Criminal Appeal No. 729-SB of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 729-SB of 1995 Date of Decision: 12.05.2009 Jaswinder Singh alias Saini son of Piara Singh, Shopkeeper, resident of Deep Nagar, Hoshiarpur. ... Appellant Versus The State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Sushil Bhardwaj, Advocate, (Amicus-Curiae) for the appellant. Ms. Manjari Nehru Kaul, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. This appeal is directed against the judgement of conviction, and the order of sentence dated 16.11.95, rendered by the Court of Sessions Judge, Hoshiarpur, vide which, it convicted the accused, for the offence, punishable under Section 307 of the Indian Penal Code, and sentenced him, to undergo rigorous imprisonment, for a period of three years, and to pay a fine of Rs. 1000/-, and in default thereof, to further undergo rigorous imprisonment, for a period of three months. 2. In nutshell, the case of the prosecution is that, on 10.08.94, Ashok Kumar, at about 5.30 PM, was present in front of the shop of Criminal Appeal No. 729-SB of 1995 2 Sham Lal, situated near Katcha Toba Chowk, Hoshiarpur. He was talking to Jagmohan son of Omparkash and Pawan Kumar son of Madan Lal. In the meanwhile, Jaswinder Singh, accused, came riding a scooter and stopped the same, in front of his shop. Thereafter, the accused went towards Ashok Kumar, and abused him. When Ashok Kumar, objected to it, the accused took out a dagger, from the fold of his pant, and inflicted injury with the same on the abdomen of Ashok Kumar, as a result whereof, he fell down on the ground. The accused then decamped from the spot with the dagger. Pawan Kumar and Jagmohan removed the injured to Civil Hospital, Hoshiarpur, where he was medically examined. 3. Roor Singh, Assistant Sub Inspector, while present on patrol duty, near Clock Tower, Hoshiarpur, received memo PE, from Civil Hospital, Hoshiarpur, regarding the admission of the injured, therein, as a result whereof, he went there and enquired of the Medical Officer, vide his application PF, as to whether, the injured was fit to make statement, or not. The injured, was declared unfit to make statement. Thereafter, the Investigating Officer, recorded the statement PC of Pawan Kumar, who was present in the hospital, and sent the same alongwith his endorsement exhibit PC/1 to the Police Station, on the basis whereof, the first information report exhibit PC/2, was registered by Jaspal Singh, Assistant Sub Inspector. Roor Singh, Assistant Sub Inspector, accompanied by Pawan Kumar and Jagmohan, then went to the place of occurrence, and prepared the site plan exhibit PG, with correct marginal notes. Since it was raining by the time, the Criminal Appeal No. 729-SB of 1995 3 Investigating Officer, reached the place of occurrence, the blood stood washed away. On 13.08.94, after the injured was declared fit to make statement, Roor Singh, Assistant Sub Inspector, recorded his statement and arrested the accused. 4. The accused was interrogated in the presence of Constable Santokh Singh and Head Constable Vijay Kumar. During the course of interrogation, the accused disclosed that he had concealed the dagger inside his residential room of which, he only knew, and could get the same recovered, by pointing out. In pursuance of his disclosure statement exhibit PH, he got recovered the dagger P4, from the pre- disclosed place. After prepararation of its sketch PH/1, the dagger was taken into possession, vide memo PH/2. The Investigating Officer also took into possession the blood stained shirt P1, trouser (pyjama) P2, and vest P3, of the injured, vide memo PD. After the completion of investigation, the accused was challaned. 5. On his appearance, in the Court of the Committing Magistrate, the accused was supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Section 307 of the Indian Penal Code, was framed against the accused, to which he pleaded not guilty and claimed judicial trial. 6. The prosecution, in support of its case, examined Dr. Bhupinder Singh (PW1), who stated that on 10.08.94, he operated upon Ashok Kumar, injured, and observed as under:- “Abdomen cleaned and draped. Stab on the Criminal Appeal No. 729-SB of 1995 4 abdomen had extended into the peritoneal cavity which was full of blood. Paritoneal toilet was done. There were three stab perforations in the ileum 12” from ileo-caecal junction and 18” and 20” from ileo-caecal junction. One perforation was in mesentery at the level of 12” injury. Stitched in layers after debridement of the edges. There was haematoma in the rectus muscles which was evacuated and injury in the rectus muscle was over-run with continuous cetgut suture. Abdomen was closed in layers after putting a corrugated drain the right paracolic gutter.” He proved the operation notes PA and opined that the injury in the ordinary course of nature was sufficient to cause death. 7. Pawan Kumar (PW2), resiled from his statement PC, on the basis whereof, the first information report, was registered. When he was cross-examined by the Public Prosecutor for the State, with the permission of the Court, he admitted that PC was his statement, on the basis whereof, the first information report, was registered. 8. Ashok Kumar (PW3), the injured, deposed, in terms of the prosecution version, as stated above, while narrating the facts of the case. 9. Jagmohan (PW4), an eyewitness, also corroborated the statement of Ashok Kumar, injured. 10. Assistant Sub Inspector Roor Singh (PW5), the Investigating Officer, investigated the case and proved various memos. 11. Dr. Tej Pal (PW6), medico-legally examined Ashok Kumar, injured, and found the following injury, on his person:- “Incised wound 1.8 cm x 1 cm on the right side of abdomen, 2 cm from the midline, 3.5 cm Criminal Appeal No. 729-SB of 1995 5 below the umbilicus. Fresh bleeding was present and wound was spindle shaped. The depth was not probed. Injury was kept under observation and expert opinion of the Surgical Specialist was sought.” The injury was the result of sharp edged weapon. The probable duration was within six hours. On receipt of PA, opinion from the Surgeon, the injury on the person of the injured, was declared dangerous to life, vide endorsement PA/1. He further opined that injury on the person of the injured could be inflicted with dagger P4. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 12. The statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, did not lead any evidence, in defence. 13. After hearing the Counsel for the parties, and, on going through evidence, on record, the trial Court convicted and sentenced the accused, as stated above. 14. Feeling aggrieved, the instant appeal, was filed by the appellant. 15. I have heard the Counsel for the parties, and have gone through the evidence and record of the case carefully. 16. The Counsel for the appellant, at the very outset, submitted that no offence punishable, under Section 307 of the Indian Penal Criminal Appeal No. 729-SB of 1995 6 Code, was made out. He further submitted that there was no intention, on the part of the appellant, to cause such injury, on the person of the injured as would have proved fatal to his life. He further submitted that only one injury was allegedly given by the accused, on the person of the injured, which also proved that his intention was not to cause such injury, as if by that act, the death of the injured had been caused, he would have been guilty of murder. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The injury, in this case, was caused on the abdomen of the injured. This injury was declared dangerous to life. While determining, as to whether, an offence under Section 307 of the Indian Penal Code, is made out, or not, the intention of the appellant; the weapon with which the injuries were caused; the seats of the injuries; and the nature of the injuries are required to be taken into consideration. In the instant case, when all these factors, are taken into consideration, only one and one inescapable conclusion, that can be arrived at, is that the accused committed the offence, punishable under Section 307 of the Indian Penal Code. In State of Maharashtra Vs. Balram Vama Patil (AIR 1983 S.C. 305), it was held that to convict under Section 307 of the Indian Penal Code, it is not necessary, to show that the bodily injury capable of causing death was inflicted, but what the Court has to see, is as to whether, the act irrespective of its result, was done with the intention or knowledge and, under such circumstances, mentioned in this Section. Attempt need not be an ultimate act. It is sufficient, if there is an intent, coupled with some over-tact in execution thereof. In Criminal Appeal No. 729-SB of 1995 7 the instant case, injury with dagger, in the abdomen, which is the most vital part of the body, was given by the accused. The injury was declared dangerous to life. All the ingredients, required for constituting the offence punishable under Section 307 of the Indian Penal Code, were proved. The submission of the Counsel for the accused, being without merit is rejected. 17. It was next submitted by the Counsel for the appellant, that the presence of PW4 namely Jagmohan, an eyewitness, at the time of the alleged occurrence, was most improbable and unnatural, in as much as, according to him he took the injured to the hospital, and got him admitted there. However, his name did not figure in the MLR, as the person, who got him admitted. He further submitted that had he got him admitted, in the hospital, his name would have figured in the MLR. The mere fact that the name of Jagmohan, PW4, did not find mention in the MLR PJ, did not mean that he was not present, at the time of occurrence. The doctor did not record the name of any person or relative, who brought the injured to the hospital in injured condition. The injury on the person of the injured being dangerous to life, it was not possible for him, to go to the hospital himself, without the assistance of anybody else. If the doctor committed any irregularity, in not recording the name of the person who brought the injured, to the hospital, then Jagmohan, PW4, could not be blamed for the same, nor his presence, at the time of the occurrence on account of this reason, could be said to be unnatural or improbable. Jagmohan, PW4, in clear- cut terms stated that he was present at the time of occurrence, when the Criminal Appeal No. 729-SB of 1995 8 injury on the person of the injured was caused by the accused with dagger. Ashok Kumar, injured, PW3, also in clear-cut terms, stated that it was Pawan Kumar, and Jagmohan, who took him to Civil Hospital, Hoshiarpur, and got him admitted there. In the face of cogent and convincing ocular evidence, regarding the presence of Jagmohan, at the time of occurrence, the mere fact that his name was not recorded in the MLR, as a person, who brought the injured, to the hospital, by the doctor, did not make his presence improbable and unnatural. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 18. It was next submitted by the Counsel for the appellant, that Pawan Kumar, PW2, on the basis of whose statement, the first information report was registered, did not support the case of the prosecution. He further submitted that this clearly proved that he was not present at the time of occurrence, but was introduced later on. He further submitted that on account of this reason, the case of the prosecution became highly doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Pawan Kumar, PW2, no doubt, did not support the case of the prosecution. He turned hostile. He was cross-examined by the Public Prosecutor for the State, with the permission of the Court. He admitted his signature on PC, the statement made by him, which formed the basis of the first information report. In case, he was not present at the time of occurrence, and had not lodged the first information report, then how his signatures on PC existed, was for him to explain. He could not Criminal Appeal No. 729-SB of 1995 9 furnish any satisfactory explanation, in this regard. This clearly showed that he was present, at the time of occurrence, but later on, was won over by the accused, and, thus, resiled from his earlier statement, and did not support the case of the prosecution. In these circumstances, it is to be determined, as to whether, the statement of such a witness could be said to be sufficient to disbelieve the prosecution case. It may be stated here, that the fate of the case of the prosecution, does not rest on the statement of a single witness. In such a situation, the Court is required to scrutinize the other evidence of the prosecution, and if it comes to the conclusion, that the same is reliable, then even if one witness resiled, his evidence can be ignored. In Yakub Ismailbhai Patel Vs. State of Gujarat (2006(4) RCR (Crl.) 731 (S.C.), two eye witnesses resiled from their previous statements. The third eye witness, however, supported the case of the prosecution. The Apex Court held that the evidence of the witnesses has to be weighed and not counted. The Apex Court, further held that the evidence of the sole eye-witness, was sufficient to convict the accused, notwithstanding the fact, that two other witnesses did not support the case of the prosecution. In P.P. Fatima Vs. State of Kerala (2004(1) RCR (Crl.) 81, S.C., the panch witnesses did not support the case of the prosecution. It was held that such omission, by itself, would not be fatal to the case of the prosecution. In State of Rajasthan Vs. Udai Lal 2008(2) RCR (Crl.) (S.C.) 956, four independent witnesses were joined, and examined. They resiled from their statements. However, the Police officials, supported the case of the prosecution. In these circumstances, it was Criminal Appeal No. 729-SB of 1995 10 held by the Apex Court, that conviction on the evidence of the official witnesses, notwithstanding the fact, that the independent witnesses resiled, could be recorded, as the evidence is required to be weighed and not counted. Ultimately, the Apex Court, set aside the judgement of acquittal, rendered by the High Court, and restored the judgement of conviction recorded by the trial Court. When the facts of this case, are analyzed, on the touchstone of the principle of law, laid down, in the aforesaid cases, decided by the Apex Court, then it can be safely held that the evidence of a witness, who resiled can be ignored, and reliance on the other evidence can be placed. The Court is required to asses and scrutinize the entire evidence produced, to come to an independent conclusion, whether the witnesses, who supported the case of the prosecution, even if the evidence of the other witnesses who resiled, for whatever, the reason may be, is ignored, carries a ring of truth, and implicit reliance can be placed thereon, to convict the accused. If, in its ultimate, voyage for the discovery of truth, the Court arrives at a conclusion, that the evidence of the remaining witnesses, was cogent, convincing, trustworthy and reliable, then the same can be believed to record conviction, ignoring the evidence of the witnesses, who resiled from their previous statements, even completely or partially, as the facts and circumstances of a particular case, so warrants. In the instant case, the evidence of Ashok Kumar, injured, and Jagmohan, eye witness, duly corroborated by the medical evidence, has been found to be cogent, convincing, reliable, and trustworthy. The same carries a ring of truth. The trial Court was right, in placing implicit reliance Criminal Appeal No. 729-SB of 1995 11 thereon to convict the accused. The submission of the Counsel for the accused, thus, being without merit, is rejected. 19. No other point, was urged, by the Counsel for the parties. 20. In view of the above discussion, it is held, that the judgement of conviction and the order of the sentence, rendered by the trial Court, are based on the correct appreciation of evidence and law, on the point. The same do not suffer from any illegality or infirmity and deserve to be upheld. 21. For the reasons recorded above, the appeal, being devoid of merit, is dismissed. The judgment of conviction, and the order of sentence, rendered by the trial Court, are upheld. If the appellant is on bail, his bail bonds, shall stand cancelled. 22. The Chief Judicial Magistrate, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within 02 months. 23. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court. 24. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action. 12.05.2009 (SHAM SUNDER) AMODH JUDGE