HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 467 of 2003 Decided on: 28.7.2010 Pawan Kumar ……… Appellant. Versus State of H.P. ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.Ajay Sharma, Advocate. For the respondent: Mr.J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J.(Oral): This is an appeal filed by the appellant under Section 374 of the Cr.P.C. against the judgment of the court of learned Sessions Judge, Hamirpur, H.P., dated 27.9.2003, vide which the appellant was held guilty under Section 307 of the IPC and was convicted and sentenced to undergo rigorous imprisonment for three years and also to pay a fine of Rs.7,000/-. In default of payment of fine, the appellant was to further undergo rigorous imprisonment for six months. 2. Briefly stated the facts of the case are that on receipt of a telephonic message from a doctor, Community Health Centre, Barsar at about 6.30 p.m., at Police Station, Barsar that one injured person had been brought to the hospital, ASI Sarwan Kumar, alongwith other police officials, proceeded to the hospital. The police officer went to the hospital, filed an application Ext.PW-4/C to the Medical ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - Officer as to whether the injured Raj Kumar was fit to make statement. The Medical Officer certified him to be fit to make statement and thereafter, the statement of the injured was recorded in which he alleged that today on 27.3.1998, Pawan Kumar accused had inflicted a blow upon him with a knife. On this statement, a case was registered and after investigation, the challan was filed before the court of the learned Additional Chief Judicial Magistrate, Barsar. Thereafter, the case was committed to the learned trial Court, who tried the appellant for the offence punishable under Section 307 of the IPC and convicted and sentenced him as detailed above. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. The first point taken by the learned counsel for the appellant during the course of arguments was that two persons, who were accompanying the complainant, have not supported the prosecution story. PW-1 is the complainant/injured Raj Kumar who has stated that at the time of occurrence, he was accompanied by Ashwani and Mintu. He stated that he was working in a PCO at Mehre for the last two years. He was knowing Anita Devi, sister of the accused, and had developed intimacy with her and they wanted to marry. He stated that when he was going at about 5.30 p.m. and passed near the quarter of the accused, the accused came out of his quarter and suddenly stabbed him on the lower part of his head i.e. neck, due to which blood started oozing out. He further stated that after the injury was inflicted on his person, he ran away towards bazaar and stopped outside the - 3 - shop of a barber. He also stated that the accused threatened him that in case he came out of the shop of the barber, he would kill him. Many persons had gathered there. The complainant PW-1 further stated that he started fainting and he was taken to Barsar Hospital where he gained consciousness. It has come in the statement of PW-1 Raj Kumar that at the time of occurrence, he was accompanied by Ashwani and Mintu, who were going with him. 5. The said Ashwani Kumar has been examined as PW-12, who has stated that he accompanied Rakesh Kumar and his sister to help her to appear in the examination in school Bani. After the examination was over, he reached at Mehre Bazar at 5.30 p.m., from where he boarded the bus to his village. He stated that he did not know Raj Kumar. He was declared as hostile and did not support the prosecution story that the injury in question was inflicted in his presence by the accused on the person of PW-1 Raj Kumar. However, he establishes his presence at 5.30 p.m., which is the time of occurrence, at Mehre bazaar, but came up with the plea that he boarded the bus and left for the village at the relevant time. 6. The other witness named by the complainant PW- 1 Raj Kumar in his statement has been examined as PW-11, namely, Rakesh Kumar alias Pintu. He stated that he had come with his sister, who had to appear in the examination, accompanied by Ashwani Kumar. He stated that after the examination was over, they came to Mehre bazaar at about 5.00 p.m. and boarded the bus to their village. He stated that he does not know if Raj Kumar was working in the STD. He was - 4 - also declared as hostile. It is also clear from a perusal of his statement that he was also present at the spot at Mehre Bazar at about 5/5.30 p.m., which proves his presence as well as that of PW-12 Ashwani Kumar, but for the remaining part, they did not support the prosecution case that the blow was inflicted by the accused in their presence. 7. It has also come up in evidence that the said barber in whose shop the complainant had taken refuge after the injury, has been examined as PW-3, who stated that he was working in the shop at the relevant time. An injured person came in his shop having a wound on his neck on the right side which he was holding with his hands. He was also raising voice ‘bachao-bachao’ and many persons gathered there and the injured was taken to the hospital. He stated that he did not see the assailant there. Thus, this witness has corroborated the fact that the complainant received the injury at about 5.30 p.m. and after receiving the injury, he had taken a refuge in the shop of the barber i.e. PW-3 Som Raj, as has come up in the statement of PW-1 Raj Kumar. 8. The submission made by the learned counsel for the appellant were that once the two eye witnesses, who were accompanying the injured at the relevant time, have not supported the prosecution story in regard to the injury having been inflicted by the accused, the statement of the complainant becomes doubtful and cannot be relied upon in the absence of independent corroboration. It is true that when independent witnesses have witnessed the occurrence but they have not corroborated the prosecution version, the statement of the complainant becomes doubtful. At the same time, the - 5 - statement of the complainant has to be appreciated with more care and caution and it cannot be discarded simply on the ground that the independent witnesses have not supported the prosecution story. 9. It has been observed by the learned trial Court that for various reasons, the witnesses turn hostile and the statement of the complainant cannot be ignored only on this ground. It is more so in case the complainant is the injured also and has suffered injury and his statement has been duly corroborated by medical evidence and, therefore, his statement cannot be discarded but has to be appreciated with more care and caution. 10. Coming to the medical evidence, PW-4 Dr.H.R. Kalia had examined the injured Raj Kumar and found the following injuries on his person: “1. There was an incised wound on right side of his neck. It was starting from above the pinna of right ear. The pinna stood cleanly cut. The wound was extending upto the mid line of nape of neck. It was about 4 inches long and 1 inch wide. The margins of the wound were everted and cleanly cut. The depth of the wound and the structures cut could not be ascertained due to massive bleeding from the wound. The clothes of the injured were stained with blood. The injured was perspiring. He was answering to verbal command if asked repeatedly. The nature of the injury was of the gravity which could not be treated at CHC Barsar. Therefore, I referred him to PGI Chandigarh.” In his further statement, he has stated that the injury was caused with sharp edged weapon within 6 hours preceding to the time of his medical examination. He also stated that he has seen Ex.P-1, the butcher’s knife, and it was stated that - 6 - the injury could have been caused with Ext.P-1. Thus, the weapon of offence was shown to the Medical Officer PW-4 Dr.H.R. Kalia, who gave a positive opinion that the injury was possible with the weapon of offence shown to him. The Medical Officer, who proved the certificate Ext.PW-4/A, has clearly stated that the injury was dangerous and it was likely to cause death of the injured. PW-14 Dr.Deepak Tyagi has only proved the prescription slip etc. issued by another Medical Officer. His opinion that the neck injury was not dangerous to life cannot be accepted as correct since he had neither seen the patient nor had seen the injury and, therefore, his opinion is irrelevant in view of the opinion of PW-4 Dr.H.R. Kalia, who had examined the injured and given his opinion. The statements of other witnesses are not very material. 11. The prosecution had also examined the Investigating Officer S.I. Sarvan Kumar PW-13, who effected the recovery of the knife at the instance of the disclosure statement made by the accused Ext.PW-8/A and the spot map has been proved in evidence as Ext.PW-13/B. This statement has been corroborated by PW-8 Kanshi Ram, who is the marginal witness to the disclosure statement Ext.PW-8/A and the recovery of the knife vide memo Ext.PW-8/B and he has supported the statement of PW-13 the Investigating Officer, namely, Sharvan Kumar, on material particulars. Thus, the recovery of the weapon at the instance of the accused has been duly established and the Medical Officer has also opined that the injury was possible with the knife in question. - 7 - 12. From the above discussion, it is clear that the statement of the complainant has been duly corroborated by the medical evidence and the mere fact that two witnesses accompanying him have not supported the prosecution story does not lead to the inference that the statement of the complainant coupled with the medical evidence can be ignored. Moreover, the complainant has given a motive for inflicting the injury on his person by the accused since he alleged that he was having an affair with the sister of the accused, which had been objected and accordingly, he inflicted the blow on the person of the complainant. In cross examination of PW-1 Raj Kumar, this fact was sought to be introduced that the said girl was having an affair with both the witnesses named by him i.e. Ashwani and Mintoo and they had inflicted the blow since they were also involved with Anita, sister of the accused. The defence version, so put up, appears to be palpably false and nothing is made out from the statement of the complainant that this defence version may be correct. 13. In view of the above discussion, I accordingly hold that the learned trial Court had given sound reasoning for holding that the prosecution has established its case beyond any reasonable doubt and had given a well reasoned judgment in coming to the conclusion that the accused was guilty of the offence punishable under Section 304 of the IPC. 14. The last prayer made by the learned counsel for the appellant was that the appellant was a young man of the age of about 20 years at the time of occurrence in 1998 and presently may be of the age of 31 years and the sentence - 8 - imposed is excessive, which deserves to be reduced considerably. In support of this submission, the learned counsel for the appellant placed reliance upon the following decisions. 15. The decision in Munna alias Vijay Kant versus State of Rajasthan, AIR 1982 Supreme Court 1465, was relied upon where the accused was 16 years of age on the date of occurrence. The accused was held guilty under Sections 307 and 452 of the IPC. He was sentenced to suffer rigorous imprisonment for three years and a fine of Rs.500/-, and in default to suffer rigorous imprisonment for six months for the offence under Section 307 of the IPC. He was further sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.200/- for the offence under Section 452 of the IPC. It was held that having regard to the age of the petitioner on the date of offence and after looking into the circumstances in which the offence was committed and the nature of the injury, being only one, which was held to be dangerous to life, the sentence imposed was modified. The petitioner was already in jail for the last one year and 9 months and, therefore, the sentence was reduced to the one already undergone. 16. The decision in Shanabhai Dhulabhai Parmar versus State of Gujarat, AIR 1977 Supreme Court 1338 was also relied upon in which the appeal was being considered after about 14 years that the appellant was prosecuted for the offence. The sentence imposed under Section 307 of the IPC was five years rigorous imprisonment, which was reduced to two years rigorous imprisonment. - 9 - 17. In the present case, relying upon the decision in Shanabhai Dhulabhai Parmar’s case (supra), I am of the opinion that the sentence imposed upon the appellant deserves to be reduced to two years rigorous imprisonment and the fine imposed by the learned trial Court is maintained. The appeal is partly accepted to this extent that the sentence imposed is reduced to two years rigorous imprisonment. 18. The appeal is partly allowed and the same stands disposed of accordingly. July 28, 2010. (V.K. Ahuja), (TILAK) Judge