HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No.150 of 2003 1. Subhash Kumar 2. Surendra @ Sonu 3. Manoj @ Monu All S/o Ajay Singh, R/o 29/DL-Road, P.S. Dalanwala, District Dehradun. 4. Har Gopal S/o Sher Singh, R/o Village Wajid Nagar, P.S. Sherkot, District Bijnore, U.P. ……Appellants Versus State. ……Respondent Mr. Ganga Singh Negi, Amicus Curiae for the appellants. Mr. Amit Bhatt, Addl. Government Advocate for the respondent-State. JUDGMENT Hon’ble J. C. S. Rawat, J. This is a criminal appeal filed by the appellants against the judgment and order dated 28.04.2003 passed by the then Sessions Judge, Dehradun in S.T. No.177/2000, (State Vs. Subhash Kumar & Others) whereby the learned Sessions Judge has convicted the appellants and sentenced them to undergo RI for three years & also imposed a fine of rupees one thousand each under Section 324/34 of the I.P.C. It was further directed that in default of payment of fine, the appellants would undergo rigorous imprisonment for another period of three months. 2. The case of the prosecution, in brief, is that on 31.1.2000 at about 3.15 pm, a report was lodged by the injured Surendra Kumar Sehgal at Police Station Dalanwala wherein it has been stated that on 31.1.2000, he was going to his college for N.C.C classes. It was also alleged that when he was entering into the gate of D.B.S (P.G.) College, the accused Subhash who was a student of B.A. Part – II in the D.B.S College alongwith three other persons reached over there and all these persons were armed with ‘khukries’ (a sharp edged weapon). The appellant Subhash instigated the other accused persons to kill Surendra Kumar Sehgal. Upon this, co-appellant Hargopal assaulted him by ‘khukri’ which he was holding in his hand and immediately thereafter, the appellant Subhash also assaulted him by the ‘khukri’ on different parts of his body. The rest of the accused persons also assaulted him at the spot. Surendra Kumar Sehgal sustained injuries on his head and hand. Two students namely, Narendra Singh and Shailly who were present over there saw the occurrence and they took the injured-Surendra Kumar Sehgal to Doon Hospital, Dehradun where the injured-Surendra Kumar Sehgal scribed the report to the aforesaid effect and the same was lodged at the Police Station Dalanwala on 31.1.2000 at about 1515 hours. Thereafter, the matter was investigated and chargsheet was submitted by the Investigating Officer against the appellants. 3. The trial court framed charge against the accused appellants under Section 307 readwith 34 of the IPC. The accused appellants denied the charge levelled against them and claimed trial. 4. The prosecution in support of its case examined as many as four witnesses namely, Narendra Singh (an eyewitness) PW1, the injured/informant-Surendra Kumar Sehgal PW2, Dr. G.B. Singh PW3 & S.I. R.K. Kanojiya PW4-the Investigating Officer of this case. 5. In the statement recorded u/s 313 Cr.P.C., the accused-appellants denied all the averments made in the prosecution evidence and stated that they have been falsely implicated in this case. The accused-appellants did not adduce any evidence either documentary or oral, in support of their defence. 6. The learned trial court after appreciation of the evidence convicted the accused-appellants and sentenced them as mentioned above. 7. I have heard learned counsel for the parties. I have also gone through the evidence and material on record. 8. At the outset it needs to be mentioned that it is not disputed that the injured-Surendra Kumar Sehgal PW2 sustained the injuries on the date and time of the incident. The prosecution in support of its case examined Dr. G.B. Singh PW3 who is the medical officer posted at P.H.C, Pratap Nagar. He medically examined the injured- Surendra Kumar Sehgal PW2 at about 1330 hours on 31.1.2000 and prepared the medical report which is Ex.Ka-2 on record. As per the medical evidence, following injuries were found on the person of the injured-Surendra Kumar Sehgal PW2: (i) Incised wound 6 cm x 1 cm x muscles deep on back of head 11 cm above right ear. Oozing of blood fresh. (ii) Incised wound 2 cm x .3 cm x skin deep on back of head 7 cm below injury no. (i). Bleeding present. (iii) Incised wound 5 cm x 1 cm x muscles deep in left side head 6 cm above left ear. (iv) Incised wound 2.5 cm x 1 cm x muscles deep on upper part of Index Finger of left hand. Bleeding present. (v) Incised wound 2 cm x 1 cm x muscle deep on middle of Middle finger of left hand. Bleeding present. The doctor also opined that all the aforesaid injuries are fresh in nature and have been caused by sharp- edged weapon. All the aforesaid injuries were kept under observation and also advised X-ray of the skull, left index finger & middle finger. The doctor further opined that these injuries could have been caused at about 1300 hours on 31.1.2000. 9. The prosecution also examined Narendra Singh PW1 who has stated that the incident took place at about 1330 hours on 31.1.2000 and he saw the injured- Surendra Kumar Sehgal PW2 in injured condition at the spot. When the injured-Surendra Kumar Sehgal PW2 was examined in the court who is also the informant of this case, he has narrated the entire story and also stated that he sustained the injuries on his person on 31.1.2000 at about 1300 hours when he was entering into the gate of D.B.S. College. Thus, it is amply established that the injured-Surendra Kumar Sehgal PW2 sustained the injuries at the time and place of the incident. 10. Now, it is to be ascertained as to whether the appellants are the authors of the injuries sustained by the injured on the date of the incident or not. The learned Amicus Curiae for the appellants contended that the accused appellants are innocent and they have been falsely implicated in this case. The learned Addl. Government Advocate for the State refuted the contention. The prosecution in support of its case examined the injured-Surendra Kumar Sehgal PW2 who is the victim in this case. This witness has stated in his evidence that on 31.1.2000 at about 1300 hours, he was going to his college to attend the NCC classes. After parking his scooter, he entered into the gate of D.B.S College, where the accused-appellant Subhash alongwith other appellants holding ‘khukries’ in their hands came from his behind. The appellant Subhash put his hand on the shoulder of the injured and instigated the other appellants who were standing thereby to kill him. Upon this, co-appellant Hargopal assaulted the injured- Surendra Kumar Sehgal PW2 with the ‘khukri’ which he was holding in his hand and thereafter the appellant- Subhash also assaulted the inured on different parts of his body with the help of ‘khukri’ which he was holding in his hand. The other co-appellants also assaulted the injured-Surendra Kumar Sehgal PW2 at the spot. This witness has further stated that the said incident was seen by Narendra Singh PW1 and one Shailly who took him to the hospital and got him admitted there for treatment. The injured then scribed a report in the hospital itself and got it lodged at the police station through Narendra Singh PW1. 11. When Narendra Singh PW1 was examined by the court, he has stated in his evidence that on the date of the incident at about 12 noon, he went to DBS College to play cricket match and at that time Shailendra, Praveen, Manish, Sumit etc. were also present there. The injured- Surendra Kumar Sehgal PW2 came to the college at about 1330 hours. He has further stated that when he was going back after playing the cricket match, he saw that inside the gate of DBS College, some boys were assaulting the injured-Surendra Kumar Sehgal PW2 by ‘khukries’ and when he reached near the place of incident alongwith Shailendra, he found the injured- Surendra Kumar Sehgal PW2 laying on the ground in unconscious condition, his eyes were closed and was badly injured. The aforesaid witness has also stated in his evidence that the accused-appellants were not the assailants and he has denied their participation in the incident. Thus, this witness was declared hostile by the prosecution. It is pertinent to mention that in this case, the prosecution has produced only two witnesses of the incident and as far as the evidence of Narendra Singh PW1 is concerned, he was declared hostile by the prosecution but his evidence cannot be washed off from the record. It is the settled position of law, if a witness produced by the prosecution for evidence, corroborates the prosecution version on some points and remains consistent during the cross-examination on that points, the evidence of such hostile witness cannot be washed off from the record to that extent. In the instant case, Narendra Singh PW1 has categorically stated in his evidence that on the date of the incident, some persons were assaulting the injured by ‘khukris’ and when he reached near the place of incident he saw that the injured was laying on the ground and was badly wounded. Thus, the evidence of the aforesaid witness is credible and cogent to the effect that the incident took place on the said date of incident and the injuries were sustained by the injured on his person during the said scuffle though he denied the participation of the accused-appellants in the said incident. 12. The learned Amicus Curiae for the appellants further contended that in the first information report (scribed by the injured himself), it is alleged that the appellant-Subhash alongwith three other boys holding ‘khukries’ in their hands appeared before the injured and assaulted him; the first information report concerning this case reveals the name of only one of the accused- appellants namely, Subhash and names of rest of the accused appellants namely, Surendra @ Sonu, Manoj @ Monu & Hargopal do not find place in it and; the prosecution had not conducted the identification parade for the rest of the accused appellants, as such, the rest of the accused-appellants are entitled to get the benefit of doubt on this score alone. The learned Addl. Government Advocate for the State refuted the contention. 13. Perusal of the first information report clearly reveals the name of the appellant-Subhash only. It is alleged in the F.I.R that the appellant-Subhash alongwith three boys holding ‘khukries’ in their hands came to the place of incident and assaulted the injured-Surendra Kumar Sehgal PW2. In this way, names of the other three appellants had not been mentioned in the F.I.R. However, at the end of the F.I.R it is alleged that the injured could recognize the other three boys, if they are brought before him. Thus, the F.I.R clearly indicates that the injured was not aware of the names of the other three boys except the name of appellant-Subhash. The injured-Surendra Kumar Sehgal PW2 has categorically admitted in his cross-examination that he had written only the name of the appellant-Subhash in his report. Thus, it is apparent from the perusal of the F.I.R itself that the injured did not know the names of rest of the appellants till the time of lodging the F.I.R at the police station. When the injured-Surendra Kumar Sehgal PW2 was examined before the court, he has stated the following in Paras 6 & 7 of his evidence: "6. fnukad 28@1@2000 dks eSa ,d 'kknh esa r#irh oSfMax IokbaV es x;k gqvk FkkA ogkW ij bu pkjksa us esjs nksLr gsesUnz] mlds NkVs HkkbZ jfoUnz ls ekjihV djh Fkh vkSj eSaus chp cpko fd;k FkkA tc ogkW ckr [kRe gks x;h rks bUgksus vkrs gq, /kedh nh Fkh fd rqEgsa ckn esa ns[k ysaxsA " "7. fnukad 10@10@2001 dks eSa dksVZ esa xokgh ds fy, x;k Fkk rks dksVZ dSEil esa bu pkjksa us o buds firk Jh vt; flag o ,d nks vU; yksx muds lkFk Fks] us eq>s /kedk;k fd vxj rqeus gekjs f[kykQ dksVZ esa xokgh nh rks ckgj fudyrs gh xksyh ekj nsxsaA ml le; esjs lkFk esjs ekek Jh uan fd’kksj Hkh FksA ml le; esjs lkFk bl ?kVuk dk xokg ujsUnz ugha FkkA bl /kedkus okyh ckr fd fjiksVZ fy[kok;h FkhA " The aforesaid witness has further stated in his cross-examination that: "8. eSaus izn’kZ d&1 fjikVZ ?kVuk okys fnu gh fy[kh Fkha ;g fjiksVZ fnu esa gh fy[kh FkhA djhc 2 1@2 ctsa fy[kh FkhA mlesa dsoy lqHkk"k dk uke fy[kk;k Fkk] ckdh eqyfteksa ds uke ugha fy[ks FksA iqfyl us eq>ls Fkkus eqyfteku dh f’kuk[r ugha djk;h FkhA Lo;a dgk fd eSa ckdh eqyfteku dks tkurk Fkk blfy, f’kuk[r dk iz’u gh ugha mBrkA " 14. Perusal of the aforementioned Paras of the evidence of the injured clearly reveals that the injured knows all the four accused-appellants prior to the incident in dispute. It is corroborated by the fact that on 28.1.2000 when the injured had gone to Tirupati Wedding point, a melee took place between his friend and the appellants which was pacified upon his intervention. Thus, there is no dispute that the appellants were known to the injured prior to the incident and if all the appellants were known to the injured prior to the incident then there would have been no hesitation of writing their names in the F.I.R. Furthermore, there is no need to mention in the F.I.R about recognizing the remaining three boys, if they are brought before the injured. Thus, it is apparent from the record that participation of other three appellants except the appellant-Subhash becomes doubtful. 15. Apart from this, the G.D report Ex.Ka-7 further reveals that the injured handed over the said report to the Investigating Officer-S.I R.K. Kanojiya PW4 at the hospital and the Investigating Officer was present at the hospital immediately after the incident. When the Investigating Officer was produced before the court as PW4, he has stated in his examination-in-chief that he could not record the statement of the injured-Surendra Kumar Sehgal PW2 on the date of the incident as his condition was precarious and he was unconscious, as such, he recorded the statement of the injured under Section 161 Cr.P.C on the next day wherein the names of the other three accused appellants were introduced by the injured. Though Dr. G.B. Singh PW3 has stated in his evidence that at the time of medical examination, the injured was in a fit state of mind. Thus, participation of rest of the three appellants namely, Surendra @ Sonu, Manoj @ Monu & Hargopal in the incident seems to be introduced after due consultation. It is also apparent from the record that co-appellant Hargopal is the maternal uncle of rest of the three appellants who are the real brothers. This fact has been revealed from the statement of the appellants recorded under Section 313 Cr.P.C as well as from the evidence of the injured- Surendra Kumar Sehgal PW2. Apart form this, the first information report itself shows that the accused- appellants except the appellant-Subhash, were not known to the injured, as such, the prosecution should have conducted the identification parade for the remaining three appellants namely, Surendra @ Sonu, Manoj @ Monu & Hargopal to ascertain as to whether they were participated in the incident or not. 16. Though I am aware of the fact that the identification before the court is substantive piece of evidence whereas identification parade is corroborative piece of evidence and it is only to ascertain the participation of the accused in the incident. Considering the facts and circumstances of this case, participation of the appellants namely, Surendra @ Sonu, Manoj @ Monu & Hargopal becomes doubtful and identification before the court is of no avail in this case. The injured-Surendra Kumar Sehgal PW2 has stated in the F.I.R that the appellant-Subhash alongwith other unidentified persons assaulted him. Though, the evidence of the prosecution to the extent that the appellant-Subhash and other three persons caused the injuries is credible and cogent but participation of other three appellants namely, Surendra @ Sonu, Manoj @ Monu & Har Gopal in the incident is doubtful. Thus, as far as the accused appellants namely, Surendra @ Sonu, Manoj @ Monu & Hargopal are concerned, they are entitled to get the benefit of doubt in the case. The learned trial court erred in holding them guilty of the offence punishable under Section 324 readwith Section 34 of the I.P.C. 17. Now, it is to be seen as to whether the accused- appellant Subhash had participated in the incident or not. The evidence of Narendra Singh PW1 clearly indicates that he sustained the injuries at the time and place of the incident. This witness has further stated in his evidence that the said injuries were caused by the ‘khukri’, which the appellant-Subhash was holding in his hand. This witness has clearly indicated the participation of accused-Subhash in his evidence. Thus, the evidence of the aforesaid witness is totally credible, cogent and consistent, to the extent of participation of the appellant-Subhash in the incident is concerned. The defence has cross-examined this witness at length but nothing could be elicited from his evidence to discredit his testimony with regard to the participation of the appellant-Subhash in the incident is concerned. With regard to the factum of the incident and participation of the appellant-Subhash in the incident is concerned, this witness remained consistent during his cross- examination. Moreover, the testimony of injured witness-Surendra Kumar Sehgal PW2 cannot be doubted. He has sustained the injuries at the time of the incident and the prosecution has proved the same. The injured witness stands on a higher pedestal than an ordinary witness. The testimony of the injured witness- Surendra Kumar Sehgal PW2 to the extent of participation of the appellant-Subhash in the incident is concerned, it is credible and cogent. The testimony of an injured witness has its own relevance and efficacy. The fact that the witness sustained the injuries at the time and place of occurrence lends support to his testimony. (See Narendra Nath Khaware Vs. Parasnath Khaware and others 2003 SCC (Cri) 1144 & State of U.P. Vs. Kishan Chand and others 2004 SCC (Cri) 2013) 18. The learned Amicus Curiae for the appellants further contended that the prosecution had not adduced other independent witnesses to corroborate the fact of the incident. He further contended that the first information report as well as the evidence of the prosecution witnesses also suggests that other students were also present at the place of incident but they had not been produced before the court. He further contended that there was an enmity in between the appellant-Subhash and the injured-Surendra Kumar Sehgal PW2 so he had been falsely implicated in the case. The learned Addl. Government Advocate for the State refuted the contention. Perusal of the F.I.R as well as the evidence of the prosecution reveals that other eyewitnesses were also present at the spot who were not produced before the court. It is settled position of law that if the evidence of the injured witness inspires confidence, the conviction can be based only on that evidence. It would be the endeavour of the injured to see that the real culprit should be punished and he would not implicate wrong persons so as to allow the real culprit to go unpunished. In the case in hand, the injured-Surendra Kumar Sehgal PW2 had only implicated certain relatives of the accused-appellant Subhash though they are entitled to get the benefit of doubt but the injured-Surendra Kumar Sehgal PW2 would endeavour to seek punishment of the real culprit in the case. It is not always necessary to multiply the evidence of the incident on the same point. It has to be seen what is the quality of the witnesses. It is quality of the evidence and not the quantity which is required. If the evidence available on record is otherwise satisfactory in nature and can be said to be trustworthy, then increase in the number of witnesses would not be required further. It cannot be lost of the sight that public is reluctant to appear and depose before the court, especially, in criminal cases because criminal cases are kept dragging for years to come and the witnesses are harassed a lot. It cannot also be lost of the sight that sometimes the witnesses are being threatened and intimidated and, at the top of all, they are subjected to unnecessary and lengthy cross-examination. So due to above reasons, the witnesses avoid to come to the court. In the case in hand, as far as the evidence of the injured-Surendra Kumar Sehgal PW2 upto the extent of participation of appellant-Subhash in the incident is concerned, it is found consistent and nothing has been elicited from the cross-examination of the injured which may render his evidence as un-reliable. Thus, the evidence of the injured-Surendra Kumar Sehgal PW2 upto the extent of participation of appellant-Subhash in the incident is concerned, it is credible and cogent and no further corroboration is required by other witnesses. It has also come in the evidence of the injured-Surendra Kumar Sehgal PW2 that an incident took place on 28.1.2000 at Tirupati Wedding Point, where all the four accused-appellants assaulted his friends and further, when he was appearing before the court as a witness in the case, he was threatened of dire consequences by the appellants. By now, it is also well settled principle of law that animosity is a double edge weapon. It cuts both sides. It can be a ground for false implication and also a ground for assault. Just because of their enmity, the entire reliable & convincing evidence cannot be discarded on this score alone. Thus, I do not find any force in the contention of the learned Amicus Curiae for the appellants. 19. The learned Amicus Curiae for the appellants further contended that the investigation has not been conducted fairly and the Investigating Officer has not taken the statement of the principle of the college concerned nor examined the attendance register of the accused as well as of the appellants. It is settled position of law that if the Investigating Officer has committed certain remissness during the investigation that would not render the acquittal of the accused appellant. It is also settled position of law that if ocular testimony of the prosecution evidence is credible and cogent and convincing, the defect of the investigation would not vitiate the entire trial of the appellant. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of lapses of the Investigating Officer. To do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Dhanaj Singh @ Shera and others Vs. State of Punjab 2004 (3) SCC P-654, Chhotu Vs. State of Maharashtra 1997 CRI.L.J. p/4394 (SC), Karnel Singh Vs. State of M.P. 1995 CRL.L.J. p/4173 and Ram Sewak Vs. State of U.P. (2006) 1 SCC (Crl.) 534). 20. As far as recording the statement of the principle of the college and examining the attendance register is concerned, the principle of the college was not present at the time of the incident and secondly, the injured- Surendra Kumar Sehgal PW2 was entering into the college premises and had not attended the classes till that time, thus, collection of such evidence was not material for the investigation. I do not find any force in the said contention of the learned Amicus Curiae for the appellants. The learned Amicus Curiae for the appellants further contended that Narendra Singh PW1 has not supported the prosecution version, as such, the appellant-Subhash is entitled to get the benefit of doubt. I have gone through the entire evidence of Narendra Singh PW1 & the injured-Surendra Kumar Sehgal PW2. As I have pointed out above that Narendra Singh PW1 corroborated the prosecution version to the extent that some incident took place on the date