Mahavir Singh - (1.) THIS is a revision by Iqbal Singh against the order of the Addl. Sessions Judge, Gonda, dismissing the appeal against his conviction under Section 324 IPC and sentence for one year's rigorous imprisonment.
(2.) THE prosecution case was that there was some enmity between the applicant and the victim of the offence Pateshwari resident of village Kanje Mau, police station Colonelganj Gonda. It is said that on 5-3-1974 at about 8 a. m. while Pateshwari was taking a bullockcart, loaded with sugarcane and had hardly gone about two furlongs from his village, the applicant emerged out from a ditch adjoining the path way. THE applicant asked him to stop the bullock cart. Pateshwari got down from the bullockcart and raised an alarm. THE applicant was armed with a spear and he thrust the spear blow on the back of his right side. On the arrival of the witnesses he ran away. THE applicant denied the charge and alleged he was implicated because of enmity. The Additional Munsif Magistrate found the charge proved and therefore, convicted and sentenced him to one year's rigorous imprisonment. In appeal, the finding of the Munsif Magistrate was upheld by the learned Additional Sessions Judge and so it was dismissed. In the revision it has been contended that both the courts below have accepted the prosecution story without discussing the evidence of the witnesses at all and without probing into the matter further. The contention raised by the applicant appears to have a force, though in revision, specially when there are concurrent findings of the two courts below, the High Court should be reluctant to interfere but when correct principles of evidence in criminal cases are not adhered to by the court, the interference is called for. The question was as to what was the motive for the applicant to commit the offence. The victim Pateshwari alleged that he was assaulted due to enmity but what that enmity was he could not explain or clarify. The learned appellate court went wrong in observing that it was a case of admitted enmity between the parties. It is true that enmity is alleged by both the sides but while the victim gave no reason or details of the enmity so as to find out as to whether the applicant had any reason to assault him the applicant had given a reason which was plausible. When the victim was shy of giving any reason and on the other hand the reason given by the applicant makes his false implication probable, it was rather a very heavy burden on the part of the court to scrutinise the evidence to see whether it was really worth reliance. The applicant has alleged that his father was in possession of some land of the complainant and as he was not prepared to give up the land unless entire expenses were paid and therefore, the complainant was aggrieved and it was only to force his father to part with the land that he was falsely implicated in this case. If this reason is correct, then certainly it will give a reason to the complainant to falsely implicate the applicant. Considering the fact that the complainant was not disclosing the reason, this can be recorded. It is true that in case of direct evidence, the motive may not generally be given a much importance but in the circumstances mentioned above court should scrutinise the evidence with great care.
(3.) THE complainant had examined himself and two witnesses, namely, PW 2 Bhawani Prasad and PVV 3 Chhedi. Both these witnesses are chance witnesses. It is true that on the path way, the persons who happened to pass that way would be the natural witnesses, but as it is easy for people to say any thing to show their presence on the path way, the reasons for the same should have been examined. Both the courts below did not examine the reasons given by these witnesses for their presence on the spot. That is a material defect in appreciation of evidence. PW 3 is Bhawani Prasad. His house was about 7 or 8 miles from the scene. He was said to be going to Kanje Mau where lie had a contract at pond. THE witness has given his residence as Kutubpur. He admitted that if he would go from Kutubpur to Kanje Mau, the place of incident would not fall in the way. It is only from village Sarayan that this place may fall in the way. THE witness tried to explain that he had a house in village Sarayan also. THEre is however, nothing to corroborate his allegation about his residence is Sarayan, He admitted that he was only a voter in Kutubpur and not in Sarayan. THEn to the investigating officer also he had not stated that he was going from village Sarayan at that time. He could not give any reason as to why the investigating officer had not mentioned that fact. Thus the presence of this witness at the scene of incident is doubtful. Again the antecedents of the witness are hardly such that he may be relied upon. He was convicted in a dacoity case and he has served out a sentence of 4 1/2 years.;