The reliability of the evidence of an injured witness and the discretionary power of the court under Section 360 of Cr.P.C.

JUDGMENT :

1. This criminal appeal u/s 374(2) Cr.P.C. has been filed by the appellant being aggrieved by the judgment dated 30.04.1998 passed by learned Second Additional Sessions Judge, Jabalpur in Session Trial No. 544/1995 convicting the appellant for the offence punishable u/s 324 IPC and sentenced to undergo RI for 1 year with fine of Rs. 1,000/- also with default stipulation.

2. As per prosecution case, on a dispute regarding vacating the house, a quarrel took place between the accused/appellant and Bhajan Singh (PW-4) on 06.08.1995. On refusal to vacate the house by Bhajan Singh, the accused assaulted him with axe, resulting into injuries on his head, left eye and face. Thereafter, on intervention of Bedi Lal (PW-6), Milan Singh (PW-5) and Gopal, the accused ran away from the spot. An FIR was registered on the same day for the offence punishable under Section 307 IPC. Medical Examination of the injured/complainant Bhajan Lal was also conducted by the police and performed by Dr. Girish Bajpai (PW-2). The axe was also seized by the police vide Ex.-P/4. The police has also prepared the spot map vide Ex.-P/2. After completing all other formalities, the police filed the charge-sheet. The learned trial Court has framed the charge of Section 307 IPC against the appellant. The appellant abjured his guilt, hence, the Court proceeded with trial. The learned trial Court did not find the appellant guilty for the offence of Section 307 IPC but found sufficient evidence to convict him in lesser offence i.e. Section 324 IPC and passed the sentence as aforesaid.

3. Learned amicus curiae for the appellant submits that the learned Trial Court erred in passing the judgment of conviction whereas the appellant did not commit any offence and also there is no evidence available on record against him. The learned trial Court overlooked the fact that the evidence of the complainant Bhajan Lal (PW4) is unreliable and contrary to the FIR, police statement as well as medical evidence. Furthermore, his evidence is also not corroborated with the evidence of any other independent witness. The injury was sustained to Bhajan Lal due to falling down. He further submits that while recording the conviction against the present appellant, the learned trial Court did not consider the evidence in proper manner. There are material contradictions and omissions in the statement of prosecution witnesses, therefore, it prima facie appears that the appellant was falsely implicated in the present case by the complainant with malafide intention. The prosecution has also failed to produce the seized axe before the Court which was alleged to be seized from the possession of appellant. Apart from that, the learned Court also erred in not giving the benefit of probation to the appellant as per Section 360 of Cr.P.C being first offender. In this regard, he also relied on the judgment of the Hon'ble Apex Court in the case of Dilbag Singh Vs. State of Punjab reported in (1979) 2 SCC 103. With the aforesaid submissions, learned amicus curiae prays for allowing this appeal.

4. On the other hand, learned Panel Lawyer for the State opposes the arguments made by learned amicus curiae submitting that the learned trial Court has rightly appreciated the evidence available on record. The learned trial Court did not make any error while passing the judgment of conviction against the present appellant. The witnesses of the case are duly stable with their version and there is no reason to disbelieve them. The prosecution has proved it's case beyond any reasonable doubt. With the aforesaid submissions, he prays for dismissal of this appeal.

5. Heard both the parties and perused the record.

6. This Court has to consider first whether the injuries sustained by victim-Bhajan Lal (PW-4) on 06.08.1995 has been caused by the accused with sharp weapon? As per record, after registration of case, the complainant was also sent for medical examination which was conducted by Dr. Girish Bajpai( PW-2)