1. This appeal has been preferred against impugned judgment and order dated 27.10.1984 passed by learned Special Judge (E C Act) / Additional Sessions Judge, Kanpur in Session Trial No. 352 of 1982 (State Vs. Shambhu Nath & Ors), under Section 323/34 and 302 IPC, Police Station , Kanpur, whereby accused-appellants Shambhu Nath, Ram Ratan and Dishambhar Singh have been convicted under Section 323/34 of IPC and sentenced to undergo rigorous imprisonment for six months and along with fine of Rs. 500/- each. In default of payment of fine, they have to undergo three months additional rigorous imprisonment.
2. Heard Sri Avneesh Tripathi learned Amicus Curiae for accused-appellants and learned State counsel and perused record.
3. Prosecution version in brief is that 'first informant's cousin Rajendra Prasad was employed as peon in UPSIDC, Kanpur. Accused Ram Ratan and Smt Raj Dei are husband and wife whereas accused Sambhu Nath is brother of Raj Dei. On 20.06.1982 said Rajendra Prasad, his wife Ram Lali, Hari Ram and his uncle Ram Yagya were returning after seeing a movie and Ram Lali was having her seven months old girl in her lap. When they reached at the gate of officers colony, all the four accused persons confronted them by saying that why they were after them and thereafter hot talking took place between both the parties. Accused Ram Dei started assaulting Ram Lali with hands and fists. When her husband Rajendra Prasad tried to save his wife, remaining three accused persons namely Sambhu Nath, Ram Ratan and Dishambhar Singh started attacking Ram Lali and Rajendra Prasad with sticks. Resultantly, Rajendra Prasad, Ram Lali and her infant daughter sustained injuries.
4. On the next day morning the condition of infant daughter became critical and thereafter FIR (non-cognizable report) was lodged on 21.06.1982 at 12.30 PM, which was recorded under section 323 IPC. All the three injured were sent for medical examination. Injured Ram Lali has sustained following injuries:
(i) Contusion 3 cm x 4 cm on lateral aspect of right upper arm 17 cm above elbow, placed obliquely.
(ii) Contusion 7 cm x 2 cm on right upper arm, 1 cm above injury no. 1.
(iii) Contusion 9 cm x 8 cm on lateral aspect of left thigh 8 cm above knee.
(iv) Contusion 1 cm x 5 cm on little dorsal aspect of right finger terminal phelynx.
(v) Abrasion 3 cm x 1 cm on right cheek.
(vi) Contusion 4 cm x 2 cm on left side of back over scapular region.
All injuries were simple in nature, caused by blunt object.
5. Injured Rajendra Prasad has sustained following injuries:
(i) Contusion 4 cm x 2 cm on posterior aspect of right upper arm placed horizontally 6 cm below shoulder.
(ii) Contusion 10 cm x 2 cm on right side of back.
(iii) Abrasion 4 cm x 2 cm on posterior aspect of right forearm 10 cm above wrest.
(v) Abrasion 3 cm x 2 cm on dorsal aspect of right hand.
All injuries were simple in nature, caused by blunt object.
6. During treatment, infant child succumbed to injuries on 21.06.1982 at 01.10 PM at L.L.R Hospital. Accordingly, the the case was converted into cognizable offence by adding section 304 IPC.
7. After inquest proceedings, dead body of deceased child was sent for post-mortem. As per post-mortem report deceased child has sustained five swelling injuries around her head. As per autopsy surgeon deceased child died due to shock and hemorrhage as a result of head injuries.
8. After investigation, charge sheet was filed under section 304-A IPC. All the accused-appellants along with accused Ram Dei were charged under section 323/34 and 302/34 IPC.
9. In order to bring home guilt of accused persons, prosecution has examined as many as 11 witnesses. Accused persons were examined under section 313 CrPC, wherein they have denied prosecution evidence and claimed false implication. Accused persons have examined five witnesses in defence.
10. After hearing and analysing evidence on record, accused-appellants were convicted under section 323/34 IPC and sentenced as stated in para 1 of this judgment, however, they were acquitted of charge under section 302/34 IPC. Accused Ram Dei was acquitted of all the charges.
11. Being aggrieved, accused-appellants have preferred present criminal appeal.
12. Learned Amicus Curiae submitted that both the alleged eye-witness are interested witness. Independent witness PW 3 Kesheo Ram has not supported prosecution version and turned hostile. As per prosecution version several persons have reached at spot but other independent witness have not been examined. Further, there is undue delay in lodging the FIR and that there is no motive to commit the alleged incident. It was submitted that learned trial court has not appreciated evidence in correct perspective and committed by convicting appellants. It was further stated that sentence awarded by the trial court is excessive and disproportionate.
13. Per contra it was submitted by learned State counsel that there is testimony of injured witnesses. They have made clear and cogent statements. Their version is supported by medical evidence. There is evidence that accused persons have enmity on account of eviction from rented premises. It was submitted that trial court has appreciated evidence in correct perspective and thus, no interference is called for.
14. I have considered rival contentions and perused record.
15. So far the argument that PW-5 Ram Lali and PW-6 Hari Ram, being closely related to each other and the deceased, are interested witnesses, is concerned, it is well settled that a natural witness may not be labelled as interested witness. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim. Generally close relations of the victim are unlikely to falsely implicate anyone. Relationship is not sufficient to discredit a witness unless there is motive to give false evidence to spare the real culprit and falsely implicate an innocent person is alleged and proved. A witness is interested only if he derives benefit from the result of the case or as hostility to the accused. In case of State of Punjab Vs Hardam Singh, 2005, S.C.C. (Cr.) 834, it has been held by the Apex Court that ordinarily the mere relations of the deceased would not depose falsely against innocent persons so as to allow the real culprit to escape unpunished, rather the witness would always try to secure conviction of real culprit. In the case of Dilip Singh Vs State of Punjab, A.I.R. 1983, S.C. 364, it was held by the Supreme Court that the ground that the witnesses being the close relatives and consequently being the partition witness would not be relied upon has no substance. Similar view has been taken by the Supreme Court in Harbans Kaur V State of Haryana, 2005, S.C.C. (Crl.) 1213; and in State of U.P. vs. Kishan Chandra and others, 2004 (7), S.C.C. 629. The contention about branding the witnesses as 'interested witness' and credibility of close relationship of witnesses has been examined by Apex Court in number of cases. A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness'. On the issue of appreciation of evidence of interested witnesses, Dalip Singh Vs. State of Punjab, AIR 1953 SC 364 = 1954 SCR 145, is one of the earliest cases on the point. In that case, it was held:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
16. Similarly, in Piara Singh and Ors. Vs. State of Punjab, AIR 1977 SC 2274 = (1977) 4 SCC 452, the Apex Court held:
"It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence. "
17. In Hari Obula Reddy and Ors. Vs. The State of Andhra Pradesh, (1981) 3 SCC 675, a three-judge Bench of this Court observed:
".. it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
18. In Jayabalan V UT of Pondicherry (2010) 1 SCC 199, the Supreme Court held as under:
"23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency."
19. Again, in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the following observations were made by the Apex Court:
"The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."
20. The contention about branding the witnesses as interested witness and credibility of close relationship of witnesses has been examined by Hon'ble Apex court in a number of cases. A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness'. The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straightway unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. A survey of the judicial pronouncements of the Hon'ble Apex Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52).
21. Keeping in view the aforesaid legal position in mind, in the instant case, it is true that PW-5 Ram Lali is mother of deceased PW-6 Hari Ram is her relative and thus both these witnesses and the deceased were closely related to each other but deceased was merely 7 months old baby girl and at the time of incident she was in lap of her mother PW 5 Ram Lali. Thus, presence of PW 5 Ram Lali at spot is quite natural. Similarly there is consistent case of prosecution that PW 6 Hari Ram was also with them. They have been subjected to cross-examination but so far as involvement of accused-appellants is concerned, no material contradiction or infirmity could be shown. Thus, the contention of learned counsel for the accused-appellants has no force.
22. It is correct that as per prosecution version, several other persons have reached at the spot but only one of them, namely PW 3 Kesheo Prasad has not supported prosecution witness and no other independent witness was examined. However, it may be stated that there is no such law that all the witnesses of an occurrence have necessarily to be examined to prove the incident. If a fact has been proved by a reliable and credible evidence of a witness, there is no legal requirement to examine any other witness to support that fact. Similarly merely because one of the eye witness has not supported prosecution version and turned hostile, it would not mean that testimony of other eye-witness becomes doubtful on this ground alone. It is well settled that conviction can be based on the testimony of sole eye-witness, if the same inspires confidence. There is no such law that the testimony of an eye-witness cannot be relied upon unless it is corroborated by some independent witness. Corroboration is a rule of caution and not a mandatory requirement. If the testimony of an eye-witness is clear, cogent and credible, such testimony cannot disbelieved on the ground that it has not been corroborated by any independent witness. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Thus, conviction can even be based on the testimony of a sole eye witness, if the same inspires confidence. (Vide: Gulam Sarbar vs. State of Bihar, Criminal Appeal No. 1316 of 2012, Vadivelu Thevar & Anr. v. State of Madras; AIR 1957 SC 614; Kunju @ Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381; Bipin Kumar Mondal v. State of West Bengal AIR 2010 SC 3638;Mahesh & Anr. v. State of Madhya Pradesh (2011) 9 SCC 626; Prithipal Singh & Ors. v. State of Punjab & Anr., (2012) 1 SCC 10; and Kishan Chand v. State of Haryana JT 2013( 1) SC 222)."
23. Considering entire facts and the above discussed position of law, testimony of PW 5 Ram Lali and PW 6 Hari Ram can not be disbelieved or doubted on ground that PW 3 has turned hostile or that no other independent witness has been examined and thus, contention of learned counsel has no force.
24. Scrutiny of evidence on record shows that PW 5 Ram Lali has sustained injuries in the same incident. She has clearly stated on 20.06.1982 when she along with husband Rajendra Prasad and relative Hari Ram was returning after seeing a movie and she was having her seven months old girl in her lap, at the gate of officers colony, all the four accused persons accosted them. They assaulted her as well as her husband and she and her husband Rajendra Prasad as well her infant daughter sustained injuries. Close scrutiny of the evidence shows that both the witnesses namely PW-5 Ram Lali and PW-6 Hari Ram have made clear and cogent statements that on day of incident all the four accused persons have caused injuries to above stated persons. They have been subjected to cross examination but no such fact could emerge in their cross-examination so as to create any major contradiction or inconsistency and that the version of these witnesses is supported by medical evidence. Being an injured witness, PW 5 Ram Lali is an important witness. Regarding testimony of injured witness, in case of Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694], the Hon'ble Apex Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2021] a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214]). In fact testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. It is fairly well settled that evidence of an injured witness must be given due weightage as being an injured witness, 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 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]. 22. In the instant case, it is apparent that testimony of both the injured eye witness is cogent and credible and it is further supported by PW-6 Hari Ram. He has been subjected to cross-examination but he remained firm and nothing adverse could come out. As stated earlier version of the injured witness is also supported by medical evidence. Injured witness PW 5 has given vivid description of entire incident.
25. Considering entire evidence available on record, the testimony of both injured witness PW 5 Ram Lali is found credible and it is corroborated by PW 6 Hari Ram and further supported by medical evidence. It is apparent that conviction of appellants is based on overwhelming evidence and trial court was justified in convicting the appellants under Sections 323/34 of IPC.
26. So far as the question of sentence is concerned, it was submitted that the alleged incident took place on 20.06.1982 and since then period of about 37 years has passed. Accused-appellants are not previous convicted and they mere convicted under Sections 323/34 I.P.C. They have remained in custody about one month. It was submitted all these facts specially considering the long period after alleged incident, it would not be appropriate to send accused-appellants to jail to suffer incarnation.
27. On question of sentence, it is well settled that sentence must be just and proportionate to the crime committed. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In Gopal Singh v. State of Uttrakahand (2013) 7 SCC 545, while focusing on the gravity of the crime and the concept of proportionality as regards the punishment, the Court had observed:
"Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect -- propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment.".
28. In Siriya v. State of M.P.(2008) 8 SCC 72 it has been held as follows:
"Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of criminal law continues to be-as it should be-a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be."
29. Recently in case State of Madhya Pradesh Vs. Udham and Others [Criminal Appeal No. 690 of 2014], decided on 22.102019, Hon'ble Apex Court has held as under:
''12. Sentencing for crimes has to be analyzed on the touch stone of three tests viz., crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, antisocial or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defense, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).
Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim;(ii) loss of material support or amenity; (iii) extent of humiliation; and (iv) privacy breach.''
30. Considering several pronouncements of Apex Court it appears that in certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect- propensity to b
Please Login To View The Full Judgment!
ecome a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. That there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. 31. Keeping in view the settled legal position on point of sentence, in the instant case it may be stated that the accused-appellant have been convicted under section 323/34 IPC and sentenced to six months imprisonment along with fine of Rs 500/-. Alleged incident took place on 20.06.1982. Though a seven month old child has suffered death but accused-appellants have not been found guilty under section 302 or 304 IPC. It was stated that accused-appellants have remained in custody for about one month. The accused-appellants are not previous convicts and this appeal is pending since last 36 years and that appellants alone can not be held responsible for this long delay in disposal of this appeal. Considering all these aspects, at this stage, after 38 years of incident, it would not be appropriate to send the accused-appellant to jail for remaining period of sentence awarded by trial court. In view of all these facts, ends of justice would met if the accused-appellants are sentenced to the period already undergone and fine of Rs. 1000/- each u/s 323/34 IPC. 32. In view of aforesaid, the conviction and sentence of the accused-appellants Shambhu Nath, Ram Ratan and Dishambhar Singh under Section 323/34 of IPC is upheld and they are sentenced to the period already undergone by them and fine of Rs. 1000/ each. In default of payment of fine, accused-appellants shall undergo three months imprisonment. Appellants are granted time of 45 days to deposit the fine before the trial court. Appellants are stated on bail, and thus, no further order is required. 33. Appeal is partly allowed in above terms. 34. Sri Avneesh Tripathi, learned Amicus Curiae, shall be paid fees/ remuneration by High Court Legal Services Authority, as per Rules. 35. A copy of this order be transmitted to the court concerned forthwith.