JUDGMENT
Garg, J.
1. This appeal has been preferred by the accused appellant against the judgment and order dated 29.10.87 passed by learned Additional Sessions Judge No. 1 Hanumangarh camp Sangaria in Sessions Case No. 70/85 whereby the learned Additional Sessions Judge convicted the accused appellant for offence under Sections 307 and 341 I.P.C. and sentenced him as under:
Name of accused
Offence u/Sec.
Sentence awarded
Yunus
307 I.P.C.
4 years’ R.I. and a fine of Rs. 100/-. In default to further
undergo 15 days’ S.I.
Yunus
341 I.P.C.
1 month’s S.I. and a fine of Rs. 50/- In default to further
undergo 7 days S.I.
2. This appeal arises in the following circumstances:
(i) On 17.7.85 P.W. 1 Jafar lodged an oral report, Ex.P/1 with Police Station Sangaria before P.W.5 Shri Krishna staling that on that day i.e. on 17.7.85, he and his elder brother Mustaq P.W.2 after taking food in their house were going to their field and he was 10 to 15 feet ahead of P.W.2 Mustaq and when he reached near the shop of Hussain Mohd. at about 10.30 a.m. the accused appellant was already standing there and seeing him, he ran towards him and he was having a knife in his right hand and he stabbed with knife four times on back side as a result of which blood came out and he made hue and cry and seeing his cry, P.W.2 Mustaq who was just behind him ran on spot and in the mean time P.W.3 Anwar also reached there and then accused appellant fled away from the scene. It was further stated by P.W.1 Jafar that accused appellant has caused injuries to him because he had old enmity with him.
3. On this report, police chalked out regular FIR Ex.P/1 and started investigation.
4. During investigation, P.W.1 Jafar was got medically examined by P.W. 7 Dr. B.K. Chaudhary and his injury report is Ex.P/9 and he gave his opinion twice on Ex.P/10 and Ex.P/11, which would be discussed later on.
5. The accused appellant was arrested through Fard Ex.P/7 on 25.7.85 and after usual investigation a challan was filed against the accused appellant from where the case was committed to the Court of Additional Sessions Judge No. 1 Hanumangarh camp Sangaria.
6. That on 6.9.85, the learned Additional Sessions Judge framed charges for offence under Sections 307 and 341 I.P.C. against the accused appellant who pleaded not guilty and claimed trial.
7. During trial, 7 witnesses have been produced by the prosecution and thereafter statement of accused under Section 313 Cr.P.C. was recorded and no evidence was led in defence.
8. After the conclusion of the trial, the learned Additional Sessions Judge vide his judgment and order dated 29.10.87 convicted the accused appellant for offences under Sections 307 and 341 I.P.C. inter alia holding that the prosecution has proved its case beyond reasonable doubt.
9. Aggrieved from the said judgment, this appeal has been filed by the accused appellant.
10. In this appeal, following submissions have been made on behalf of the accused appellant:
(i) That since P.W.2 Mustaq brother of injured P.W.1 Jafar has been declared hostile, therefore, conviction of the accused appellant for offence under Section 307 I.P.C. on the basis of statement of P.W. 1 Jafar alone is not sufficient and since statement of P.W. 1 Jafar is not corroborated by other evidence, no reliance can be placed on him and in absence of that the accused is entitled to acquittal.
(ii) Further more, no case for offence under Section 307 I.P.C. is made out as evidence produced by the prosecution does not disclose that accused appellant had any intention to Murder P.W.1 Jafar, therefore, the case of the prosecution does not travel beyond Section 326/324 I.P.C. or at the most he can be convicted for offence under Section 334 and thus conviction of the accused appellant for offence under Section 307 I.P.C. in the above circumstances cannot be sustained and it has been prayed that this appeal be allowed.
11. On the contrary, the learned Public Prosecutor has opposed the submissions made by the learned counsel for the appellant and submits that the judgment and order passed by the learned trial Judge are based on proper appreciation of evidence and do not call for interference. Hence the appeal be dismissed.
12. I have heard both.
13. Before proceeding further, medical evidence in this case has to be seen
which is found in the statement of P.W.7 Dr. B.K. Chaudhary. P.W.7 Dr. B.K. Chaudhary
slates that he examined P.W.1 Jafar on 17.7.85 and found following injuries on his
person:
(i) Incised would (stab wound) 1.5 cm x 0.8 cm x muscle deep going anteriorly with profuse bleeding 8 cm. medical to posterior axillary fold, surgical amphysema present with swelling of the part on lower part of chest posteriorly right side.
(ii) Incised wound (stab wound) 1.5 cm. x 0.9 cm x kidney deep on the right renal angle obliquely placed, elliptical in shape, clots coming out with fresh bleeding, surgical emphysema present part swollen due to clots and emphysema associated with severe pain 5.5. cm away from midline.
(iii) Incised wound (stab wound) 1.5 cm. x 0.8 cm x muscle deep in
the midline back just to right of midline, placed transversely, elliptical
in shape. Fresh bleeding present.
(iv) Incised wound 1 cm. x 0.1 cm. x 8 mm deep on the left scapular region. Fresh bleeding present.
(v) 1 x 01 cm on right side chest lower part anteriorly clothed blood present.
14. P.W.7 Dr. B.K. Chaudhary has proved his injury report Ex.P/9 and he has further stated that out of five injuries, injuries No. 1 to 4 were caused by sharp edged weapon and except injury No. 2, all other injuries were found to be simple in nature, but for injury No.2 he stated mat he reserved his opinion as condition of P.W. 1 Jafar was not good one. Through letter Ex.P/10, P.W.5 Sri Krishna, SHO, Police Station Sangaria asked opinion of P.W. 7 Dr. B.K. Chaudhary about injury No. 2 and he gave following reply on the back of Ex.P/10:
“In view of Pts general condition during the time of admission viz. BP 80 mm/60 mm Hb pulse 112/mt stage of shock, profuse bleeding from the injuries, blood in the urine passed via a calheter, depth of injury involving kidney and need of operation to check bleeding and avoid complication thereon, use of vasapressure and cartico stewich to combat shock, the injury above mentioned is dangerous in nature.”
15. On another letter Ex.P/11, P.W.7 Dr. B.K. Chaudhary has given following reply:
“In my opinion in ordinary course of nature, injury No.2 of the IR No. 131 dt. 18.7.85 could cause death.”
16. Thus from the evidence of P.W.7 Cr. B.K. Chaudhary, it appears that P.W.1 Jafar received four incised wounds and out of which, injury No. 2 was found dangerous in nature and further P.W.7 Dr. B.K. Chaudhary opined that injury No. 2 might cause death.
17. The next question which arises for consideration is whether the above injuries on the person of P.W.1 Jafar were caused by accused appellant or not.
18. In this case P.W.1 Jafar gave oral report to P.W.5 Sri Krishna in which he has clearly stated that the knife blows were given to him by the accused appellant and this statement was giving by him just after one hour of the occurrence.
19. P.W.1 Jafar who is star witness in this case has clearly stated in his examination-in-chief that the accused appellant gave four knife blows on his back and when he made hue and cry P.W.3 Anwar also came there and his brother P.W.2 Mustaq was already there. In cross-examination, this witness has admitted following facts:
(i) He became unconscious after reaching hospital and he was discharged from the hospital after 21 days.
(ii) The accused appellant had enmity with him because of family disputes.
(iii) The incident took place near the shop and no body was there except P.W. 3 Anwar.
20. As per statement of P.W.1 Jafar and report Ex.P/1, P.W.2 Mustaq was with him. P.W.2 Mustaq stated that he saw the incident at a distance of 30 to 35 feet and as soon as he reached on actual spot, he was told that the accused appellant had beaten his brother P.W. 1 Jafar, but he has not actually seen the accused appellant beating his brother P.W.1 Jafar and on this account, he has been declared hostile. P.W.3 Anwar has also been declared hostile.
21. The next question which arises for consideration is whether in absence of statement of P.W.2 Mustaq and P.W.3 Anwar, statement of P.W. 1 Jafar can be believed or not.
22. In my considered opinion, after perusing the statement of P.W.1 Jafar, it does not appear that the same suffers from any infirmity and it also does not appear that he is falsely implicating the accused appellant. He has clearly stated that the accused appellant gave four knife blows and same are corroborated by the medical evidence and, therefore, in this case, statement of P.W. 1 Jafar inspire confidence and the learned Additional Sessions Judge has rightly placed reliance on his statement. Though P.W.2 Mustaq has been declared hostile, but it would not affect he case of the prosecution for the simple reason that P.W.2 Mustaq has admitted that he was told on the spot that the accused appellant caused injuries to his brother P.W.1 Jafar but he has not seen the actual incident, Thus, to some extent, he corroborates the statement of P.W. 1 Jafar.
23. In India no particular number of witnesses in any case are required for proving any fact as it is evident from section 134 of the Indian Evidence Act. Conviction can be based on sole statement of a witness and evidence has to be weighed and not counted.
24. Apart from this whether corroboration of the testimony of single witness is or in not necessary, it depends 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.
25. In the present case, the report Ex.P/1 was lodged within one hour of the incident and name of accused appellant finds place in that report Ex.P/1. P.W.1 Jafar has clearly started that knife blows were given to him by the accused appellant and none else. The statement of P.W.1 Jafar further gets corroboration from the medical evidence. In these circumstances the case of prosecution that the injuries which were found on the person of P.W.1 Jafar were caused by the accused appellant. Hence, the argument that the accused appellant did not cause injuries to the P.W.1 Jafar stands rejected.
26. The next question which arises for consideration is by above injuries offence under Section 307 I.P.C. has been made out or not.
27. To prove the charge for the offence under Section 307 I.P.C. the prosecution has to prove:
(1) That the accused did an act.
(2) That it was done (i) with the intention, or (ii) with the knowledge
(a) of causing death;
(b) of causing such bodily injury as the accused knew to be likely to cause the death of the person to whom the harm was attempted to be caused; or
(c) of causing bodily injury to a person and the bodily injury intended to be inflicted would have been sufficient in the ordinary course of nature to cause death; or
(d) that the act if completed would have been so imminently dangerous that it would have in all probability caused death or such bodily injury as is likely to cause death; and the act attempted was committed without any excuse for incurring the risk of causing death or such injury as aforesaid.
28. In order to attract the penalty under Section 307 I.P.C. the murderous intent is an essential element. That intention can be gathered from the nature of weapon, the parts of the body where injury is inflicted, nature of injuries inflicted and the opportunity available which the accused gets.
29. It may also be pointed out here that in coming to the conclusion, the act of the accused should be kept in mind and not the result. In other words, the angle of guilt has to be viewed from the point of intention and not from the result achieved.
30. Keeping the above principles in mind, the present case is being examined.
31. In the present case weapon like knife has been used by the accused appellant in causing injuries to P.W.1 Jafar and the present case is not a case of one attempt, but it is a case of repeated blows given by the accused appellant to P.W.1 Jafar. Therefore, intention on the part of the accused appellants to murder P.W. 1 Jafar can be gathered. Nature of injuries received by P.W. 1 Jafar itself goes to show that the accused appellant had intention to murder P.W. 1 Jafar. in the present case, apart from this, injury No. 2 is not found simple in nature and P.W.7 Dr. B.K. Chaudhary has opined that this injury might be fatal as was sufficient to cause death and, therefore, it can be safely concluded that the accused appellant by causing these injuries has only one intention and i.e. to murder him and injury No.2 was sufficient in the ordinary course of nature to cause death. Thus, the accused appellant attempted to cause death of P.W. 1 Jafar by doing the act if completed would have been imminently dangerous that it would have in all probability caused death or such bodily injury as is likely to cause death.
32. So far as argument that the act of accused appellant would be covered by Section 334 I.P.C. is concerned, in my considered opinion, it has no force as from the statement of P.W. 1 Jafar and his cross-examination, it does not appear that there was any provocation from the side of P.W.1 Jafar to cause injuries. Hence, this argument stands rejected and the prosecution has proved its case beyond reasonable doubt for offence under Section 307 I.P.C. and thus findings of conviction recorded by the learned additional Sessions Judge No. 1, Hanumangarh camp Sangaria are liable to be confirmed one.
On the point of Sentence
33. Looking to the fact that the incident took place on 17.7.85 and more man 16 years have passed, the ends of justice would be met if the accused appellant is sentenced to a period of 3 years’ R.I. in place of 4 years’ R.I. and the order of sentence passed by the learned Additional Sessions Judge, No. 1, Hanumangarh camp Sangaria is liable to be altered accordingly.
34. In the result, the appeal filed by the accused appellant. Yunus is partly allowed in following manner:
The conviction of the accused appellant Yunus for offence under Section 307 and 341 I.P.C. recorded by the learned Additional Sessions Judge No. 1, Hanumangarh camp Sangaria vide his judgment dated 29.10.87 is maintained and appeal of the accused appellant Yunus against his conviction is dismissed.
However, the accused appellant Yunus is sentenced to 3 years’ R.I. in place of 4 years’ R.I. for offence under Sections 307 I.P.C. and the order of sentence dated 29.10.87 passed by the learned Additional Sessions Judge No. 1 Hanumangarh camp Sangaria stands modified accordingly. The order of sentence for offence under Section 341 I.P.C. passed by the learned Additional Sessions Judge No. 1, Hanumangarh vide his order dated 29.10.1987 is maintained.
Since the accused appellant Yunus is on bail he shall surrender
before the learned trial Court to serve out balance period of sentence.