(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal arises from the judgement & order passed by the learned Sessions Judge in Sessions Case No.153/04, whereby the accused has been acquitted for the offence under sections 307, 324, 326 and 506(2) of IPC read with section 135 of Bombay Police Act.
2. It may be recorded that Criminal Appeal No.1709/05 has been preferred by the State against the order of the acquittal. Whereas Criminal Revision Application No.375/05 has been preferred by the original complainant against the very judgment and order of the learned Sessions Judge for acquittal.
3. The short facts are that the complaint Ex12 came to be filed by Jagrutiben, p.w.1, wife of the victim with Visnagar Police Station, stating that today, at about 1.00 noon, when she was with her husband in the compound of their house, the accused came to their place and gave a blow to her husband on right side of the stomach and her husband had fallen down and when the second blow was given, she and brother of her husband Prakashkumar, p.w.7, intervened and at that time, the brother of her husband Prakashkumar was injured with the knife. Thereafter, the other persons of the area had come and the accused had gone away by saying that “today because of the other persons her husband has been saved but when he will meet alone, he shall kill him”. The cause of dispute was stated to be that of playing Casio (musical instrument).
4. The aforesaid complaint was investigated by the police and chargesheet was filed against the accused, respondent herein. The case was thereafter committed to the sessions court being Sessions Case No.153/04. The charge was framed by the learned Sessions Judge and as the accused had not pleaded guilty, the trial was conducted. The prosecution in order to prove the guilt of the accused, examined 11 witnesses, the details of whom are mentioned by the learned Sessions Judge at para 6 of the judgment. The documentary evidence was produced of 14 witnesses, the details of which are at the very paragraph of the judgment and order. Thereafter, the statement of the accused was recorded under section 313 of the Cr.P.C. wherein the accused denied the evidence against him and in further statement, he stated that when he was at pan galla, at that time, the victim had come in drunken condition and asked as to why he is playing Casio and he said that “play pashi pashi” and thereafter, there was altercation of words and he got excited and started abusing and had bitten on the right thigh. In the meantime, Prakashbhai had come on galla and the mother of the accused had also come and she was inquiring as to why the incident had happened. At that time, the victim and Prakashbhai started quarreling and the victim brought the stick and Prakash brought knife. The victim gave a blow to the mother of the accused on the backside and Prakash when was giving blow, her mother escaped and the blow hurt the victim and that is how the injury was caused. The defence also examined 5 witnesses and produced documentary evidence of 6 documents. The learned Sessions Judge thereafter heard the prosecution and the defence and the learned Sessions Judge found that the prosecution has not been able to prove the case against the accused and therefore, acquitted the accused from the offences charged. Under the circumstances, the present appeal has been preferred against the very judgment and order of acquittal of the learned Sessions Judge.
5. We have heard Mr. H.K. Patel, learned APP for the State as well as Mr.Brahmbhatt for the original complainant. We have heard Ms.Joshi for Mr.Premal R. Joshi for the original accused. We have gone through the judgment and the reasons recorded by the learned Sessions Judge. The learned counsel appearing for both the sides have taken us to the entire evidence on record.
6. The important aspect is that the injury upon the victim Mahendrabhai Parmar, p.w.6, is proved and can be said as rather admitted by the defence since it is not the case of the defence that the injury was not sustained by the victim Mahendrbhai, p.w.6 but the defence of the accused is that when Prakashbhai, p.w.7 was to give blow to the mother of the accused but she escaped and victim Mahendrabhai sustained injury. Apart from the above, the injury upon the victim is proved by the evidence of Dr. Arunbhai Rajput, p.w.9, Ex. 31. As per the testimony of the said Doctor, the certificate issued by Dr.A.J.Patel has come on record and as per the certificate issued dated 13.11.2003, when the victim was examined, active bleeding from stab wound about 3 X 1.5 cm in size on RI side of abdomen which was deep up to posterior abdominal wall throughout abdominal cavity was found. It was also found that wound was piercing abdominal cavity and cutting of peritoneum of ascending colonC big haematoma retroperitonedly pushing kidney medially. The condition of the patient was serious. The testimony of the said Doctor further shows that the injuries were serious and could cause the death of the patient. He also opined that the injury could be caused with sharp cutting weapon of knife. It is true that in the cross examination of the said witness, he has stated that if there is no further complication, the recovery can be there within 10 days and he has also stated that he has no personal knowledge about the seriousness of the injury. But the said evidence is to be considered in light of the peculiar circumstance that Dr. Arunbhai Rajput is not the one who treated the victim but the victim was treated by Dr.A.J.Patel whose certificate had come on record and the certificate is self explanatory of the injury received by the victim and the condition of the victim at the time when Dr.A.J. Patel first examined the victim.
7. The another important aspect is that there are two witnesses to the incident. One is Jagrutiben complainant, p.w.1 who has been examined at Ex.
38. She has witnessed the incident of giving blow by the accused to the victim and in the crossexamination of the said witness, the defence has not been able to prove about any material contradiction which may lead the Court to disbelieve her as eye witness to the incident. She is eye witness to the incident. She, in her cross examination, has denied that her husband had beaten on the thigh of the accused. She has supported the case of the prosecution for the complaint having been filed and as stated above, for witnessing of the incident. In this manner, the testimony of p.w.1 Jagrutiben, Ex. 38 supports the case of the prosecution for proving that the incident had happened in the presence of the said witness and she is eye witness to the incident. The another important witness is Prakashbhai, whose testimony is recorded at Ex.
28. The pertinent aspect is that the said witness is not only as an eye witness but also as an injured witness. The injury received by Prakash is proved by the testimony of the Dr.Devendrakumar, p.w.2, Ex. 15, who had examined Prakashbhai, p.w.7 and as per his testimony, when he examined Prakashbhai, p.w.7, he had sustained injury of one wound of the size of 2 cm X 1/4 c.m. and it was deep to the skin and was on the left hand on the wrist. The other injury was abrasion on the left side of the head and as per the said Doctor, the injury no.1 could be caused with sharp cutting weapon and injury no.2 could be caused by hard substance. Therefore, in this manner, the injury on Prakash is proved by testimony of Dr.Devendrakumar, p.w.2, Ex. 15 on the aspect of witnessing of the incident.
8. As per the testimony of Prakashbhai, p.w.7, the accused had come to the place at the residence of Mahendrabhai, victim, with the knife and the blow was given on the right side of the stomach and when second blow was to be given, he intervened and he sustained injury on the wrist of the left hand. The defence in the cross examination of the said witness has not been able to bring about any material contradiction on the aspect of witnessing of the incident and also on the aspect of injury sustained by the said witness.
9. In our view, the testimony of the aforesaid two witnesses, viz, Jagrutiben, p.w.1. and Prakashbhai, p.w.7, supports the case of the prosecution for proving that the blow with the knife was given by the accused to the victim on the right side of the stomach and when Prakash, p.w.7 intervened, at the time of second blow, he also sustained injury on the wrist of the left hand. The aforesaid gets further corroboration from the testimony of the victim, p.w.6, Ex. 27, and as per his testimony, there was altercation of words for playing of Casio and at that time, his brother Prakash had come and the matter was settled and they came to the residence and thereafter, at about 1.00 O' clock the accused came with the knife and when he was standing in the compound of the house, he gave a blow to the victim with the knife on the right side and when he was to give another blow, Prakash intervened and he sustained injury on the left hand. As per his testimony, he lost the control and he had fallen down and when he came in conscious condition, he was in the hospital. The defence in the crossexamination of the said witness has not been able to prove about any material contradiction of having received any injury by the victim through the knife.
10. The other evidence which has come on record of the witnesses who have been examined by the prosecution supports the case of the prosecution and in any case, no material has come out which may lead the court to disbelieve the injury received by the victim, viz. eye witnesses to the incident, Jagrutiben, p.w.1 and one injured eye witness to the incident, Prakashbhai, p.w.7. The injury is also proved as observed earlier of the medical evidence. Upon reappreciation of the testimony of Jagrutiben, p.w.1 and Prakashbhai, p.w.7, we are of the view that learned Sessions Judge has committed not only error apparent on the face of the record in discarding evidence of both the aforesaid witnesses for witnessing of the incident of injury being received by the victim and caused by the accused, and it can rather be said that the learned Sessions Judge has discarded the material part of the evidence of both the witnesses which has not been contradicted even in the crossexamination. The law is by now well settled. It is for the court to separate the chaff from the grain. Mere contradiction on a different part by one witness would not lead the court to discard the whole testimony of the witnesses, when it has not been materially contradicted in the cross examination on the aspects of witnessing of the incident unless the contradictions are to the extent that the court may record the conclusion that the witness has lost credibility and the whole testimony deserves to be discarded.
11. In our view, if such principles are considered and then the testimony of p.w.1 and p.w.7 are appreciated, it cannot be said that the testimony of Jagrutiben, p.w.1 or Prakashbhai p.w.7 are such that the credibility is totally lost of the said witness/es. Apart from the above, even if the Court has any doubt about the reliability of the statement made by any witnesses, Court may seek the corroboration which is available from the testimony of the victim himself, p.w.6 as well as the testimony of Dr.Devendrakumar, p.w.2 and Dr.Arunbhai Rajput, p.w.9.
12. Under these circumstances, it appear to us that the learned Sessions Judge has taken the view of acquittal which is not at all possible in a case the injury is proved by the medical evidence and the involvement of the accused for causing injury is proved by the testimony of one eye witness Jagrutiben, p.w.1 and another injured eye witness, Prakashbhai, p.w.7. The learned Sessions Judge has also committed grave error in discarding the testimony of the Dr.Arunbhai Rajput, p.w.9 on the surmises and conjectures. The said witness has no animosity with the accused. Further, the medical evidence normally is to be considered by way of evidence of an expert. It is not a matter where the injury sustained by the victim is at doubt. But rather it is an admitted position by the defence in further statement of the accused under section 313 of Cr.P.C. The only defence was that when Prakash, p.w.7, wanted to give blow to the mother of the accused, she escaped and the victim received the injury. Therefore, injury is not disputed even by the defence. Under these circumstances, it was not open to the learned Sessions Judge to discard the evidence of the Dr.Arunbhai Rajput, p.w.9 for the purpose of having received the injury and also for the purpose of seriousness of the injury sustained by the victim.
13. It may be recorded that the defence by their witnesses, even has made an attempt to change the place of the offence and also has made an attempt to support the statement made by the accused in the further statement under section 313 of the Cr.P.C. It is true that the defence of the accused is not required to be proved beyond reasonable doubt but is to be decided on the probabilities and the reliability by applying the normal prudence. In our view, even if normal prudence is to be applied for considering the
to give blow to the mother of the accused, viz. Pashiben d.w.2, and when she has escaped, Prakash, p.w.7 would receive the injury of knife on his left hand. It is not the case of the defence that the injury received by Prakash, p.w.7 is a self inflicted injury nor any question is put to any witness on the said line. The injury received by Prakash on the left hand at the wrist is also not explained in any manner by the accused or any of the defence witnesses. Under these circumstances, the defence as sought to be raised that Prakash, p.w.7 wanted to give blow to Pashiben, d.w.2, and as she escaped, Mahendrabhai, victim, received injury. In our view, the said defence is unbelievable even if
stands proved with the support of the medical evidence. The guilt of the accused for the injury caused upon the victim also stands proved with the evidence of Jagrutiben, p.w.1, eye witness and Prakash, p.w.7, an injured eye witness. Under these circumstances, we find that the only possible view was that the guilt of the accused has been proved by the prosecution by the reliable and material evidence of two eye witnesses and consequently, it was a case for holding the accused guilty for the injury caused to the victim.
14. At this stage, we my refer to the recent decision of the Apex Court in the case of Kathi Bharat Vajsur and others v. State of Gujarat and others reported at 2012 (3) GLR 1953, wherein the Apex Court had an occasion to consider as to whether the High Court was justified in interfering with the order of the acquittal passed by the learned Sessions Judge and for convicting the accused for the offence under section 302 read with section 34 of the IPC or not. The Apex Court in the said decision made observations on the aspect of scope and ambit of the appeal against the judgment and order of acquittal at paragraphs 20, 21, 22 and 23.
“20) The circumstances in which an appellate court will interfere with the finding of the Trial Court are now well settled by catena of decisions of this Court. In Dwarka Dass v. State of Haryana(2003) 1 SCC 204, the dicta of all these decisions has been crystallized thus:
“2. While there cannot be any denial of the factum that the power and authority to apprise the evidence in an appeal, either against acquittal or conviction stands out to be very comprehensive and wide, but if two views are reasonably possible, on the state of evidence: one supporting the acquittal and the other indicating conviction, then and in that event the High Court would not be justified in interfering with an order of acquittal, merely because it feels that it, sitting as a trial court, would have taken the other view. While re appreciating the evidence, the rules of prudence requires that the High Court should give proper weight and consideration to the views of the trial Judge...”
21) In the case of Narinder Singh v. State of Punjab 2000 Crl. LJ 3462 (SC), this Court has held that the High Court is entitled to re appreciate the evidence if it is found that the view taken by the acquitting Court was not a possible view or that it was a perverse or infirm or palpably erroneous view or the Trial Court taken into consideration inconsequential circumstances or has acted with material irregularity or has rejected the evidence of eyewitnesses on wrong assumptions.
22) It is also now well settled that in a criminal trial the guilt of the accused must be proved beyond reasonable doubt, in order to convict him. This court in the case of State of U.P. v. Krishna Gopal, (1988) 4 SCC 302, held:
“25. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to “proof” is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another a learned Author says:
“The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other.”
Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
26. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice.”
23) In the case of Gurbachan Sing v. Satpal Singh(1990) 1 SCC 445, it is observed:
“4……. The standard adopted must be the standard adopted by a prudent man which, of course, may vary from case to case, circumstances to circumstances. Exaggeration devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.
5. The conscience of the court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated.”
15. In our view, if the aforesaid position is considered, the only possible view is to hold the accused guilty for the action of causing injury to the victim which is proved by the medical evidence. Under these circumstances, we find that the learned Sessions Judge has taken the view which was not at all possible considering the facts and circumstances and evidence on record for acquittal of the accused.
16. The next aspect to be considered is whether the charge for the offence under sections 307, 324, 326 or 506(2) was proved or not since we find that no evidence has come on record for the alleged offence under section 135 of the Bombay Police Act.
17. If the evidence is considered in its entirety read with the medical evidence of Dr. Arunbhai Rajput, p.w.9, it can be said that the injury was grievous hurt on the vital part of the body and the victim remained hospitalised for about a month and therefore, the offence could be said as proved under section 326 of IPC and not for the offence under section 307 or 506(2) of the IPC. Hence, we find it proper to convict the accused for the offence under section 326 of the IPC.
18. Even for the charge of offence under section 324 of the IPC is concerned, the same is also proved for causing injury to Prakash p.w.7 and therefore, the accused deserves to be convicted for the offence under section 324 of the IPC.
19. On the aspect of imposition of sentence, we have heard the learned counsel appearing for both the sides. Considering the facts and circumstances that the victim could recover successfully and there is no permanent disability on any of the vital part of the body and the accused is of young age of 21 years, we find it proper that the sentence of 4 years RI considering the facts and circumstances of the case deserves to be imposed upon the accused with the fine of Rs.5000 and further sentence of 2 months for default in payment of fine for offence under section 326 of IPC. However, for the conviction under section 324 of the IPC is concerned, considering the facts and circumstances, the appropriate sentence would be 1 year RI with no fine. All the sentence shall be undergone by the accused concurrently.
20. In view of the aforesaid observations and discussions, the judgment and order passed by the learned Sessions Judge for acquittal is quashed and set aside. The accused is held guilty for the offence under sections 324 and 326 of the IPC and the sentence is imposed upon him of 4 years RI with the fine of Rs.5000 and 2 months further RI for default in payment of fine. The sentence is also imposed on the accused of 1 year RI for the offence under section 324 of the IPC with no fine. All the sentences shall be undertaken by the accused concurrently. The period undergone by the accused as undertrial prisoner shall be given setoff.
21. The appeal shall stand allowed to the aforesaid extent. In view of the decision of this Court in the Criminal Appeal, Criminal Revision Application No.357/05 shall also stand disposed of accordingly.
22. At this stage, the learned counsel for the original accused prays that time may be granted to the accused to surrender so as to enable the accused to prefer appeal before the Apex Court in the meantime.
23. Considering the facts and circumstances, the accused is granted time to surrender upto 30.11.2012.
(JAYANT PATEL, J.) (MOHINDER PAL, J.) *bjoy