1999 Supreme(MP) 53

Shacheendra Dwivedi, J.
Kailash v. State of M.P.
Cr. Appeal No. 167 of 1994 (G); Decided on 18.1.1999.

Headnote:(1) Evidence Act, 1872 -- S. 60 -- alleged eye witnesses not supporting case of prosecution -- it becomes doubtful.

        (2) Criminal P.C., 1973 -- S. 161 -- complainant contradicting his previous statement -- cannot be termed as fully reliable.

        (3) Criminal P.C., 1973 -- S. 154 -- injured victim confronted with statement in FIR -- could not give any explanation -- not reliable.

        (4) Penal Code, 1860 -- S. 307 -- offence not proved beyond doubt -- statement of complainant partly reliable not corroborated by any independent witness -- accused entitled to acquittal.

        ¼1½ lk{; vf/kfu;e] 1872 & /kkjk 60 & vfHkdfFkr ÁR;{kn"khZ lkf{k;ksa }kjk vfHk;kstu i{kdFku lefFkZr ugha & lansgtud gks tkrk gSA

        ¼2½ naM Áfdz;k lafgrk] 1973 & /kkjk 161 & ifjoknh }kjk Lo;a ds iwfoZd dFku dk [kaMu & iw.kZr% fo‘oluh; ugha ekuk tk ldrkA

        ¼3½ naM Áfdz;k lafgrk] 1973 & /kkjk 154 & {kfrxzLr&ihfM+r O;fDr dk ÁFke bfRryk fjiksVZ esa fn, x, dFku ls lkeuk djk;k x;k & dksbZ Li"Vhdj.k ugha ns ldk & voyacuh; ughaA

        ¼4½ naM lafgrk] 1860 & /kkjk 307 & vijk/k lansg ls ijs lkfcr ugha & ifjoknh dk vkaf"kd :i ls fo‘oluh; dFku fdlh Lora= lk{kh }kjk laiq"V ugha & vfHk;qDr nks"keqfDr dk gdnkj gSA

        The appellant has challenged his conviction under Section 307 of Indian Penal Code and the sentence of three years rigorous imprisonment with a fine of Rs. 1,000/- or in default rigorous imprisonment for six months.

        Held : Shri N.P. Dwivedi, learned counsel for the appellant has very strenuously contended that since the evidence of the complainant is not, corroborated by the statement of any independent, witness and as the al1eged eye-witnesses of the prosecution namely Sodu (PW 1) and Mahesh (PW 5) had not supported the prosecution story, no reliance on the statement of injured, Bhupendra Singh (PW 6) could be placed by the learned trial Court, particularly when he had improved his version in material particular from his earlier statement made in the FIR. It is further submitted by Shri Dwivedi that the injuries, suffered by the complainant were of simple nature and were not dangerous to life.

        It may be seen that the report of the incident was lodged by Bhupendera at the police chowky. He was accompanied by his mother Gita Bai. In his report he had stated that the incident of assault was witnessed by Sodu (PW 1) and Mahesh (PW 5). But none of these witnesses supported his version. On the contrary responsible officer of the Railways namely Akhtar Hussain (PW 2), Assistant Station Master had stated in para 1 of his statement that in the night at about 8 p.m. one Dilip Kumar points-man accompanied by another points-man had come running to him and had stated that near the tea-stal1 someone had assaulted Bhupendra by knife. The witness had then gone to the tea-stal1 and found Bhupendra, Injured. Thereupon he had sent the report to P.S. Rudhiyai through Dilip Kumar points-man. It is significant that neither the report was produced by the prosecution in evidence nor Dilip Kumar was examined at the trial.

        The statement of injured is not corroborated by any evidence. Although, the conviction can be based only on the sole testimony of the injured himself if he is found to be fully reliable witness. But if the witness makes improvements in his Court version and denies his earlier version on being contradicted, such witness may be a partly reliable witness but could not be termed as fully reliable witness.

        In the instant case the injured for his contradictions from his earlier statements made in the FIR was confronted and could not give any reasonable explanation. The witness had not specified the seat of injuries suffered by him. The other circumstances of the case also do not lend support to the prosecution version. According to Mahesh Kumar at the place of incident it was all dark. He had not stated that appellant-Kailash had assaulted injured. In the statement of Bhupendra (PW 6) there are omissions of the material facts which also makes his testimony unreliable. The father of injured was examined by the prosecution as PW 11. He had stated that in the night in between 8 to 9 p.m. Mahesh had come to his house and had informed him that, Bhupendra Singh was assaulted by Kailash by knife and then he had gone to the Railway platform, but this fact does not find support in the statement of Mahesh. As such the statement of Jagannath Singh (PW 11) the father of the injured also creates doubt in the statement of Bhupendra Singh (PW 6) about the false implication of the appellant.

        When the sole witness of the prosecution is found partly reliable and partly unreliable, the conviction can only be based if there be the corroboration of his version from some independent evidence.

        The police had sought clarification from the doctor whether by the seized knife the injuries found on the person of injured could be caused ? The doctor had expressed his view that the injuries could be caused by any knife with sharp edges. However, no blood was found on the seized weapon. The doctor also stated that the injury No. 2 could have proved dangerous if the timely medical aid was not given to the injured.

        The rule of prudance requires that before basing the conviction, corroboration from some independent evidence be sought of the version of a partly reliable injured witness. Since the statement of Bhupendra (PW 6) is not corroborated by any other statement, the conviction of appellant could not be based on his sole testimony.

        On the foregoing discussion, the appeal succeeds. The impugned judgment is set-aside. The appellant is on bail. His bail bonds ate discharged.