HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

RESERVED

A.F.R.

Case :- CRIMINAL APPEAL No.357 of 1998

Appellant :- Saeedul Hasan

Respondent :- State Of U.P.

Counsel for Appellant :- Mohsin Iqbal,S.H. Ibrahim

Counsel for Respondent :- Govt. Advocate

****

Hon’ble Virendra Kumar-II, J.

1. Heard Shri S.H. Ibrahim, learned counsel for the appellant and Shri Izhar Husain, learned Additional Government Advocate for the State.

2. This appeal has been preferred against the impugned judgment and order dated 04.06.1998 delivered by the then learned Additional Sessions Judge-VI, Unnao in S.T. No.332 o 1996 thereby convicting the appellant and sentencing him rigorous imprisonment for seven years and fine of Rs.2000/- has been imposed along with default stipulation clause. Accused has been convicted for the offence punishable under Section 307 I.P.C.

3. It is pleaded in the grounds of appeal that the First Information Report (here-in-after referred to as ‘F.I.R’.) has been lodged with the delay. The occurrence took place on 14.02.1996 and F.I.R. was lodged on 18.02.1996. No independent witness has been produced by the prosecution to corroborate the prosecution version. The injuries suffered by the injured are superficial and no internal damage has been found. The trial court has not accepted the version of the defence, which is just and proper. A theft of the goats was took place and in scuffle the injured received injuries due to village party bandi. The complainant has falsely implicated the appellant in this crime. The prosecution version is not corroborated by the medical evidence. The prosecution has failed to prove its case against the appellant. It is also pleaded that the Investigation of the case is tainted. The conviction of the appellant is neither warranted in law nor on facts. The appellant is not previous convict and he is innocent in the matter. The sentence is to severe. On the above mentioned grounds, it is prayed that the conviction and sentence passed by the learned trial court be set aside.

4. I have perused the record of S.T. No.332 of 1996; State vs. Saeedul Hasan, under Section 307 I.P.C., Police Station-Kotwali, District-Unnao.

5. As per prosecution version, the complainant Istiyak Mohammad submitted written report (Ext. Ka-1) at Police Station-Kotwali, District-Unnao, on the basis of which Crime No.182 of 1996, under Section 307 I.P.C. was registered on 18.02.1996, at 18:30 hrs. Check F.I.R. (Ext. Ka-4) and G.D. (Ext. Ka-5) were prepared for registration of crime.

6. The complainant, as mentioned in the written report (Ext. Ka-1), stated that on 14.02.1996, at about 5:00 p.m., when his son aged about 14 years was returning home after grazing goats near Bukhara Leather Company the accused Saeedul Hasan son of late Noor Hasan met him on the way. He lured his son and brought him in ‘Ganda Nala’ (nullah) situated in front of village Chubhana Khera, hamlet Akrampur. The goats were with his son. The accused had stabed his son by knife and thrown him in abandoned Kothari of Tubewell. It is also mentioned that when his son did not return in the evening at his house, he searched for him and found him in state of unconscious (Marnasann). He was on death bed. He was admitted at district hospital from, where he was referred to Hallet Hospital, Kanpur. The injured Mohammad Javed gained consciousness on 18.02.1996, then the complainant was apprised by him that the accused Saeedul Hasan has assaulted him with knife and threw him in the abandoned Kothari of Tubewell.

7. The Investigating Officer visited the place of occurrence and prepared siteplan (Ext. Ka-2). The injured Mohammad Javed was medically examined and the injury report (Ext. Ka-6) was prepared. The Investigating Officer after recording statements of witnesses and conclusion of investigation submitted the charge-sheet (Ext. Ka-3) against the accused.

8. After committal the case to Sessions Judge trial court framed charge against the accused on 24.08.1996 for offence punishable under Section 307 I.P.C.

9. The prosecution examined PW-1 the complainant Ishtiyaq Mohammad, PW-2 Mohammad Javed injured, PW-3 Investigating Officer Sri R.N. Dubey, PW-4 Constable Ram Baran Pandey and PW-5 Dr. Y. K. Nigam, E.M.O., Hallet Hospital, Kanpur. The Investigating Officer has also collected Bed Head Ticket (here-in-after referred to as ‘B.H.T’.) of the injured from Lal Lajpat Rai Associated Hospital, Kanpur. The witnesses have proved the above mentioned documents. The injured PW-2 was medically examined by the concerned doctor, who prepared injury report (Ext.Ka-6).

10. Learned counsel for the appellant has argued that F.I.R. was lodged by PW-1 with delay of four days. After due consultation and deliberation.

11. The following case law is relevant on the point of lodging of F.I.R. with delay.

In the case of State of Punjab vs. Gurmit Singh others reported in 1996 SCC (2) 384, the Hon’ble Supreme Court has held as under:-

“The grounds on which the trial court disbelieved the version of the prosecutrix are not at all sound. The findings recorded by the trial court rebel against realism and lose their sanctity and credibility. The court lost sight of the fact that the prosecutrix is a village girl. She was a student of Xth Class. It was wholly irrelevant and immaterial whether she was ignorant of the difference between a Fiat, an Ambassador or a Master car. Again, the statement of the prosecutrix at the trial that she did not remember the colour of the car, though she had given the colour of the car in the FIR was of no material effect on the reliability of her testimony. No fault could also be found with the prosecution version on the ground that the prosecutrix had not raised an alarm while being abducted. The prosecutrix in her statement categorically asserted that as soon as she was pushed inside the car she was threatened by the accused to keep quiet and not to raise any alarm otherwise she would be killed. Under these circumstances to discredit the prosecutrix for not raising an alarm while the car was passing through the Bus Adda is traverisity of justice. The court over-looked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alram.

Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how car that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. Trial Court fell in error for discrediting the testimony of the prosecutrix on that account.

In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.

The criticism by the trial court of the evidence of the prosecutrix as to why she did not complain to the lady teachers or to other girl students when she appeared for the examination at the center and waited till she went home and narrated the occurrence to her mother is unjustified. The conduct of the prosecutrix in this regard appears to us to be most natural. The trial court over-looked that a girl, in a tradition bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing the teachers or her friends at the examination center under the circumstances cannot detract from her reliability. In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others over-powered by a feeling of shame and her natural inclination would be to avoid talking about it to any one, lest the family name and honour is brought into controversy. Therefore her informing to her mother only on return to the parental house and no one else at the examination center prior thereto is an accord with the natural human conduct of a female.

The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case.

The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused.

The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances.

It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.”

11-A. On perusal of this exposition of law, it reveal that Hon’ble Supreme Court has dealt with these important facts (1) Delay in lodging F.I.R. (2) Faults and deficiencies committed by the Investigating Officer (3) Sole victim/ injured witness and requirement of corroboration and effect of these facts on prosecution version/ case. It is held that prosecution case cannot be discarded if evidence of witnesses produced by prosecution is reliable, credible and inspires confidence. Therefore, evidence of PW-1 and PW-2 would be assessed accordingly. Although this case law relates to offence of rape, but it enunciate the above mentioned three law points.

Hon’ble the Supreme Court in the case of Mukesh and others Vs. State of NCT of Delhi and others reported in (2017) 6 SCC 1 has observed as under:

According to Hon’ble Mr. Justice Dipak Mishra for himself (presently Hon’ble C.J.I.) and Hon’ble Mr. Justice Ashok Bhushan held in paragraph nos. 49, 53, 55, 56 and 57 regarding delay in lodging F.I.R. in cases of offence committed against women and other victims as follows :-

49. Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by courts with suspicion because there is possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors. Even a long delay can be condoned if the informant has no motive for implicating the accused.

53. In State of Himachal Pradesh v. Rakesh Kumar (2009) 6 SCC 308, the Court repelled the submission pertaining to delay in lodging of the FIR on the ground that the first endeavour is always to take the person to the hospital immediately so as to provide him medical treatment and only thereafter report the incident to the police. The Court in the said case further held that every minute was precious and, therefore, it is natural that the witnesses accompanying the deceased first tried to take him to the hospital so as to enable him to get immediate medical treatment. Such action was definitely in accordance with normal human conduct and psychology. When their efforts failed and the deceased died they immediately reported the incident to the police. The Court, under the said circumstances ruled that in fact, it was a case of quick reporting to the police.

Judged on the anvil of the aforesaid decisions, we have no hesitation in arriving at the conclusion that there was no delay in lodging of the FIR.

55. As far as the argument that the FIR does not contain the names of all the accused persons is concerned, it has to be kept in mind that it is settled law that FIR is not an encyclopedia of facts and it is not expected from a victim to give details of the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopedia which is expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear. If any overt act is attributed to a particular accused among the assailants, it must be given greater assurance. In this context, reference to certain authorities would be fruitful.

56. In Rattan Singh v. State of H.P. (1997) 4 SCC 161, the Court, while repelling the submission for accepting the view of the trial court took note of the fact that there had been omission of the details and observed that the criminal courts should not be fastidious with mere omissions in the first information statement since such statements can neither be expected to be a chronicle of every detail of what happened nor expected to contain an exhaustive catalogue of the events which took place. The person who furnishes the first information to the authorities might be fresh with the facts but he need not necessarily have the skill or ability to reproduce details of the entire story without anything missing therefrom. Some may miss even important details in a narration. Quite often, the police officer, who takes down the first information, would record what the informant conveys to him without resorting to any elicitatory exercise. It is voluntary narrative of the informant without interrogation which usually goes into such statement and hence, any omission therein has to be considered along with the other evidence to determine whether the fact so omitted never happened at all. The Court also referred to the principles stated in Pedda Narayana v. State of A.P. (1975) 4 SCC 153; Sone Lal v. State of U.P. (1978) 4 SCC 302; Gurnam Kaur v. Bakshish Singh 1980 Supp SCC 567.

57. In State of Uttar Pradesh v. Naresh and Ors (2011) 4 SCC 324, reiterating the principle, the Court opined that it is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has been falsely implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from the same. Some people may miss even the most important details in narration. Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused. For the aforesaid purpose reliance was placed upon Rotash v. State of Rajasthan (2006) 12 SCC 64 and Ranjit Singh v. State of M.P. (2011) 4 SCC 336.”

The Hon’ble Supreme Court in case of Ponu Samy Vs. State of Tamilnadu reported at (2008) 5 SCC 587 (c), has held that police Apathey and village women’s endeavour, social condition of complainant can be taken into account while considering delay in lodging F.I.R.

In case of Vishwanathan Vs. State reported at (2008) 5 SCC 354, Hon’ble Supreme Court held that prosecution case should not be thrown out on ground of delay other factors like trauma suffered by victim, sociological factors alongwith other evidence should be taken into consideration.

In case of Animireddy Venkatramana Vs. Public Prosecutor High Court A.P. reported (2008) 5 SCC 368 (f d), the Hon’ble Supreme Court held that discrepancies in F.I.R. merely because case against some accused named in it could not be established or some inquiries were made to ascertain truth of incident prosecution case cannot be discarded. F.I.R. need not be encyclopedic, each and every detail need not to be stated in it. Court has to ascertain about possibility of false implication of accused. It is also observed that probable, physical and mental condition of informant is relevant.

In case of Darshan Singh and others Vs. State of Punjab reported at AIR 1983 SC 554, the Hon’ble Supreme Court held that the fact that the names of some accused are not mentioned in the FIR is a circumstance which the prosecution has to explain, though, no rule of law stipulates that an accused whose name is not mentioned in the FIR is entitled to acquittal.

Eqbal Baig Vs. State of A.P. reported at AIR 1987 SC 923, the Supreme Court held that non-mention of name of accused in FIR and inquest report by witness not a ground for rejecting his evidence.

In case of Betal Singh Vs. State of M.P. reported at 1996 Crl.J. page 4006 (SC), Babu Singh Vs. State of Punjab 1996 (33) ACC 474 SC Baldev Singh Vs. State of Punjab 1995 ACC 752 (SC) Bijay Singh Vs. State of Bihar 2003 SCC (Crl.) 1093, Hon’ble Supreme Court in these cases has held that mention of few facts or vague facts or if detailed particulars of occurrence are not mentioned in the FIR, then minute details of occurrence is not required as FIR is not encyclopedia of occurrence. In case of Bijay Singh (supra), it is also held that FIR is not substantive piece of evidence of occurrence.

In case of Bhaskaran Vs. State of Kerala reported at 1998 (9) SCC 12/AIR 1998 SC 476, the Hon’ble Supreme court has held that distance of police station from place of occurrence was 15 km in this case. No conveyance was available. FIR was lodged after 24 hrs. In these circumstances, it was held that evidence of eye witness cannot be disbelieved on the ground that they made no attempt to save the deceased from attack. Investigating Officer had not seized the torch source of light. The evidence of eye witness was not discarded.

Hon’ble Supreme Court in case of Ravinder Kumar and Anr. vs. State of Punjab reported at AIR 2001 SC 3570 observed as under :-

……The attack on the prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. OF course a prompt and immediate lodging of the FIR is the ideal as that would given the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.

….. When there in criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of uncoversantness is not too uncommon among urban people also. They might not immediately think of going as the police station. Another possibility is due to lack to adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or seductiveness of temper of moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.

…… We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point cut that the stale demand made in the criminal courts the treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the cause for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the merely delay in lodging the FIR. [Vide Zahoor vs. State of UP (1991 Suppl. (1) SCC 372; Tara Singh vs . State of Punjab MANU/SC/0016/1991 : AIR1991SC63 ; Jamna vs. State of UP MANU/SC/0022/1994 : 1994 (1) SCC 185. In Tara Singh (Supra) the Court made the following observations: “It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.”

….. We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point cut that the stale demand made in the criminal courts the treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the cause for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the merely delay in lodging the FIR. [Vide Zahoor vs. State of UP (1991 Suppl. (1) SCC 372; Tara Singh vs . State of Punjab MANU/SC/0016/1991 : AIR1991SC63 ; Jamna vs. State of UP MANU/SC/0022/1994 : 1994 (1) SCC 185. In Tara Singh (Supra) the Court made the following observations: “It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report.”

Hon’ble Supreme Court regarding proof of motive of a crime by the prosecution :

It is further observed that :-

…… The third contention is that the motive alleged by the prosecution was not established and hence the area remains gray as to what would have impelled them to liquidate the broker. No doubt it is the allegation of the prosecution that appellants owed a sum of Rs. one lakh to the deceased and it might not have been possible for the prosecution to prove that aspect to the hilt. Nonetheless some materials were produced for showing that three were transactions between the appellants and the deceased and that they had some account to be settled. Only thus far could be established but not further. It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that prosecution in many cases could point to is the possible mental element which could have ben the cause for the murder. In this connection we deem it useful to refer to the observation of this Court in State of Himachal Pradesh vs. Jeet Singh MANU/SC/0165/1999 : 1999CriLJ2025 : “No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such as degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.”

11-B. PW-1 the complainant has stated in his examination-in-chief the facts as narrated in the written report (Ext. Ka-1). He has proved this fact that he lodged F.I.R. on 18.02.1996 at Police Station-Kotwali, District Unnao. When his son gained consciousness at Hallet Hospital Kanpur. His son apprised him that accused Saeedul Hasan assaulted him with knife and threw him in the abandoned Kothari of Tubewell. Therefore, the facts narrated by him in the written report are based on the facts apprised by his son.

12. PW-1 has stated in his cross-examination that on 14.02.1996, at about 5:00 p.m. his son was grazing the goats. He was returning back to his home, in the meanwhile, the accused-person who is present in the court room, lured him and brought to ‘Ganda Nala’ and assaulted his son by knife at neck and abdomen. After committing incident, his son was thrown in the abandoned Kothari of Tubewell by the accused. He found his son in the said Kothari in unconscious state. He brought his son at District Hospital, Unnao and then admitted him at Hallet Hospital Kanpur.

13. During his cross-examination, PW-1 has disclosed this fact that on the date of occurrence he went for performing his duties at 6:00 p.m. at Sahibabad Chemical, where he works. He came back at 6:30 p.m. after taking leave. He found his son at 8:00 p.m. when he was unconscious. He admitted his son at Hallet Hospital, Kanpur after being referred from District Hospital Unnao.

14. PW-1 has specifically stated in his cross-examination that he lodged F.I.R. after four days of incident when his son gained consciousness. He has accepted that he could not know name of assailant during this period of four days. When his son gained consciousness, then he apprised him about the assailant. His son was serious, therefore, he did not return from Kanpur and could not lodge F.I.R. during this period. PW-1 has also disclosed this fact that at Kanpur hospital he apprised the concerned doctor that unknown person assaulted his son five hours ago. He has further stated that after admission of his son at Hallet Hospital Kanpur, he did not return at Unnao to lodge the F.I.R. He has also stated that he did not contact the residents of locality like Mohd. Irfan, Shamshad, Panchan Pasi, Habeeb, Ajeem and Haneef.

15. Therefore, PW-1 has proved this fact that he did not know the name of the assailant during the period of four days, because during this period his son was unconscious and admitted at Hallet Hospital Kanpur. He was busy for his treatment, therefore, he could not lodge F.I.R. at Police Station-Kotwali, District-Unnao. He remained at Kanpur during this period. He has also proved this fact that his son gained consciousness on 18.02.1996 and apprised him that accused assaulted him with knife and threw him in the abandoned Kothari of the Tubewell, where PW-1 found him in the state of unconsciousness and he was on death bed.

16. Therefore, PW-1 tried to save life of his injured son PW-2 Mohammad Javed, who was minor, aged about 14 years on the date of occurrence. His son apprised him about the incident committed by the accused on 18.02.1996 and immediately he lodged F.I.R. on the same day. Therefore, treatment and admission of PW-2 at Hallet Hospital Kanpur is self explanatory for delay in lodging F.I.R. by PW-1. The following case law is relevant on this point.

In case of Raghbir Singh Vs. State of Haryana reported at 2000 CRLJ 2463 (SC), the Hon’ble Supreme court has held that if injured was sent to hospital for treatment first, then FIR was lodged then delay is very well explained and it will not affect prosecution adversely.

17. There is no substance in the arguments of learned counsel for the appellant that F.I.R. of this crime was lodged by PW-1 with the delay of four days. This argument is of no avail for the appellant, because PW-1 complainant has explained the fact and circumstances in which delayed F.I.R. was lodged by him. The prosecution has given proper explanation for delay on the basis of evidence of PW-1 and PW-2.

18. Learned counsel for the appellant has further argued that the goats of injured PW-2 were stolen and these goats were recovered by the police personnel of Police Station-Kotwali after three days. These police personnel apprised the injured/ complainant that accused sold these goats in village Magarwara. Therefore, accused has falsely been implicated in this crime without any basis, due to this reason.

19. I have perused the statement of PW-2. He has stated that he was grazing his goats near ‘Ganda Nala’ and when he was returning back for his house from there at about 5:00 p.m. on the date of incident, on the way accused Saeedul Hasan, who was identified by him before the trial court, met him and lured him on the pretext to pluck leaves of Fenugreek plant (Methi). Then he went with him. There was no agricultural field of Fenugreek. PW-2 has stated that he asked the accused to return home, then accused shut up his mouth and assaulted him with knife. He could not raise any alarm, because his mouth was shut by the accused. He sustained stab injuries in his neck and stomach, as a result of which, he became unconscious. PW-2 has proved this fact that he gained consciousness at Hallet Hospital Kanpur, then he apprised all the facts and circumstances of the incident to his father.

20. PW-2 in his cross-examination has stated that Investigating Officer has recorded his statement after one month. He apprised the Investigating Officer about the assailant. He also apprised him that accused asked him to pluck leaves of Fenugreek plant. He has refuted this suggestion putforth by the learned defence counsel that his goats were recovered after three day by the police personnel of Police Station-Kotwali from the village Magarwara and police personnel apprised him in this regard that Saeedul Hasan sold these goats at village Magarwara. Therefore, he was falsely implicated in this crime.

21. He has also stated that his father admitted him at Hallet Hospital Kanpur. He apprised the concerned doctor that Saeedul Hasan assaulted him. He did not apprise the doctor that 4 to 5 miscreants assaulted him. He has specifically stated that Saeedul Hasan made assault on him due to reason that he wanted to take in his possession the goats, which were grazing by him on the date of incident. He has specifically stated that after assaulting him the accused dropped him in the abandoned Kothari of Tubewell.

22. He has further stated that where he was grazing the goats, he was alone and another structure except the said Kothari was not available there. He has disclosed this fact during his cross-examination that he gained consciousness after three days at Hospital. He was discharged from the hospital after eight days. His father was present, when he gained consciousness.

23. Therefore, PW-2 has apprised the entire facts and circumstances, in which, the accused Saeedul Hasan assaulted him and dropped him in the said Kothari. He has apprised the trial court that with aim to take into possession his goats, he assaulted him on the date of incident. PW-2 injured has stated that he knew the accused Saeedul Hasan prior to the date of occurrence and he apprised his father about him, when he gained consciousness at Hallet Hospital Kanpur. Therefore, there is no dispute regarding identity of the accused-Saeedul Hasan.

24. The trial court has appreciated the evidence of PW-1 and PW-2 in correct perspective and its findings cannot be termed as perverse and against the evidence available on record. The trial court has held the accused guilty for the offence committed by him on the basis of evidence adduced by PW-1 and injured PW-2.

25. Learned counsel for the appellant has further argued that accused has falsely been implicated in this crime due to enmity. PW-2 has refuted this suggestion and stated that neither he has any animosity with the accused-Saeedul Hasan nor any villagers have it. Nobody in the village is annoyed from the accused-Saeedul Hasan. PW-1 has lodged F.I.R. against the accused, when his son gained consciousness at Hallet Hospital Kanpur and apprised him that accused Saeedul Hasan assaulted him on the date of incident. Therefore, there is no substance in the argument of learned counsel for appellant that accused has falsely been implicated in this crime on any old enmity with him. No such defence evidence has been adduced on behalf of the appellant.

26. Learned counsel for the appellant has further argued that the witness PW-1 is not the eye witness. He has conveyed to the concerned doctor of Hallet Hospital Kanpur that unknown person assaulted his son. He with due consultation and deliberation lodged F.I.R. against accused and he has falsely been implicated in this crime. On the other hand, PW-2 injured remained unconscious during admission at Hallet Hospital Kanpur, is doubtful.

27. Learned counsel for appellant has argued that no independent witness has been produced on behalf of the prosecution. PW-1 is father of the victim and no other witness present at the place of occurrence has been examined. Only victim PW-2 has been produced by the prosecution.

28. Learned counsel for the appellant has lastly argued that injuries sustained by the injured are superficial in nature and no internal damage was caused to him. Therefore, punishment awarded against the appellant is excessive and severe.

In this regard, in the case of Sagayam Vs. State of Karnataka reported in (2000) 4 SCC 454 Hon’ble Supreme Court in para-6 has held as under:-

“6. To justify conviction under this Section under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. An attempt in order to be criminal need not be the penultimate act fore boding death. It is sufficient in-law if there is present an intent coupled with some overt act in execution thereof, such act being proximate to the crime intended and if the attempt has gone so far that it would have been complete but for the extraneous intervention which frustrated its consummation. There are different stages in a crime. First intention to commit it; second preparation to commit it; third, an attempt to commit it. If at the third stage, the attempt falls, the crime is not complete but law punishes for attempting the same. An attempt to commit crime must be distinguished from an intent to commit it or preparation of its commission.”

The Hon’ble Apex Court in the case of Vasant Vithu Jadhav vs. State of Maharashtra reported in 2004 CRl. L. J. 1786 in para-9 has held as under:-

“9. In the aforesaid factual scenario it has to be seen whether Section 307 has application. Section 307, IPC reads as follows:

‘Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.’

To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.”

The Ho’ble Supreme Court in the case of State of Maharashtra vs. Kashirao and others reported in 2004 SCC (Cri.) 801 in paras-20 and 21 has held as under:-

“20. So far as the assaults on PW-1 is concerned, the nature of the assaults and the injuries found clearly bring in application of Section 307 IPC. The trial Court was therefore justified in convicting accused- respondent No.1 under Section 307 IPC. The essential ingredients required to be proved in the case of an offence under Section 307 are:-

(i) That the death of a human being was attempted;

(ii) That such death was attempted to be caused by, or in consequence of the act of the accused;

(iii That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as; (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b)such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.

21. In offence under Section 307 all the ingredients of offence of murder are present except the death of the victim. For the application of Section 307 it is not necessary that the injury capable of causing death should have been actually inflicted. The injuries sustained, the manner of assaults and the weapons used clearly make out a case of Section 307 IPC. But since sentence and fine have been maintained alteration of conviction notwithstanding no modification of sentence need be made. It is true that when two views are possible and if one view has been adopted by the Court to either acquit the accused or to apply a different provision of law, interference should not be made but when the judgment suffers from legal infirmities and application of legal position to the factual scenario is unsustainable, interference is not only necessary but also highly desirable. The appeal deserves to be allowed. In the ultimate, the judgment of the High Court is set aside and that of the trial Court is restored. The respondents shall surrender to custody and serve out the balance sentence.”

Hon’ble Supreme Court in the case of State of Madhya Pradesh vs. Saleem alias Chamaru and another reported in 2005 CRI. L. J. 3435 in paras-11, 12 and 13 has held as under:-

“11. It is to be noted that the alleged offences are of very serious nature. Section 307 relates to attempt to murder. It reads as follows:

”Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to (imprisonment for life), or to such punishment as is hereinbefore mentioned.”

12. To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.

13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt”.

Hon’ble Supreme Court in the case of R. Prakash vs. State of Karnataka reported in AIR 2004 SC 1812 in para-9 has held as under:-

“9 It is sufficient to justify a conviction under section 307 if there is present an intent coupled with some overt-act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The sections makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, it is not correct to acquit an accused of the charge under section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt.”

A Coordinate Bench of this Court in the case of Ashok Kalyan Dass vs. Sate of U.P. reported in 2005 CRI. L. J. 1009, in paras-12, 13 and 14 has held as under:-

“12. In the instant case, the sentence cannot be said to be severe because for no fault of victim Ram Babu, injuries were caused to him. Injuries were caused by appellant and his three associates, two out of which were armed with knife. As many as five incised wounds were caused on vital parts of the body which shows the intention of the appellant to commit murder of Ram Babu. Merely because these injuries are stated to be simple in nature, it cannot be inferred that intention of the appellant was not to commit murder. The intention of the appellant and his associates was to create terror in the mind of the victim, to commit his murder and also to show in the society that anyone who refuses to give them money, had to face consequences. Evidence adduced in this case shows that the appellant was committing misconduct and that was the reason that the complainant asked him to vacate his house. Thus, considering the circumstances, the nature of weapon and injuries etc. the appellant does not deserve any punishment less than that awarded by VIth Additional Sessions Judge, Agra and it deserves to be confirmed, as it does not call for any interference by this Court. The sentence awarded is proportionate to the role of the appellant and circumstances of the case.

13. Therefore, the appeal deserves to be dismissed.

14. The appeal is dismissed and the order of conviction and sentence of the appellant Ashok passed by VIth Additional Sessions Judge, Agra under Section 307 read with Section 34 I. P. C. is confirmed. The appellant is absconding. He be arrested and sent to jail to serve out the sentence. The appellant is allowed sixty days time to deposit Rs. 500/- and in default of payment of fine, he has to undergo further imprisonment of three months as is awarded by VIth Additional Sessions Judge, Agra. Learned VIth Additional Sessions Judge will ensure that Ashok is arrested and is lodged in jail to serve out the sentence.”

Hon’ble Supreme Court in the case of Hari Mohan Mandal vs. State of Jharkhand reported in AIR 2004 SC 3687 has observed as follows:-

“In the factual scenario noted above, it has to be seen whether Section 307 IPC has application. Said provision reads as follows:

“Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.”

To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. If the injury inflicted has been with the avowed object or intention to cause death, the ritual nature, extent or character of the injury or whether such injury is sufficient to actually causing death are really factors which are wholly irrelevant for adjudging the culpability under Section 307 IPC. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt.”

Hon’ble Supreme Court in the case of Sunil Kumar vs. N.C.T. Delhi reported in 1998 (8) SCC 557, in para-4 has observed as follows:-

“4. The view taken by the High Court is obviously erroneous because offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under Section 308 IPC whereas punishment for simple hurts can be meted out under Sections 323 and 324 and for grievous hurts under Sections 325 and 326 IPC. Qualitatively, these offences are different. The High Court was thus not well advised to take the view as afore-extracted to bring down the offence to be under Sections 323/34 IPC and then in turn to hold that since that offence was investigated by the police without permission of the magistrate, the proceedings under that provision be quashed. For the view afore-taken as to the commission of the offence under Sections 308/34 IPC, it is not necessary to dwell on the correctness of the second part of the order relating to quashing of proceedings under Sections 323/34 IPC. Thus, the entire order of the High Court deserves to be and is hereby quashed, restoring the status quo ante of the trial remaining with the Additional Sessions Judge to proceed in accordance with law.”

29. PW-5 Dr. Y.K. Nigam, E.M.O. Hallet Hospital, Kanpur has stated that on 14.02.1996 he medically examined Mohammad Javed, aged about 13 years son of Sri Mohammad Ishtiyak at 11:45 p.m.. He found the following injuries on the body of the injured.

(i) Incised wound on midpart of forehead measuring 6.0cm x 0.5cmx muscle deep margins were clean cut and bleeding. X-ray advised.

(ii) Incised wound on left side of chest upper part into neck measuring 8.2 cm x 0.50 x muscle deep. Margins were clean cut bleeding was present. X-ray advised.

(iii) Contusion swelling of lower lip measuring 4.0 cm x 2.5 cm. Red in colour.

Injured Mohammad Javed was admitted by him. He found injury No.3 simple in nature.

Injury Nos. 1 and 2 were caused by sharp object. All injuries were fresh in duration. X-ray advised.

30. Learned counsel for appellant has argued that X-ray report was not produced and proved on behalf of the prosecution during the course of trial, therefore, it could not be assessed by the trial court that vital injuries no. 1 and 2 were caused by the accused on the body of injured Mohammad Javed. PW-5 doctor has proved injury report (Ext. Ka-6) and opined that injury Nos.1 and 2 could be inflicted by knife on 12.04.1996, at about 6:00 p.m.

31. Learned defence counsel has cross-examined PW-5 on the fact that unconsciousness of the injured PW-2 has not been written in the injury report (Ext. Ka-6) by him. It is relevant to mention here that PW-2 injured Mohammad Javed has proved this fact that he was unconscious at Hallet Hospital Kanpur and gained consciousness after three days. The Investigating Officer has collected B.H.T. from Lala Lajpat Rai Associated Hospital Kanpur. PW-2 injured was admitted on 14.02.1996, at 11.45 p.m. and discharged on 21.02.1996 from the hospital. Conservative treatment was given to the injured and he was found unconscious and vomiting was there. These facts are mentioned on B.H.T. prepared by the concerned doctor.

32. PW-1 has proved this fact that at the point of time of admission at this hospital he apprised the doctor that unknown person assaulted his son five days ago. On this statement of PW-1, perhaps the concerned doctor has mentioned in the B.H.T. that unknown persons attacked the injured. This fact cannot help the appellant in any way. The following case law is relevant for the arguments putforth by learned counsel for the appellant that unknown person assaulted the witness PW-2.

33. Doctor concerned has to give treatment to the injured. He is not at all concerned as to who committed offence or whether the person brought to him is a criminal or an ordinary person. If doctors would start examining the informants, they are likely to become witnesses of the occurrence, which is not permissible. The following case law is relevant on this point.

Hon’ble Supreme Court in the case of Pattipati Venkaiah vs. State of Andhra Pradesh reported in AIR 1985 Supreme Court 1715, in para-17 has observed as under.

“17. Another argument advanced before us was that although PWs 1 and 2 were supposed to be eye-witnesses, they never cared to disclose the name of the assailant to the doctor when the body of the deceased was taken to the hospital. This argument is only stated to be rejected. A doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medico legal cases. In this state of confusion, PWs 1 and 2 may not have chosen to give details of the murder to the Doctor. It is well settled that Doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the post-mortem immediately and if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.”

34. It is not the duty of the concerned doctor to inquire about the assailant or witnesses or facts and circumstances, in which, the injured sustained injuries. Primary duty of the doctor is to give treatment to the injured for saving his life. Therefore, there is no substance in the arguments of learned counsel for the appellant in this regard.

35. Regarding evidence of interested witness and non-production of independent witness, the following case law is relevant.

Hon’ble Supreme Court (Division Bench) in the case of Shiv Ram and anr. vs. State of U.P. reported in (1998) 1 SCC 149, in para16 has observed as under:-

“16. …… The witnesses further admitted that many persons had gathered at the place of occurrence, if this be so it was very much necessary for the prosecution to examine some independent witnesses to lend assurance to the credibility of the evidence of these two eyewitnesses. These submissions do not impress us at all. nowadays it is a common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude and, therefore, it was quite natural that no independent witness would come forward to assist the prosecution. it is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons. All that is required in such a situation is that the court must scrutinize the evidence of such witnesses with utmost care and caution. The magnitude of the present crime and nature of prosecution evidence has put us on guard to appreciate the evidence of these two eye witnesses with utmost care and caution. We have done this exercise and we are unable to be persuaded to discard the evidence of these two witnesses on the grounds urged before us. The evidence of both these witnesses in our considered view is absolutely straightforward, unblemished and without any infirmity. The first information report which was lodged within four hours, naming all the accused also lends asurance to our conviction that the evidence of these two witnesses is trustworthy and cannot be discarded. The contentions of the learned counsel for the accused, therefore, stand rejected.”

Hon’ble Supreme Court in Nirmal Singh and another Vs. State of Bihar reported in (2005)9SCC725

…..With these facts in the background, we have to consider whether the ocular testimony of Pws. 1, 3, 4, 5, 6, 8 11 should be discarded. It is no doubt true that the eye witnesses are related to each other but that is to be expected since the occurrence took place in the dalan of the house of the deceased. The evidence of the eye witnesses does not suffer from any infirmity, and appears to be convicting. No significant contradiction or infirmity has been brought to our notice.

In these circumstances, we do not feel persuaded to discard the case of the prosecution only on account of some infirmities which we have noticed earlier. There appears to be no reason why so many eye witnesses should falsely implicate the appellants, and there is in fact, nothing on record to suggest that the witnesses had any reason to falsely implicate them.

Hon’ble Supreme Court in the case of Hukum Singh and others Vs. State of Rajasthan reported in 2000 (7) SCC 490 has held as under:-

8. Bhupender Pal (PW. 4) and Ram Pyari (PW. 5) were the two eye witnesses examined by the prosecution. The fact that they were present at the scene of occurrence could not be disputed nor the same has been disputed by the accused. They sustained injuries at the hands of the assailants and the doctor who noted such injuries had testified about them in the Court as PW. 9. The version spoken to by PW. 4 in Court is substantially a reiteration of the version which he supplied to the police as early as 8.40 P.M. on the same night. That became the basis for the FIR. The Sessions Court refused to believe the testimony of those witnesses on the erroneous perception that they are “interested witnesses”. The only premise for dubbing them as “interested witnesses” is that they were the kith and kin of the deceased. Why should such witnesses be termed as interested witnesses? If they had seen the occurrence they would certainly have the interest to bring the offenders of the murder of their breadwinner to book Normally the kith and kin of the deceased, if they had seen the occurrence would not absolve the real offenders and involve innocent persons for that murder. [Vide Dalip Singh v. State of Punjab MANU/SC/0031/1953 : [1954]1SCR145 , Guli Chand v. State of Rajasthan MANU/SC/0107/1973 : 1974CriLJ331 and Dalbir Kaur v. State of Punjab MANU/SC/0144/1976 : 1977CriLJ273 ].

15. The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor’s duty to the Court may require him to produce witnesses from the latter category also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in Court about that fact and skip that witness being examined as a prosecution witness. It is open to the defence to cite him and examine him as defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness before hand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in Court.

Hon’ble Supreme Court in State of Rajasthan Vs. Hanuman reported in AIR 2001 SC 282 has held as under:-

The position is well settled that evidence of eye-witnesses cannot be discarded merely on the ground that they are relatives of the deceased. Normally close relatives of the deceased are not likely to falsely implicate a person in the incident leading to the death of the relative unless there are very strong and cogent reasons to accept such criticism.

Hon’ble Supreme Court in the case of Surendra Narain alias Munna Pandey vs. State of U.P. reported in AIR 1998 SC 192 has held as under:

22. Turning to the facts of this case, it is seen that PW 1 had mentioned the name of the accused in the FIR which was given within 15 minutes of the occurrence. The other two eye witnesses, PW 2 and PW 3 also knew the accused previously. The crucial factor is that the accused was related to the deceased as a son of his “Sala” and PW 1 was also related to the deceased. The accused had never denied the relationship. As the trial Judge has observed, “there is not a scintilla of evidence” that PW 1 had a grudge against the accused. There is also no evidence that the wife of the deceased had any enmity with the accused. She would not have allowed a false case to be foisted on her brother’s son. The accused was not traceable from 7.4.77 to 13.5.77. On the facts of the case, his application for the test identification parade on his surrender after such a long time does not appear to be bona fide. In any event, the evidence on record as accepted by the Courts below is sufficient to prove the guilt of the accused. Further the point does not seem to have been argued before the trial court or the High Court. On the facts of this case there is no doubt that the failure to hold a test identification parade in spite of an order passed by the Sessions Court is not fatal to the prosecution.

23. The second contention is without any merit. The evidence adduced by the prosecution is adequate to prove the charge. The non-examination of another person who was on the scene of occurrence does not make the evidence of PWs 1 to 3 unreliable. It is needless to point out that evidence has to be weighed and not counted.

Hon’ble Supreme Court in the case of Banti @ Guddu vs. State of Madhya Pradesh reported in AIR 2004 SC 261 has held as under:

10. Coming to the plea that the presence of PWs 1 and 2 at the spot of occurrence is doubtful, it is to be noticed that both PWs 1 and 2 were cross-examined at length. Nothing Infirm has been elicited to cast doubt on their veracity. If the lack of motive as pleaded by the accused appellants is a factor, at the same time it cannot be lost sight of that, there is no reason as to why PW-1 would falsely implicate the accused persons. There was no suggestion of any motive for such alleged false implication. Merely because PW-1 is a relation of the deceased, and PW-2 was known to him, that per se cannot be a ground to discard their evidence. Careful scrutiny has been done of their evidence and it has been found acceptable by both the trial Court and the High Court. We find no reason to take a different view.

36. PW-2 victim has proved that accused lured him to pluck Fenugreek plants and brought him at a place where nobody was present except the victim and the accused. He has also clarified this fact that the appellant wanted to take in his possession goats, which were grazed by him on the date of occurrence. The accused after committing incident of this crime threw him the abandoned Kothari located at the place of occurrence. PW-1 has proved this fact that on search he found the victim his son in unconscious state and victim gained consciousness at Hallet Hospital Kanpur after three days according to PW-1 and PW-2, then F.I.R. of this case was lodged against the accused. The appellant by defence evidence has not proved this fact that he was not present at the place of occurrence on the date and time of incident in nature of plea of alibi. Therefore, argument of learned counsel in this regard is of no avail that only interested witnesses have been examined during the course of trial and no independent witness was examined by the prosecution.

37. As for as it is argued that PW-1 and PW-2 have not disclosed reason/ motive for the accused to commit incident of this case, the following case law is relevant.

Hon’ble Supreme Court (Division Bench) in the case of State of U.P. vs. Babu Ram reported in 2000 Cri. L. J. 2457 in para-11 has observed as follows:-

“11. We are unable to occur with the legal proposition adumbrated in the impugned judgment that motive may not be very much material cases depending on direct evidence whereas motive is material only when the case depends upon circumstantial evidence. There is no legal warrant for making such a hiatus in criminal cases as for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, if cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them due to the ban imposed by law.”

Hon’ble Supreme Court in the case of State of M.P. through C.B.I and others vs. Paltan Mallah and others reported in (2005) 3 SCC 169 in para-9 has held as under:-

“9. The Sessions Judge relied on various items of evidence to prove that there was a deep-rooted conspiracy among the accused to murder the deceased Shankar Guha Niyogi. In order to prove the conspiracy, the Sessions Judge relied on certain circumstances. One of the circumstances relied on is that A-1, A-4, A-5 and A-7 had a strong motive to do away with deceased Shankar Guha Niyagi. Motive by itself is not sufficient to prove the guilt of the accused. However, the prosecution adduced extensive evidence to show that A-1, A-4, A-5 and A-7 were owners of certain industries at Durg and the trade union activities of deceased Niyogi created a lot of problems in running their business and cause loss to these industries. M/S Simplex is one of the factories referred to by the witnesses for the prosecution. Several witnesses were examined to prove that Simplex and Kedia Distilleries were acting against the interests of the workers and there were a series of agitations by the workers against he factory-owners. Evidence was also adduced to show that some workers were retrenched from Simplex and the agitating workers wanted the reinstatement of the retrenched workers. Some of the witnesses examined by the prosecution turned hostile and did not support this version. The overall evidence given by the prosecution only show that some agitation had been going on against the management of these industries and the deceased Niyogi was spearheading many of these agitations. This by itself would not prove the prosecution was of conspiracy.

38. PW-4 Constable Ram Baran Pandey has proved Check F.I.R. (Ext. Ka-4) and G.D. of registration of crime (Ext. Ka-5). He has stated that G.D. was prepared by Head Moharrir Raj Kishore and he identified his hand writing and signature. No material fact has been elicited during his cross-examination. Likewise, PW-3 the Investigating Officer Sri R.N. Dubey has proved the site plan (Ext. Ka-2) and the Charge-sheet (Ext. Ka-3). He has stated that on 20.03.1996, he recorded statement of injured Mohammad Javed. He had also recorded statement of the complainant Mohammd Ishtiyaq and other witnesses. He has accepted during his cross-examination that after 15th February, 1996 no information was sent by hospital to him. He has refuted that this suggestion putforth by the learned defence counsel that he conducted all the proceedings at police station. He has also refuted this fact that he has submitted wrong charge-sheet against the accused. Therefore, PW-3 and PW-4 are formal witnesses and no material contradictions of PW-1 and PW-2 were available in cross-examination of these witnesses conducted by learned defence counsel and these were not put up before PW-3 the Investigating Officer.

39. The trial court has appreciated evidences of PW-1 and PW-2 in correct perspective. There is no contradiction or doubt in their evidence. Their evidence is reliable, credible and inspire confidence. The appellant has not adduced defence evidence that PW-1 and PW-2 have falsely implicated the accused-appellant Saeedul Hasan in this crime.

40. Regarding non production of independent witness the following case law is relevant:

Hon’ble Supreme Court in the case Periyasami vs. State of Tamil Nadu reported in (2014) 6 SCC 59, in which, in para-15 the following has been observed:

“15. At the outset, wee must deal with the submission that the prosecution has not examined any independent witnesses. It is common knowledge that when the terrorists unleash a way of terror, no independent witnesses are ready to come forward and depose against them. The prosecution case cannot be rejected on this ground. In any case, the evidence on record is cogent and reliable and, therefore, non-examination of independent witnesses does not have any adverse impact on the prosecution. We may also note that the evidence of defence witnesses does not inspire confidence and has rightly not been taken into consideration by the trial court. Pw-14 Chandra, wife of PW-15 Sevi Periyasamy turned hostile. Some other formal witnesses also turned hostile. Thus, however, has not affected the core of prosecution case which is established by reliable evidence. We shall now deal with the evidence which, in our opinion, bears out the prosecution case.”

41. As far as it is argued by learned counsel that P.W.1 is not eye witness the facts and circumstances of this incident are not within his knowledge. The following case law is relevant on the point

“In the case of Sukkhar Vs. State of U.P. 2000 SCC (Crl.) 419, Hon’ble Supreme Court has considered provisions of Section 6 Evidence Act and observed that witness stated and indicated that the injured told him that his nephew had fired at him would become admissible under Section 6 of Evidence Act. In this case witness heard only sound of fire near scene of occurrence and did not see the victim being hit by bullet. The injured was found by the witness in the injured state, who apprised him about the occurrence”.

42. In this case, P.W.1 has proved this fact that when his son (P.W.2) did not return at home in the evening after grazing the goats, then he searched him and found him in injured and unconscious state after 2-3 hours and admitted him at Hallet Hospital, Kanpur. P.W.2 apprised him about the incident committed by the accused and facts and circumstances in which accused assaulted him after gaining consciousness at the hospital after three days, therefore, evidence of P.W.1 is admissible also under Section 6 Evidence Act on the basis of doctrine of ‘res gestae’. The submission of learned counsel in this regard is not helpful for the accused. The victim PW2 has sustained incised wounds on vital parts of forehead and upper part chest into neck, these injuries indicate intention of accused to cause his death. Therefore, argument of learned counsel for appellant that no internal damage was caused to PW-2 due to injuries sustained by him is not acceptable for extending any benefit to the accused.

43. In the above mentioned facts and circumstances and on the basis of appreciation and evaluation of evidence of witnesses, the trial court has recorded findings in correct perspectives, which cannot be termed as perverse or against evidence on record or law. This appeal lacks merit, deserves to be dismissed.

44. The appeal is hereby dismissed. Inform to the trial court and the appellant be taken into custody to undergo sentence awarded against him. Record of the trial court be sent back along with copy of this judgment.

Order Date :- 07.11.2017

Suresh/