persons were also present but does not know their names. The accused had started vomiting on way but in the way nobody had prevented him. Why accused was vomiting, he does not know. He also does not know as to whether accused had consumed liquor or not. When accused had hit the injured with a lathi and thereafter Manohar Lal and Roop Lal had chased him when he had started fleeing from that place. Roop Lal and Manohar Lal chased accused for a distance of 20-25 yards. The injured had been immediately shifted from spot and laid in the matador and at that time Roop Lal had come back having snatched the lathi from the accused and he, in fact, had directed shifting of injured in the matador. The witness had seen the lathi in the hand of accused at the time of occurrence and thereafter had seen it in the court that day. The lathi was of bamboo so he is not making a statement that it was the same lathi as bamboo lathis are common. He does not know as to whether Roop Lal also possessed such a lathi. The lathi was not bloodstained as the injury had not caused bleeding from the head. He had gone one month earlier to his home at Udhampur and had returned back. He does not know as to whether Roop Lal also possessed such a lathi. The lathi was not bloodstained as the injury had not caused bleeding from the head. He had gone one month earlier to his home at Udhampur and had returned back. He is making the statement of his own will and has not compelled by anyone to make the statement. He has further stated that he had been informed by constable upon a summons. He was working with the matador for last 2/3 days at that time. He has denied that he was putting up that time in the house of Roop Lal for 3-4 days. He has denied the fact that he has not witnessed the occurrence as he was at the brick-kiln at that time. He has also denied that he has been-produced by Roop Lal for making statement there and has been pressurized. The police had not read over the report to him and his statement had been recorded by police on the shop of injured. He has denied having made the statement after receiving money. He has categorically stated that he had witnessed the occurrence himself. PW2 Manohar Lal S/o Roop Lal who happens to be brother of injured, has stated that accused is known to him. He is a shop-keeper and has Karayana shop at village Padyari. Besides him, his father and brother also sit on that shop. He drives matador No.6696/JK02C that belongs to them. They have sold that matador now. He was plying the matador at Kathu-Padyari road. Pritam Singh was the conductor of that matador with him. On 23rd Oct. 95 he started the matador at 6.30 from Kathua towards Padyari, reached Padyari at 7 in the evening, halted the matador in front of the shop. The passengers alighted from the matador and went towards their houses. The accused Karan Dass was seated on the roof of the matador and was vomiting whereupon he asked him to come down from the roof of the matador. The accused came down and started calling names. His brother Tarsem and father Roop Lal were on the shop, they asked accused not to call names. The accused ran towards his house and came on spot with a bamboo-1athi. The accused came down and started calling names. His brother Tarsem and father Roop Lal were on the shop, they asked accused not to call names. The accused ran towards his house and came on spot with a bamboo-1athi. No sooner the accused came with the bamboo-lathi, on spot, he hit on the head over the ear of TarsemLal and started running, He and his father tried to catch hold of the accused and his father snatched the lathi from the accused and accused made good his escape. Tarsem Lal s/o Chhajju Ram, who was knowing driving was requested to carry the injured in that matador to Nagri Hospital. The injured was laid in the matador and said Tarsem Lal plied the matador for Nagri. Pritam Singh-conductor also went with them. He and his father had to close the shop thus could not accompany the injured. After closing the shop he and his father went to Nagri Hospital on a scooter. At Nagri Hospital doctor was attending the injured and attended the injured for half an hour to one hour but thereafter asked them to shift the injured immediately to Kathua Hospital as condition of the injured was not good. The injured was unconscious and unable to speak. On the advice of the doctor they shifted the injured in the matador to Kathua Hospital. They reached Kathua Hospital at about 9 0'clock. The doctors attended the injured and upto 11.30 night the doctor advised them to shift the injured immediately to Ludhiana as condition of the injured was not good whereupon they carried injured in the same matador to Ludhiana and reached DMC, Ludhiana at 4 in the morning, admitted the injured in the Hospital at Ludhiana. In the evening at 6 this witness, Matador driver Tarsem Lal s/o Chajju Ram returned and remained at his home for the night and next day in the morning he again went to Ludhiana. He remained with injured Tarseem for 5-7 days at Ludhiana and thereafter retuned. Injured remained in an unconscious state in the Hospital at Ludhiana and could not talk. The injured was operated upon and remained admitted for 1 months in the Hospital at Ludhiana, but did not get cured. The doctors declared that the injured cannot recover now so be taken home. Whereafter they brought the injured back to home. Injured remained in an unconscious state in the Hospital at Ludhiana and could not talk. The injured was operated upon and remained admitted for 1 months in the Hospital at Ludhiana, but did not get cured. The doctors declared that the injured cannot recover now so be taken home. Whereafter they brought the injured back to home. On 15.12.95 when he and his father were in the shop at Padyari, police came there, police seized that lathi which had been snatched by his father from the accused. The seizure memo was prepared which bears his signature and contents have been admitted as correct by him, same has been marked as ExPW-ML. Since his father had remained with the injured as attendant of the injured in the Hospital at Ludhiana so their shop remained closed thus the lathi could not be produced before police. The lathi has been marked as EXP-1 for having been identified by the witness. He has further stated that his brother is at home but is still unable to talk and is not in senses, cannot walk, is unable to move and passes urine and latrine on the bed itself. The condition of the injured is not good. His father has also died some 18-20 days before viz. from 12.7.96, the day witness has appeared here. His father has died 18-20 days before, because of the agony & not bearing condition of his son injured. DMC Ludhiana is a private Hospital and all expenses for the injured about 1,50,000/- had to be borne by them and was paid by them. The matador was also sold to meet those expenses, whatever record was provided to them by Hospital has been collected by him and has been produced by him besides the expenditure statement incurred by them. In cross-examination he has stated that on the date of occurrence he was himself driving the matador. He has a valid licence from Hoshiarpur Punjab. On the date of occurrence he was having a licence but thereafter did not continue it. As he was driving the vehicle so he cannot say as to how many passengers were on the roof of the matador. At the time he started matador from Kathua at that time besides accused 2 passengers were also on the roof of the matador. When he saw accused at Kathua before starting the matador, he had not consumed liquor. As he was driving the vehicle so he cannot say as to how many passengers were on the roof of the matador. At the time he started matador from Kathua at that time besides accused 2 passengers were also on the roof of the matador. When he saw accused at Kathua before starting the matador, he had not consumed liquor. Two years prior to the occurrence when for the first time he had plied the matador the villagers of Village Jakhar including one Kalu S/o Kunju Brahman had torn his matador with drat and had attacked the passengers for which report had been lodged with police. He has denied that he had to pay the wages to accused Karan Dass as accused had worked with the vehicle as Conductor for 3-4 months prior to the occurrence. His brother or father had not to furnish any account to the accused. The house of accused is at a distance of 25 yards on the back of his shop. The house of Tarsem Lal s/o Chahajju Ram-witness was on the back of his shop. The matador used to stop in front of the shop of one Subhash where the passengers used to alight. He being driver thus was not in a position to see as to how the passengers had boarded the vehicle or alighted from the vehicle. When accused hit the injured he and his father chased the accused for a distance of 7-8 yards. When accused had hit his brother that time he and his father were inside the shop at a distance of 15 feet from the place of occurrence. He and his father immediately ran after the accused. His father was 55 years of age and was not a fatty person. The accused had not hit him or his father at the time of snatching the lathi from him. At the time the accused inflicted injury on his brother, he was seated while as his father was standing on the shop. They are having 2 shops so he and his father started closing the shop and it took them about 15 minutes. He has denied that he and his father were not present on spot so reached the Hospital late and had not accompanied the injured. They are having 2 shops so he and his father started closing the shop and it took them about 15 minutes. He has denied that he and his father were not present on spot so reached the Hospital late and had not accompanied the injured. He has denied that he has parked the vehicle in front of the shop and a quarrel had ensued between him and passengers and accused and he had tried to beat accused whereupon accused had called names. No altercation between him and accused had taken place but accused had called names and he had asked the accused to behave properly. There was no enmity between him and the accused. There was no enmity between accused and his brother and father, but the accused used to tell that he has to take some money from him so about enmity the accused might be knowing. Like the lathi present in the court, other lathis can be available from the shops and can be in the houses of other persons. The lathi after snatching it from the accused had been kept in the shop had not been handed over to the police on the date of occurrence. It is correct that when injured fell down after being hit became unconscious and did not talk. The injured after sustaining injury only talked to Tarsem Lal s/o Chhajju Ram and told him that accused had hit him with a lathi so he be immediately taken to Nagri. He had made such a statement before police under S.161 Cr.P.C. that injured had talked to Tarsem Lal that he has been hit by accused with a lathi and thereafter he became unconscious. He had also told police that accused after calling names had went to his house and had retuned on spot from his house along with Lathi, but this portion is not in the statement under S. 161 Cr.P.C. Why it has not been written he cannot explain but he is sure that accused got the lathi from his home. The statement under S.161 Cr.P.C to the effect that accused had to take accounts from this witness is not correct, the police had recorded it of its own. The police recorded his statement on 31st Oct. 95 but about lathi his statement had been recorded on 15-12-95 the day lathi has been seized. The statement under S.161 Cr.P.C to the effect that accused had to take accounts from this witness is not correct, the police had recorded it of its own. The police recorded his statement on 31st Oct. 95 but about lathi his statement had been recorded on 15-12-95 the day lathi has been seized. He had stated before police on 31-10-95 that his father had snatched the lathi from accused but this is not mentioned in that statement under section 161 Cr.P.C. He has denied that the case against the accused is fabricated or false. He has also denied that the lathi had not been snatched from the accused and some other lathi has been produced. He has denied that people of Padyari had pelted stones on them as a result his brother had sustained injury. He has also denied that they had misbehaved with passengers. He has also denied that he had to pay Rs. 5000/- to the accused so the case has been framed against the accused. Witness Tarsem Lal has not remained driver with his vehicle. He has denied that Pritam Singh was putting up at their house. He has also denied that witness Pritam Singh and Tarseem Lal being his employees have appeared his witness. The lathi had been produced at the shop and at that time besides him his father was present there. The lathi was 4 feet in length. In front of his shop the shop of Subash is there. Accused returned from the home after 2 minutes. The movement of people remains in lanes and bye-lanes but in the winter season at 7 in the evening the movement gets effected. At the time of occurrence no customers were on the shop. PW-3 Tarsem Lal s/o Chajju Ram has stated that the accused is known to him and the injured Tarsem Lal is also known to him. Injured has one Karyana shop in village Padyari. Manohar Lal, brother of injured, was plying his own matador-6696/JK02C and Pritam Singh was conductor of that matador. He (witness) was also plying the Matador. On the last Diwali last year at 7/7-30 evening time Manohar Lal came back with the matador. The witness heard noise and came on spot, found that matador was parked there and saw Tarsem Lal had injury above the ear. Manohar Lal and Roop Lal were also there. He (witness) was also plying the Matador. On the last Diwali last year at 7/7-30 evening time Manohar Lal came back with the matador. The witness heard noise and came on spot, found that matador was parked there and saw Tarsem Lal had injury above the ear. Manohar Lal and Roop Lal were also there. Roop Lal and Manohar Lal told that witness that accused caused the injury to the injured with a lathi. He was asked by father of the injured to shift the injured to Nagri whereupon they laid the injured in the matador and he drove that matador to Nagri Police Station, Conductor Pritam Singh was with him. Pritam Singh reported the matter to police at Nagri and thereafter police accompanied them to Nagri Hospital and in the Nagri Hospital the doctor started treating the injured. Meanwhile, brother and father of the injured also reached Hospital. After half an hour-one hour the doctor referred the injured to Kathua Hospital. The injured did not speak, was unconscious. Witness brought the injured in the matador to Kathua Hospital where they reached at 9-9.30. Besides injured Pritam Singh, Roop Lal, father of the injured had accompanied this witness to Kathua Hospital. In the Kathua Hospital doctors treated the patient but at 11.30 referred him to Ludhiana. Injured did not speak in Kathua Hospital. They left Kathua Hospital at 11.30, night time for Ludhina and reached Ludhina in the morning at 4 O'clock. They took the injured to DMC at Ludhiana where the injured was admitted and that next day at 6 in the evening he returned for Kathua alongwith the matador. The injured did not speak during the journey and was unconscious. Manohar Lal and Pritam Singh had returned with him. Manohar Lal remained at home for the night and on the next morning again left for Ludhiana. Injured remained admitted in the Ludhiana Hospital tor 1 ½ month, at present is at his home, unable to speak. The shop of injured remained closed for about one month as Roop Lal and Manohar Lal were attending the injured at Ludhiana Hospital. The report of the Roznamcha DEXPW-PS bears his signature, that he has identified. The accused had not inflicted the injury upon injured with the lathi present in the court in his presence; the witness has been declared hostile by the prosecution and subjected to cross-examination. The report of the Roznamcha DEXPW-PS bears his signature, that he has identified. The accused had not inflicted the injury upon injured with the lathi present in the court in his presence; the witness has been declared hostile by the prosecution and subjected to cross-examination. In the cross-examination by P.P. the witness has stated that the house of accused is at a distance of 20-25 yards from the shop of injured while as the house of this witness is at a distance of 15-20 yards from the shop of Manohar Lal. He had heard the alarm in his house and had come out. He did not see accused on spot. The injured had told him that accused person had hit him with a lathi. The injured had hardly spoken these words and had thereafter fell down-unconscious. Matador was parked in front of the shop of the injured. The injured and father of the injured used to sit on the shop. Father of injured is also dead for the last 15-20 days. He immediately laid the injured in the matador and plied the matador towards Nagri. Pritam Singh was also with him. Father and brother of injured Roop Lal and Manohar Lal had started closing their shops and thereafter reached Hospital at Nagri. The accused was conductor with the matador of injured prior to occurrence and had worked as such for 3-4 months. The accused had no dispute of wages with Manohar Lal. The statement attributed to him to the effect that accused got enraged and hit with bamboo lathi with intention to kill Tarsem Lal who was on the shop that hit Tarsem Lal above the 1eft ear whereupon he and others intervened and rescued is not correct. In his presence the accused did not call names either Monohar Lal or brother of Manohr Lal or father of Manohar Lal. The statement under S.161 Cr.P.C. to that effect is not correct. He has denied that the accused being from his village, his neighbour thus is making a statement to screen the accused. The injured has shop at Village Padyari but is basically resident of Muthi Jagir which is at a distance of l km from Padyari. Shops of one Subhash and Kalu Brahman are in front of the shop of injured. He has denied that the accused being from his village, his neighbour thus is making a statement to screen the accused. The injured has shop at Village Padyari but is basically resident of Muthi Jagir which is at a distance of l km from Padyari. Shops of one Subhash and Kalu Brahman are in front of the shop of injured. After hearing the alarm when he came on spot, Roop Lal, Manohar Lal and Pritam Singh were there and none else except children was present. Besides, some villagers had also gathered on spot. In cross-examination by counsel for defence he has stated that the matador was parked on the road and the shop of the injured is on the North while the shop of Subhash and another is on the West- side. The passengers who travelled by matador from Kathua to Padyari alight from the matador on the side of the shop of Subhash and are not visible from the shop of injured because in between, the matador blocks the view. His statement under S.161 Cr.P.C to the extent that he has seen the occurrence himself and intervened is not correct. When he reached on spot he noticed injured near the matador on the side of his own shop. He had been called by Pritam Singh conductor from the place from where he was standing. Tarsem had called him. The injured had told him that accused inflicted the injury to him. This had been told by injured to him when injured was outside his shop standing near a pulli. The pulli is attached with a shop, Police had approached him on two occasions. He had gone to the Police Station only on that day when injured had been brought by them. It is correct that Manohar Lal and father Manohar Lal were present on spot. Nobody had told that accused had consumed liquor. PW 4 Roop Lal, who happens to be the father of PW2 Manohar Lal and that of injured Tarsem Lal, has died during the pendency of the case. PW 5 Bishamber Dass Constable 270-K has stated that in the month of October, 95 he was posted in Police Post, Nagri. On 15-12-95 he along with Bachan Lal had proceeded to Padyari in connection with investigation of the case and had gone to the shop of Roop Lal. PW 5 Bishamber Dass Constable 270-K has stated that in the month of October, 95 he was posted in Police Post, Nagri. On 15-12-95 he along with Bachan Lal had proceeded to Padyari in connection with investigation of the case and had gone to the shop of Roop Lal. Roop Lal produced one lathi before the I.O. that was seized and he signed the seizure memo. The contents of seizure memo have been admitted as correct by him and has identified his signatures, same has been marked as EXPW-ML. The lathi present in the court Exp.1 has also been identified by him. Besides Roop Lal had also produced Photo copies of the discharge record that was seized vide seizure memo which bears his signatures, contents are correct, same has been marked as ExPW-BD. In cross-examination he has stated that they had gone to Padyari at 3.30 to 4 O'Clock. The investigating Officer was with him. The investigating Officer asked Roop Lal to hand over the lathi as that is required to be seized. At that time Manohar Lal s/o Roop Lal was also present. Said Roop Lal has a shop with the roads side and happens to be a busy place. PW6 Dr. Bal Krishan Kundan M.O. has stated that on 23-10-95, I was posted at P.H.C Parole District Kathua, I examined Tarseem Lal s/o Sh. Roop Lal R/o Muthi Jagir, Tehsil and District Kathua brought to me by Sh. Yog Raj Singh, constable No.330, P/P Parole. On general examination I found that person was unconscious. 2. Pupil-reacting to light slightly, 3-Planter reflex-right side-nil. On local examination I found the following injury on his person:- (1) A cane mark on the left side of the head involving the upper third of pinna, bleeding from left ear. Patient was advised X-rays skull. After advice of X-ray, the patient was referred to District Hospital, Kathua for skia-gram and further management. Definite opinion of the injury was kept reserved till the report from District Hospital received. The injury was caused by blunt object. Duration was within six hours. This certificate is in my hand and bears my signature. It is marked as ExPW-BK On 29th of December, 95 at 3. 30 PM the police produced lathi before me for my opinion. I have opined that injury could be caused with the said lathi. Certificate is in my hand and bears signature. Duration was within six hours. This certificate is in my hand and bears my signature. It is marked as ExPW-BK On 29th of December, 95 at 3. 30 PM the police produced lathi before me for my opinion. I have opined that injury could be caused with the said lathi. Certificate is in my hand and bears signature. It is marked as ExPW-BK/1. The lathi bears my signature and is the same which was shown to me by the police. This lathi has already been marked ExP-1. On the same day i.e. 29-12-95 the police brought Tarseem Lal-injured before me for his examination. I have given my opinion as under: Patient was not conscious, not responding to oral command, hence he was unable to make his statement. This certificate bears my signature and it is marked as ExPW/2. Since at the time of first examination, the injured was found bleeding from the left ear which shows that there was internal head injury. Some time, such type of injury sufficient in ordinary course, to cause death, Such injury lead to the unconsciousness of the injured. And in case internal damage is more, the unconsciousness may be permanent. Such type of injury disable the person to speak and to move, and the person 1ooses control of body due to such injury. I have seen the patient in the court today to whom I examined twice. I have examined him, today in court, clinically and he is still unable to control his body and unable to speak and understand and is irritable. On cross-examination by defence counsel the witness stated that since there was no other associated injury, it could not be possible by fall. This injury could also not be possible by a stone. On the first day, when the injured was brought to me, I examined him thoroughly, The general examination findings have been reflected in the certificate. The injury involved upper one third portion of left ear and the temporal region. No more question asked in cross-examination. PW7 Mohinder Sharma, the then Tehsildar, Kathua who is witness to the attestation of the photo copy of the discharge certificate of the injured has not been examined but in his place as stated her hereinabove one witness from the DMC, Hospital, Ludhiana, Sh. No more question asked in cross-examination. PW7 Mohinder Sharma, the then Tehsildar, Kathua who is witness to the attestation of the photo copy of the discharge certificate of the injured has not been examined but in his place as stated her hereinabove one witness from the DMC, Hospital, Ludhiana, Sh. Ram Sewak Supervisor has been examined under S.540 Cr.P.C. Said witness has made a statement on 19-5-98 and has stated that he is working with DMC Hospital Ludhiana for the last 15 years. He has brought the record of Tarseem Lal injured with him. As per record of the DMC Hospital, Ludhiana Tarseem Lal-injured has been admitted in the Hospital on 24.10.95 and has been discharged on 13-12-95. During the period with effect from 24.10.95 to 13.12.95 Tarseem Lal-injured was treated as outdoor patient and as per record doctors Sh. R. K. Kushan and Dr. T. N. Shardangi treated the injured. The latter doctor has left DMC, Ludhiana and has joined different Hospital at Satlus Hospital Saraba Nagar, Ludhiana while as Dr. R. P. Kushan is still in DMC Lidhaina. An amount of Rs. 36294/-has been deposited for Tarseem Lal in the Hospital at the time of discharge and medicines had been purchased out of Hospital. Injured Tarsem Lal was a case of head injury, admitted and treated in the Hospital. As per case History, Tarsem Lal had been attacked by some body and that had caused the injury to him. The discharge card on record is from their Hospital and the entries thereof are correct as per record. Same has been marked as ExPW-R. In cross-examination the witness had stated that the admission papers of the patient are prepared by the clerk and the record of the patient comes in the hands of Supervisor when the patient is discharged from the Hospital. Tarsem Kumar has been admitted in the Hospital on 24-10-95 at 6 in the morning and that very day he had been operated upon. PW 8 Prabh Dayal HC No.75 has stated that in the month of October 95 he was posted in police post, Nagri Parole. On 29th October-95 he was sent by the Incharge Police Post to record the statement of Tarsem Lal injured to DCM, Ludhiana. PW 8 Prabh Dayal HC No.75 has stated that in the month of October 95 he was posted in police post, Nagri Parole. On 29th October-95 he was sent by the Incharge Police Post to record the statement of Tarsem Lal injured to DCM, Ludhiana. He submitted an application to the doctor with a prayer for recording the statement of the injured but the doctor certified that the injured is not fit to make a statement. The application bearing the certificates on record has been identified by him to be in his hand writing, same has been marked as EXP-PD. The application dated 29-10-95 has been addressed to Medical Surgeon, DMC Hospital, Ludhiana whereupon one Resident Dr. S. Pawal Neuro-Surgery has written "patient is unfit for statement". It is dated 29.10.95 at 8.25 AM. PW 9 Sh Paran Nath Sharma SI police has stated that on 23-10-95 he was posted as Officer Incharge Police Post, Parole. The complainant accompanied by conductor matador No.6696/JK02C lodged a verbal report that was entered as report no.16 in the daily diary (Roznamcha) dated 23-10-95, copy whereof was sent to Police Station, Kathua whereupon a case bearing FIR no.280/95 was registered under S.307 RPC and the Investigation was entrusted to him. He prepared the site plan that has been marked as ExP. PN, recorded the statement of Pritam Singh-complainant under S.161Cr.P.C. Part investigation of this case has been conducted by Sh, Bachan Lal and Prabh Dayal HCs. He submitted a docket on 29-12-95 before doctor regarding the weapon of offence whereupon doctor reported as Certificate ExP-BK/1. The doctor has certified that the weapon produced before him i. e. the lathi on 29-12-95 can cause the injury No.1 on the patient Tarsem Lal MLC No. 2692 and the weapon bears his signature. This certificate is in the hand of PW-6 Dr. Bal Krishan. The docket to this effect on record has been identified by him to be in his handwriting and bearing his signature, that has been marked as ExP.PN/1. On the same day viz. 29-12-95 he had submitted another docket to medical officer as to whether patient was fit to make a statement and what was the condition of the injured, that docket has been identified by him to be in his handwriting, bearing his signature and has been marked as ExP-PN/2. On the same day viz. 29-12-95 he had submitted another docket to medical officer as to whether patient was fit to make a statement and what was the condition of the injured, that docket has been identified by him to be in his handwriting, bearing his signature and has been marked as ExP-PN/2. He has further stated on the back of this docket the doctor has given his opinion as ExP-BK/2. This certificate has been issued by the Dr. Bal Krishan PW6 and has certified that he examined the patient on 29-12-95 at 1.45 PM and has certified that Tarsem Lal s/o Roop Lal R/o Muthi Jagir, Teh. & District Kathua aged 33 years is not conscious, not responding the oral command, hence unable to make statement. In cross-examination the witness has stated that on 29.12.95 the injured had been brought to his home from the Hospital. He himself had not gone to Ludhiana Hospital to ascertain the condition of the injured but had deputed another police official for the said purpose, He prepared site plan on spot and at the instance of witnesses Amar Nath, Manohar Lal, Hans Raj, Kali Dass, Raghbir Singh and complainant the site plan was prepared on 30-10-95 seven days after the occurrence but the site plan does not bear any date. He had gone to spot on 24-10-95 and thereafter on 30-10-95. On 23-10-95 because of the time being night time he had not proceeded on spot. Report had been entered in the Roznamcha at 8.45 PM night time, Statement of complainant had been recorded by him on 30-10-95. Bachan Lal HC had gone to Ludhiana on 26-10-95 for recording the statement of injured and on his return he reported that injured is not fit to make a statement. In his investigation it was not revealed as to wherefrom accused came along with the lathi, but as per statement of Pritam Singh, the accused was armed with a lathi. In the investigation it was not revealed that accused had gone home and had returned with a lathi. It had not come in his investigation that the injured had stated about the infliction of injury to him in the occurrence. The complainant had not mentioned in the report that he had been told by injured about the occurrence. In the investigation it was not revealed that accused had gone home and had returned with a lathi. It had not come in his investigation that the injured had stated about the infliction of injury to him in the occurrence. The complainant had not mentioned in the report that he had been told by injured about the occurrence. The companion of the complainant had corroborated the statement of complainant but had not disclosed that injured had talked to him. As per the statement of complainant there was previous enmity between injured and the accused and had problem of some accounts. The injured had been brought to the police post and thereafter taken to the Hospital. Police Post is 8 kms., away from the place of occurrence and the matador would have taken half an hour to cover the distance. Complainant did not disclose as to what was the reason for their late arrival in the Police Post. During the days of occurrence it used to be dark at 7 in the evening. The persons who were present on spot at the time of preparing the site plan were not cited by him as witnesses and their statements were not recorded. The complainant did not disclose to him the reason as to why there relations and parents of injured did not report to police with the injured. On the date of occurrence none came to the police post after the report was lodged as the injured had been shifted to the Hospital at Kathua. Accused had been arrested on 3-11-95 and not on 2-11-95. Witness Tarsem Lal S/o Chhajju Ram is an eye witness and had witnessed the occurrence. He does not remember as to whether shop of one Subhash is there on spot. The shop of injured is adjacent to the place of occurrence as has been shown in the site plan, the occurrence did not take place inside the shop. PW 10 Sh. Bachan Lal HC has stated that on 22-11-95 he was posted as Incharge head constable Police Post, Parole. Investigation of the present case FIR 280/95 was partly conducted by him. He seized one bamboo lathi produced by Sh. Roop Lal, father of the injured and prepared site plan ExPW-ML which is in his hand writing and bears his signature, the contents thereof are correct. Investigation of the present case FIR 280/95 was partly conducted by him. He seized one bamboo lathi produced by Sh. Roop Lal, father of the injured and prepared site plan ExPW-ML which is in his hand writing and bears his signature, the contents thereof are correct. Roop Lal, Des Raj and other witnesses had affixed signatures on the said seizure memo in his presence. Besides, he seized one photo-copy regarding injured Tarsem Lal produced by Roop Lal for which seizure memo ExPW-BL is on record which is in the handwriting of the witness and bears his signatures, the contents whereof are correct. The injury form of Tarsem Lal is in his hand writing and bears his signatures; same has been marked as Ex PW-BL. On 30-12-95 he submitted a docket to Supdt. District Hospital, Kathua as to whether Tarsem Lal had been admitted in the Hospital or not. The docket to this effect in his handwriting bearing his signature is on record and has been marked as ExPW-BL/1. On the back of this docket Medical Spdt. Distt. Hospital, Kathua endorsed his report. The certificate by Medical Supd. District Hospital, Kathua bearing No.DIK/1737 dated 30-12-95 is to the effect "as verified from MLC Register dated 23-10-95 and 24-10-95, Sh. Tarseem Lal S/o Roop Lal R/o Muthi Jagir, The. Kathua has not reported and entered by the doctor as MLC case on the MLC Register of the District Hospital Kathua". The witness has further stated that he recorded statements of witness Roop Lal and has identified the lathi in the court. In cross-examination he has stated that he had seized lathi on 15-12-95 and at that time Bishambar Dass constable was with him. Shop of Roop Lal is situated in Padyari abutting the main path. He had gone on spot at 4.30 to the shop of Roop Lalwhere the lathi had been seized. Matadors pass nearby the shop of Roop Lal. Other shops are also there besides the shop of Roop Lal and people move there. Roop Lal had himself produced the lathi, he had gone to Roop Lal in connection with investigation of this case. Roop Lal, Manohar Lal and Bishambar Dass are witnesses to the seizure of lathi. Manohar Lal is son of Roop Lal. Other shops are also there besides the shop of Roop Lal and people move there. Roop Lal had himself produced the lathi, he had gone to Roop Lal in connection with investigation of this case. Roop Lal, Manohar Lal and Bishambar Dass are witnesses to the seizure of lathi. Manohar Lal is son of Roop Lal. He had gone to the house of Roop Lal prior to 15.12.95 as well but had come to know that Roop Lal was out at Ludhiana attending his injured son. Injury form was prepared by him on 23.10.95 and inadvertently the date has been mentioned as 23-10-93. PW Ram Sevak Panday-Supervisor Daya Nand Medical College, Hospital Ludhiana, has stated that he has brought the record of Tarseem Lal injured; as per record Tarseem Lal was admitted in DMC on 24.10.1995 and was discharged on 13.12.1995; injured was treated as indoor patient; he was treated by Dr. R.K. Koushal and T.N. Shardangi; Dr.T.N. Shardangi has left the hospital; whereas Dr. R.K. Koushal is working in hospital; injured has deposited Rs. 36,294/- as treatment charges; however medicines were purchased from outside; Tarseem lal was admitted as a case of head injury; as per case history injured was attacked by someone and so sustained injuries; discharged card is in file; it is correct as per record; it is marked as EXPW-R. On cross examination stated that patient is to be admitted by concerned clerk; he used to be in possession of record after patient is discharged from hospital. Injured was operated in hospital. The accused in his statement under S. 342 Cr.P.C. on 03.8.1999 has stated that the witnesses have made false statements as they happened to be the close relations of the injured. This reply has been furnished by him to all the material questions put to him for his explanation. He has been also asked as to whether he wants to add or state anything more he has stated "No". 9. I have given my thoughtful consideration to whole aspects of the matter. 10. It is settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. 11. The fact in issue can be decided by direct evidence and circumstantial evidence. 9. I have given my thoughtful consideration to whole aspects of the matter. 10. It is settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. 11. The fact in issue can be decided by direct evidence and circumstantial evidence. Admittedly in the present case, injured-Tarsam Lal S/o Roop Lal R/o Padyari Muthi Jagir though alive has not been examined during investigation and trial on account of fact that from the date of attack till conclusion of trial, he has lost the power of speech and power of hearing, which is the direct result of the alleged occurrence. Court below has held that injured was examined by the then Medical Officer, PHC, Parole on 23rd Oct. 95 at 9.15 PM vide MLC No.24692 and the doctor noticed a cane mark on the left side of head involving upper third of pinna, bleeding from the left ear; injured was referred to District Hospital, Kathua for skiagram and further management. The statement of PW Dr. Bal Krishan Kundn who was the then Medical Officer PHC, Parole District Kathua, was recorded and he has proved the medical certificate EXPW-BK; he has also proved the contents written in certificate EXPW-BK/1 that the injury noticed on the person of injured Tarsem Lal by him could be possible with the said lathi, when lathi EXP-1 was produced before him for opinion; Injured was referred to District Hospital Kathua; but as per prosecution witnesses Pritam Singh, Manohar Lal and Tarsem Lal, injured was not admitted in the District Hospital, Kathua; Medical Supdt., District Hospital, Kathua vide certificate No.DHK/1737 dated 30-12-95, has stated that Tarsem Lal injured has not reported and entered by the doctor as MLC case on the MLC Register of the District Hospital Kathua on 23- 10-95; this certificate has been entered on the back side of docket EXPW-BL/1 issued by I/O on 30.12.1995; PW Sh. Bachan Lal HC who partly conducted the investigation has proved EXPW-BL/1 and has stated about the same; injured was admitted on 24.10.95 in DMC Ludhiana and was discharged from the Hospital on 13.12.95 as a case of head injury and as per case history he had been attacked by some person. Bachan Lal HC who partly conducted the investigation has proved EXPW-BL/1 and has stated about the same; injured was admitted on 24.10.95 in DMC Ludhiana and was discharged from the Hospital on 13.12.95 as a case of head injury and as per case history he had been attacked by some person. The witness Ram Sevak Ponday, Supervisor of Daya Nand Medical College, Ludhiana, was examined in this case on 19-5-1998; this witness produced the record of injured and the original discharge card of Tarseem Lal-injured ExPW-R which corroborates the fact of injuries on injured on left front temporal EDH with ARE; as per certificate injured was admitted on 24-10-95 and discharged on 13-12-95 with CR No.85258 admission No.19847. The I.O PW9 Pran Nath Sharma also made a request to BMO, Parole vide docket EXP-PN/2 to the effect that Tarsem Lal had sustained injury on 23-10-95 and has resumed to his home on 13-12-95 from DMC, Ludhiana after treatment but was still not conscious and unable to speak, so challan is required to be produced in the court so examination of injured be made and certificate be issued accordingly as to whether said Tarsem Lal-the victim, was able to speak and was conscious; on his request PW Dr. Bal Krishan went to the house of victim at Muthi Jagir, Teh. & District, Kathua on 29-12-95 and had found that patient viz. victim was not conscious, not responding to oral command and unable to make statement; PW6 Dr. Bal Krishan appeared before court and proved certificate ExPW-BK/2. 12. This all proves that injured Tarsem Lal S/o Roop Lal R/o Padyari Muthi Jagir, though alive has lost the power of speech and power of hearing due to injuries sustained in occurrence. Although injured was not examined, but court has to take cognizance of offence and punish the accused on probability of facts proved during trial. 13. Now question arises as to whether, it is accused who was author of crime as projected by prosecution. 14. The prosecution case is that accused Karan Dass with intention to kill and commit murder of Tarsem Lal on the basis of previous enmity has hit Tarsem Lal on 23.10.1995 at Padyari, with the bamboo lathi on the head over the left ear as a result Tarsem Lal fell on the ground and became unconscious. 15. 14. The prosecution case is that accused Karan Dass with intention to kill and commit murder of Tarsem Lal on the basis of previous enmity has hit Tarsem Lal on 23.10.1995 at Padyari, with the bamboo lathi on the head over the left ear as a result Tarsem Lal fell on the ground and became unconscious. 15. Pws Pritam Singh S/o Jaimal Singh, Manohor Lal and Tarseem Lal S/o Chajju Ram have been cited as eye witnesses. PW Pritam Singh S/o Jaimal Singh, who happened to be the conductor of Matador belonging to father of the injured- victim has stated that accused inflicted the injury by hitting with a lathi on the head of Tarsem Lal as a result Tarsem Lal fell on the ground and accused tried to make good his escape from the place but Roop Lal, father of the injured tried to catch hold of accused and in the process Roop Lal snatched that lathi from the accused and accused fled from that place; the reason has been given by the witness that on that day viz. 23.10.95 the accused travelled in the Matador bearing No.6696/JK02C on the roof of Matador started from Padyari at about 6.30 in the evening. The Matador stopped near the shop of Tarsem Lal, when the passengers alighted from the matador, accused started vomiting on the roof of the Matador for which objection was raised by the driver of the matador Manohar Lal, whereupon accused started calling names and at that time Roop Lal, father of the injured, was on the shop of injured; accused came down from the Matador, went towards his home and came 2 minutes thereafter armed with lathi and immediately struck on the head of Tarsem Lal with that lathi. PW Tarsem Lal S/o Chhajju Ram a driver by profession was on spot who was called and plied the Matador upto Nagri Police Post where the report was lodged by Pritam Singh and Tarsem Lal; after the report was entered by police and their signatures taken, one police person accompanied them to Nagri Hospital where doctor referred the injured to Kathua Hospital. In Kathua Hospital, the doctor examined the injured, noticed the condition of the injured serious asked them to shift the injured to Ludhiana whereupon they carried the injured to Ludhiana Hospital. In Kathua Hospital, the doctor examined the injured, noticed the condition of the injured serious asked them to shift the injured to Ludhiana whereupon they carried the injured to Ludhiana Hospital. PW 2 Manohar Lal who happens to be brother of the injured, has stated that he was the driver of the Matador 6696/JK02C on 23-10-95, the matador plied on Kathua Padyari route and Pritam Singh was his Conductor. At 6.30 they started journey from Kathua and reached Padyari, parked the vehicle near his shop, the passengers went to their homes but accused remained seated on the roof of the matador and started vomiting whereupon he asked the accused to come down from the roof and having coma down accused has called names. His elder brother Tarsem and father Roop Lal were on the shop, they also asked accused not to call names. Accused went to his home, brought a bamboo lathi and struck on the head of Tarsem Lal over the ear and started fleeing from that place whereupon this witness and his father tried to catch hold of the accused but the father of the witness Roop Lal managed to snatch the lathi from the accused and accused ran away. PW Tarsem Lal S/o Chhajju Ram was on spot, a driver by profession, was requested to drive the matador and he and his father started closing the shop and the injured in a unconscious condition was taken to Nagri Police Post and Hospital by said Tarsem Lal S/o Chhajju Ram and Pritam Singh conductor. The witness and his father immediately came to Nagri wherefrom they came to Kathua Hospital as the condition of Tarsem Lal-injured was serious and had been referred to District Hospital Kathua, where the doctors advised them to shift to Ludhiana whereupon they took the injured in the same matador, they reached on 24th Oct 95 in the morning hours where the injured was admitted and remained admitted up to 13.12.95. 16. 16. Both these witnesses have corroborated the fact in issue that on fateful day accused hit the injured with Lathi on the head of Tarsem Lal over the ear, with the result Tarsem Lal fell on the ground and accused tried to make good his escape from the place but Roop Lal, father of the injured tried to catch hold of accused and in the process Roop Lal snatched that lathi from the accused and accused fled from that place. 17. During course of trial, father of injured, PW Roop Lal died due to shock of injuries sustained by his son. 18. Although PW Tarsem S/o Chajju Ram, who was cited as eye witness and drove the matador and took the injured in an unconscious condition to Nagri Police Post and Hospital, has been turned hostile during trial and stated that accused had not inflicted the injury upon injured with the lathi present; but he has proved all other relevant facts that on fateful day Manohar Lal brother of injured, was plying his own matador 6696/JK02C and Pritam Singh was conductor of that matador; that on the last Diwali last year at 7/7-30 evening time Manohar Lal came back with the matador; he (witness) heard noise and came on spot, found that matador was parked there and saw Tarsem Lal had injury above the ear. Manohar Lal and Roop Lal were also there. Roop Lal and Manohar Lal told him (witness) that accused caused the injury to the injured with a lathi. He was asked by father of the injured to shift the injured to Nagri whereupon they laid the injured in the matador and he drove that matador to Nagri Police station. Conductor Pritam Singh was with him. Pritam Singh reported the matter to police at Nagri and thereafter police accompanied them to Nagri Hospital and in the Nagri Hospital the doctor started treating the injured. 19. Now law is clear that statement of hostile witness cannot be disbelieved as whole; the facts narrated by hostile witness which support the facts in issue or other relevant facts, can be taken note by the Court. 20. Further, initial report lodged in Roznamacha 16 dated 23.10.1995 (EXPW-PS) has been admitted by PW Tarseem Lal S/o Chajju Ram. 19. Now law is clear that statement of hostile witness cannot be disbelieved as whole; the facts narrated by hostile witness which support the facts in issue or other relevant facts, can be taken note by the Court. 20. Further, initial report lodged in Roznamacha 16 dated 23.10.1995 (EXPW-PS) has been admitted by PW Tarseem Lal S/o Chajju Ram. There is prompt lodging of FIR on 24.10.1995 and same has been sent to court/concerned magistrate on same day as is evident from perusal of FIR. No manipulation or false implication of accused/appellant can be inferred. Seizure memo of weapon of offence Lathi EXPW-ML has also been proved by PWs Manohar lal and Bishamber Dass constable 270- K. Another PW Roop Lal to seizure memo has died. 21. Counsel for appellant has argued that lathi, the weapon of offence, has been seized on 15.12.1995 after more than fifty days from alleged occurrence, so no reliance can be placed. I have considered this aspect of matter. From the perusal of statement of PWs Manohar Lal and Pritam Singh, it is evident that after inflicting blow of lathi on injured, accused started running towards his own home but father of the injured PW Roop Lal tried to catch hold of him but was able to snatch lathi from his hand and accused managed to escape from that place. There is also evidence that PW Roop Lal remained with his son at DMC Ludhiana for 1-½ months for treatment of injured. After his return from DMC, the alleged lathi was given and was seized. So delay in seizing the weapon of offence has been sufficiently proved. 22. Counsel for appellant has argued that PW Pritam Singh is conductor of matador belonging to father of injured; PW Manohar lal is real brother of injured and PW Tarseem lal S/o Chajju Ram is neighbour of injured, they all are interested witnesses; and so no reliance can be placed. He has relied upon 2018 (3) Supreme 725 case titled Sudhakar @ Sudharasan v. State Rep. by The Inspector of Police, Srirangam Police Station wherein apex court has held that closely related witnesses of accused, who are inimical towards accused with regard to property dispute; no reliance can be placed. 23. He has relied upon 2018 (3) Supreme 725 case titled Sudhakar @ Sudharasan v. State Rep. by The Inspector of Police, Srirangam Police Station wherein apex court has held that closely related witnesses of accused, who are inimical towards accused with regard to property dispute; no reliance can be placed. 23. This argument is devoid of merit, because PWs PW Tarsem Lal S/o Chajju Ram is neighour of both accused and injured; now law is further well settled that mere fact that witnesses are related to victim; their statements cannot be disbelieved, unless accused produces some cogent evidence that these witnesses have animosity with him. I have carefully gone through the cross examination of these witnesses, nothing of such sort have come out. The law cited as above, by counsel for appellant is totally on different facts. 24. Another argument of counsel for appellant is that, injured has talked to PW Tarsem Lal S/o Chajju Ram, so prosecution case is false and without statement of injured, case cannot be proved and accused cannot be convicted. He has brought to knowledge one fact narrated by hostile witness Tarsem Lal, wherein he has stated that "The injured had told him that accused person had hit him with a lathi. The injured had hardly spoken these words and had thereafter fell down-unconscious. This fact narrated by this witness is also of no help to appellant as there is no corroborating evidence in this regard; and even if it is considered as correct, it is evident that injured fell down in unconscious state after speaking these words. Thereafter, there is sufficient evidence that injured was taken to Nagri Hospital; there doctor referred the injured to Kathua Hospital; where doctors treated the injured; Injured did not speak in Kathua Hospital; at 11.30, night injured was taken to Ludhiana, where the injured was admitted where he remained admitted for 1 1/2 months but injured was unable to speak. There is also sufficient evidence that the injured even after discharge from the Hospital is not able to move from the bed at present; he is also urinating on the bed. Another law cited is also on different aspect, not applicable in present case. 25. There is also sufficient evidence that the injured even after discharge from the Hospital is not able to move from the bed at present; he is also urinating on the bed. Another law cited is also on different aspect, not applicable in present case. 25. In view of above discussion and sequence of events as discussed above, I do not find any perversity in finding of court below that accused/appellant on 23.10.1995 at about 7pm at Padyari with intention to kill, on previous enmity, inflicted a blow of lathi on the head of Tarsem Lal S/o Roop Lal, as a result of which injured was seriously injured and till today he is unable to speak. So far as sentence part is concerned, there are mitigating circumstances for imposing lesser sentence than the one passed by trial court as the occurrence had taken place in 1994 and appellant was convicted in 2004 after ten years; now present appeal is lying since 2004 more than 14 years. Further, no compensation has been given to victim, who is still on bed. So a balance can be struck by imposing lesser sentence of imprisonment with increase of fine so as to give compensation to victim. In view of above, the appellant is sentenced to rigorous imprisonment for 3 years under section 307 RPC; however fine is enhanced to two lakh rupees and in default of payment of fine, he shall undergo further rigorous imprisonment for one year. I further direct that out of the amount of Rs. 2 lakh, if realized, Rs. 1,90,000/-, shall be paid to victim as compensation under Section 545 Cr. P.C. 26. In view of above, this appeal is partly allowed by modifying the impugned judgment of conviction/order of sentence, in the aforesaid manner. Bail bonds of appellant are forfeited. Accused/appellant be arrested and sent to jail for undergoing rest of imprisonment.