J.M.L.Sinha, J. - (1.) THIS revision is directed against the judgment dated 3rd June, 1978 passed by the Sessions Judge, Mathura in Criminal Appeal no. 74 of 1978.
(2.) ON 12th of June, 1972, at about 9 p. m. Ram Prasad along with his brother Tillu was going to Laxmi Talkies to see a cinema show. When they reached near Pathwari in Sadar Bazar, the applicant stabbed the complainant with a knife. He was accompanied with another person name Jamuna about whom it was alleged that he had caught hold of the complainant when the applicant had stabbed him. ON these allegations the applicant was sent up for prosecution along with Tillu for offences under sections 326 and 324 IPC. The applicant as well as the other accused denied the prosecution case and pleaded that they had been falsely implicated. The applicant also pleaded alibi. The trial court, on a consideration of the evidence on record accepted the prosecution case in so far as the applicant was concerned and, convicting him under sections 326 and 324, IPC sentenced him to two years RI under the former count and to one years' RI under the latter count. Jamuna accused was acquitted as the case against him, in the opinion of the trial court, was not free from doubt. Aggrieved against his conviction and sentence the applicant preferred an appeal in the court of Sessions. The learned Sessions Judge set aside the conviction and sentence recorded against the applicant under section 326 IPC but maintained the conviction and sentence recorded against him under section 324 IPC. The present revision is directed against that judgment. The first contention raised by the learned counsel for the applicant was that there were two accused in the case and, since the prosecution case was not accepted against one of them, namely, Jamuna, it could not be accepted against the present applicant as well. I am unable to agree. The case against the two accused did not stand at par. As against the present applicant the consistent case of the prosecution was that it was he who had inflicted the knife injuries to the complainant. As against Jamuna all that was alleged was that he caught hold of the complainant from behind. According to the trial court, it did not carry credence and therefore, the benefit of doubt could be given to him. Since the prosecution case against the applicant was consistent, it was open to the trial court to convict the applicant while acquitting Jamuna. It was next urged that even though several witnesses were mentioned in the first information report the prosecution examined only one Munnan (P. W. 3) besides the complainant and his brother. Learned counsel pointed out that Munnan was disbelieved by the trial court. Learned counsel stressed that since there were other witnesses present at the place of occurrence and were not examined in the case, the evidence of Ram Prasad complainant and his brother Tillu could also not be safely relied upon. I am once again unable to agree. So far as Ram Prasad is concerned, he was the person who had received injuries. Tillu is the brother of Ram Prasad. According to the prosecution, both of them were going together to see the picture. It is not necessary for the prosecution to examine all the witnesses in any case. Since the prosecution had examined Ram Prasad and Tillu and had further examined Munnan, the omission on the part of the prosecution in not examining the remaining witnesses mentioned in the first information report could have no adverse effect.
(3.) LEARNED counsel then urged with some vehemence that there was no light in which the witnesses could recognise the applicant. LEARNED counsel pointed out that, according to the prosecution witnesses, the only light available at the place of occurrence was the light flashed by Munnan (P. W. 2). LEARNED counsel urged that since the evidence of Munnan was discarded, it followed that there was no torch light present at the place of occurrence. LEARNED counsel added that once the torch light is excluded, there remains to light in which the prosecution witnesses could recognise the applicant. I have given my careful thought to this contention, but I regret my inability to agree. It is true that, according to the prosecution witnesses the only light available at the place of occurrence was that of the torch flashed by Munnan. While making statement to that effect the prosecution witnesses were, however, referring to artificial light. The occurrence took place in the month of June when the cloud is normally clear. According to almanac, Moon was present in the sky that night till 12.57 a. m. There should also have been stars in the sky. The applicant was known to Ram Prasad and Tillu from before. A perusal of the medical es;amination report shows that the assailants came in front of Tillu in order to inflict injuries to him. The injuries having been inflicted by a knife, it can be inferred that the assailant was in close proximity to Tillu. Ram Prasad and Tillu could, therefore, very well recognise the assailant in the moon light and the light of the states. In fact, even if the moon was not there, the applicant could be recognised in the light of stars howsoever meagre it may have been.;