Ambaram and Another vs State of Madhya Pradesh

The present appeal is arising out of judgment of conviction dated 24/02/1997 passed in Sessions Trial No.328/1992 by the learned First

Additional Sessions Judge, Dhar by which the appellants have been convicted for offence punishable under Section 307 of the IPC and have been

sentenced to undergo 7 years rigorous imprisonment with fine of Rs.50/- each and in default of payment of fine further one week imprisonment.

The facts of the case reveal that on 29/01/1992 at about 07:00 PM, Kanhaiyalal and Maniram were going from Dhar to Jaitpura and near the

Deepak Hotel, Ambaram and Kishore assaulted Kanhaiyalal and Maniram with swords. The Pannalal who was present at the spot as he was

sitting at the culvert, immediately rushed to the house of Kanhaiyalal and informed about the incident to one Laxman and Ram Chandra and the

police later on arrived and took injured persons to the hospital.

Thereafter, a criminal case was registered against the appellants. There were four accused persons in the criminal case and the trial Court has

convicted two persons, who are before this Court namely Ambaram and Kishore for offence under Section 307 of the IPC and they have been

sentenced to undergo seven years RI with fine of Rs.50/- each and in default of payment of fine they have to undergo further imprisonment for a

period of one week.

Kanhaiyalal who is injured witness (PW-2) has stated that he was assaulted by sword and Dhariya by the accused persons. Dr. B. K. Bhandari,

who was the attending doctor at Choithram Hospital, has categorically stated about the injuries which are serious in nature and twelve in number.

Doctor has also opined that injuries have been caused with sharp edged weapon.

Dr. Pradeep Jain has also been examined and he has also supported the prosecution case in respect of injuries. The doctors who have been

examined before the trial Court have categorically stated that injuries are serious in nature and were fatal to life. Maniram has also stated about the

assault, he has also received large number of injuries. Dr. Prafull Saxena (PW- 12) who is Radiologist has also supported Ex.-P/8 and the

prosecution case.

Maniram (PW-1) in his statement before the trial Court has categorically stated that Ambaram and Kishore have assaulted him resulting in

serious injuries. Kanhaiyalal (PW-2) has stated before the trial Court that Ram Singh was not the person who has assaulted them. Ram Chandra

(PW-7) was declared hostile. The weapon of assault was also recovered and out of four accused persons, only two persons have been convicted

and Ram Singh and Raja Ram have been acquitted.

It has been argued by learned counsel for the appellants that the Investigating Officer has not been examined. His contention is that the aforesaid

issue has been dealt with in depth by the Hon''ble Supreme Court in the case of Ambika Prasad and another Vs. State (Delhi Administration)

reported in (2000) 2 SCC 646. Paragraphs No.10 and 12 of the aforesaid judgment reads as under:-

Further, it is to be borne in mind that criminal trial is meant for doing justice to the accused, victim and the society so that law and order is

maintained. Hence, as observed by this court in State of UP v. Anil Singh, (AIR 1988 SC 1998 ) it is necessary to remember that a Judge does

not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape.

One is as important as the other. Both are public duties which the Judge has to perform. Hence, we would only state that it is unfortunate state of

affair that police officers resiled from their own statements and deposed something contrary before the court. Equally, it is unfortunate that

investigating officer has not stepped into the witness box without any justifiable ground. But this conduct of the investigating officer or other hostile

witnesses cannot be a ground for discarding the evidence of PW5 and PW7 whose presence on the spot is established beyond reasonable doubt.

They have suffered injuries and their evidence is corroborated by medical evidence. It is also in-conformity with what has been stated in the FIR.

In any case, investigating officer is not at all material witness for the purpose of establishing whether accused or the complainant party was the

aggressor. Not only that, accused have examined the defence witnesses for establishing their say. Hence, non-examination of the investigating

officer cannot be a ground for holding that injured witnesses should not be believed.

It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of incident as deposed by the prosecution

witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW5 and PW7.

This submission also deserves to be rejected. It is known fact that independent persons are reluctant to be a witness or to assist the investigation.

Reasons are not far to seek.

Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose truth before the

court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance.

Other reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the court. In any case, if

independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed and it cannot be a ground for rejecting the

evidence of injured witnesses. Dealing with similar contention in State of UP v. Anil Singh (Supra) this Court observed:-

In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the

indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is,

therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is

proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.

This Court has carefully gone through the aforesaid judgment. As the injured witnesses have categorically stated against the accused persons, the

judgment relied upon by the learned counsel is of no help to the appellants.

The judgment of the trial Court is basically based upon the testimony of two injured witnesses and the injuries are certainly life threatening

injuries as per opinion of doctor. There are certain minor contradiction and omissions, however, in light of the categoric statement made by the

injured persons, who have been examined and cross-examined before the trial Court, this Court is of the opinion that the findings arrived at by the

trial Court are based upon cogent evidence and does not warrant any interference.

The only aspect which requires consideration is that the incident is of the year 1992 and almost 25 years period is over from the date of incident.

The sentence awarded by the trial Court is of 7 years and this Court keeping in view the totality of the circumstances of the case, is of the opinion

that the interest of justice would be served, in case the period is reduced to three years along with fine of Rs.5,000/- each.

Accordingly, this appeal is partly allowed. The conviction of the appellants under Sections 307 of the IPC is affirmed, however, the sentence

awarded to them is reduced from seven years rigorous imprisonment each to three years rigorous imprisonment each and the fine amount is

enhanced from Rs.50/- each to Rs.5,000/- each. The imprisonment in default of payment of fine is increased from one week to one month. The

seized property shall be destroyed.

With the aforesaid, criminal appeal stands disposed of. Certified Copy as per rules.