Madhya Pradesh High Court
Raju vs The State Of M.P. on 3 August, 2023
Author: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 459 of 2000
BETWEEN:-
RAJU S/O BUDHHLAL
AGE - 22 YEARS OCCUPATION-DRIVER
R/O -38, SHIVSHAKTI NAGAR, INDORE
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI SALIL EKADI, ADVOCATE)
AND
THE STATE OF M.P. THROUGH
POLICE STATION MIG, INDORE
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SURENDRA GUPTA, GOVERNMENT ADVOCATE)
Reserved on : 20.07.2023
Delivered on : 03.08.2023.
This appeal coming on for orders this day, with the consent of
parties, heard finally and the Court passed the following:
ORDER
Invoking the appellate jurisdiction of this Court under
Section 374 of the Code of Criminal Procedure, 1973, the present
appeal has been filed against the judgment of conviction and
sentence dated 10.04.2000 passed by the learned 15th Additional
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 03-08-2023
16:46:56
Sessions Judge, District-Indore in Sessions Trial No. 51/1994,
whereby the appellant has been convicted under Section 326 of IPC
and sentenced to undergo 5 years R.I.
2. Precisely the prosecution story is that the complainant
Santosh Tiwari (P.W.-1) and Vijay Kumar (PW-4) are friend to each
other. On the date of incident, Santosh Tiwari came to meet Vijay
and both were going to their house. As and when, they reached
Sanjay Nagar Triangle, all three accused persons came and after
stopping them, demanded money from Vijay. In turn, Santosh
Tiwari denied to give money, on which accused persons threatened
and abused him and on being stopped by the Santosh Tiwari,
accused Raju caught Santosh Tiwari and assaulted on his left thigh
with knife. Other accused persons had also assaulted Santosh
Tiwari due to which he received life threatening injuries. On
account of this, F.I.R. was lodged against the accused persons under
Sections 341, 294, 307 read with Section 34 of I.P.C. and under
Section 25/27 of Arms Act.
3. During the investigation, spot map was carried out. Seized
articles were sent to Forensic Laboratory and after recording of
statements of witnesses under Section 161 of Cr.P.C., the charge-
sheet was filed before the Judicial Magistrate First Class and the
matter was committed to the Court of Sessions.
4. Having considered the evidence available on record, the
learned 15th Additional Sessions Judge has framed the charges
under Section 307 of I.P.C. against the accused persons and they
abjured their guilt and took a plea that they are innocent.
5. In order to bring home the charge under Section 307, the
prosecution has examined as many as 10 witnesses namely Santosh
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 03-08-2023
16:46:56
Tiwari (PW-1), Shivnarayan (PW-2), Robinson (PW-3), Vijay (PW-
4), Mahesh Sharma (PW-5), Dr. Afjal Banglewala (PW-6), Girish
Subedar (PW-7), A.S.I. Shrinivas Tiwari (PW-8), Dr. Rajendra
Agrawal (PW-9) and Ramkishan (PW-10). On behalf defence
witnesses Amit Paradkar (DW-1) and Yogesh Bhargawa (DW-2)
has also been examined.
6. On considering the evidence and arguments advanced by the
counsel for both parties, the learned Additional Sessions Judge has
convicted the appellant under Section 326 of I.P.C. in lieu of
Section 307 of I.P.C. and also has acquitted the other accused
persons.
7. Being crestfallen by the aforesaid conviction and sentence,
this criminal appeal has been filed. In appeal memo and arguments,
learned counsel for the appellant submitted that the learned trial
Court glassing over the legal issues, over looking the facts, wrongly
appreciated the evidence and also erred in it's findings of
conviction. Had the accused assaulted the injured with knife on his
thigh, friend of injured, Vijay (PW-4) would have fortified the
incident and contents of F.I.R. It is worth noting that as per
prosecution story of the case, Vijay is the complainant of the case
and on his behest Dehatinalishi and FIR were lodged. It is further
submitted that except injured Santosh Tiwari (PW-1), all other eye
witnesses i.e. Shivnarayan (PW-2), Robinson (PW-3) and Vijay
(PW-4) and Ramkishan (PW-10) have not supported the
prosecution story and they have turned hostile. The blood found on
the knife seized from possession of the appellant, had not been
matched with the blood group of injured and the defence witnesses
namely Amit Paradkar (DW-1) and Yogesh Bhargawa (DW-2) were
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 03-08-2023
16:46:56
not relied by learned trial Court whereas they were having shops
adjacent to the place of incident.
8. That apart, it is also submitted that on the same set of
evidence, other co-accused persons namely Praveen @ Banti Pal
and Prem Singh have been acquitted by the learned trial Court.
There is huge contradiction and omissions between the Court
statements of the complainant and police statement recorded under
Section 161 of the Code of Criminal Procedure, 1973. Virtually, the
learned trial Court turned its deaf ear towards the statements of
these defence witnesses, which is against the legal ethics. In the
end, learned counsel has also alternatively submitted that if this
Court affirms the findings of conviction, in view of the facts of the
case, the accused may be released by giving benefit of Probation
for having good conduct or at the most, he may be punished to the
period already undergone by enhancing the fine amount.
9. On the contrary, learned Government Advocate has supported
the findings of the learned trial Court regarding conviction and
sentence rendered in the impugned judgment. He further submitted
that this appeal has been filed without any merit, therefore, the
same deserves to be turned down.
10. In back drop of the arguments of both parties, the question is
to be determined to decide the instant appeal as to whether the
findings of the learned trial Court regarding conviction and
sentence of the accused under Section 307 of I.P.C. are erroneous in
the eyes of law and facts.
11. In view of the available testimony, matter has been
considered. Certainly in this case, only the injured Santosh Tiwari
has supported the prosecution case and no other eye witnesses came
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 03-08-2023
16:46:56
in support of him. Even, Vijay who is also an injured and
complainant of the case and is also a friend of injured Santosh
Tiwari, has not authenticated the prosecution case.
12. Now, the question is as to whether on the basis of sole
testimony of injured Santosh Tiwari, the findings of the learned trial
Court regarding conviction and sentence can be affirmed. It is
paramount principle that even number of witnesses have not
supported the prosecution case, the conviction can be based on the
sole testimony of single witness. It is quality not the quantity of
evidence, to be considered while appreciating the available
evidence.
13. Section 134 of the Evidence Act, specifically mandates that
no particular number of witnesses shall in any case be required for
the proof of any fact. On this aspect, the law laid down by Hon'ble
Supreme Court in the case of Vithal Pundalik Zendge Vs. State of
Maharashtra reported in AIR (2009) SC 1110 is worth referring to
the context of the case. Relevant para 6 and 7 of the said judgment
is reproduced below :-
6. On a consideration of the relevant authorities and the
provisions of the Indian Evidence Act, 1872 (in short the
'Evidence Act') the following propositions may be safely
stated as firmly established:
(1) As a general rule, a court can and
may act on the testimony of a single
witness though uncorroborated. One
credible witness outweighs the
testimony of a number of other
witnesses of indifferent character.
(2) Unless corroboration is insisted
upon by statute, courts should not
insist on corroboration except in cases
where the nature of the testimony of
the single witness itself requires as a
rule of prudence, that corroboration
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 03-08-2023
16:46:56
should be insisted upon, for example in
the case of a child witness, or of a
witness whose evidence is that of an
accomplice or of an analogous
character.
(3) Whether corroboration of the
testimony of a single witness is or is not
necessary, must depend upon facts and
circumstances of each case and no
general rule can be laid down in a
matter like this and much depends
upon the judicial discretion of the
Judge before whom the case comes.
7. Therefore, there is no hesitation in holding that the
contention that in a murder case the court should insist upon
plurality of witnesses, is much too broadly stated.
14. In this case, where all other eye witnesses have turned
hostile, hence, the Court is bound to test and enquire the single
testimony of the injured Santosh Tiwari (PW-1). He has specifically
deposed that all accused persons have demanded money for getting
liquor from his friend namely Vijay, when Vijay denied by saying
that he had not having money, then all accused persons said him to
get money from his friend and gave them. In course of these
altercation, accused persons have stated that if they do not receive
money from the complainant and his friend, then they will not leave
the place of incident. Further, the witness Santosh Tiwari stated that
the accused Raju assaulted him with knife on his left leg. The
statement of this witness has not been rebutted in his cross-
examination which was run more than 2 days in 20 pages. Here, it
is pertinent to mention that, being an injured witness, testimony of
Santosh Tiwari has special status in the eyes of law. On this aspect,
Hon'ble Supreme Court in the case of Chandrashekar Vs. State of
Tamilnadu reported in (2017) 13 SCC 585, endorsing another case
of the Supreme Court, viewed as under :-
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 03-08-2023
16:46:56
10. Criminal jurisprudence attaches great weightage to the
evidence of a person injured in the same occurrence as it presumes
that he was speaking the truth unless shown otherwise. Though
the law is well settled and precedents abound, reference may
usefully be made to Brahm Swaroop v. State of U.P., (2011) 6 SCC
288 observing as follows:
"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 an in-built 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."
15. In light of the aforesaid proposition, the testimony of injured
Santosh Tiwari has its immanent value. The testimony of this
witness is well supported by medical testimony of two Dr. Afjal
Banglewala (PW-6) and Dr. Rajendra Agrawal (PW-9) and another
witness Mahesh Sharma (PW-5). Mahesh Sharma (PW-5) has
graphically stated in his para no. 2 in examination-in-chief that after
informing the police station, he went to M.Y. Hospital where he
saw that the injured Santosh Tiwari was having an injury of knife in
the left thigh. He has also stated that he has given blood to the
injured in the hospital. Statement of this witness has not been
challenged in his cross-examination regarding said injury. As such
the relevancy of statement of Mahesh Sharma comes under the
provision of Section 7 of the Evidence Act.
16. That apart, in the statement of Dr. Rajendra Agrawal, he said
that on 18.08.1993, he medically examined Santosh Tiwari and
found him in unconscious position and a wound inside his left thigh
was also found. Further, the statement of Dr. Afjal Banglewala
(PW-6), is also having significance and he specifically stated that
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 03-08-2023
16:46:56
on 26.08.1993, he had amputated the leg of injured Santosh Tiwari
by operation. In this way, the statement of Santosh has been well
vindicated by the statements of Mahesh Sharma (PW-5), Dr.
Rajendra Agrawal (PW-9) and Dr. Afjal Banglewala (PW-6). So far
as the statement of defence witnesses are concerned, Amit Paradkar
(DW-1) and Yogesh Bhargava (DW-2) have supported the case of
defence, but in cross-examination, they have not explained as to
why they have not given their statements before the police just after
the incident. Hence, the statements of these defence witnesses,
cannot be relied, in any way.
17. Learned counsel for the appellant has further pointed out
some contradictions, omissions and discrepancies in the statement
of injured Santosh. On this aspect, it is time-honoured principle that
the discrepancies and contradictions, which are not going to the
root of the case or affecting the basic version of the case, they do
not erode the credibility of witnesses. On the basis of such
discrepancies, omissions or contradictions, the whole testimony of
the witness cannot be wiped out.
18. Learned counsel for the appellant strenuously submitted that
since on the same set of evidence other accused persons namely
Praveen @ Banti Pal and Prem Singh were acquitted by the learned
trial Court, then, this appellant cannot be convicted on the same.
The law laid down by Hon'ble Supreme Court in its Full Bench
decision, rendered in the case of Gurcharan Singh Vs. State of
Punjab reported in AIR (1956) SC 460, is poignant in this regard.
The relevant part of the judgment is mentioned below :-
Be that as it may, we are no more concerned
with the case against those two accused
persons who have been acquitted by the High
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 03-08-2023
16:46:56
Court; but so far as the appellants are
concerned, the evidence of the four
eyewitnesses referred to above is consistent
and has not been shaken in cross-
examination. That evidence has been relied
upon by the courts below and we do not see
any sufficient reasons to go behind that
finding. It is true that three out of those four
witnesses are closely related to the deceased
Inder Singh.
But that, it has again been repeatedly held, is
no ground for not acting upon that testimony
if it is otherwise reliable in the sense that the
witnesses were competent witnesses who could
be expected to be near about the place of
occurrence and could have seen what
happened that afternoon. We need not notice
the other arguments sought to be advanced in
this Court bearing upon the probabilities of
the case because those are all questions of fact
which have been adverted to and discussed by
the courts below.
19. Here, it has to be kept in mind that this Court is not testing
the legality of acquittal of two accused persons. In this appeal on
the basis of evidence of record, however, this Court is satisfied that
the judgment of conviction passed by the learned trial Court is in
accordance with law and facts. It is also well settled principle that
the maxim "falsus in uno falsus in omnibus" has no application in
India. Hon'ble Supreme Court in the case of Shaktilal Afdul Gaffar
Khan Vs. Basant Raghunath Gogle reported in (2005) 7 SCC 749
has held as under :-
It is the duty of Court to separate grain from
chaff. Falsity of particular material witness or
material particular would not ruin it from the
beginning to end. The maxim "falsus in uno
falsus in omnibus" has no application in India
and the witnesses cannot be branded as liar.
The maxim "falsus in uno falsus in omnibus"
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 03-08-2023
16:46:56
has not received general acceptance nor has
this maxim come to occupy the status of rule of
law. It is merely a rule of caution. All that it
amounts to, is that in such cases testimony may
be disregarded, and not that it must be
disregarded. The doctrine merely involves the
question of weight of evidence which a Court
may apply in a given set of circumstances, but it
is not what may be called 'a mandatory rule of
evidence'.
20. As such, the testimony of witnesses has not been relied
regarding other co-accused, does not depreciate the value of their
testimony. In this case, the testimony of injured Santosh Tiwari has
been well supported by witness Mahesh Sharma (PW5) and Dr.
Rajendra Agrawal (PW-9) and Dr. Afjal Banglewala (PW-6). That
apart the said knife was also seized from possession of the present
appellant and that fact was supported by Investigating Officer
Shrinivas Tiwari (PW-8). So far as the findings of FSL report is
concerned, when the case is well borne out by the eye witness
himself, such type of circumstantial evidence cannot erode the
testimony of injured witness.
21. On conspectus of the aforesaid settled proposition of law and
factual matrix of the case, this Court is of the considered opinion
that the prosecution has succeeded in proving its case beyond
reasonable doubt that appellant has caused grievous injury with
sharp edged knife on the thigh of injured Santosh Tiwari which
results amputation of his leg. As such findings of the learned trial
Court regarding conviction of accused under Section 326 of I.P.C.
is found immaculate and inevitable in the eyes of law and fact.
22. Now turning to the sentencing part of the case, learned
counsel for the appellant placing reliance on the judgment Naib
Singh Vs. State of Punjab (1986) 4 SCC 401, Manohar Das Vs.
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 03-08-2023
16:46:56
State of Madhya Pradesh and other (2007) 2 MPWL 60 has
submitted that in this case inasmuch as the appellant accused Raju
is already undergone incarnation for a period of 93 days from
18.08.1993 to 21.10.1993 and 1 and half month from 10.04.2000 to
25.05.2000, he may be sentenced only for period of already
undergone with enhancement of fine amount. On this aspect, the
view of Hon'ble Supreme Court in the case of Jaswinder Singh
(dead) through legal representative Vs. Navjot Singh and others
reported in AIR (2022) SC 2481 Para No. 26, 27 and 28 are
reproduced below :-
26. An important aspect to be kept in mind is
that any undue sympathy to impose inadequate
sentence would do more harm to justice system
and undermine the public confidence in the
efficacy of law. The society can not long endure
under serious threats and if the courts do not
protect the injured, the injured would then
resort to private vengeance and, therefore, it is
the duty of every court to award proper sentence
having regard to the nature of the offence and
the manner in which it was executed or
committed.10 It has, thus, been observed that
the punishment to be awarded for a crime must
not be irrelevant but it should conform to and
be consistent with the atrocity and brutality with
which the crime has been perpetrated.11
27. A three Judges Bench of this Court in State
of Karnataka v. Krishnappa12 while discussing
the purpose of imposition of adequate sentence
opined in para 18 that ".....Protection of society
and deterring the criminal is the avowed object
of law and that is required to be achieved by
imposing an appropriate sentence." Sumer
Singh v. Surajbhan Singh (2014) 7 SCC 323.
28. The sentencing philosophy for an offence
has a social goal that the sentence has to be
based on the principle that the accused must
realise that the crime committed by him has not
only created a dent in his life but also a
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 03-08-2023
16:46:56
concavity in the social fabric.13 While
opportunity to reform has to be kept in mind,
the principle of proportionality also has to be
equally kept in mind.
23. Hence, I am not inclined to let off the appellant with period
already undergone. This is a case, where only owing to that injury
caused by appellant, the leg of injured was amputated. In such
circumstances, the accused may not be offered for any leniency or
sympathy. However, the fact, that the appellant has suffered ordeal
of this case since 1993 i.e. approximately 30 years, is to be
considered as mitigating circumstance.
24. Looking to the factual matrix of the case and considering the
aforesaid mitigating circumstance, the sentence of five years
rigorous imprisonment seems to be on the higher side and the same
is required to be rectified.
25. Having contemplated all circumstances of the case, this Court
is of the considered opinion that the appellant should be sentenced
for the offence under Section 326 of I.P.C. for 3 years with fine of
Rs.10,000/- and in default, he will suffer 3 months and the period
which he has already suffered be adjusted. The fine amount so
deposited by the appellant, be paid to the injured-Santosh Tiwari
(PW-1) as compensation.
26. In view of the aforesaid terms, the present appeal is partly
allowed and disposed off.
27. A copy of this judgment alongwith the record be sent to the
learned trial Court for information and necessary compliance.
28. The appellant is directed to surrender before the learned trial
court within 15 days from the pronouncement of this judgment.
29. The learned trial Court shall send the appellant in jail for
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 03-08-2023
16:46:56
suffering the remaining jail sentence, as aforesaid.
30. The order of learned trial Court regarding disposal of the
seized property stands confirmed.
Certified copy as per rules.
(PREM NARAYAN SINGH)
JUDGE
Vindesh
Signature Not Verified
Signed by: VINDESH
RAIKWAR
Signing time: 03-08-2023
16:46:56
