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2024 DIGILAW 1 (ALL)

Vijay Singh v. State of U. P.

2024-01-02

NALIN KUMAR SRIVASTAVA

body2024
JUDGMENT : 1. This criminal appeal has been preferred against the judgement and order dated 16.5.2006 passed by the Additional Sessions Judge, Court No.2, Rampur in S.T. No.122 of 2001, P.S. G.R.P., District Rampur whereby the appellant has been convicted and sentenced to undergo two months rigorous imprisonment for the offence under Section 352 IPC, to undergo one year rigorous imprisonment for the offence under Section 342 IPC and to undergo seven years rigorous imprisonment for the offence under Section 307 IPC with a fine of Rs.2500/-, and in default thereof, to further undergo one year rigorous imprisonment. 2. The prosecution story, in nutshell, is that injured Meharban, the nephew of the informant Ghasita, was travelling in the train on 22.6.1999 alongwith his brother Salim, friend Tasleem and one another person and he entered into a reservation coach wherein some police personnel were present. Head Constable Vijay Singh asked him for ticket and when he replied that his ticket was with his friends, who were sitting in another coach, the accused started beating him and with intention to kill pushed him out of the running train and he sustained injuries. The informant came to know about the incident on 23.6.1999 and on his written report - Ext. A-2, F.I.R. Ext. A-1 was lodged on 24.6.1999 at 7.10 a.m. The injured was medically examined and after investigation charge sheet Ext. A-3 was submitted against the accused HC/198 Vijay Singh. 3. Injured was medically examined by the Emergency Medical Officer, District Hospital, Rampur on 23.6.1999 and, as mentioned in the impugned judgment, the doctor found injuries of lacerated wound, contusions on various parts of his body. He was also referred for x-ray and in the x-ray report of his left leg fracture shafts of both bones tibia and fibula was found and no adversity was discovered in his left thigh. Subsequently the injured was also checked-up by the Eye Surgeon Dr. Sandeep Mithal on 25.6.1999 as he had developed multiple lacerations on face and injury in the right eye and was not able to see anything from right eye and the Eye Surgeon found perforated injury in his right eye and his eye brows, eye ball and eye lid were swollen. Sandeep Mithal on 25.6.1999 as he had developed multiple lacerations on face and injury in the right eye and was not able to see anything from right eye and the Eye Surgeon found perforated injury in his right eye and his eye brows, eye ball and eye lid were swollen. It is also pertinent to mention here that when he was brought before the police and chitthi majrubi (a report from Police Station / Chauki whereby the injured is sent to Government Hospital for medical examination) was prepared, which is endorsed on the back page of injury report Ext. A-5, the police constable, who attended him also noted following injuries upon his body : ^^1- ck,a iSj ds ifj;k ls uhps o tka?k ij pksV [kwu vkywnk A 2- nkfgus gkFk dh dksguh ij pksV [kwu vkywnk A 3- ukd lkeus QVh gqà A 4- ekFks ij pksV [kwu vkywnk A** 4. Concerned Magistrate took the cognizance. The case being exclusively triable by Sessions Court, was committed to the Court of sessions. 5. Accused appeared before the trial court and charges under Sections 307, 352 and 342 IPC were framed against him. He denied the charges and claimed his trial. 6. The prosecution to bring home the charges against the accused relied upon oral as well as the documentary evidence. 7. In oral evidence prosecution examined in all three witnesses, namely, PW-1 Meharban, the injured witness, PW-2 Salim and PW-3 Tasleem, who were claimed to be eye witnesses of the incident. 8. In support of oral version, following documents were relied upon on behalf of the prosecution : 1. Chik F.I.R. Ext. A-1 2. Written report Ext. A-2 3. Charge sheet Ext. A-3 4. Map Ext. A-4 5. Injury report Ext. A-5 6. Eye surgeon report Ext. A-6 7. X-ray report Ext. A-7 8. Supplementary report Ext. A-8 9. X-ray plate Mat. Ext.-1 9. The genuineness of the prosecution documents has been admitted by the counsel for the accused - appellant. 10. After conclusion of evidence, the incriminating circumstances and evidence available on record were put to the accused in his statement under Section 313 of Cr.P.C., wherein he pleaded his false implication. He admitted that he was present in the train for security on the date of incident but the injured was not travelling in his coach. 10. After conclusion of evidence, the incriminating circumstances and evidence available on record were put to the accused in his statement under Section 313 of Cr.P.C., wherein he pleaded his false implication. He admitted that he was present in the train for security on the date of incident but the injured was not travelling in his coach. He also admitted this fact that the genuineness of the prosecution documents, charge sheet, map, injury report, eye test report, x-ray report, etc. has been admitted by his counsel, however, no defence evidence has been adduced by the accused-appellant. 11. Having heard both the sides and after analyzing the evidence on record the learned trial court found that the prosecution has succeeded to prove its case beyond reasonable doubt and recorded conviction of the accused - appellant and sentenced him, as mentioned here-in-above. 12. Heard Shri K.C. Yadav, learned counsel for the appellant and Shri Nitesh Kumar Srivastava, learned AGA for the State and perused the record. SUBMISSIONS ON BEHALF OF THE APPELLANT : 13. It is submitted by the learned counsel for the appellant that the prosecution has utterly failed to prove its case beyond reasonable doubt on the basis of oral and documentary evidence. All the three witnesses produced by the prosecution have been declared hostile and they did not support the prosecution case at all and even PW-1 Meharban, the injured witness, who is the star witness for the prosecution, though has made positive assertions in favour of the prosecution in the course of his examination-in-chief, subsequently, during the cross-examination has not supported the prosecution version at all and the contradictions occurred in his testimony make the prosecution story highly suspicious. It is further submitted that from the perusal of entire evidence of PW-2 and PW-3 not even an iota of reference can be found to the effect that they were the eye witnesses of the occurrence rather it reflects from the perusal of their evidence that they have denied their presence on the place of occurrence at the time of incident and have been declared hostile by the prosecution. It is also submitted that the oral evidence adduced by the prosecution is shaky and not worthy of credit. It is also submitted that the oral evidence adduced by the prosecution is shaky and not worthy of credit. Another limb of argument is that though the genuineness of the prosecution documents has been admitted by the defence but the same does not make any adverse affect upon the defence of the appellant as in no way any witness adduced by the prosecution has made any statement in favour of prosecution and the oral evidence is not found in consonance with the documentary evidence. On the aforesaid grounds, a prayer for exculpation of the appellant has been made. SUBMISSIONS ON BEHALF OF THE STATE : 14. Per contra, learned AGA vehemently opposed the submissions made by the learned counsel for the appellant and has contended that the prosecution has successfully proved its case beyond reasonable doubt. It is submitted that Meharban, the injured witness, has fully corroborated the prosecution version in his examination-in-chief and when his cross-examination was conducted after a long span of time subsequent to his examination-in-chief, he turned hostile probably under the pressure of the appellant, who was a police personnel. It is urged that law on the subject is well settled that the entire evidence of a hostile witness cannot be washed off and the part of his testimony which supports the prosecution version, if finds support from other reliable evidence on record, can be relied upon safely by the Court. It is next submitted that since the genuineness of the prosecution documents was admitted by the counsel for the defence before the trial court, the doctor and other formal witnesses were also not examined by the prosecution but however no prejudice can be said to be caused to the defence by non production of formal witnesses. It is further submitted that relying upon the admissible piece of evidence available on record, the trial court has successfully recorded the conviction of the appellant and there is no reason to interfere with the same. ANALYSIS : ORAL EVIDENCE : 15. A total of three witnesses of fact have been produced by the prosecution to prove its case. PW-2 and PW-3 have been examined as eye witnesses of the case. In his deposition before the Court PW-2 has stated that he was travelling with contractor Devendra, brother Meharban and Tasleem in the general coach of the train. A total of three witnesses of fact have been produced by the prosecution to prove its case. PW-2 and PW-3 have been examined as eye witnesses of the case. In his deposition before the Court PW-2 has stated that he was travelling with contractor Devendra, brother Meharban and Tasleem in the general coach of the train. They left the train at Moradabad whereas Meharban entered in another coach. They did not make a search for him. He has further stated that no occurrence happened before him and accused Vijay Singh did not make any assault upon Meharban nor pushed him out of the running train before him. This witness has been declared hostile by the prosecution and when he was confronted with his statement recorded under Section 161 CrPC by the prosecution he denied the recording of any such statement by the Investigating Officer. He has also stated that the informant Ghasita, who was his uncle, has expired before 4-5 months. 16. Tasleem, PW-3 is another eye witness of the incident and he has narrated the same story as deposed by PW-2. He is also a hostile witness and denies completely the recording of his statement under Section 161 CrPC by the Investigating Officer and also affirms the factum of death of informant Ghasita. 17. Undoubtedly, the prosecution does not get any support from the testimony of PW-2 and PW-3, who have been examined as eye witnesses of the case but prove nothing in favour of the prosecution. 18. PW-1 – Meharban, the injured of the case, who is the star witness of the case, has corroborated the prosecution version in toto in his examination-in-chief and has given a complete exposition as to how he was assaulted by the accused – appellant in the reserved coach of the train and then was thrown-out of the running train by him and sustained injuries. He has also stated that the accused-appellant pierced the barrel of his gun in his eye and caused injury to it and further he has alleged the appellant for abusing and threatening him for life. He has also stated that on his information his uncle Ghasita lodged the F.I.R. of this case and now Ghasita has expired. He has also stated that the accused-appellant pierced the barrel of his gun in his eye and caused injury to it and further he has alleged the appellant for abusing and threatening him for life. He has also stated that on his information his uncle Ghasita lodged the F.I.R. of this case and now Ghasita has expired. He has also narrated that treatment of his eye was performed at Meerut and Rampur and due to injuries sustained, his left leg has been shortened by three inches and he is still unable to see from his right eye on account of assault made by the accused-appellant. It is pertinent to mention here that the accused/appellant has been identified by PW-1 Meharban before the Court during the process of recording of his evidence which was a valid identification in view of the law laid down by the Hon’ble Apex Court in Malkhan Singh and others vs. State of M.P., (2003) 5 SCC 746 and he has also stated that the accused was wearing police uniform and on the name plate his name Vijay Singh was written. 19. Subsequently, in his cross-examination he made many twisted statements and was declared hostile by the prosecution. He has stated that he was assaulted by some policeman and was thrown-out of the train by some unknown person. He has made a specific statement that whatsoever he stated in examination-in-chief was under the influence of the police wherein he made the same version as dictated by the police before the Court. He has also deposed that the appellant present in the Court never assaulted him nor threw him out of the running train and also caused no injury in his eye. EVIDENTIARY VALUE OF A HOSTILE WITNESS / UPTO WHAT EXTENT IT MAY BE RELIED UPON 20. The Court finds that the allegations alleged against the accused-appellant in the F.I.R. and all the assertions made by PW-1 against the appellant in his examination-in-chief have been tried to be washed off by him in the cross-examination. Hence, so far as the injured witness PW-1 Meharban is concerned, he on the one hand in his examination-in-chief supports the prosecution case but on the other hand in his cross-examination he turns hostile and narrates in favour of the accused-appellant. 21. Hence, so far as the injured witness PW-1 Meharban is concerned, he on the one hand in his examination-in-chief supports the prosecution case but on the other hand in his cross-examination he turns hostile and narrates in favour of the accused-appellant. 21. This situation takes the Court to examine the legal position regarding the evidentiary value of a witness who, after corroborating the prosecution version in material sense, turns hostile subsequently and resiles from his earlier statements. 22. Recently while dealing with the question of evidentiary value of a hostile witness, the Hon’ble Apex Court in Neeraj Dutta vs. State (Government of NCT of Delhi), (2023) 4 SCC 731 has observed as under : "87. Therefore, this Court cautioned that even if a witness is treated as “hostile” and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared “hostile” does not result in an automatic rejection of his evidence. Even, the evidence of a “hostile witness” if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a “hostile witness” testimony if corroborated by other reliable evidence." 23. This Court has no hesitation to hold that the hostility of a witness may be a deceitful act on his part but this improper conduct of a hostile witness does not disentitle the prosecution to rely upon any portion of his testimony which supports the prosecution and is also corroborated by some other material evidence on record. 24. In a leading case Vinod Kumar vs. State of Punjab, (2015) 3 SCC 220 , the Hon’ble Supreme Court expressed anguish to the tendency of adjourning the cases at evidence level and it was held that “the duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safeguarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues…...” 25. The aforesaid observation makes an impact in the facts of this case. This Court found an opportunity to examine the order sheet of the Session Trial No. 122 of 2001, wherefrom the present appeal arises. It reflects from the perusal of the order sheet that on 1.12.2004 the examination-in-chief of PW-1-Meharban was recorded and on an application moved by the defence the cross-examination was deferred by the Court. On the next date i.e. 10.12.2004 a partial cross examination was recorded and the matter was again adjourned as there was no time left to the Court. Thereafter, on 10.1.2005, 29.1.2005, 10.2.2005, 3.3.2005, 21.3.2005, 7.4.2005, 28.4.2005, 13.5.2005 and 27.5.2005 the evidence of PW-1 could not be completed either due to the absence of the witness himself or adjournment moved by the defence and ultimately on 17.6.2005 the cross-examination was concluded and on that date the witness turned hostile and resiled from his earlier testimony recorded before the Court. In the last part of his cross-examination PW-1 Meharban totally denied the prosecution case, though he admitted his injuries but proceeded to state that he cannot say as to who made an assault upon him and threw him out of the running train. Not only this, he also stated that whatsoever he had deposed earlier in his examination-in-chief was stated on the instructions of the police. The Sessions Judge, who recorded the conviction of the appellant in this case, has very convincingly explained the whole situation and fetched-out the reason as to how and why the witness turned hostile in the second phase of his cross-examination and the opinion of the Court that during the long span of time after recording the examination-in-chief there was possibility for his having been won over by the accused appellant, who was a police personnel, gets weight in the facts and circumstances of the case in hand. 26. It is a settled position of law that even the evidence of a witness, who turns hostile, can be considered to the extent it supports the prosecution case. 27. Recently in Rajesh Yadav and another Etc. vs. State of U.P., Criminal Appeal Nos. 339-340 of 2014, decided on 4.2.2022, the Hon’ble Apex Court dealt with the matter of a hostile witness very elaborately. 27. Recently in Rajesh Yadav and another Etc. vs. State of U.P., Criminal Appeal Nos. 339-340 of 2014, decided on 4.2.2022, the Hon’ble Apex Court dealt with the matter of a hostile witness very elaborately. It has been pointed out that when a witness who deposes in favour of a party in whose favour it is meant to be giving through his chief examination, later on changes his view in favour of the opposite side, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence would become complete after the cross-examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the examination-in-chief was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion. 28. Referring to earlier decision passed in C. Muniappan vs. State of T.N., (2020) 9 SCC 567, the Hon’ble Apex Court in Rajesh Yadav case (supra) held as under : "83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence." 29. The Hon’ble Apex Court in the aforesaid decision referring to Vinod Kumar case (supra) took note of the fact that in that case the cross-examination of the witness was conducted after one year and eight months of the examination-in-chief and observed that the delay in said cross-examination had given enough time for prevarication due to many reasons. A fair trial is to be fair both to the defence and the prosecution as well as to the victim. A fair trial is to be fair both to the defence and the prosecution as well as to the victim. This fact was taken into consideration by the Hon’ble Apex Court that in the time span of about 20 months, the witness had all the time in the world to be gained over and it was observed that it would have been absolutely appropriate on the part of the learned trial Judge to finish the cross-examination on the day the said witness was examined. It is pertinent to mention here that in Vinod Kumar case (supra) the Hon’ble Apex Court had dealt with the situation where a witness after rendering testimony in line with the prosecution version completely abandoned it in view of the long adjournments given permitting an act of manoeuvring. 30. The Court has also to examine whether the statements made by PW-1 Meharban, the injured, in his examination-in-chief finds support from other reliable evidence on record or not. It is to be borne in mind that PW-1 in his examination-in-chief has made a specific statement that the accused/appellant had pierced barrel of his gun in his eye and thereby causing injury to it. The injured Meharban has been medically examined by Eye Surgeon Dr. Sandeep Mithal at District Hospital, Rampur on 24.6.1999 and the doctor found injury in his right eye and also noticed that the injured was not able to see anything from right eye and his eye brows, eye ball and eye lid were swollen. He was referred to Medical College, Meerut for further treatment from District Hospital, Rampur. PW-1-injured has also deposed that he was assaulted by the appellant and thrown away from the running train. The emergency doctor at District Hospital, Rampur has found several injuries over the body of the injured. He was also advised for x-ray and in the x-ray report of left leg, he found fracture shafts of both bone tibia and fibula and it was opined by the doctor that the injury was grievous in nature. It is pertinent to mention here that after sustaining the injury, the injured was sent for medical examination by the police itself and chitthi majrubi (a report from Police Station / Chauki whereby the injured is sent to Government Hospital for medical examination), is on the back of the injury report Ext. A-5. It is pertinent to mention here that after sustaining the injury, the injured was sent for medical examination by the police itself and chitthi majrubi (a report from Police Station / Chauki whereby the injured is sent to Government Hospital for medical examination), is on the back of the injury report Ext. A-5. It is again worth mentioning that in the F.I.R. itself it has been specifically mentioned that the accused/appellant made an assault upon the injured in train and with intention to kill him, pushed him out of the running train and the succourless injured sustained several serious injuries. 31. From the above, this Court finds that the statement of PW-1 Meharban made in his examination-in-chief finds support from the medical evidence as well. He has specifically mentioned the name of the accused, the manner of assault, the weapon used and other material aspects relating to the incident happened with him and in the light of the case laws discussed above and the legal position in respect of extent of admissibility of the evidence of a hostile witness this Court can safely conclude that albeit PW-1 turned hostile in his cross-examination and resiled from the statements earlier made in his examination-in-chief, his deposition made in examination-in-chief is also corroborated by other reliable evidence on record and supports the prosecution version in material aspects and that is why the learned trial court committed no legal error in relying upon the statement of the injured witness made in his examination-in-chief despite being hostile during his cross-examination and thus this Court has no reason to disagree with the findings of the trial court. DOCUMENTARY EVIDENCE WITH ESPECIAL REFERENCE TO SECTION 294 CrPC 32. During course of argument, another limb of contention brought forward by the learned counsel for the appellant that no witness has been produced from the prosecution side to prove the documentary evidence relied upon by the prosecution and hence the documents produced by the prosecution should not be read in evidence. 33. Assailing the aforesaid argument advanced by the learned counsel for the appellant, the learned AGA has vehemently submitted that the genuineness of the prosecution documents was admitted by the counsel for the accused during trial and the papers so admitted need not be proved by producing some witness for the said purpose. 34. 33. Assailing the aforesaid argument advanced by the learned counsel for the appellant, the learned AGA has vehemently submitted that the genuineness of the prosecution documents was admitted by the counsel for the accused during trial and the papers so admitted need not be proved by producing some witness for the said purpose. 34. The contention raised by the learned counsel for the appellant takes this Court to go through and analyse the provisions of Section 294 CrPC and the law applicable thereto. 35. Section 294 CrPC provides as under : "294. No formal proof of certain documents. (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (2) The list of documents shall be in such form as may be prescribed by the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed : Provided that the Court may, in its discretion, require such signature to be proved." 36. It has been explicitly pointed out in the impugned judgment that the genuineness of all documents produced by the prosecution was admitted by the defence and that is why the Doctor, Investigating Officer and Head Moharrir of the case were not produced as witness by the prosecution in the case in hand. A perusal of the record also indicates that the prosecution documents have been exhibited by the Court after admitting the genuineness of the same by the defence. 37. A Full Bench of this Court in Saddiq and others vs. State, 1980 SCC OnLine All 614 has clarified the legal position in respect of the provisions contained in Section 294 CrPC. It has been held that the evidence of the signatury of a document will be treated as substantive evidence, who proves his signature and correctness of the contents of the said document and the said document may be used to corroborate or discredit his testimony. It has been held that the evidence of the signatury of a document will be treated as substantive evidence, who proves his signature and correctness of the contents of the said document and the said document may be used to corroborate or discredit his testimony. It has been further held that “…….but where the genuineness of a document filed by the prosecution or the accused under sub-section (1) of Section 294 Cr.P.C. is not disputed by the opposite party, sub-section (3) of Section 294 Cr.P.C. is applicable and a document may be read as substantive evidence…..” The same view has been reiterated by the Division Bench of this Court in Criminal Appeal No. 3079 of 1985 (Bijendra Singh vs. State of U.P.), decided on 17.12.2019. 38. This is to be clarified here that the documents, genuineness of which has been admitted by the defence in this case, definitely fall under the category of ‘document’. Section 3 of the Indian Evidence Act defines the word ‘document’ as under : "3. Document - ‘Document’ means any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. Illustrations A writing is a document; Words printed, lithographed or photographed are documents; A map or plan is a document; An inscription on a metal plate or stone is a document; A caricature is a document." 39. The documents, genuineness of which has been admitted by the defence in this case, are the injury report relating to the injured, chik F.I.R., written report, charge sheet, supplementary injury report, eye surgeon report, map, x-ray plate and x-ray report and all are exhibited. In the light of the definition of the ‘document’ given in Section 3 of the Indian Evidence Act, it is explicitly clear that all the aforesaid papers produced by the prosecution fall within the category of ‘document’. 40. In Shamsher Singh Verma vs. State of Haryana, (2016) 15 SCC 485 , the Hon’ble Apex Court has held as under (paragraph 14 of the said judgment) : "14. In view of the definition of ‘document’ in Evidence Act, and the law laid down by this Court, as discussed above, we hold that the compact disc is also a document. In Shamsher Singh Verma vs. State of Haryana, (2016) 15 SCC 485 , the Hon’ble Apex Court has held as under (paragraph 14 of the said judgment) : "14. In view of the definition of ‘document’ in Evidence Act, and the law laid down by this Court, as discussed above, we hold that the compact disc is also a document. It is not necessary for the court to obtain admission or denial on a document under sub-section (1) to Section 294 CrPC personally from the accused or complainant or the witness. The endorsement of admission or denial made by the counsel for defence, on the document filed by the prosecution or on the application/report with which same is filed, is sufficient compliance of Section 294 CrPC. Similarly on a document filed by the defence, endorsement of admission or denial by the public prosecutor is sufficient and defence will have to prove the document if not admitted by the prosecution. In case it is admitted, it need not be formally proved, and can be read in evidence. In a complaint case such an endorsement can be made by the counsel for the complainant in respect of document filed by the defence." 41. In Akhtar vs. State of Uttaranchal, (2009) 13 SCC 722 where the defence had admitted the genuineness of the post mortem report before the trial court, it was held that if the defence admits the genuineness of the injury report and post mortem examination report before the trial court, the genuineness and authenticity of the said documents stands proved and shall be treated as valid evidence under Section 294 CrPC and accordingly it was held that the post mortem report can be read as substantive evidence to prove the correctness of its contents without the doctor concerned being examined. 42. If the aforesaid legal position is translated into the facts and circumstances of the case in hand, it can safely be concluded that since the genuineness of the prosecution documents was admitted and not disputed by the defence before the trial court, it became a substantive piece of evidence, which was exhibited and rightly taken into consideration by the trial court while deciding the matter and there was no need to get the same proved by way of examining any relevant witness. F.I.R. 43. F.I.R. 43. Another aspect highlighted by the learned counsel for the appellant as a point of contention is delay in lodging the F.I.R. In this reference, it reveals from the perusal of the record that the matter was reported to the police by the informant Ghasita on 24.6.1999 by way of written report Ext. A-2 and the F.I.R. was lodged on 24.6.1999 at 7.10 a.m. The witnesses produced by the prosecution have made similar statements on the point that the informant Ghasita has already expired. Since the genuineness of written application given by the informant Ghasita to the police has been admitted by the defence, it is a piece of substantive evidence and has been exhibited rightly by the trial court. PW-1 Meharban in his examination-in-chief has stated that after having been thrown out of the train he became unconscious and in the morning he was taken to the hospital by the policemen where he was medically examined and subsequently when his uncle Ghasita, the informant, and Habib came to Rampur District Hospital, he narrated the whole story to Ghasita and then an application was written down on the basis of which F.I.R. was registered. In these circumstances, it is found that since the informant was not present at the place of occurrence and after receiving the information regarding the incident he came to the injured and then proceeded to prepare a written report of the incident and thereafter gave it to the police, this sequence of events duly explains the delay in lodging the F.I.R. in this case. 44. The legal dictum, in the case where the delay in lodging the F.I.R. is raised as an issue, has been well explained in umpteen of cases by the Hon’ble Apex Court and this Court. The Hon’ble Apex Court in the case of Harbans Kaur and another vs. State of Haryana, AIR 2005 SC 2989 has held that even a long delay in lodging F.I.R. can be condoned if witnesses have no motive of implicating the accused and have given plausible reason for delay. Further, in Ravinder Kumar and another vs. State of Punjab, AIR 2001 SC 3570 it has been held that when there is criticism on the ground that F.I.R. in the case was delayed, Court has to look at reason why there was such a delay. Instances causing delay has to be looked into. Further, in Ravinder Kumar and another vs. State of Punjab, AIR 2001 SC 3570 it has been held that when there is criticism on the ground that F.I.R. in the case was delayed, Court has to look at reason why there was such a delay. Instances causing delay has to be looked into. If causes are not attributable to any effort to concoct a version, mere delay cannot be ground to treat F.I.R. vitiated. INVESTIGATION 45. So far as the submission of the learned counsel for the appellant that the investigation in the case is faulty is concerned, in Hema Vs. State (2013) 81 ACC 1 (Supreme Court), it has been held by the Hon'ble Apex Court that any irregularity or deficiency in investigation by I.O. need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. The only requirement is to use of extra caution. The defective investigation cannot be fatal to prosecution when ocular testimony is found credible and cogent. It may be held that investigation, in the present case, does not suffer with any material irregularity. Moreover, no material omission or specific fault committed by the Investigating Officer of this case during investigation has been brought to the notice of the Court by the learned counsel for the appellant. OFFENCE UNDER SECTIONS 307, 342 AND 352 IPC WHETHER MADE OUT AGAINST THE APPELLANT 46. The conviction of the appellant in the present case under Section 307 IPC has also been hit by the learned counsel for the appellant and it has been submitted that the present case does not fall within the purview of offence under Section 307 IPC at all, as the appellant at no point of time had any intention to kill the injured. This plea takes the Court to examine the scope of offence under Section 307 IPC with particular reference to the facts of this case and the law applicable thereto. 47. The law settled in the context of Section 307 IPC is that it is not necessary that injury, capable of causing death, should have been inflicted. What is material to attract the provisions of Section 307 is the intention or knowledge with which the all was done, irrespective of its result. The intention and knowledge are the matters of inference to be gathered from totality of circumstances and cannot be measured merely from the results. What is material to attract the provisions of Section 307 is the intention or knowledge with which the all was done, irrespective of its result. The intention and knowledge are the matters of inference to be gathered from totality of circumstances and cannot be measured merely from the results. In fact the important thing to bear in mind for determining the question whether the offence under Section 307 IPC is made out is the intention and not the injury, even if it may be simple or minor or even no injury. Question of intention to kill or knowledge of death is always a question of fact and not of law. The Hon’ble Supreme Court in Hari Kishan and State of Haryana vs. Sukhbir Singh, AIR 1988 SC 2127 has held that the intention or knowledge of the accused must be such as is necessary to constitute murder. In State of Madhya Pradesh vs. Harjeet Singh and another, AIR 2019 SC 1120 , it was reiterated that Section 307 IPC does not require that injury should be on vital part of the body. Merely causing hurt with intention or knowledge of causing death is sufficient to attract Section 307 IPC. 48. The aforesaid legal principle, if examined in the context of the facts and circumstances of the present case, applies completely and this Court finds that offence under Section 307 IPC is clearly made out against the accused/appellant. The intention to kill on the part of the accused / appellant is apparent from his criminal act when he threw the injured out of the running train and this act requires no explanation so far as the mens rea in the form of intention to kill on the part of the appellant is concerned. 49. The appellant has also been convicted under Sections 342 and 352 IPC. The offence of wrongful confinement, as defined under Section 340 IPC, is punishable under Section 342 IPC. Section 340 IPC reads as under : "Wrongful confinement - Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person." 50. Besides this, use criminal force and assault otherwise than on grave and sudden provocation is made punishable under Section 352 IPC. Section 340 IPC reads as under : "Wrongful confinement - Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person." 50. Besides this, use criminal force and assault otherwise than on grave and sudden provocation is made punishable under Section 352 IPC. The assault made by the appellant to the poor injured in a running train being himself a police personnel and piercing the barrel of his gun in the eye of the injured and his wrongful confinement by not allowing him to move from the coach forcefully and at the same time abusing and threatening the injured clearly takes this case within the purview of the offences under Sections 342 and 352 IPC. Hence, the trial court committed no error in recording conviction of the appellant under Sections 307, 342 and 352 IPC. SENTENCE 51. Lastly, learned counsel for the appellant submitted that the sentence recorded by the learned trial court is too severe and harsh. He further submits that the convict / appellant had no intention to cause injury to the injured. He has already spent about more than five months of incarceration out of the maximum sentence of seven years and must be a repenting man. It is also submitted that the appellant was also suspended by his department in connection with the present matter. 52. The submissions made by the learned counsel for the appellant take me to the quantum of sentence, specifically under Section 307 IPC, where seven years imprisonment has been awarded by learned trial court. It is also submitted that the appellant was also suspended by his department in connection with the present matter. 52. The submissions made by the learned counsel for the appellant take me to the quantum of sentence, specifically under Section 307 IPC, where seven years imprisonment has been awarded by learned trial court. For awarding the sentence, the Court has to keep in mind the theories of punishment in our country and if the Court emphasises upon the legal theories rendered by the Hon'ble Apex Court in various judgments, such as, Ravada Sasikala vs. State of A.P., AIR 2017 SC 1166 , Jameel vs. State of U.P., (2010) 12 SCC 532 , Guru Basavraj vs. State of Karnatak, (2012) 8 SCC 734 , Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323 , State of Punjab vs. Bawa Singh, (2015) 3 SCC 441 , Raj Bala vs. State of Haryana, (2016) 1 SCC 463 , Sham Sunder vs. Puran (1990) 4 SCC 731 , M.P. vs. Saleem, (2005) 5 SCC 554 and Ravji vs. State of Rajasthan, (1996) 2 SCC 175 , the settled legal position, which emerges out, is that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is the obligation of the Court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of the offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, it is expected that the Courts would operate the sentencing system, so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The Court will be failing in its duty, if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The Court will be failing in its duty, if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant, but it should conform to and be consistent with the atrocity and brutality in which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. 53. In view of the above propositions of law, the paramount principle that should be the guiding laser beam is that the punishment should be proportionate to the gravity of the offence. 54. Applying the principles laid down by the Apex Court in the aforesaid judgements and having regard to the totality of the facts and circumstances of the present case, and the fact that the appellant has served out more than five months sentence only out of the maximum sentence of seven years awarded by the trial court to him and nature and gravity of offence, as also the lenient approach adopted by the trial Court while imposing sentence in the impugned judgment and order, in my view, no further leniency is required to be adopted in this matter at this stage. Unnecessary leniency and sympathy shall defeat the very object for which the punishments are provided. No special circumstance has been shown by the appellant to reduce the sentence awarded to him which is logically proportionate with the nature of the offence committed by the appellant CONCLUSION 55. In the light of foregoing discussions and considering the entire aspects of the matter and looking to the circumstances, under which the present offence has been committed, I am of the view that the impugned judgment and order passed by the trial court is well thought and well discussed and the trial court has rightly held that the prosecution has succeeded to prove the guilt of the accused appellant beyond reasonable doubt. The conviction in the case in hand is a right ending and sentence as imposed is proper. As such, the impugned judgement and order passed by the trial court is liable to be upheld and the appeal having no force is liable to be dismissed. 56. Accordingly the present Criminal Appeal is dismissed. The conviction in the case in hand is a right ending and sentence as imposed is proper. As such, the impugned judgement and order passed by the trial court is liable to be upheld and the appeal having no force is liable to be dismissed. 56. Accordingly the present Criminal Appeal is dismissed. The conviction and sentence imposed upon the accused appellant Vijay Singh vide impugned judgment and order dated 16.5.2006 is hereby confirmed. 57. The accused/appellant Vijay Singh is on bail. His personal and surety bonds are cancelled and he is directed to surrender before the Court concerned forthwith, who shall take him into custody and send him in jail for serving out the remaining sentence imposed upon him by the trial court. In case he fails to surrender, as directed above, the Court concerned is directed to take coercive action against him in this regard. No intervention on the point of fine / default clause. 58. Registry is directed to transmit the record to the Court concerned for necessary compliance.