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State Of C.G vs Bali Agre 32 Sa/533/2004 Shyamlal … on 30 August, 2019

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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRA No. 917 of 2001

State of Chhattisgarh

—- Appellant

Versus

Dr. C.P. Agre , aged about 36 years, S/o Chhedilal Agre,R/o Chakarbhata
Camp, PS Chakarbhata, District-Bilaspur, Chhattisgarh

—- Respondent

CRA No. 918 of 2001

State Of Chhattisgarh

—- Appellant

Versus

Raj Kumar Upadhyay, aged about 42 years, S/o Kriparam Upadhyay, R/o
Village Bodri, P.S. Chakarbhata, District- Bilaspur, Chhattisgarh

—- Respondent

CRA No. 919 of 2001

State of Chhattisgarh

—- Appellant

Versus

Bali Agre, aged about 30 years, S/o Chhedilal Agre, R/o Chakarbhata Camp,
PS-Chakarbhata, District-Bilaspur, Chhattisgarh

—- Respondent

For State/Appellants : Shri Shailendra Dubey, Additional A.G.
For Respondents : Shri Praveen Das, Advocate
For Complainant : Smt. Indira Tripathi, Advocate

D.B. : Hon’ble Mr. Justice Manindra Mohan Shrivastava
Hon’ble Mrs. Justice Rajani Dubey

CAV Judgment
30/08/2019

Per Manindra Mohan Shrivastava, J.

1. The aforesaid three appeals have been filed by the State assailing legality
and validity of common judgment dated 19.4.2001 passed by learned lower
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appellate Court in three criminal appeal i.e. CRA No.195, CRA No.196 and
CRA No.197 of 2000 filed by accused Dr.C.P. Agre, Rajkumar Upadhyay and
Bali by which, the order of conviction passed by learned trial Court against
the aforesaid accused has been set aside and all the accused acquitted of
the charges by giving them benefit of doubt.

2. According to prosecution case, on 24.11.1992, at about 11:00 AM in the
morning, respondent-accused C.P. Agre, Rajkumar, Bali and other accused
assaulted Madhodas (PW2) and Dhannamal (PW2) with the help of axe, pick
axe and other assaulting weapons, in which incident, these two victims
sustained fracture injury on vital parts of their body. Upon report lodged by
Parmanand (PW1), FIR was registered, investigation carried out and charge
sheet was filed. Before the trial Court, prosecution examined two injured
eyewitnesses namely Madhodas(PW2) and Dhannamal(PW3) who
supported the case of the prosecution by deposing that they were
assaulted by respondents-accused. Dr. S.S. Bhatia (PW5) proved fracture
injury sustained by Madhodas (PW2) and Dhannamal (PW3). Parmanand
(PW1), Chandrakumar (PW4), Bholanath (PW6), Gurumukhdas (PW10) were
examined as eyewitness of the incident and all of them supported the
prosecution case. Respondents-accused examined as many six defence
witnesses. Accused- Dr. C.P. Agre took the defence that there was previous
enmity because the complainant and their family members had
encroached upon Govt. land in front of his house and a dispute had earlier
arisen, number of complaints were made and a report was also lodged
against misbehaviour of brother of the complainant with the wife of
accused Dr. C.P. Agre and they were convicted also. He was on duty but
falsely implicated. Accused- Rajkumar sought to defend himself by taking a
defence that he is friend of Dr. C.P. Agre. He had taken action for removal
of encroachment against the son of injured Dhannmal, in his capacity as
President of the Nagar Panchayat, Bodari. Therefore, he has been falsely
implicated. Respondent-accused Bali took the defence that at the time of
alleged incident he was on duty in village- Parsada which is about 7 k.m.
away from place of incident and he has been falsely implicated.

3. Learned trial Court not only relied upon evidence of injured witnesses-
Madhodas (PW2) and Dhannamal (PW3) but also other eyewitnesses of the
incident. Fracture injury sustained by Madhodas (PW2) and Dhannamal
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(PW3) was found proved from the evidence of the Dr. C.S. Sharma (PW9).
As the prosecution story was found proved from the evidence of injured
eyewitnesses supported by other eyewitness and the medical evidence, the
respondents accused were convicted under Sections 148, 452, 326/149 IPC
and sentenced separately for each of the offences. Aggrieved by the said
judgment, respondents-accused preferred appeal before the Sessions
Judge. Learned Sessions Judge, however, not only disbelieved the evidence
of eyewitnesses but also of the injured eyewitnesses Madhodas (PW2) and
Dhannamal (PW3). According to learned lower appellate Court, the
evidence of the eyewitness including that of the injured witnesses suffer
from contradiction and omission, lodging of FIR by Parmanand (PW1) was
doubtful, there was previous enmity between Dr. C.P. Agre and the accused,
ocular testimony is not fully corroborated from medical evidence and that
the evidence of eyewitnesses is doubtful because there was unexplained
delay in recording their case diary statement. Even though finding of
learned trial Court on the aspect of alibi was not reversed, learned lower
appellate Court allowed the appeals and acquitted the respondents-
accused by giving them benefit of doubt. It is against this judgment of
acquittal that the State has filed aforesaid three appeals.

4. Learned Additional Advocate General made common submission in all the
three cases. He would argue that learned lower appellate Court committed
patent illegality and perversity in acquitting the respondents- accused by
giving them benefit of doubt, even though, prosecution case was fully
supported from the evidence of injured eyewitnesses Madhodas (PW2) and
Dhannmal (PW3). He would argue that both these witnesses have very
emphatically and clearly stated regarding respondents-accused arriving at
the spot with weapon in their hands and opening assault on them due to
which they sustained fracture injury on their head. Further submission of
learned State counsel is that learned lower appellate Court adopted an
illegal approach while assessing the evidence of injured witnesses. In his
submissions, once the evidence of eyewitnesses is found trustworthy and
supported by medical evidence as both of them had sustained grievous
fracture injury on their skull, their, testimony could not be doubted
because of certain contradictions and omissions in the evidence of other
witnesses. Once the injured witnesses have stated regarding assault on
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them, which is proved from medical evidence and the FIR promptly lodged,
clearly disclosing the names of respondents -accused, delay in recording of
their case diary statements particularly when they had sustained grievous
fracture injury in their head and remained admitted in the hospital for
certain length of time could not be made a basis to altogether disbelieve
their testimony. It is further contended that the learned lower appellate
Court has given undue weightage to minor contradictions and proceeded
on erroneous assumption of law that conviction could not be sustained
unless the evidence of injured witnesses is corroborated from the evidence
of other eyewitness. He would further submit that otherwise also, evidence
of eyewitness is trustworthy, but the learned lower appellate Court has
picked up trivial and insignificant contradictions and omissions. Learned
counsel for the complainant has supported submissions of State counsel.

5. On the other hand, learned counsel for the respondents -accused would
argue that though the prosecution had supported its case from the
evidence of eyewitnesses including the injured eyewitness, learned lower
appellate Court has meticulously examined the entire evidence on record
and has assigned cogent reasons, applying correct principles of
appreciation of evidence, as to why the evidence of all the eyewitnesses
including injured eyewitnesses, creates doubt. He would argue that merely
because the eyewitnesses happens to be injured witnesses, their evidence
cannot be accepted as a gospel truth and in appropriate cases, where the
Court finds that evidence is shaky, suffers from material contradiction and
omission and there is possibility of false implication due to previous
enmity, coupled with unexplained delay in recording case diary statement
of injured witness, conviction cannot be sustained. Applying well settled
principle of appreciation of evidence, learned lower appellate Court has re-
appreciated the entire evidence on record and keeping in forefront the
fundamental principles of criminal jurisprudence that prosecution is
required to prove its case beyond reasonable doubt, found that
prosecution case, suffering from several infirmities, is liable to be
disbelieved and the accused are entitled to be acquitted by giving them
benefit of doubt. He would argue that impugned judgment of acquittal was
passed by learned lower appellate Court way back on 19.4.2001 and,
therefore, at this stage, after about 19 years, the judgment of acquittal may
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not be interfered with when the view taken by learned lower appellate
Court is quite plausible. At the end, he would argue that the scope of
interference against judgment of acquittal is limited and unless it is proved
that the judgment passed by learned Court below suffers from patent
illegality, perversity or has resulted in miscarriage of justice, interference
against acquittal may not be warranted merely because more than one
views are possible.

6. Before we advert to the evidence led by the prosecution and the reason
assigned by learned lower appellate Court to disbelieve the prosecution
evidence, we consider it apposite to refer to a couple of decisions of the
Supreme Court with regard to scope of interference against judgment of
acquittal.

In the case of Badrilal Ors. Vs. State of Madhya Pradesh (2010)
14 SCC 412, the settled legal position was reiterated as below:-

“14. It is trite that the High Court in an appeal
from the judgment of acquittal does not
interfere with the same when it is found that the
view taken by the lower Court is one of the
possible views. It is further trite that the High
Court in appeal from a judgment of acquittal can
appraise evidence and come to its own
conclusion. However, while coming to its own
conclusion, it is expected to give due weight to
the reasoning given by the trial court for
acquittal. The High Court interferes with the
same only when it is found that the view taken is
not possible to be taken in the state of evidence.”

7. In another decision in the case of Basappa Vs. Satate of Karnataka
(2014) 5 SCC 154, the approach which the appellate Court hearing appeals
against acquittal is required to adopt and principles required to be applied
were delineated as below:-

“9. The High Court in an appeal under Section
378 of Cr.PC is entitled to reappraise the
evidence and conclusions drawn by the trial
court, but the same is permissible only if the
judgment of the trial court is perverse, as held by
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this Court in Gamini Bala Koteswara Rao and
Others v. State of Andhra Pradesh through
Secretary[1]. To quote: “14. We have considered
the arguments advanced and heard the matter
at great length. It is true, as contended by Mr
Rao, that interference in an appeal against an
acquittal recorded by the trial court should be
rare and in exceptional circumstances. It is,
however, well settled by now that it is open to
the High Court to reappraise the evidence and
conclusions drawn by the trial court but only in a
case when the judgment of the trial court is
stated to be perverse. The word “perverse” in
terms as understood in law has been defined to
mean “against the weight of evidence”. We have
to see accordingly as to whether the judgment of
the trial court which has been found perverse by
the High Court was in fact so.” (Emphasis
supplied)

10. It is also not the case of the prosecution that
the judgment of the trial court is based on no
material or that it suffered from any legal
infirmity in the sense that there was non-

consideration or misappreciation of the evidence
on record. Only in such circumstances, reversal
of the acquittal by the High Court would be
justified. In K. Prakashan v. P.K. Surenderan[2], it
has also been affirmed by this Court that the
appellate court should not reverse the acquittal
merely because another view is possible on the
evidence. In T. Subramanian v. State of Tamil
Nadu[3], it has further been held by this Court
that if two views are reasonably possible on the
very same evidence, it cannot be said that the
prosecution has proved the case beyond
reasonable doubt.

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11. In Bhim Singh v. State of Haryana[4], it has
been clarified that interference by the appellate
court against an order of acquittal would be
justified only if the view taken by the trial court is
one which no reasonable person would in the
given circumstances, take.

12. In Kallu alias Masih and others v. State of
Madhya Pradesh[5], it has been held by this
Court that if the view taken by the trial court is a
plausible view, the High Court will not be
justified in reversing it merely because a
different view is possible. To quote: “8. While
deciding an appeal against acquittal, the power
of the appellate court is no less than the power
exercised while hearing appeals against
conviction. In both types of appeals, the power
exists to review the entire evidence. However,
one significant difference is that an order of
acquittal will not be interfered with, by an
appellate court, where the judgment of the trial
court is based on evidence and the view taken is
reasonable and plausible. It will not reverse the
decision of the trial court merely because a
different view is possible. The appellate court will
also bear in mind that there is a presumption of
innocence in favour of the accused and the
accused is entitled to get the benefit of any
doubt. Further, if it decides to interfere, it should
assign reasons for differing with the decision of
the trial court.” (Emphasis supplied)

13.In Ramesh Babulal Doshi v. State of
Gujarat[6], this Court has taken the view that
while considering the appeal against acquittal,
the appellate court is first required to seek an
answer to the question whether the findings of
the trial court are palpably wrong, manifestly
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erroneous or demonstrably unsustainable and if
the court answers the above question in
negative, the acquittal cannot be disturbed. To
quote:

“7. … the entire approach of the trial court
in dealing with the evidence was patently illegal
or the conclusions arrived at by it were wholly
untenable. While sitting in judgment over an
acquittal the appellate court is first required to
seek an answer to the question whether the
findings of the trial court are palpably wrong,
manifestly erroneous or demonstrably
unsustainable. If the appellate court answers the
above question in the negative the order of
acquittal is not to be disturbed. Conversely, if the
appellate court holds, for reasons to be
recorded, that the order of acquittal cannot at all
be sustained in view of any of the above
infirmities it can then — and then only —

reappraise the evidence to arrive at its own
conclusions. …” (Emphasis supplied)

14. In Ganpat v. State of Haryana and others[7],
at paragraph-15, some of the above principles
have been restated. To quote: (SCC p.62)
“15. The following principles have to be
kept in mind by the appellate court while dealing
with appeals, particularly, against an order of
acquittal:

(i) There is no limitation on the part of the
appellate court to review the evidence
upon which the order of acquittal is
founded and to come to its own
conclusion.

(ii) The appellate court can also review the
trial court’s conclusion with respect to
both facts and law.

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(iii) While dealing with the appeal
preferred by the State, it is the duty of the
appellate court to marshal the entire
evidence on record and by giving cogent
and adequate reasons may set aside the
judgment of acquittal.

(iv) An order of acquittal is to be interfered
with only when there are “compelling and
substantial reasons” for doing so. If the
order is “clearly unreasonable”, it is a
compelling reason for interference.

(v) When the trial court has ignored the
evidence or misread the material evidence
or has ignored material documents like
dying declaration/report of ballistic
experts, etc. the appellate court is
competent to reverse the decision of the
trial court depending on the materials
placed. …”

15. The exercise of power under Section 378 of
Cr.PC by the court is to prevent failure of justice
or miscarriage of justice. There is miscarriage of
justice if an innocent person is convicted; but
there is failure of justice if the guilty is let scot-
free. As cautioned by this Court in State of Punjab
v. Karnail Singh[8]:

“6. There is no embargo on the appellate
court reviewing the evidence upon which an
order of acquittal is based. Generally, the order
of acquittal shall not be interfered with because
the presumption of innocence of the accused is
further strengthened by acquittal. The golden
thread which runs through the web of
administration of justice in criminal cases is that
if two views are possible on the evidence
adduced in the case, one pointing to the guilt of
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the accused and the other to his innocence, the
view which is favourable to the accused should
be adopted. The paramount consideration of the
court is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may
arise from acquittal of the guilty is no less than
from the conviction of an innocent. In a case
where admissible evidence is ignored, a duty is
cast upon the appellate court to reappreciate the
evidence even where the accused has been
acquitted, for the purpose of ascertaining as to
whether any of the accused committed any
offence or not. …” (Emphasis supplied)

16. In this context, yet another caution struck by
this Court in Chandrappa and others v. State of
Karnataka[9] would also be relevant.

“42. From the above decisions, in our
considered view, the following general principles
regarding powers of the appellate court while
dealing with an appeal against an order of
acquittal emerge:

(1) An appellate court has full power to
review, reappreciate and reconsider the
evidence upon which the order of acquittal
is founded.

(2) The Code of Criminal Procedure, 1973
puts no limitation, restriction or condition
on exercise of such power and an appellate
court on the evidence before it may reach
its own conclusion, both on questions of
fact and of law.

(3) Various expressions, such as,
“substantial and compelling reasons”,

“good and sufficient grounds”, “very strong
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circumstances”, “distorted conclusions”,
“glaring mistakes”, etc. are not intended to
curtail extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of
“flourishes of language” to emphasise the
reluctance of an appellate court to
interfere with acquittal than to curtail the
power of the court to review the evidence
and to come to its own conclusion.

(4) An appellate court, however, must bear
in mind that in case of acquittal, there is
double presumption in favour of the
accused. Firstly, the presumption of
innocence is available to him under the
fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is
proved guilty by a competent court of law.
Secondly, the accused having secured his
acquittal, the presumption of his
innocence is further reinforced, reaffirmed
and strengthened by the trial court.

(5) If two reasonable conclusions are
possible on the basis of the evidence on
record, the appellate court should not
disturb the finding of acquittal recorded by
the trial court.” (Emphasis supplied) ”

8. Keeping in forefront the aforesaid settled principles, we shall proceed to
examine the legality and validity of judgment of acquittal passed by learned
lower appellate Court in respect of three respondents namely Dr. C.P. Agre,
Rajkumar and Bali.

9. In order to hold the respondents-accused guilty of commission of offence
of assault, learned trial Court heavily relied upon the evidence of the
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injured witnesses namely Madhodas (PW2) and Dhannamal (PW3) . Learned
trial Court also found proved, injury sustained by these two injured
witnesses, as deposed by the Dr. J.S.S. Bhatia (PW5). Dr. J.S.S. Bhatia (PW5)
deposed in his evidence that he found as many as four injuries on
Dhannmal which included a cut injury to the right parietal region caused
by hard and sharp object, a contusion over the left eye caused by hard and
blunt object, a contusion on the right hand caused by hard and blunt object
and one contusion on the chest simple in nature caused by hard and blunt
object.

Dr. J.S.S. Bhatia (PW5) also deposed in his evidence that he examined
Madhodas, son of Dhannamal also and he found one cut injury on the right
parietal region, 5×1 inches bone deep caused by hard and sharp object, one
contusion of simple nature on the left of shoulder and once more
contusion below left shoulder caused by hard and blunt object.

Dr. C.S. Sharma (PW9) deposed that in the X-ray report of Dhannmal,
depressed fracture on the right part of frontal and parietal bone was found.
He also deposed that in the X-ray report of skull of Madhodas, one fracture
injury on the parietal part of head and one fracture injury on the left
shoulder was also found.

10.In the evidence of aforesaid two Dr.J.S.S. Bhatia (PW5) and Dr.C.S. Sharma
(PW9), nothing could be elicited to doubt the nature and extent of injury
caused by the two injured namely Madhodas (PW2) and Dhannamal (PW3),
The evidence regarding fracture injury on the skull of Dhannamal and skull
and shoulder of Madhodas remained uncontroverted. From the aforesaid
clinching evidence of prosecution it is proved by reliable and emphatic
evidence that and Madhodas (PW2) and Dhannamal (PW3) both sustained
fracture injury and the injury found on their head was caused by hard and
sharp object. According to doctor, these injuries were grievous in nature.

11.The learned lower appellate Court recorded a finding that the evidence of
Parmanand (PW1) regarding lodging of FIR regarding incident in the police
station -Chakarbhatha being contradictory to the evidence of other
witnesses is doubtful. This finding has been recorded in para -51 to 56 of
the impugned judgment. One of the main reason to disbelieve the
testimony of Parmanand (PW1) is that the presence of Parmanand in the
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office of sawmill rendered doubtful. However, only on that ground, lodging
of FIR by this witness could not be doubted. There is no requirement of law
that the lodger of FIR must necessarily be of an eyewitness. Parmanand
(PW1) has deposed in his evidence that after the incident, he brought his
father Dhannmal and brother-Madho Das to hospital and a report in Ex.P-1
was given and that he first went to hospital to take the injured and then
went to office of Superintendent of Police. Learned lower appellate Court
has also referred to the evidence of Madhodas (PW2) who has stated that
information was given in police station Chakarbhatha but he does not know
whether police from Police Station- Chakarbhata had come with any
enquiry because he became unconscious. Learned lower appellate Court
has also taken into consideration the evidence of Chandra Kumar (PW4)
who has deposed that after the incident, accused had run away and
Parmanand had gone to police station. The evidence of Bholanath (PW6)
has also been considered in which he has stated that after about one hour
of the incident, the police had arrived at the spot and before that
Dhannamal had already been removed from the spot of incident. Learned
lower appellate Court has also taken into consideration the evidence of
Gurumukh Das (PW10) that police had come from police station and his
uncle and grandfather were taken to Bilaspur.

The evidence of Sanhar Singh (PW12), a police officer, has also been
considered who has stated that the injured were taken to hospital and that
on the basis of spot FIR (Ex.P-1) and zero numbered FIR in Ex.P-12 recorded
in Police Station- Civil Lines, FIR in Ex.P-13 was recorded. Learned lower
appellate Court has recorded a finding that on the date of incident, before
receipt of information of assault on Dhannamal and others, an information
regarding accused Rajkumar apprehended has also received in the police
station and that on the basis of evidence of Madhodas, it is revealed that
before the incident of assault on Dhannamal and Madhodas, probably,
another incident happened in the morning due to which Rajkumar was
taken to police station and after this witness brought Rajkumar to the
police station, after some time, Parmanand came and informed regarding
incident.

On the basis of aforesaid consideration, learned lower appellate Court has
drawn an inference that the evidence with regard to lodging of FIR is not
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reliable, which is completely perverse. The evidence of Parmanand (PW1) in
so far as the lodging of FIR could not be doubted only on the ground that
Parmanand is a doubtful eyewitness or on the ground that on the same day
some other incident was reported in the police station -Chakarbhata.
Parmanand is the son of Dhannamal and brother of Madhodas and he has
clearly deposed that after the incident, he had taken his father and brother
to the hospital for treatment and there in the hospital, spot FIR was taken
in Ex.P-1. Learned lower appellate Court ignored that report of Parmanand
was duly proved by him as also by Sanhar Singh (PW12), the police officer
who had recorded FIR in Ex.P-13. He has clearly deposed that on the basis
of dehati nalishi (spot FIR), Ex.P-1 and zero numbered FIR in Ex.P-12 of
police Station Civil Lines, he had recorded FIR. He has deposed that he has
worked with Assistant Sub Inspector Shri Koshale and also familiar with his
signature and writing and further that dehati nalishi in Ex.P-1 has been
written by Koshale and signed by him. He has also deposed that report
(Ex.P-12) was also written by Koshle and has proved his signatures. In the
dehati nalishi (Ex.P-1) which was lodged soon after the incident in the
background that the injured were taken to hospital and Parmanand (PW1)
relative of the injured had given information on the basis of which dehati
nalishi in Ex.P1 was immediately prepared and based on the same “zero”
numbered FIR was prepared in Ex.P-12 in Police Station Civil Lines and
thereafter these documents were brought to the Chakarbhata Police
Station where numbered FIR in Ex.P-13 was recorded by Sanhar Singh
(PW12). In the very first document (Ex.P1), dehati nalishi , which was
recorded within few hours of the incident based on the information given
by Parmanand (PW1), each of the respondents have been clearly named as
assailant who assaulted Dhannamal and Madhiodas. Learned lower
appellate Court giving undue weightage to the fact coming in the evidence
of witnesses that prior to the incident of assault on Dhannmal and
Madhodas, some incident had already happened at about 8:00 am in the
morning and further that before Dhannamal and Madhodas were taken to
hospital, police had arrived at the spot, has jumped to the conclusion that
the lodging of FIR is doubtful.

12. Present is a case where the learned trial Court had ordered conviction of

respondents on the basis of evidence of not only eyewitnesses but also on
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the evidence of those who were assaulted, namely, Madhodas (PW2) and
Dhannmal (PW3). As discussed hereinabove and also held by both the
Courts below, both Dhannmal and Madhodas sustained fracture injury in
addition to other injuries. Thus, fracture injury was caused on their skull
which is proved from the evidence of Dr. J.S.S. Bhatia (PW5) and Dr. C.S.
Sharma (PW9). The evidence of the two doctors with regard to place and
the nature of injury could not be impeached, though, they were subjected
to cross-examination.

13.Madhodas and Dhannamal were injured eyewitnesses and they were
subjected to grievous injury by assault on their head. If their evidence are
reliable, law does not require that their evidence, before acceptance, would
require corroboration from the evidence of other witnesses. It has,
therefore, to be seen as to whether the evidence of these two injured
witnesses is reliable or of such a nature that it would not be safe to convict
the respondents accused without independent corroboration. Certainly if
the evidence of these two injured witnesses is reliable and trustworthy,
then, even if the evidence of other prosecution witnesses suffer from any
contradiction and omission and for that reason doubtful, conviction could
be ordered on the reliable testimony of injured witnesses.

14.In the case of State of Uttar Pradesh Vs. Naresh Ors. (2011) 4 SCC
324, the principles with regard to appreciation of an injured witness was
propounded as below:-

“27. The evidence of an injured witness must be
given due weightage being a stamped witness,
thus, his presence cannot be doubted. His
statement is generally considered to be very
reliable and it is unlikely that he has spared the
actual assailant in order to falsely implicate
someone else. The testimony of an injured witness
has its own relevancy and efficacy as he has
sustained injuries at the time and place of
occurrence and this lends support to his testimony
that he was present during the occurrence. Thus,
the testimony of an injured witness is accorded a
special status in law. The witness would not like or
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want to let his actual assailant go unpunished
merely to implicate a third person falsely for the
commission of the offence. Thus, the evidence of
the injured witness should be relied upon unless
there are grounds for the rejection of his evidence
on the basis of major contradictions and
discrepancies therein. [Vide: Jarnail Singh v. State
of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v.
State of Maharashtra, (2010) 6 SCC 673; and Abdul
Sayed v. State of Madhya Pradesh, (2010) 10 SCC
259].”

In yet another decision in Brahm Swaroop Anr. Vs. State of Uttar
Pradesh (2011) 6 SCC 288, the credibility required to be attached to the
evidence of an injured witness was highlighted as below:-

“27. Injured witness Attar Singh (PW.1) has been
examined, his testimony cannot be discarded, as
his presence on the spot cannot be doubted,
particularly, in view of the fact that immediately
after lodging of FIR, the injured witness had been
medically examined without any loss of time on
the same day. The injured witness had been put
through a grueling cross-examination but nothing
can be elicited to discredit his testimony.

28. Where a witness to the occurrence has himself
been injured in the incident, the testimony of such
a witness is generally considered to be very
reliable, as he is a witness that comes with a built-
in guarantee of his presence at the scene of the
crime and is unlikely to spare his actual assailant(s)
in order to falsely implicate someone. “Convincing
evidence is required to discredit an injured
witness”. (Vide: State of U.P. v. Kishan Chand
Ors., (2004) 7 SCC 629; Krishan Ors.v. State of
Haryana, (2006) 12 SCC 459; Dinesh Kumar v. State
of Rajasthan, (2008) 8 SCC 270; Jarnail Singh Ors.

-17-

v. State of Punjab, (2009) 9 SCC 719; Vishnu Ors.
v. State of Rajasthan, (2009) 10 SCC 477; Anna
Reddy Sambasiva Reddy Ors. v. State of A.P .
(2009) 12 SCC 546 and Balraje Vs. State of
Maharashtra (2010) 6 SCC 673.”

In another decision in Balwan Ors. Vs. State of Haryana (2014) 13 SCC
560, the Supreme Court again reiterated the evidentiary value required to be
attached to the evidence of an injured witness, by observing thus:-

“16. It is trite law that the evidence of injured
witness, being a stamped witness, is accorded a
special status in law. This is as a consequence of
the fact that injury to the witness is an inbuilt
guarantee of his presence at the scene of the crime
and because the witness would not want to let
actual assailant go unpunished. ”

In another decision in Pargan Singh Vs. State of Punjab Anr.
(2014) 14 SCC 619, it was emphasized that testimony of injured witness
carries higher degree of credibility and there has to be strong reason
for discarding the same. Pertinent observation made in this regard is
as below:-

“22. In the present case, the circumstances on
which the PW-2 seen the accused persons even for
90 seconds, that was sufficient to absorb their
faces. In contrast, things would be different if it is a
case of some large get together where two
unknown persons have a chance meeting for 90
seconds. Therefore, we reject the argument of
learned counsel for the appellants that PW-2 could
not recollect the face of the appellants after 7½
years and thus, he was not telling the truth. We
have to keep in mind that PW-2 suffered serious
injury because of the shot fired at him by the
assailants and seriousness of the injury has
resulted into conviction under Section 307 IPC as
well. The testimony of an injured witness requires a
-18-

higher degree of credibility and there have to be
strong reasons to describe the same. The
appellants have not been able to demonstrate that
the courts below unreasonably reached the
conclusion as to the admissibility of the testimony
of PW-2. Apart from a very feeble submission that
this witness identified the appellants 7½ years after
the incident, their arguments do not address the
issue of whether testimony of PW-2 was false. We
are, thus, not at all impresses by this argument of
the learned counsel for the appellants. Except that
PW-3 is not an injured eye- witness, he has also
seen the occurrence and the reasons given in
support of attaching credibility to the statement of
PW-2 would apply in his case as well.”

15.Madhodas (PW2) is an injured eyewitness and number of injuries have
been found proved on his body, including fracture injury on the head. This
witness has deposed that on 24.11.1992 at about 10:00 to 11:00 in the
morning, when he was present in the ‘Aata Chakki’ (flour mill) and his
father Dhannamal was present in ‘Aara Machine’ (saw- mill), respondent
accused, holding pick axe, axe and club, arrived in the ‘Ara Machine’ and
quarreled with his father but this witness did not go there because of fear
and then the accused approached him and out of fear, he entered the
furniture shop adjacent to flour mill and sat on a chair. The accused came
towards flour mill from Saw-Mill and then entered furniture shop and Dr.
Agre, having seen him, informed other accused, whereafter, all of them
entered furniture shop. Dr. Agre assaulted with the help of pick axe on his
head, whereas Rajkumar assaulted with club and axe on his head. One of
the accused assaulted on his shoulder due to which he fell down and
fainted and he regained consciousness in hospital where he came to know
that his father was also assaulted. He further deposed that accused Dr.
Agre was holding pick axe whereas Rajkumar was holding axe and other
accused were holding club.

The evidence of this witness was relied upon by learned trial Court.
The learned lower appellate Court considered the evidence of this injured
-19-

witness in para 23 to 26 of its judgment. In para-53 of the judgment, the
evidence of this witness has again been considered by learned lower
appellate Court that according to this witness after about an hour and
fifteen minutes of the incident, the police had come to spot and
Dhannamal was taken to hospital and has drawn inference that before
lodging of dehati nalishi (spot FIR) in Ex.P-1 police had come to know about
the incident. Again in para-60 of the judgment, the evidence of this witness
has again been considered that he was assaulted and that according to this
witness, accused Dr. Agre and Rajkumar both assaulted on his head by two
sharp edged weapons resulting in injury. At this stage, learned lower
appellate Court has noticed a contradiction that according to medical
report, only one cut injury has been found on the head of Madhodas and
two contusions on his shoulder and that Madhodas has not clarified as to
which accused gave assault with the help of club and on this consideration,
learned lower appellate Court has held that the evidence of this witness is
not corroborated from medical evidence, because according to this
witness, as many as 6 accused and 7-8 other associates assaulted on him
and he sustained only three injuries. The reason assigned by learned lower
appellate Court to doubt the evidence of this injured witness on the
aforesaid consideration, is apparently erroneous in law. Injured witness
has clearly stated that Dr. Agre gave assault on his head and the other
accused Rajkumar who was also holding axe assaulted and someone
assaulted on his shoulder. The only discrepancy is that out of three injuries
one injury found on the head is caused by sharp edged weapon whereas
there are two contusions on his shoulder. Only on this discrepancy, the
evidence of the evidence of this witness could not be altogether disbelieved
that he was making a statement not liable to be believed. He was injured
witness. Number of persons charged upon him and he had stated
regarding assault on his head and shoulder. The reason assigned to create
doubt on the testimony of this injured eyewitness, on the aforesaid
discrepancy, is contrary to settled legal position in this regard.

16.In the case of Gosu Jayarami Reddy and Anr. Vs. State of Andhra
Pradesh (2011) 11 SCC 766, the principles applicable in the matter of
appreciation of ocular evidence vis-a-vis medical evidence were discussed
as below :-

-20-

“39. It is true that PW 1 has in his depositions
attributed an injury to A 3 which according to the
witness was inflicted on the neck of the deceased.
It is also true that the post mortem examination
did not reveal any injury on the neck. But this
discrepancy cannot in the light of the evidence on
record and the fact that it is not always easy for an
eye witness to a ghastly murder to register the
precise number of injuries that were inflicted by
the assailants and the part of the body on which
the same were inflicted. A murderous assault is
often a heart-rending spectacle in which even a
witness wholly unconnected to the assailant or the
victim may also get a feeling of revulsion at the
gory sight involving merciless killing of a human
being in cold blood. To expect from a witness who
has gone through such a nightmarish experience,
meticulous narration of who hit whom at what
precise part of the body causing what kind of injury
and leading to what kind of fractures or flow of
how much blood, is to expect too much.

40. Courts need to be realistic in their expectation
from witnesses and go by what would be
reasonable based on ordinary human conduct with
ordinary human frailties of memory and power to
register events and their details. A witness who is
terrorised by the brutality of the attack cannot be
disbelieved only because in his description of who
hit the deceased on what part of the body there is
some mix up or confusion. It is the totality of the
evidence on record and its credibility that would
eventually determine whether the prosecution has
proved the charge against the accused.

In another decision in Radhakrishna Nagesh Vs. State of Andhra
Pradesh (2013) 11 SCC 688, the principles were again reiterated as below:

-21-

“19. It is a settled principle of law that a conflict
or contradiction between the ocular and the
medical evidence has to be direct and material
and only then the same can be pleaded. Even
where it is so, the Court has to examine as to
which of the two is more reliable, corroborated by
other prosecution evidence and gives the most
balanced happening of events as per the case of
the prosecution.

x x x
x x x

22. In order to establish a conflict between the
ocular evidence and the medical evidence, there
has to be specific and material contradictions.
Merely because, some fact was not recorded or
stated by the doctor at a given point of time and
subsequently such fact was established by the
expert report, the FSL Report, would not by itself
substantiate the plea of contradiction or variation.

Absence of injuries on the body of the
prosecutrix, as already explained, would not be of
any advantage to the accused.

23. In any case, to establish a conflict between the
medical and the ocular evidence, the law is no
more res integra and stands squarely answered
by the recent judgment of this Court in the case of
Dayal Singh and Others v State of Uttaranchal
[(2012) 7 SCALE 165] “29.

“35.This brings us to an ancillary issue as to
how the Court would appreciate the evidence in
such cases. The possibility of some variations in
the exhibits, medical and ocular evidence cannot
be ruled out. But it is not that every minor
variation or inconsistency would tilt the balance
of justice in favour the accused. Of course, where
contradictions and variations are of a serious
nature, which apparently or impliedly are
destructive of the substantive case sought to be
proved by the prosecution, they may provide an
advantage to the accused. The Courts, normally,
-22-

look at expert evidence with a greater sense of
acceptability, but it is equally true that the courts
are not absolutely guided by the report of the
experts, especially if such reports are perfunctory,
unsustainable and are the result of a deliberate
attempt to misdirect the prosecution. In Kamaljit
Singh v. State of Punjab [2004 Cri.LJ 28], the Court,
while dealing with discrepancies between ocular
and medical evidence, held,
“8. It is trite law that minor variations
between medical evidence and ocular evidence do
not take away the primacy of the latter. Unless
medical evidence in its term goes so far as to
completely rule out all possibilities whatsoever of
injuries taking place in the manner stated by the
eyewitnesses, the testimony of the eyewitnesses
cannot be thrown out.”

’36. Where the eye witness account is found
credible and trustworthy, medical opinion
pointing to alternative possibilities may not be
accepted as conclusive.

’34….The expert witness is expected
to put before the Court all materials inclusive of
the data which induced him to come to the
conclusion and enlighten the court on the
technical aspect of the case by examining the
terms of science, so that the court, although not
an expert, may form its own judgment on those
materials after giving due regard to the expert’s
opinion, because once the expert opinion is
accepted, it is not the opinion of the medical
officer but that of the Court. (See Madan Gopal
Kakad v. Naval Dubey Anr. [(1992) 2 SCR 921 :

(1992) 3 SCC 204]}.”

17.In a more recent decision in the case of Vijay Pal Vs. State (Government
of NCT of Delhi) (2015) 4 SCC 749, principles with regard to weighing of
medical evidence vis-a-vis ocular testimony were summarized as below:-

“15. There is no dispute that the value of medical
evidence is only corroborative. It proves that the
injuries could have been caused in the manner as
alleged and nothing more. The use which the
defence can make of the medical evidence is to
prove that the injuries could not possibly have
been caused in the manner alleged and thereby
discredit the eye-witnesses. Unless, however the
medical evidence in its turn goes so far that it
-23-

completely rules out all possibilities whatsoever
of injuries taking place in the manner alleged by
eyewitnesses, the testimony of the eye-witnesses
cannot be thrown out on the ground of alleged
inconsistency between it and the medical
evidence. It is also true that the post-mortem
report by itself is not a substantive piece of
evidence, but the evidence of the doctor
conducting the post-mortem can by no means be
ascribed to be insignificant. The significance of
the evidence of the doctor lies vis-a-vis the
injuries appearing on the body of the deceased
person and likely use of the weapon and it would
then be the prosecutor’s duty and obligation to
have the corroborative evidence available on
record from the other prosecution witnesses. It is
also an accepted principle that sufficient
weightage should be given to the evidence of the
doctor who has conducted the post- mortem, as
compared to the statements found in the
textbooks, but giving weightage does not ipso
facto mean that each and every statement made
by a medical witness should be accepted on its
face value even when it is self- contradictory. It is
also a settled principle that the opinion given by a
medical witness need not be the last word on the
subject. Such an opinion shall be tested by the
Court. If the opinion is bereft of logic or
objectivity, the court is not obliged to go by that
opinion. That apart, it would be erroneous to
accord undue primacy to the hypothetical
answers of medical witnesses to exclude the
eyewitnesses’ account which are to be tested
independently and not treated as the ‘variable’
keeping the medical evidence as the ‘constant’.

Where the eyewitnesses’ account is found
-24-

credible and trustworthy, a medical opinion
pointing to the alternative possibilities cannot be
accepted as conclusive. (See: Solanki Chimanbhai
Ukabhai v. State of Gujrat, State of Haryana v.

Ram Singh, Mohd. Zahid v. State of T.N., State of
Haryna v. Bhagirath and Abdul Sayeed v. State of
M.P.”

18.In the case of Naresh (supra), well settled principles regarding appreciation
of evidence on the face of normal discrepancis and mere marginal
variations of trivial nature were explained as below :-

“30. In all criminal cases, normal discrepancies are
bound to occur in the depositions of witnesses due to
normal errors of observation, namely, errors of
memory due to lapse of time or due to mental
disposition such as shock and horror at the time of
occurrence. Where the omissions amount to a
contradiction, creating a serious doubt about the
truthfulness of the witness and other witnesses also
make material improvement while deposing in the
court, such evidence cannot be safe to rely upon.
However, minor contradictions, inconsistencies,
embellishments or improvements on trivial matters
which do not affect the core of the prosecution case,
should not be made a ground on which the evidence
can be rejected in its entirety. The court has to form
its opinion about the credibility of the witness and
record a finding as to whether his deposition inspires
confidence.

“9. Exaggerations per se do not render
the evidence brittle. But it can be one of the
factors to test credibility of the prosecution
version, when the entire evidence is put in a
crucible for being tested on the touchstone of
credibility.”

Therefore, mere marginal variations in the
-25-

statements of a witness cannot be dubbed as
improvements as the same may be elaborations of
the statement made by the witness earlier. The
omissions which amount to contradictions in material
particulars i.e. go to the root of the case/materially
affect the trial or core of the prosecution’s case,
render the testimony of the witness liable to be
discredited. [Vide: State Represented by Inspector of
Police v. Saravanan Anr., AIR 2009 SC 152;
Arumugam v. State, AIR 2009 SC 331; Mahendra
Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC
334; and Dr. Sunil Kumar Sambhudayal Gupta Ors.
v. State of Maharashtra, JT 2010 (12) SC 287].”

19.Learned lower appellate Court has also doubted veracity of the evidence of
this injured witness that witness has given contradictory statement with
regard to number of days he remained admitted in the hospital and his
case diary statement in Ex.D2 was recorded belatedly after 9 days of the
incident. The incident had happened on 24.11.1992. The witness has stated
in his evidence that he was discharged after 5-6 days and his statement was
recorded within 3 days. The evidence on record itself clearly explains delay,
if any, caused in recording the case diary statement of this witness. This
person had suffered grievous injury on his head and there was a fracture in
the skull. He remained admitted in the hospital for number of days. In
these circumstances, if his diary statement was taken after 9 days, we fail to
understand how could this be taken as a ground to doubt the testimony of
the witnesses on the ground of delay, which otherwise stood completely
explained. Further, the learned lower appellate Court adopted completely
erroneous approach ignoring that it was not a case where the names of
the accused had surfaced for the first time in case diary statement of the
injured witness recorded 9 days after the incident. In the report which was
lodged within 2 hours of the incident not only the names of the
respondents- accused were mentioned but their respective roles were also
stated very clearly in the spot FIR which was recorded in the hospital itself
when the injured Madhodas (PW2) and Dhannalal (PW3) remained
admitted, on disclosure of the incident given by Paramanand (PW1), the
-26-

brother of Madhodas and son of Dhannmal who brought them to the
hospital in injured condition and got them admitted.

20.Similarly, it is found that the evidence of other eyewitness Dhannamal
(PW3) has also been disbelieved on most untenable ground by learned
lower appellate Court. The evidence of Dhannmal (PW3) has been
considered in para-27 28 of its judgment. This witness has also stated
that on the date of incident at about 10:00 AM, when he was sitting in his
saw-mill , accused Dr. Agre and 12-13 persons came hurling abuses and Dr.
Agre assaulted on his head with the help of pick axe and Rajkumar
assaulted with the axe on his forehead. He was looted also. He also
deposed that other accused assaulted him with club and he fainted .
Learned lower appellate Court has also noticed that this witness could not
cry for help because he could not speak out. The evidence of this injured
witness Dhannalal has again been considered in para-61 of the judgment
by learned lower appellate Court that he had not seen the incident of
assault on Madhodas and that Dr. Agre had assaulted with the help of pick
axe on his head and Rajkumar assaulted with the axe on forehead and the
injury started bleeding. He was assaulted with the club by other accused
and then he fell down and fainted. In para-63 of the evidence, learned
lower appellate Court referring to medical report in Ex.P-6 has observed
that on the head of Dhannamal, only one cut injury was found whereas
above the eyes, injury of hard and blunt object has been found and above
the right part of the chest injury of hard and blunt object has been found.
Only on this discrepancy, learned lower appellate Court has raised a doubt
regarding presence of accused Rajkumar, without recording any reason as
to why the evidence of the witness with regard to criminal overt act of
accused-Dr. Agre was disbelieved. The other reason assigned to cast a
shadow of doubt on the evidence of injured witness Dhannmal is that his
case diary statement was recorded belatedly and the date has not been
explained. Dhannamal’s case diary statement under Section 161 Cr.P.C.was
certainly recorded with some delay. From the evidence of this witness
which has been considered by learned lower appellate Court itself, this
witness was admitted in the hospital on the date of incident i.e. 24.11.1992
and he was again checked up on 29.11.1992. The learned lower appellate
Court further observed that Dhannmal was vomiting because of the
-27-

trauma. Dr J.S.S. Bhatia (PW5) has clearly stated that injury was grievous in
nature. Proved medical report and evidence is of a fracture in the skull of
this witness. Even if it is found doubtful that this witness may have
remained unconscious for 20-25 days, it is clear that this witness had
sustained grievous injury and remained admitted in hospital for long. The
aforesaid evidence of hospitalization, grievous injury itself explain delay in
recording diary statement of the witnesses. Moreover, it is not a case
where the name of the accused surfaced for the first time in the case diary
statement of this injured witness. The spot FIR (Ex.P-1) which was recorded
in the police station within two hours of the incident proved from the
evidence of Parmanand (PW1) and Sanhar Singh (PW12), contained specific
details of the incident, the manner in which assault was given and the rule
played by respondent-accused.

21.Thus, it is clear that both Madhodas (PW2) and Dhannamal (PW3), injured
witnesses, who had received grievous fracture injury on their head and
admitted in the hospital number of days had given their diary statement
after few days which delay was explained by the evidence of they having
sustained injury and having remained admitted in the hospital.
Overwhelming evidence of recording of spot FIR in the hospital itself within
two hours of the incident, naming the respondents-accused with specific
overt act alleged to be committed by them, was ignored by learned lower
appellate Court while doubting the coherent and reliable testimony of
injured eyewitness. Those injuries including fracture injury were proved in
their respective medical report.

22.In the case of Ranbir and Ors. Vs. State of Punjab (1973) 2 SCC 444, it
was observed thus:

“7………… The appellants’ counsel also faintly
contended that Tota Ram P.W.7 was examined by
the police after considerable delay, the
suggestion being that his evidence must be
looked at with suspicion. We are not impressed
by this submission. The fact of delayed
examination of Tota Ram should, in our opinion,
have been put to- the Investigating Officer so as
to enable him to explain the undue delay, if any,
-28-

in examining Tota Ram. The question of delay in
examining a witness during investigation is
material only if it is indicative and suggestive of
some unfair practice by the investigating agency
for the purpose of introducing a got-up witness
to falsely support the prosecution case.”……..

23.In a case where the evidence of injured witness is otherwise reliable, not
suffering from any material discrepancy and further corroborated from the
evidence of other witnesses and proved circumstances of the case, mere
delay in recording case diary statement during investigation would not
render the statement of such witness liable to be rejected only on that
count. In the case of Dr. Krishna Pal and Ors. Vs. State of UP (1996) 7
SCC 194, it was held :-

“9……….In the instant case, no explanation has
been given by the prosecution as to why eye
witnesses had not been examined shortly after
the incident and from the materials on record it
appears that there had been inordinate delay in
examining the eye witnesses. But simply on that
account, the convincing and reliable evidences
adduced in this case should not be discarded. The
Investigating Officer in his deposition has also
admitted that through mistake he omitted to
mention the crime No. in the inguest report. It
appears to us that the Investigating Officer had
not been diligent enough but for that reason we
do not feel that reliable and clinching evidences
adduced in this case by the eye witnesses
particularly by Dr. Rajveer Singh should be
discarded. In this connection, we may refer to a
recent decision of this Court in Karnel Singh Vs.
State of M.P. (Judgment Today 1995 (6) SC 437). In
the said decision, it has been indicated by this
Court that in a case of defective investigation, it
would not be proper to acquit the accused if the
-29-

case is otherwise established conclusively
because in that event it would tantamount to be
falling in the hands of an erring Investigating
Officer.”….

24.In the present case, the injured witnesses namely Madhodas (PW2) and
Dhannamal (PW3) both of them have stated regarding they having suffered
injury, having remained admitted in the hospital and then recording of
their statements. Even if the Investigating Officer in the present case has
not been examined and his explanation has not comeforth ,the explanation
raised by the witnesses, if reliable, could certainly be accepted as proper
application of delay, if any, in recording case diary statement.

25.Learned lower appellate Court, observed that there is evidence of previous
enmity between the parties and that cases, counter cases, have already
reported by the parties against each other and on that basis, it has been
observed in para-44 of the judgment that the evidence of the witnesses
including injured witness is required to be minutely and carefully
examined. It has also recorded that the evidence of injured witness is more
reliable and important as compared to the evidence of other witness.

26.A background of previous enmity may not only be a basis to discard the
evidence as there could be a motive of false implication, at the same time,
it could lend support the prosecution case as the very motive for
commission of offence. In other words background of previous enmity is a
doubled edged sword .

27.In the case of State of Punjab Vs. Sucha Singh and Ors. (AIR 2003 SC
1471), it was observed as below:

“11. …….At the same time, animosity is a
double-edged sword. It could be a ground for
false implication, it could also be a ground for
assault.”………..

28.Therefore, it cannot be said that the evidence of the injured witnesses have
to be doubted merely because there is a background of previous dispute
and enmity between the parties because this could well be the motive of
giving assault by accused on injured witnesses Madhodas(PW2) and
Dhannamal (PW3). The evidence of an injured witness has to be
-30-

appreciated keeping in view that ordinarily a person who has been
assaulted by someone would not allow him to go scot free and falsely
implicate persons other than those who actually assaulted him. The
evidence of injured witness stand on different pedestal as compared to any
other witness cited by the prosecution as eyewitness who claims to have
seen the incident. Where an injured witness clearly names the persons and
the assault made on him by those persons which is broadly corroborated
with what has been found in the medical report, even though, there may
not be any mathematical precision with regard to the manner of assault,
the evidence of an injured eyewitness cannot be lightly thrown aside only
on certain minor contradiction and omission . It could be a case of some
exaggeration or it could even be some discrepancy in recollecting the
whole incident with exactitude and certainty, but on such minor
discrepancy, disbelieving altogether the testimony of injured eyewitness ,
would be against settled principles of appreciation of the evidence.

29.Present is not a case where the prosecution case of Madhodas (PW2) and
Dhannamal (PW3) assaulted by respondents- accused was based only on
the evidence of the injured eyewitness. The learned trial Court, while
holding the respondent- accused guilty of commission of offence relied
upon evidence of three important eyewitness namely Chandra Kumar
(PW4), Bholanath (PW6) and Gurumukh Das (PW10). While Chandra Kumar
(PW4) and Gurumukh Das (PW10) have clearly stated during trial that they
witnessed the incident of assault, Bholanath (PW6) has supported the
prosecution case only to the extent that on the date of incident, he saw the
accused persons coming inside Saw-Mill and later on he found that
Dhannmal and Madhodas were found having sustained injuries and the
accused fled away. The learned lower appellate Court examined the
evidence of Chandra Kumar (PW4) and Gurumukh Das (PW10).

30.In paragraph 29, 30, 31 62 of its judgment, learned lower appellate Court
closely scrutinized the evidence of Chandra Kumar (PW4) an eyewitness
and did not record any reason nor a conclusion that this witness is liable to
be disbelieved as eyewitness. Rather, this witness was relied upon to hold
that Parmanand was not an eyewitness. Even with regard to manner of
assault and the injury caused to injured witnesses, the evidence of this
eyewitness has been relied upon.

-31-

31.The evidence of Bholanath (PW6) has also been scrutinized by the learned
lower appellate Court in paragraphs 32, 33, 34, 51 and 68 of its judgment.
The evidence of this witness has been believed to hold that Parmanand
reached the spot after the incident of assault on Dhannamal and Madhodas
Das. Learned lower appellate Court clearly recorded a finding that, though,
this witness has not actually seen the assault, his evidence has been
believed in so far as arrival of the accused and they leaving the spot and
Dhannmal found injured, is concerned.

32.The evidence of another eyewitness Gurumukhdas (PW10) has also been
closely examined by learned lower appellate Court in paras 37, 38 39 and
the evidence of this witness has been discussed but not disbelieved. In
para-47 of its judgment, a very irrational and illogical reason has been
assigned by learned lower appellate Court to create a doubt on the
evidence by saying that the room in which the accused are stated to have
entered was very small and it may not be probable that it would
accommodate number of assailants looking to the size of the office of
Dhannamal which is stated to be 10 x 12 sq.ft. on the basis of evidence of
Gurumukh Das (PW10) and the evidence of Parmanand (PW1) has also
been relied upon who has stated that size of the room is 15 x 15 sq.ft.
Rushing of 14-15 persons inside the room and giving assault by some of
them particularly Dr. Agre, Rajkumar and Bali cannot at all said to be
improbable. That is the only reason assigned by learned lower appellate
Court to disbelieve the testimony of Gurumukh Das (PW10).

33.Curiously enough, learned lower appellate Court having not found any
cogent basis to disbelieve the testimony of Madhodas (PW2) Chandra
Kumar (PW4) and Gurumukh Das (PW10) , the witnesses of the incident,
noticed in para-54 of its judgment that there is contradiction in the
evidence of Parmanand (PW1) on one side and that of Madhodas (PW2)
Chandra Kumar (PW4) and Gurumukh Das (PW10) on the other regarding
who had taken the victims to the hospital. On appreciation, a finding was
recorded that evidence of Parmanand (PW1) that he had taken the victim to
hospital was disbelieved by relying upon evidence of Madhodas (PW2)
Chandra Kumar (PW4) and Gurumukh Das (PW10) that the victim were
taken to hospital by the police. By no stretch of imagination such finding
could lead to conclusion that the evidence of Madhodas (PW2) Chandra
-32-

Kumar (PW4) and Gurumukh Das (PW10) regarding assault given by
respondents-accused was liable to be disbelieved.

We find that the learned lower appellate Court had disbelieved the
testimony of Parmanand (PW1) that he himself was eyewitness and that he
had not taken the victim to hospital but the police people who had arrived.
Even if those finding are sustained, it is beyond our comprehension as to
how this could be made a basis to disbelieve the testimony of two injured
witnesses Madhodas (PW2) and Dhannamal (PW3) and three other
witnesses Chandra Kumar (PW4) , Bholanath (PW6) and Gurumukh Das
(PW10). It would thus be seen that on irrelevant consideration, learned
lower appellate Court doubted the prosecution case .

34.It is noteworthy that while learned trial Court disbelieved the plea of alibi
set up by respondents-accused, learned lower appellate Court did not
traverse those finding nor came to the conclusion upon re-appreciation of
evidence on record that plea of alibi, set up by respondent accused was
plausible and possible one, rendering the story of the prosecution doubtful.
Judgments.

35.The above referred settled principles of appreciation were not correctly
applied by learned lower appellate Court while re-appreciating the
evidence of injured eyewitness and other eyewitness with the result that,
even though, serious injury was caused to injured eyewitness and other
eyewitness also corroborated that serious injury was caused to injured
eyewitness, the respondent accused were acquitted by giving benefit of
doubt.

36.It would thus be seen that learned lower appellate Court virtually adopted
a biased approach right from the beginning to find out small contradiction
and omission to disbelieve the prosecution story, completely ignoring
clinching evidence of the injured witnesses Madhodas (PW2) and
Dhannamal (PW3). Learned lower appellate Court, having found that these
witnesses having concurred with the finding regarding several injuries
sustained by these witnesses including fracture in their skull, having not
disbelieved the evidence of Chandrakumar (PW4), Dr. J.S.S. Bhatia (PW5)
and Bholanath (PW6) and Gurumukh Das (PW10), swayed by minor
contradiction and omission and adopting illegal approach in appreciation
of evidence of eyewitness and injured witnesses, reached to the conclusion
-33-

that the prosecution case is not free from doubt. The apparent legal flaw in
the judgment of learned lower appellate Court is that the learned lower
appellate Court while entertaining the doubt on certain minor
discrepancies, omissions and contradictions of injured witnesses Madhodas
(PW2) and Dhannamal (PW3), failed to appreciate the same in correct
prospective of law that the evidence of injured witnesses corroborated on
all material particulars by other eyewitness of the case, which have been
discussed in detail in paragraphs hereinabove. The approach of the learned
lower appellate Court was not only illegal but against settled principles
regarding appreciation of evidence of injured witnesses and eyewitnesses,
suffering from perversity, conclusion contrary to reliable evidence,
ultimately resulting in serious miscarriage of justice.

37. In the present case, though we have analyzed and reached upon conclusion

that the judgment of the learned lower appellate Court is perverse,
suffering from patent illegality, failure to correctly apply the settled
principles with regard to appreciation of evidence, particularly that of an
injured witness, contrary to reliable evidence palpably wrong and
manifestly erroneous, at the same time, it cannot be overlooked that
present is a case of incident of assault which took place way back in the
year 1992. Moreover, present is not a case of commission of heinous
offence like murder, rape, dacoity. The respondents- accused were
convicted under Sections 148, 452, 326 and 149 IPC. Out of these offences,
the maximum punishment awarded to respondents- accused is three year
RI with fine under Section 326 read with Section 149 IPC. For commission
of offence under Section 452 IPC, respondents- accused have been
awarded RI for 2 years with fine and under Section 148 IPC awarded RI for
one year with fine. All the sentences have been directed to run
concurrently. In the case of Roy Fernandes Vs. State of Goa and Ors.
(2012) 3 SCC 221, having found that the conviction under Sections 143, 148,
323 and 325 read with Section 149 was justified, prayer for reducing the
sentence for the period already undergone having regard to the fact that
incident in question had taken place 15 years back, the Supreme Court
taking into consideration the aforesaid aspect and that the Court should
invoke its power under Section 357 Cr.P.C. to award compensation to the
victim, though affirmed the conviction for offence punishable under
-34-

Sections 323, 325 IPC, sentence was reduced to the period of
imprisonment already undergone with a direction to deposit compensation
as below:-

“46. In the result, we allow this appeal in part, set
aside the conviction and sentence awarded to the
appellant under Section 302 read with Section 149
of the IPC and acquit the appellant of that charge.
The conviction of the appellant for offences
punishable under Sections 323 and 325 of the IPC
is affirmed and the appellant is sentenced to the
period of imprisonment already undergone by
him. We further direct that the appellant shall
deposit a sum of Rs.3,00,000/- towards
compensation to be paid to the widow of the
deceased Shri Felix Felicio Monteiro, failing her to
his surviving legal heirs. A sum of Rs.1,00,000/-
shall be similarly deposited towards compensation
payable to Shri Salish Monteiro, besides a sum of
Rs.50,000/- to be paid to Ms. Conceicao Monteiro
failing to their legal representatives. The deposit
shall be made within two months from today
failing which the sentence of one year awarded to
the appellant shall stand revived and the appellant
taken in custody to serve the remainder of the
period. The appeal is disposed of with the above
modification and directions. ”

The aforesaid was a case where the death had taken place but the Court
acquitted the accused of allegation of commission of offence under Section
302 IPC and convicted under Sections 143, 148, 323 325 read with
Section 149 IPC.

In the aforesaid decisions Their Lordships in the Supreme Court
emphasized upon the importance of provision relating to award of
compensation contained in Section 357 Cr.P.C. and also noticed that though
there exists such a provision, the Court have seldom invoked it, perhaps
due to ignorance of the object of it. A detail consideration on this respect of
-35-

law of compensation to victims was made as below:

“38. Even in Hari Singh’s case (supra), the court
granted a similar benefit to a convict under Section
325 who had been sentenced to undergo two years
rigorous imprisonment. The Court in addition
invoked its power under Section 357 of the Cr.P.C.

to award compensation to the victim, and
determined the amount payable having regard to
the nature of the injury – inflicted and the paying
capacity of the appellant. This Court said:

“10. Sub-section (1) of Section 357 provides
power to award compensation to victims of the
offence out of the sentence of fine imposed on
accused. In this case, we are not concerned with
sub-section (1). We are concerned only with sub-
section (3). It is an important provision but courts
have seldom invoked it. Perhaps due to ignorance
of the object of it. It empowers the court to award
compensation to victims while passing judgment of
conviction. In addition to conviction, the court may
order the accused to pay some amount by way of
compensation to victim who has suffered by the
action of accused. It may be noted that this power
of courts to award compensation is not ancillary to
other sentences but it is in addition thereto. This
power was intended to do something to reassure
the victim that he or she is not forgotten in the
criminal justice system. It is a measure of
responding appropriately to crime as well of
reconciling the victim with the offender. It is, to
some extent, a constructive approach to crimes. It
is indeed a step forward in our criminal justice
system. We, therefore, recommend to all courts to
exercise this power liberally so as to meet the ends
of justice in a better way.

11. The payment by way of compensation
-36-

must, however, be reasonable. What is reasonable,
may depend upon the facts and circumstances of
each case. The quantum of compensation may be
determined by taking into account the nature of
crime, the justness of claim by the victim and the
ability of accused to pay. If there are more than
one accused they may be asked to pay in equal
terms unless their capacity to pay varies
considerably. The payment may also vary
depending upon the acts of each accused.

Reasonable period for payment of compensation,
if necessary by instalments, may also be given. The
court may enforce the order by imposing sentence
in default.”

39. Section 357 of the Code of Criminal Procedure
embodies the concept of compensating the victim
of a crime and empowers the courts to award a
suitable amount. This power, it goes without
saying, shall be exercised by the Courts having
regard to the nature of the injury or loss suffered
by the victim as also the paying capacity of the
accused. That the provision is wide enough to
cover a case like the present where the appellant
has been found guilty of offences punishable
under Sections 323 325 of the IPC has not been
disputed before us. Indeed Mr. Luthra relied upon
the provision and beseeched this Court to invoke
the power to do complete justice short of sending
the appellant back to the prison. Mrs. Subhashini
also in principle did not have any quarrel with the
proposition that the power was available and can
be exercised, though according to her, the present
being a gross case of unprovoked violence against
law abiding citizens the exercise of the power to
compensate the victims ought not to save accused
from suffering a deterrent punishment warranted
-37-

under law.

40. Prof. Andrew Ashworth of Oxford University
Centre for Criminological Research has in the
handbook of Criminology authored by him
referred to what are called “Restorative and
Reparative Theories” of punishment. The following
passage from the book is, in this regard, apposite:

“Restorative and Reparative Theories
These are not theories of punishment,
rather, their argument is that sentences should
move away from punishment of the offender
towards restitution and reparation, aimed at
restoring the harm done and calculated
accordingly. Restorative theories are therefore
victim-centred, although in some versions they
encompass the notion of reparation to the
community for the effective crime. They envisage
less resort to custody, with onerous community
based sanctions requiring offenders to work in
order to compensation victims and also
contemplating support and counselling for
offenders to regenerate them into the community.

Such theories therefore tend to act on a
behavioural premises similar to rehabilitation, but
their political premises is that compensation for
victims should be recognised as more important
than notions of just punishment on behalf of the
State”

41. The provision for payment of compensation
has been in existence for a considerable period of
time on the statute book in this country. Even so,
criminal courts have not, it appears, taken
significant note of the said provision or exercised
the power vested in them thereunder. The Law
Commission in its 42nd Report at para 3.17 refers
to this regrettable omission in the following words:

-38-

“3.17. Payments of compensation out of
fine -We have a fairly comprehensive provision for
payment of compensation to the injured party
under Section 545 of the Criminal Procedure Code.
It is regrettable that our courts do not exercise
their statutory powers under this Section as freely
and liberally as could be desired. The Section has,
no doubt, its limitations. Its application depends, in
the first instance, on whether the Court considers a
substantial fine proper punishment for the
offence. In the most serious cases, the Court may
think that a heavy fine in addition to imprisonment
for a long terms is not justifiable, especially when
the public prosecutor ignores the plight of the
victim of the offence and does not press for
compensation on his behalf.”

42. In Manish Jalan Vs. State of Karnataka (2008) 8
SCC 225, even this Court felt that the provision
regarding award of compensation to the victims of
crimes had not been made use by the Courts as
often as it ought to be. This Court observed:

“12. Though a comprehensive provision
enabling the Court to direct payment of
compensation has been in existence all through
but the experience has shown that the provision
has really attracted the attention of the Courts.
Time and again the Courts have been reminded
that the provision is aimed at serving the social
purpose and should be exercised liberally yet the
results are not heartening.”

43. In the above case the appellant had been
convicted under Sections 279 and 304A of the IPC.
The substantive sentence of imprisonment was in
that case reduced by this Court to the period
already undergone with payment of fine and a
compensation of an amount of rupees one lakh to
-39-

the mother of the victim. Reference may also be
made to the decision of this Court in Rachpal Singh
and Anr. Vs. State of Punjab AIR 2002 SC 2710,
where this Court emphasised the need to assess
and award compensation by the accused to the
gravity of the offence, needs of the victim’s family
as also the paying capacity of the accused.”

38.The aforesaid decision of the Supreme Court is a reminder to all the
criminal Courts dealing with the aspect of compensation under Section 357
Cr.P.C. while deciding criminal cases that despite existence of provision of
compensation to victims, the Courts, while convicting offenders, are not
awarding proper compensation to victim by invoking jurisdiction, authority
and power available to them under Section 357 Cr.P.C.

39.In another decision in the case of Labh Singh Ors. Vs. State of
Haryana Anr. (2012) 11 SCC 690, it being a case of conviction under
Sections 323, 324, 326 read with Section 34 IPC, looking to the age of the
appellant and that being a case of old incident and that appellant had
already undergone part of sentence and keeping in view that sending them
to jail after laps of 20 years would not be justified, jail sentence was
reduced to the period already undergone though direction was issued for
payment of compensation as below :

” 2. According to the impugned judgment passed
by the High Court, appellant 1 is more than 82
years of age and Appellants 2 and 3 are 72 and 62
years of age respectively. This is an incident of
1985. The appellants have already undergone part
of the sentence. Sending them to jail after a lapse
of about 27 years,in the facts circumstances of this
case, would not be justified.

3. On a consideration of the totality of the facts
and circumstances of this case, we are of the
opinion that ends of justice would meet if we
direct each of the appellants to pay Rs.1 lakh to
the complainant/injured persons. We direct
accordingly. Let the amount be deposited before
-40-

the trial court within two weeks from today and
after the amount is deposited,the trial court shall
disburse amount equally among the injured
persons.

4. Consequently, the sentence of the appellants is
reduced to the period already undergone by them,
the impugned judgment is modified to the
aforementioned extent and the appeal is partly
allowed.”

40.Present being not a case where the victim had succumbed to death but the
injury being fracture injuries caused to the injured witnesses and incident
being 26 years old and respondents-accused having suffered jail sentence
for some period, while we set aside the judgment of learned lower
appellate Court acquitting the respondents-accused Dr. C.P. Agre, Raj
Kumar Upadhyay and Bali Agre and restore their conviction as ordered by
the learned trial Court, sentence part is reduced to the period already
undergone by them. Each of the respondents- accused shall be liable to pay
compensation of Rs.50,000/- to the victim Madhodas and Dhannamal. In
other words each of the victim shall receive compensation of Rs.1,50,000/-
(one lakh fifty thousand). Each of the respondent-accused shall pay
Rs.50,000/- as compensation within a period of two months from today.

41.If the deposits are not made as directed by each of the respondent-
accused, sentence awarded to them by the learned trial Court shall stand
revived and they shall be taken into custody to serve remainder of the
sentence.

42.The appeals are accordingly partly allowed with the aforesaid modification
and direction.

Sd/- Sd/-/—– –
(Manindra Mohan Shrivastava) (Rajani Dubey)
43. Judge Judge

Praveen

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