Himachal Pradesh High Court
State Of H.P. vs Om Parkash And Ors. on 14 March, 2003
Equivalent citations: 2003CRILJ2502
Author: Kuldip Chand Sood
Bench: Kuldip Chand Sood
JUDGMENT Kuldip Chand Sood, J.
1. This appeal against acquittal is directed against the judgment of learned Judicial Magistrate 1st Class, Court No. 2, Amb, dated February 27, 1998.
2. It appears the case of prosecution was :
A cultural programme named "Sidh Chano-ka Akhara" was organised in village Totar, in Tehsil Amb of District Una in the late evening of January 30, 1996. Nasib Chand complainant (PW. 1) was asked by the organizers to collect donations from the audience for the society, which had organized this programme. Om Parkash (A1), Narinder Kumar (A2) and Rajesh Kumar (A3), respondents herein, were present in the ground as spectators. When Nasib Chand was collecting donations. Om Parkash showed him a one-rupee note indicating that he would donate it for the Society. Complainant went to Om Parkash to take the money. Om Parkash asked him to announce name of four persons for one rupee currency note. Complainant refused to comply. Thereafter, three persons caught hold of him from his arms and took him towards backside. A1 Om Parkash pulled out a knife and tried to hit him on the stomach. Nasib Chand saved this blow on stomach by putting his hand on the stomach. In the process, he received injury on his right hand. Om Parkash, not content, caused two more stab injuries with a knife on the stomach of Nasib Chand. Nasib Chand raised alarm. The accused fled away. Waryam Singh, brother of the complainant and some other persons came to the spot. On the request of the complainant he was taken near the mike on the stage. Nasib Chand announced that he was attacked with knife by Om Parkash (A1) and others. He later on was taken to the hospital. After first aid, Nasib Chand was referred to Post Graduate Institute, Chandigarh for further treatment.
3. All the three accused were prosecuted for an offence punishable under Section 324 read with Section 34 of the Indian Penal Code. All three of them have been acquitted by the learned trial Magistrate. So far Narinder Kumar (A2) is concerned, complainant in his evidence is categorical that he had not seen Narinder Kumar on the spot. So far Rajesh Kumar (A3) is concerned, it was the evidence of the complainant-injured that he did not know Rajesh Kumar by name. He however, maintained that Rajesh Kumar was one of the persons who caught hold of him from the arm.
4. The reasons which weighed with the learned trial Magistrate to acquit the accused, were :
(a) Evidence of complainant-injured could not be relied upon without corroboration from independent evidence to lend credence to the prosecution case.
(b) Complainant was declared hostile and therefore, evidence of the complainant was not reliable.
5. I have heard Mr. P.M. Negi, learned Assistant Advocate General and Additional Public Prosecutor for the State, Mr. Sanjeev Kuthiala learned counsel for respondent No. 1 and Mr. S. Saklani, vice learned counsel for respondent Nos. 2 and 3. I was also taken through the record by the learned counsels.
6. It is the evidence of Nasib Chand that on the fateful night when cultural programme was going on, he was deputed by the organizers of the programme to collect money and for that purpose, he was given a copy as this money was to go to the participants of the cultural programme. He was also assigned duty to announce programme on the mike. It is his evidence that there were hundreds of people present. He was shown a currency note of rupees 1/- by Om Parkash (A1). When he went to him, he was told by Om Parkash that he wanted name of four persons to be announced as contributors for one rupee. This request of Om Parkash was refused. Thereafter, three boys caught hold of him by the arms from his back and took him towards the backside. Thereafter, Om Parkash (A1) gave a knife blow on his stomach. He extricated his hand and saved the blow aimed at him. The knife hit his right hand. Om Parkash gave two further blows with knife on his stomach causing two slab injuries. He raised alarm on which all four of them fled away. His brother Waryam Singh along with other persons came and took him to the mike where he announced that son of Jagdish Ram has injured him with a knife. In the meanwhile, his other brother also reached there. He was taken to the hospital where police recorded his statement Exhibit PW. 1/A. The statement of the injured Exhibit PW. 1/A forms basis for the First Information Report. He was medically examined and thereafter referred to Post Graduate Institute, Chandigarh for further treatment. He identified the accused, then present in the Court, named them as Rajesh Kumar and Manoj Kumar. He was specific that he did not know Narinder Kumar nor could identify him. He was cross-examined by the learned Assistant Public Prosecutor for unexplainable reasons. He had simply deposed that it was a dark night and therefore he could not identify the knife, shown to him by the prosecutor to be the same with which he was injured as it was night time and he was suddenly given blow with knife. Be that as it may, there is nothing in the cross-examination of this witness, which may dent his credibility. He admits that he was employed, at the relevant time, with the father of A1 Om Parkash as Driver on his tractor. The case of the accused as put to this witness was that the tractor on which he was employed was of Jagdish Ram, father of Om Parkash (A1), which had rolled down twice and that he was carrying passengers on the tractor. Jagdish Ram came to know about this fact and he asked accounts from him and it was for this reason that he was falsely implicated. To say least, the suggestion itself is far fetched. This case has not even been set up by the accused in his statement under Section 313 of the Code of Criminal Procedure. He merely stated in his statement that he has falsely been implicated. Gurdev Singh (P.W. 2) stated that complainant Nasib Chand was collecting money on behalf of the Organizers of the programme. Om Parkash (A1) along with other persons was hovering around the girls and women On which Nasib Chand asked A1 to take his seat and not to hover around the girls and later on at about 10.30 P.M. complainant came on the stage and announced on the mike that he had been injured on his stomach with knife by Om Parkash A1. In the meanwhile. Om Parkash fled away. To a similar effect is the statement of Ram Asra (PW. 3) and Ram Lok (PW. 4), Kashmir Singh (PW. 7) is an eyewitness. According to him, he had gone to urinate towards the back of his house. When he heard commotion, he went to the spot and saw Om Parkash giving knife blows to Nasib Chand complainant. He also stated that other accused were also present with him but he did not know their names. He challenged them on which all of them fled away.
7. Dr. O.P. Dutta who medically examined injured Nasib Chand has opined that the injuries, found were simple in nature caused with sharp edged weapon.
8. The question, which is raised in this appeal, is whether the learned trial Magistrate was right in acquitting the accused on the ground that evidence of the complainant was not corroborated by independent evidence.
9. The finding of learned trial Magistrate that evidence of complainant is not supported by other evidence is dehors the evidence on record and without any foundation Kashmir Singh (PW. 7) categorically stated that Om Parkash A1 inflicted knife blow on the person of Nasib Chand corroborates this aspect of the evidence of the complainant.
10. So far the question of conviction on the basis of the evidence of injured complainant without corroboration, is concerned there is no rule of law that evidence of complainant or injured must be corroborated by other independent evidence. Conviction can be based on the sole testimony of an injured or complainant if it inspires confidence. By no stretch, an injured can be said to be interested witness requiring corroboration. The Supreme Court in Dalip Singh v. State of Punjab, AIR 1953 SC 364 : (1953 Cri LJ 1465) observed :
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts".
11. In my view an injured witness is least likely, unless injuries are self inflicted, to shield or screen the real culprit and falsely implicate an innocent person. A conviction can be founded on the sole testimony of an injured person unless there are compelling reasons for seeking corroboration to satisfy its judicial conscience. In the present case, there is nothing in the testimony of injured Nasib Chand, which may impel the court to ask for corroboration. As pointed out by the Apex Court in Kartik Malhar v. State of Bihar (1998) 1 SCC 614 : (1996 Cri LJ 889) a conviction can be recorded on the basis of a statement of single eye-witness provided his credibility is not shaken by any adverse circumstance appearing in record against him and Court is convinced that the witness is truthful.
12. In the present case, testimony of injured is corroborated not only by medical evidence but also the evidence of Kashmir Singh (PW. 7). There are no reasons to disbelieve either the complainant or Kashmir Singh. The injuries, it is not the case of the accused, were self inflicted nor is there any plausible reason to falsely implicate the accused.
13. It is true that normally views of the trial Court as to the credibility of the witness must be given proper weight and consideration because it is the trial Court who watched the demeanour and conduct of the witness and is always in a better position to appreciate the testimony as to whether the evidence is without any blemish. The trial Court did not say anything adverse about the demeanour and conduct of the witness.
14. Mr. Sanjeev Kuthiala learned counsel for respondent No. 1 faced with the situation contends that the complainant injured did not identify the knife, alleged weapon of offence, which was taken into possession by the investigating agency in spite of this witness having been cross-examined by the learned A.P.P. True it is that complainant-injured Nasib Chand had stated that he was unable to identify the knife shown to him as weapon of offence. He has given a plausible reason that it was dark night. In my view, the witness could not be said to be hostile witness for this reason. His statement indicates his truthfulness.
15. In the present case, Nasib Chand complainant, it is not disputed, received injuries during the cultural programme. The presence of the accused at the time and place of the occurrence is not in doubt. In these circumstances, in the absence of any material infirmity, the testimony of the complainant-injured cannot be rejected merely because he was declared hostile. As pointed out by the Apex Court in Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 : (2001 Cri LJ 487) hostile witness is described as one who is not desirous of telling the truth at the instance of party calling him and unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact or proves the opposite test. "Permission in terms of Section 154 of the Evidence Act", observed Their Lordships, "cannot and should not be granted at the mere asking of the party calling the witness". It is always for the Court to consider whether as a result of cross-examination by a party calling a witness, the witness stands discredited or can still be believed in regard to any part of his testimony. In the present case, as discussed earlier, complainant injured cannot be said to be discredited by his cross-examination by the learned Assistant Public Prosecutor which, to say least was un-necessary. In my view, learned trial Magistrate ought not to have permitted the cross-examination of the complainant-injured. In the facts of the case it cannot be said that testimony of Nasib Chand injured stood discredited.
16. So far identity of other accused A2 Narinder Kumar and A3 Rajesh Kumar is concerned, complainant has stated categorically that he did not know Narinder Kumar nor could he identify him. However, Rajesh Kumar was identified by the complainant as one of the persons who caught hold of him by his hands and there is nothing in the cross-examination which may impair this testimony of Nasib Chand.
17. To conclude, the prosecution has proved beyond reasonable doubt that accused Om Parkash caused injuries with sharp edged weapon on the stomach of the complainant Nasib Chand and Rajesh Kumar facilitated this act of Om Parkash. No other point is urged before me.
18. In result appeal is allowed. The judgment of acquittal of the learned trial Magistrate is set-aside. Both the accused Om Parkash and Rajesh Kumar are convicted for an offence under Section 324 read with Section 34 of the Indian Penal Code.
19. Taking into consideration the time lapse between the incident and the decision of this Court, the fact that all these years accused suffered agony of trial, I feel the ends of justice would be met if accused Om Parkash and Rajesh Kumar are imposed sentence of fine without substantive imprisonment.
20. Accused Om Parkash is sentenced to pay a fine of rupees 5000/-. In case of default in the payment of fine, he shall suffer rigorous imprisonment for two months. So far accused Rajesh Kumar is concerned he is sentenced to pay a fine of rupees 2000/- and in cash of default of payment of fine, he shall suffer rigorous imprisonment for one month. Out of the total amount of fine, if realized, the complainant shall be paid rupees 4000/-. Learned counsel for the respondents pray that six weeks time may be granted to deposit the fine. Allowed. The fine shall be deposited by the accused-respondents within six weeks from today with the learned trial Court. If the fine is not deposited within the stipulated period, the trial Court shall take necessary steps so that accused undergo the imprisonment imposed for default in the payment of fine.