Delhi High Court

Ram Narayan Sharma @ Liloo vs State (Gnct) Delhi on 7 August, 2013

Author: Sunita Gupta

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRL. A. 368/2003

                                   Date of Decision: 07th August, 2013


         RAM NARAYAN SHARMA @ LILOO         ..... Appellant
                    Through: Mr. B.R. Sharma, Advocate.

                          versus

         STATE (GNCT) DELHI                          ..... Respondent
                       Through:        Ms. Fizani Husain, APP for the
                                       State.

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                          JUDGMENT

: SUNITA GUPTA, J.

1. This appeal is arising out of the judgment dated 27th March,

2003 and order of conviction dated 28th March, 2003 in FIR No.

371/2000 under Sections 308/34 Indian Penal Code, 1860 („IPC‟)

registered at Police Station Kotla Mubarakpur vide which the

appellant was convicted for offence under Section 324 IPC and was

released on probation for a period of two years on furnishing a bond

in the sum of Rs.5,000/- with one surety in the like amount. He was

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also directed to deposit Rs.10,000/- by way of compensation to be

paid to the injured.

2. Before coming to the grounds of the appeal, it will be in the

fitness of things to have a narration of the brief history of the case.

3. On 12th October, 2000 on receipt of DD No. 24A regarding

quarrel at Gurudwara road, SI Shiv Raj Singh (PW6) along with

Constable Shripal reached the spot. Constable Ram Vilas (PW4)

recorded DD No. 25A, Ex.PW3/B, which revealed that injured has

been admitted to hospital. As such, SI Shiv Raj Singh along with

Constable Ramvilas reached All India Institute of Medical Sciences

where injured Surender Singh was found admitted. He recorded the

statement of injured Surinder Ex.PW1/A, which culminated into

registration of FIR. Blood stained clothes of injured were seized.

Injuries on the person of Surender Singh were opined to be simple

caused by sharp edged and blunt object. Accused persons were

arrested. After completing investigation, charge sheet was submitted

in the Court against Janak Raj Sharma, Ram Narain @ Liloo, Shivam

Sharma and Nikhil Sharma.

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4. On commitment of the case to the Court of Sessions, as offence

under Sections 308/34 Indian Penal Code is exclusively triable by the

Court of Session, charge for offence under Section 308/34 Indian

Penal Code was framed against the accused persons to which they

pleaded not guilty and claimed trial. In order to substantiate its case,

prosecution examined seven witnesses. All the incriminating

evidence was put to accused persons while recording their statements

under Section 313 Criminal Procedure Code wherein they denied the

case of the prosecution and alleged false implication in the case.

5. Vide impugned order dated 27th March, 2003, co-accused

Janakraj, Shivam and Nikhil were acquitted while observing that no

convincing evidence has come on record to connect them with the

crime. As regards the present appellant, namely, Ram Narayan @

Liloo is concerned, it was held that offence under Section 308 IPC is

not made out against him, however, offence u/s 324 IPC is made out,

accordingly, he was convicted under Section 324 IPC and was

sentenced separately, as stated above. This order is the subject matter

of the present appeal.

Crl. A.368/2003

6. I have heard Mr. B.R. Sharma, learned counsel for the appellant

and have perused the written submissions filed by Ms. Fizani Husain,

learned Additional Public Prosecutor for the State and have gone

through the record.

7. The only submission made by learned counsel for the appellant

challenging the impugned order is that the material prosecution

witnesses did not support the case of the prosecution, as such they

were declared hostile but the learned Sessions Judge has convicted the

appellant.

8. Rebutting the submissions of learned counsel for the appellant,

it was submitted by learned APP for the State that the injured has

categorically deposed about the role of the present appellant and his

testimony finds corroboration from PW2 Manoj Kumar. Further the

ocular testimony of the witnesses find corroboration from the medical

evidence as such the appellant was rightly convicted. The trial Court

has already taken a lenient view by convicting the appellant under

Section 324 IPC and releasing him on probation of two years. As

such, it was submitted that there is no infirmity in the impugned order

which calls for interference. Appeal is liable to be dismissed.

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9. I have given my considered thoughts to the respective

submissions of learned counsel for the parties and have perused the

record.

10. PW1 Surender Kumar is the injured. He came to depose before

the Court on 23rd March, 2002 and it has come in his deposition that

about a year back, at about 7 p.m., he along with his friend Manoj was

going for purchasing milk at Gurudwara Road, Kotla Mubarakpur.

He was purchasing milk from dairy and some quarrel was going on

between Manoj, his friend, and other persons. When he tried to

intervene, he was hit with a bottle on head and then he broke the

bottle and hit on right arm and right thigh. Blood ooze out from his

arm and thigh. He caught hold of the person who had attacked him

and was taking him to police station, but some of his friends advised

him to go first to hospital for treatment, as such since he started

moving towards the hospital, the attacker was released. Soon

thereafter, somebody hit him with fawda on his head and he became

unconscious. He identified Shivam, Nikhil and Ram Narayan who

attacked him and further deposed that he was attacked by bottle by

Ram Narayan @Liloo whereas Shivam and Nikhil were grappling

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with him, however, he could not identify the fourth accused Janakraj.

His statement was recorded by the police which is Ex.PW1/A which

bears his signature at point A. Since the witness did not support the

case of the prosecution in all material particulars, he was cross-

examined by learned Additional Public Prosecutor and in his cross-

examination, he admitted that the quarrel took place in front of

Gurudwara Road Kotla Mubarakpur. He denied that accused Ram

Narayan @ Liloo started abusing him or that accused Janakraj caught

hold of him. He denied that accused Ram Narayan had broken the

bottle before attacking him or that accused Nikhil and Shivam caused

injuries with bricks on his person. He was confronted with his earlier

statements Ex.PW1/A and Ex.PW1/B where these facts were so

recorded. In cross-examination by learned defence counsel, he

admitted that he had not given names of Shivam and Nikhil either in

his earlier statement Ex. PW1/A or in his statement under Section 161

Cr.P.C. He denied the suggestion that accused Ram Narayan @ Liloo

did not attack him with bottle on his person.

11. PW2 Manoj Kumar is the friend of PW1 Surender Kumar and

this witness has deposed that on 13th October, 2000 at about 8:30 p.m.

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he along with his friend Surender Kumar was strolling in the area.

Accused Janakraj and Ram Narayan called Surender and started

abusing him. Accused Janakraj slapped on the face of Surender

whereas Ram Narayan started beating him. Shivam hit with a fawda

on the person of Surender due to which he fell down. Nikhil attacked

on the arm of Surender with bottle. Thereafter, he ran away from the

spot and got some persons from the village at the spot and took

Surender to hospital. Since this witness also did not support the case

of the prosecution in all material particulars, he was also cross-

examined by learned APP for the State and in cross-examination he

admitted that accused Ram Narayan @ Liloo abused Surender who

objected to the same. He also admitted that accused Janakraj had

caught hold of Surender, Ram Narayan after breaking the bottle

attacked on the person of Surender on his head and right arm but did

not attack on the right leg in his presence. He, however, admitted that

in his statement before the police he had stated that Ram Narayan had

attacked on the right thigh of Surender. He admitted that accused

Shivam and Nikhil gave beatings to Surender. In cross-examination

by learned defence counsel he admitted that he had not given the

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names of Shivam and Nikhil although they were known to him prior

to the occurrence and they are sons of the other accused. He denied

that the accused persons had not caused any injury on the person of

Surender.

12. It is now to be seen as to what is the effect of PW1-Surender

Singh and PW2-Manoj Kumar not supporting the case of the

prosecution in its entirety and they being declared hostile.

13. Normally, when a witness deposes contrary to the stand of the

prosecution and his own statement recorded under Section 161 of the

Code of Criminal Procedure, the prosecutor, with the permission of

the Court, can pray to the Court for declaring that witness hostile and

for granting leave to cross-examine the said witness. If such a

permission is granted by the Court then the witness is subjected to

cross-examination by the prosecutor as well as an opportunity is

provided to the defence to cross-examine such witnesses, if he so

desires. In other words, there is a limited examination-in-chief, cross-

examination by the prosecutor and cross-examination by the counsel

for the accused. It is admissible to use the examination-in-chief as

well as the cross-examination of the said witness in so far as it

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supports the case of the prosecution. It is settled law that the evidence

of hostile witnesses can also be relied upon by the prosecution to the

extent to which it supports the prosecution version of the incident. The

evidence of such witnesses cannot be treated as washed off the

records, it remains admissible in trial and there is no legal bar to base

the conviction of the accused upon such testimony, if corroborated by

other reliable evidence. Section 154 of the Act enables the Court, in

its discretion, to permit the person, who calls a witness, to put any

question to him which might be put in cross-examination by the

adverse party. The view that the evidence of the witness who has been

called and cross-examined by the party with the leave of the court,

cannot be believed or disbelieved in part and has to be excluded

altogether, is not the correct exposition of law. The Courts may rely

upon so much of the testimony which supports the case of the

prosecution and is corroborated by other evidence. It is also now a

settled cannon of criminal jurisprudence that the part which has been

allowed to be cross-examined can also be relied upon by the

prosecution.

Crl. A.368/2003

14. Dealing with the legal position with regard to a hostile witness

in the light of Section 154 of the Evidence Act, 1872 in Prithi v. State

of Haryana (2010) 8 SCC 5363 it was held as under:

"Section 154 of the Evidence Act, 1872 enables the court in its discretion to permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Some High Courts had earlier taken the view that when a witness is cross- examined by the party calling him, his evidence cannot be believed in part and disbelieved in part, but must be excluded altogether. However this view has not found acceptance in later decisions. As a matter of fact, the decisions of this Court are to the contrary. In Khujji @ Surendra Tiwari v. State of M.P. (1991) 3 SCC 627, a three-Judge Bench of this Court relying upon earlier decisions of this Court in Bhagwan Singh v. State of Haryana (1976) 1 SCC 389, Sri Rabindra Kumar Dey v. State of Orissa (1976) 4 SCC 233 and Syad Akbar v. State of Karnataka (1980) 1 SCC 30 reiterated the legal position that: (Khujji case, SCC p. 635, para 6)

6. ...the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on careful scrutiny thereof."

15. In Koli Lakhmanbhai Chanabhai v. State of Gujarat (1999) 8

SCC 624, Hon‟ble Supreme Court again reiterated that testimony of a

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hostile witness is useful to the extent to which it supports the

prosecution case. When a witness is declared hostile and cross-

examined with the permission of the court, his evidence remains

admissible and there is no legal bar to have a conviction upon his

testimony, if corroborated by other reliable evidence.

16. In Ramesh Harijan v. State of Uttar Pradesh (2012) 5 SCC

777 it was reiterated that the evidence of such witnesses could not be

treated as effaced or washed off the record altogether but the same

could be accepted to extent that their version was found to be

dependable on a careful scrutiny thereof. A similar view has been

reiterated by Hon‟ble Supreme Court in Balu Sonba Shinde v. State

of Maharashtra (2002) 7 SCC 543, Ganga Kanojia and Anr. V. State

of Punjab (2006) 13 SCC 516, Radha Mohan Singh @ Lal Saheb v.

State of U.P. AIR 2006 SC 951, Sarvesh Narain Shukla v. Daroga

Singh and Ors. AIR 2008 SC 320 and C. Muniappan and Ors. v.

State of Tamil Nadu AIR 2010 SC 3718.

17. This being the legal position, even if PW1 and PW2 in all

material particulars, have not supported the case of the prosecution,

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the Court can rely upon that part of their testimony which supports the

case of the prosecution, corroborated by once reliable evidence.

18. It is true that in his initial statement Ex.PW1/A, the injured did

not implicate Shivam and Nikhil, but that by itself, cannot be a ground

to disbelieve his testimony in toto particularly when his testimony find

corroboration not only from PW2 Manoj Kuamr but also from the

injuries sustained by him.

19. As noted by the Hon‟ble Supreme Court in Sorabh vs. State of

M.P. (1972), 3 SCC 751, one hardly comes across a witness whose

evidence does not contain a grain of untruth or who does not resort to

exaggeration, embroidery or embellishment. It is for the Court to

separate the grain from the chaff and then believe that part of the

evidence which is found to be true and correct. Some exaggeration or

embellishment may be attributed to over anxiety leading to the

witness giving an exaggerated account of the incident witnessed by

him or sometimes it can be a deliberate attempt to cover

embellishment. If the core part of the testimony of a witness inspires

confidence and can be safely acted upon, his testimony need not be

rejected even if some other part of his testimony is not proved to be

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correct. It was held by the Hon‟ble Supreme Court in Ganga Dhar v.

State of Orissa AIR 2002 SC 3633 that even if major portion of the

evidence is found deficient, the conviction can be based on the

residual evidence, if it is otherwise sufficient to prove the guilt

attributed to him. Even if a part of the testimony of a witness appears

to be untrue or false, that by itself does not destroy his testimony from

beginning till end. It is only where the Court does not find it possible

to separate truth from falsehood on account of grain and chaff being

inextricably mixed up that the Court has to discard the entire

testimony of the witness in toto.

20. In State of Uttar Pradesh vs. Shankar AIR 1981 SC 897, it

was held by Hon‟ble Supreme Court that the mere fact that the

witness had not told the truth in regard to a peripheral matter would

not justify a rejection of his evidence. It was reminded that time and

again the Court had pointed out that in this country, it is rare to come

across the testimony of a witness which does not have a fringe or

embroidery of untruth although his evidence may be true in the main.

21. In Bhagwan vs. State of Maharashtra AIR 1974 SC 21, the

Hon‟ble Supreme Court held that the maxim "falsus in uno falsus in

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omnibus" is not to be blindly invoked in appearing evidence adduced

in our Courts where witness seldom tell the whole truth but often

resort to exaggeration embellishment and padding up to support of

however, true in the gain. It is the function of the Court to disengage

the truth from falsehood and to accept what it finds to be true and

reject the rest. It is only where truth and falsehood are inextricably

mixed up polluting the beyond and refinement the entire fabric of the

narration given by witness that the Court might be justified in

rejecting his evidence in toto. The same view was taken in Laxman

vs. State of Maharashtra AIR 1974 SC 308, where the Hon‟ble Court

held that the witness cannot be branded as liars in toto and their

testimony rejected outright even if parts of their statement are

demonstrably incorrect or doubtful. It was observed that an astute

Judge can separate the grain of acceptable truth from the chaff of

exaggeration and improbabilities, which cannot be safely or prudently

accepted and acted upon. In Rai Singh vs. State of Haryana AIR

1971 SC 2505, the Hon‟ble Supreme Court held that in each case the

Court has to appraise the evidence to see to what extent it is worthy of

acceptance and merely because in one respect the court considers it

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unsafe to rely on the testimony of a witness it does not necessarily

follow as a matter of law, that it must be discarded in all other

respects as well. The Court has to sift the evidence with care in each

case and on full consideration of all the relevant material

circumstances to come to a decision, which part of the testimony of

the witness to accept, and which to reject.

22. In Bholu vs. State of Haryana AIR 1976 SC 2499, the Hon‟ble

Supreme Court reiterated that the Court should make every effort to

disengage the truth from the falsehood and to sift the grain from the

chaff rather than take the easy course of rejecting the entire

prosecution case merely because there are some embellishments.

23. So far as the present appellant is concerned, in the initial

statement itself made by injured Surender Ex.PW1/A which becomes

bedrock of investigation, he had categorically stated that the appellant

abused him and when he asked him not to do so then he broke the

bottle and hit the same on his head and other parts of the body. Same

role was ascribed by him when he entered the witness box. The mere

fact that as regards the role of other accused person, it was not

believed by the learned Additional Sessions Judge and as such they

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were acquitted is not sufficient to discard his testimony. The appellant

has not alleged any animosity, ill will or grudge against PW1

Surender Singh for which reason he would falsely name him. It is not

in dispute that he sustained injuries in the incident. The appellant has

neither disputed the incident nor sustaining of injuries by the

witnesses. That being so, it is highly improbable that he would get

involved the appellant with whom he had no axe to grind. Moreover,

his testimony find corroboration from PW2 Manoj Kumar who also in

cross-examination by APP for the State has admitted that the appellant

abused Surender and on his raising objection to the same the appellant

brought a bottle and attacked the person of Surender on his head and

right arm.

24. The ocular testimony of both the witnesses find corroboration

from the medical evidence, inasmuch as, the injured was taken to All

India Institute of Medical Sciences Hospital where he was examined

by Dr. Shajal Khaldar who prepared his MLC Ex.PW7/A. PW7 who

was acquainted with the handwriting and signatures of Dr. Shajal

Khaldar and according to him as per MLC Surender Kumar had

sustained following injuries;




Crl. A.368/2003

          (i)      CLW over right lower abdomen;
         (ii)     CLW over right parito-occipital region;
         (iii)    Incised wound over right arm;
         (iv)     Superficial venous injury actively bleeding;

and opined that injuries were caused by sharp edged object.

25. During the course of investigation blood stained shirt and

pyjama of injured were also seized by the Investigating Officer of the

case vide memo Ex.PW6/C.

26. Under the circumstances, keeping in view the statement of the

injured which find due corroboration from PW2 Manoj who

confirmed the presence of the appellant at the spot at the time of

incident corroborated by MLC, learned Additional Sessions Judge

rightly convicted the appellant. Since the injuries on the person of the

injured were found to be simple, as such learned Sessions Judge

observed that offence under Section 308 IPC is not made out. Instead

offence under Section 324 IPC was proved. No infirmity can be found