JUDGMENT M.C. Jain, J.
1. The judgement dated 28.3.1997 passed by 17th Additional Sessions Judge, Meerut in S.T. No. 5 10 of 1995 has been challenged by the State by means of this appeal whereby the accused respondents Manoj and Mukesh ( brothers) sons of Balbir and Sanjai and Pradeep (brothers) being sons of Hansraj have been acquitted of the charges under Section 302 I.P.C. read with Section 34 I.P.C., 307 I.P.C. read with Section 34 I.P.C. and 504 I.P.C. Manoj has also been acquitted of the charge under Sections 4/25 of Indian Arms Act.
2. The incident took place on 3.11.1994 at about 11.15 P.M. in Mohalla Mata Ka Bagh, Baghdiyan, Police Station Brahmapuri, Meerut, the F.I.R. whereof was lodged on 4.11.1994 at 00.15 A.M. by Budh Ram PW 1. The deceased was Ramesh brother of Budh Ram. Budh Ram also sustained injuries in the incident. The accusation was that in the fateful might and time, abuses were traded with altercation between Satish son of Ramesh on the one hand and Sanjai etc. on the other over the explosion of crackers. On hearing commotion, Ramesh also reached near the house of Sanjai. All the four accused were there. They continued to hurl abuses on Satish as well as Ramesh. Manoj was armed with a knife and the other three had lathis. The informant Budh Ram also reached there. He and Ramesh asked the accused not to hurl abuses. The accused Sanjai was blaming Satish for exploding the cracker on him. Instead of calming down, Sanjai exhorted his companions and Manoj accused stabbed Ramesh in his abdomen while the remaining three accused assaulted informant Budh Ram with lathis. The shouts attracted Ram Roop, Dal Chand and many others to the scene who intervened. The accused persons ran away offering threats. The intestine of Ramesh had come out. Budh Ram and others of the locality took Ramesh to Deep Nursing Home where he was admitted. He then lodged the F.I.R. on the basis of which check F.I.R. was prepared and a case registered. Budh Ram was also medically examined. Ramesh died of the injuries sustained by him the same night at about 4-4.30 A.M. The investigation followed as usual, whereafter the accused persons were booked for trial
3.The defence was of denial.
4. In support of its case, the prosecution examined 11 witnesses in all. Out of them, Budh Ram PW 1, Chatursen PW 2 and Satish PW 4 were eye-witnesses.
5. Dr. Sunil Gupta PW 3 had initially examined the injuries of Ramesh on 3.11.1994 at 11.30 P.M. in Deep Nursing Home as visiting Surgeon. The patient was in a condition of shock and small intestine with mesentery were coming out from the wound over left abdomen. He was operated. About 2.5 litres of blood was collected in the form of clots and fresh blood. Small intestine were lacerated with multiple perforations at three places. He died at 4.25 A.M. on 4.11.1994.
6. Post mortem over the dead body of the deceased was conducted on 4.11.1994 at 2.30 P.M. by Dr. K.N. Tiwari PW 6. The deceased was aged about 36 years and about half day had passed since he died. The following ante mortem injuries were found on his person:
1. Stitched wound on front of abdomen in midline 18 cm long with 16 stitches present. Direction vertical.
2. Stitched wound 3 cm long, with three stitches present on anterior aspect of abdomen 4 cm left to injury no.I. Direction oblique with lower end nearer to wound (1).
3. Stitched wound 2.5 cm with one stitch present in vertical direction, 27 cm below left nipple at 6 O'clock position.
7. The death had occurred due to shock and haemorrhage as a result of injuries.
8. The medical examination of Budh Ram PW 1 was conducted by Dr. Raj Kumar PW 11 on 4.11.1994 at 1.10 A.M. at P.L. Sharma Hospital, Meerut. The following injury Was found on his person:
Lacerated wound 1 cm x.5 cm transverse just above the lateral part of left supraorbital margin. The part around was contused red swollen.
9. The injury was fresh and had been caused by some blunt object. The remaining evidence related to the investigation off the case or otherwise of formal nature.
10. The trial judge did not find the case proved as per the evidentiary standard and recorded acquittal.
11. We have heard Sri K.P. Shukla, learned A.G.A. from the side of the State-appellant and Sri DP. Singh, learned counsel for the accused-respondents. The argument from the side of the State, briefly stated, is that the trial judge committed illegality in discarding the prosecution evidence. It has been urged that mere relationship of witnesses with the deceased and injured did not justify the rejection of their testimony when their presence was natural. The acquittal, according to the State, is perverse.
12. On the other hand, the learned counsel for the accused respondents has stood by the side of the acquittal and supported it.
13. We propose to examine the relevant aspects of the matter in the subsequent discussion to come to the right conclusion as to whether the appeal merits acceptance or dismissal.
14. We have cross checked the findings of trial court with the evidence on record. We are of the opinion that so far as the accused respondents Mukesh, Sanjay and Pradeep are concerned, the acquittal is justified and no interference is called for therewith by this court of appeal. We wish to make our meaning clear by recording reasons. As per the case of the prosecution it was the co-accused Manoj who had stabbed Ratnesh-brother of PW 1 Budh Ram (eyewitness and informant). Mukesh accused is the real brother of Manoj and the accused Sanjay and Pradeep are the cousins of Manoj and Mukesh. Accused Sanjay and Pradeep are sons of Hans Raj. Manoj and Mukesh are sons of Balbir. The incident had taken place in front of the house of the accused. These accused, Sanjay, Pradeep and Mukesh allegedly rained lathi blows on PW 1 Budh Ram. However, Budh Ram sustained only one lacerated wound of insignificant dimension I cm x.5 cm transverse above the left eye. It was not oozing. As per PW I1 Dr. Raj Kumar who examined him, the injury was fresh and simple caused by some blunt object. Obviously, the injury sustain by him is wholly disproportionate to the alleged wielding of lathis by the three accused namely, Sanjay, Pradeep and Mukesh. These three are of the own family of the main accused Manoj who stabbed Ramesh-brother of PW 1 Budh Ram. Had he been assaulted with lathis by three persons, ordinarily, he would have received much more injuries than the one noted above. The prosecution party and the accused resided in the same locality and were neighbours. It is gleaned from the site plan that the house of Ramesh and Budh Ram was situated in the southern side opening towards the north and that of the accused was on the northern side with an opening towards south in the Gali intervening between their houses and that of Ramesh and Budh Ram. It was the night of Deepawali festival and the incident occurred over the cracking of fireworks. Exchange of hot words had taken place between Ramesh's son Satish and the accused Sanjay over the cracking of crackers. Ramesh also reached near the house of the accused on hearing noise where the incident took place. Sanjay allegedly exhorted the other accused whereupon Manoj stabbed Ramesh and the other three including Sanjay gave lathi blows to Budh Ram (who too along with his father PW 2 Chatarsen) had reached the spot.
15. The experience shows that there is a tendency on the part of the witnesses to exaggerate the guilt of the opposite party. Even when only some members of the rival group are involved in the offence, quite often other members are also falsely roped in. Exaggeration of the part played by the other side in the course of the incident is also quite common. Therefore, the court has to be circumspect in the appreciation of the evidence. Sanjay, Pradeep and Mukesh are of the own family of Manoj. True, the incident had started with trading of abuses between Sanjay and Satish-son of Ramesh over the cracking of fireworks, but mere indulgence in trading of abuses by Sanjay with Satish would not mean that he committed any punishable offence within the ambit of law. The offence really was the stabbing of Ramesh by Manoj. The possibility of the false implication of Sanjay, Pradeep and Mukesh or some of them cannot be ruled out. So far as they are concerned, chaff and grain are so inextricably mixed and inseparable that all these three deserve to be afforded the benefit of doubt. They might have been implicated so as to put almost the entire male members of the family of Manoj in a tight corner. There is no evidence that Manoj had been called by Sanjai. Therefore, what Manoj did was his individual act and even Sanjai, let alone Mukesh and Pradeep, cannot be held vicariously liable for his criminal act of stabbing Ramesh. Their acquittal, as we observed earlier, does not call for any interference. But, Judged in right perspective, the acquittal of the fourth accused Manoj who stabbed Ramesh is wholly illegal and perverse being based on superficial approach and faulty appreciation of evidence without indepth analysis. The relevant discussion in this behalf shall follow.
16. The learned counsel for the accused respondents has cited the case of Resham Singh and Anr. v. State of Punjab 2004 SCC (Crl.) 452 to stress his point that a strong reasoning is warranted when the High Court in appeal interferes with the acquittal order of the lower court. There can be no quarrel with this proposition. But it has. to be kept in mind that it is the settled position of law that the High Court while dealing with an appeal has full power to review the evidence upon which an acquittal is based. If two views are possible and the lower court has opted for one of them, the High Court should not interfere. In the present case, however, the evidence adduced by the prosecution clearly established that it was the accused respondent Manoj who had stabbed Ramesh on the given date, time and place. No second view is possible on dispassionate and judicial appreciation of the evidence adduced by the prosecution on record.
17. True, the statement,, of Ramesh purportedly recorded by the Investigating Officer under Section 161 Cr.P.C. was to be ignored. The investigation had been started by PW 10 SI Jaiveer Singh Gahlot. He claimed that after the lodging of the F.I.R. at the Police Station on 4.11.1994 at 12.15 A.M., he had started on motorcycle at 12.30 A.M for the Nursing Home where the victim Ramesh was admitted, reaching there at about 1 A.M. He also claimed to have recorded his statement, but the evidence of PW 3 Dr. Sunil Gupta is that when he initially examined Ramesh in Deep Nursing Home on 3.11.1994 at 11.30 P.M., he was in a state of shock. He had operated him. The operation was started at 12 O' clock in the night rendering him completely unconscious. The operation continued upto 2.15 A.M. and the patient remained in operation theatre till 2.30 A.M. He remained unconscious till he died. Thus, there could be no question of the Investigating Officer PW 10 SI Jaiveer Singh Gahlot recording the statement of the victim after reaching the Nursing Home at 1 A.M, He simply posed to be over-smart but such over-zealousness on his part could not overshadow the other evidence proving the guilt of the accused Manoj.
18. Recovery of knife at the instance of accused Manoj was also doubtful and liable to be ignored for the simple reason that PW 1 Budh Ram was said to be a witness of recovery of knife. But he did not say anything about such recovery of knife in his deposition before the court as PW 1. There was also no evidence of this fact either that the blade of the alleged recovered knife was of prohibited length. Again,the factum of recovery of knife having not been proved, could not eclipse other clinching evidence on record proving the stabbing of Ramesh by Manoj judged in the light of other emerging circumstances.
19. Learned counsel for the accused respondents then argued that no independent witness had been examined to support the prosecution case, though Roop Ram and Dal Chand were named as other eyewitnesses of the incident in the F.I.R. Learned A.G.A. countered this argument with the submission that these, two witnesses were discharged by the prosecution for the simple reason that, they had been won over by the accused and they were not prepared to speak the truth. The State counsel argued that this ground of discharge of Roop Ram and Dalchand has specifically been taken in the grounds of appeal. We should point out that as per Section 134 of the Indian Evidence Act, no particular number of witnesses shall in any case be required for the proof of any fact. In any proceeding, it is not the number of witnesses which counts for the-success, but the quality of the testimony counts. A fact may be proved by a single witness or may remain unproved even where hundreds of witnesses have deposed to prove that fact.
20. In the present materialistic age morality is at a very low ebb and the winning over of the witnesses by the accused is not uncommon. Sometimes, independent witnesses of their own avoid to tender evidence for fear of inviting trouble for themselves in future. Therefore, what was required of the trial court was to have carefully scrutinized the evidence of PW 1 Budh Ram, PW 2 Chatarsen and PW 4 Satish (who was at the start of the incident). No doubt, they are closely related inter se and qua the deceased Ramesh. But relationship by itself would not discredit their testimony. Mere relationship or interestedness of the witness is not sufficient to discard him if his presence on the spot cannot be doubted. Normally, a close relative of the deceased would be most reluctant to spare the real culprit and falsely substitute other(s) for him. Justice cannot be defeated simply because the independent witnesses preferred to stay back.
21. We find that the trial Judge did not make any proper discussion for disbelieving the injured witness PW 1 Budh Ram (brother of the deceased). There was no justification for disbelieving him. PW 2 Chatarsen and PW 4 Satish on the fact of stabbing of Ramesh by Manoj. The incident took place at about 11.15 P.M. It was PW 1 Budh Ram (injured) who had admitted his injured brother Ramesh in Deep Nursing Home at 11.30 P.M. The distance of Deep Nursing Home from the place of occurrence was 300-400 paces as stated by him. His this statement went unchallenged. After admitting his brother there, he lodged the F.I.R. with promptitude at 12.15 A.M. the same night. It was the night of Diwali festival and as we noted earlier, the parties had their houses facing each other and the incident occurred over the cracking of crackers by Ramesh' s son Satish. In the night of Diwali festival, family members were expected to be at their houses for celebration till late night. It was quite usual and natural that Satish's father Ramesh (deceased), Ramesh's brother PW 1 Budh Ram and Ramesh's father PW 2 Chatarsen came out and reached the spot when abuses were being traded between Satish and Sanjay. It was also quite natural that Sanjay's cousin brother Manoj also came out and there was heated discussion between the two sides. Manoj however, got hot under the collar and stabbed Ramesh. Stabbing was naturally witnessed by PW 1 Budh Ram, PW 2 Chatarsen and PW 4 Satish.
22. The presence of Manoj at the spot is an admitted fact inasmuch as his statement under Section 313 of Code of Criminal Procedure was to the effect that Ramesh had struck lathi blow on his head as a result of which he had fallen down and somebody stabbed Ramesh. The defence also relied upon his injury report. He was examined on 4.11.1994 at 3.20 A.M. in P.L. Sharma Hospital, Meerut, having been taken there by constable Zahid Ali of Police Station Brahmpuri. The point that we wish to make here is that the presence of Manoj at the spot is an admitted fact.
23. We are of the view that the trial Judge unnecessarily criticised the prosecution for having not explained the injury of Manoj accused. Manoj, as per the injury report dated 4.11.1994 at 3.20 A.M., had received only a lacerated wound of the dimension 3 cm. X.5cm x scalp deep over back of left side of scalp 7 cm above the left ear. It is settled position of law that the prosecution is obliged to explain only significant injuries sustained on the side of the accused during the same course of incident. The above injury of Manoj was not of significant nature. It could have been manufactured after the incident to create false defence before his arrest. Moreover, it was also possible that he received this insignificant injury in the melee and ruckus that would have been there as a necessary fall out immediately after the stabbing of Ramesh by Manoj. Regard is to be had to this aspect of the matter that the houses of the parties were in close proximity facing each other and the members of the families of the two sides as also others were very much there, it being a Diwali night. Therefore, the defence could not gain any point on the premise of the insignificant injury of Manoj.
24. We are now taken to the last question as to what offence was committed by the accused within the ambit of law. On a careful consideration, we are of the opinion that the case is covered by exception 4 of Section 300 I.P.C. It was culpable homicide not amounting to murder because it was committed without premeditation in a sudden fight on a sudden quarrel over cracking/playing of fireworks in the night of Diwali festival. In the heat of passion, he( Manoj) whipped out knife and fatally stabbed Ramesh in the abdomen who died of the same that very night. He having used knife in stabbing Ramesh in his abdomen, he would be imputed the knowledge that he did so with the intention of causing him such bodily injury as was likely to cause his death. His act is, therefore, covered under Part-I of Section 304 I.P.C. We are in judgment that seven years' rigorous imprisonment would meet the ends of justice.
25. To conclude, we partly allow this appeal. The acquittal of Mukesh, Sanjay and Pradeep is affirmed, but that of accused Manoj is reversed. We hold Manoj guilty for the offence punishable under Section 304 part I I.P.C. and convict him thereunder, sentencing him to undergo seven years' rigorous imprisonment.
26. The accused respondent Manoj is on bail. The Chief Judicial Magistrate, Meerut shall cause him to be arrested and lodged in jail to serve out the sentence awarded. He shall report compliance of this order within two months from the date of receipt of a copy of this judgment.
27. Certify the judgment to the court below.