Sharma, J. - (1.) THIS is an appeal by Prithvi Singh against his conviction under Section 307 I. P. C. and sentence for 5 years' rigorous imprisonment by the learned Sesssions Judge, Kota.
(2.) ACCORDING to the prosecution, 3 or 4 days before the winter vacations in 1945, Bharat Bhusan, hereinafter to be referred to as the injured, and the appellant Prithvi Singh, both of whom were students of the College at Kota were having a stroll with some friends of theirs along a tank. The appellant used some disparaging words in connection with the females of the community to which the injured belonged. A similar imputation was made by the injured against the females of the community to which the appellant belonged. This enraged the appellants, who advanced towards the injured to beat him saying that he would kill him. Other friends intervened and the matter came to an end. The parties returned to their respective homes. This incident will hereinafter be referred to as the first incident. Some 2 or 3 days after the first incident, the injured was standing in the evening in front of the katla in Rampura Bazar in Kota and was talking to his friends. The appellant arrived there and gave two blows to the injured with his hockey-stick and ran away. This incident will hereinafter be referred to as the second incident. On the 13th January, 1955, at about 7. 00 P. M. the injured was standing near the sitting room of the house of Dr. Chandalal which adjoined the house of Ram Sahay. He was talking with his maternal uncle Hari Prakash. The appellant reached there with two boys, namely, Govind and Dhanvesh alias Gentle. They were on two cycles. The appellant got down from the cycle and gave two slice blows on the head of the injured. The injured and his maternal uncle chased the appellant but he ran away. When they had covered a certain distance, they saw the appellant with some other persons. In this party were Raghubir Singh, Shashi Prakash, Govind and Lalchand. Govind and Shashi Prakash began to pacify the injured. The appellant somehow went behind Bharat Bhushan and stabbed him in his back with a knife. The injured cried that the appellant had given him the knife blow. He vomited blood twice and became unconscious. He was removed to the hospital by Hari Prakash and others. This last mentioned incident will hereinafter be referred to as the occurrence, and the appellant was put up for trial in respect of this occurrence. The injured survived as a result of the treatment given to him. Fist information report was made about the occurrence by Kishori-lal at the Police Station Kotwali, Kota. Shri Brijendra Singh, Sub-Inspector went to the hospital and it is said that he came to know from Hari Prakash that the appellant was the assailant of the injured. A case was registered under sec, 307 I. P. C. against the appellant. Investigation was taken in hand. The injured was medically examined, and according to the medical examiner, an injury by a sharp-edged weapon was found on his back. The appellant was not found at his residence at Kota as well as in the village of which he was a resident up to 30th January 1955. He was arrested on the 31st Jan. , 1955 and a challan was put up in the court of the City Magistrate, Kota, who, after making enquiry, committed him to the Court of Session at Kota to take his trial under Sec. 307 I. P. C. A number of witnesses were produced on behalf of the prosecution among whom the injured, namely, Bharat Bhusan (P. W. I.), Hari Prakash (P. W. 3.), Rajendra Kumar (P. W. 4) and Kishorilal (P. W. 5, came forward as eye-witnesses of the occurrence. P. W. 8 Ghasi Singh was also produced as an eye-witness but he did not state anything in favour of the prosecution and therefore, he was declared hostile by the court at the request of the public prosecutor and was allowed to be cross-examined P. W. 9 Mr. B. L, Mahatma of General Hospital, Kota, who examined the injured, was also produced as an eye-witness for the prosecution, Chowth-mal (P. W. 6) was produced to prove the second incident. The appellant denied the charge and pleaded that the case was an outcome of enmity between him and the injured. He suggested that the injury was probable caused by one Chatterji and produced certain witnesses in defence to prove that it was in fact Brij Bahadur alias Chatterji, who had caused the injury in question to the injured. Learned Sessions Judge was satisfied that the appellant had caused the injury in question to the injured and found him guilty of an offence under sec. 307 I. P. C. and sentenced him as mentioned above. The appellant Prithvi Singh has come in appeal. I have heard Shri J. K. Mathur on behalf of the appellant and Shri R. A. Gupta, Deputy Government Advocate on behalf of the State. It has been argued by Mr. Mathur that the only eye-witnesses in the case are Bharat Bhushan (P. W. 1), Hari Prakash (P. W. 3), Rajendra Kumar (P. W. 4) and Kishorilal (P. W. 5 ). Of these, three witness, namely Hari Prakash, Rajendra Kumar and Kishorilal are related to the injured. Hari Prakash and Kishorilal are the own brothers of the mother of the injured, whereas Rajendra Prasad is a cousin of his mother. The only independent witness, Ghasi Singh, has not supported the prosecution case. Besides the fact that all the prosecution witnesses are interested, their evidence regarding the appellant being the assailant, has been discredited by the statements in the first information report (Ex. P. 2 ). It was argued that according to the evidence of Hari Prakash and Kishorilal, Hari Prakash had told Kishorilal that the appellant was the assailant. Kishorilal, according to his own evidence, had seen the occurrence with his own eyes and had recognized the appellant. According to the prosecution evidence, the injured had cried out, immediately after stabbing, that the appellant had stabbed him. Under these circumstances, there was no reason why the name of the appellant should not have been mentioned in the first information report if he had actually assaulted the injured and had been seen and recognized in the act of stabbing. It was argued that at the time of the occurrence, the light was not sufficient for the identification of the assailant of Bharat Bhushan and it is simply either deliberately or on account of a mistaken belief that the appellant has been involved in the case. It was argued that admittedly the relations between the appellant and the injured were strained and not being able to identify the actual assailant, the party of the injured put the blame at the door of the appellant. It was argued that the learned Sessions Judge has taken into consideration inadmissible evidence in order to draw support for the prosecution case. It was not open to him to have treated the police statement of Ghasiram as substantive evidence in the case and it was illegal on his part to take into consideration the statement of the investigating officer that the name of the appellant had been given to him as the assailant before the injured regained his consciousness and made a statement (Ex. D. 4 ). It was argued on behalf of the State that it was established beyond doubt by the evidence of P. W. 1 Bharat Bhushan, the injured, Hari Prakash (P. W. 3) and Rajendra Kumar (P. W. 4) that it was the appellant, who had stabbed the injured. There was no reason to disbelieve their evidence simply on the ground that Bharat Bhushan was the injured himself and Hari Prakash and Rajendra Prasad were his relations. It was argued that once the law allowed Ghasiram to be confronted with his statement before the police that statement could be read in evidence and taken into consideration. It was argued that Kishorilal was not an eye-witness and, therefore, if he had not named the assailant in the first information report, it did not prejudicially affect the statements of other witnesses who had seen the occurrence with their own eyes. It was argued that according to the evidencc of the prosecution witnesses there was sufficient light for the identification of the assailant at the time of the occurrence. 1 he evidence of the prosecution witnesses, therefore that the appellant was the assailant, was justifiably believed by the learned Sessions Judge. It was argued that it has not been contended that the injured was not stabbed with a sharp-edged weapon. As there had been previous quarrel between the injured and the appellant, the appellant had a grudge against the injured and there is no wonder that he stabbed him finding a suitable optortunity. It was argued that the defence has put forward a positive case that Brijendra Kumar alias Chatterji stabbed the injured and this story of the defence is altogether absurd. The prosecution story, therefore, which is supported by no less than three eye-witnesses and the previous statement of Ghasiram (P. W. 8) before the police has been established beyond any doubt and the learned Sessions Judge was perfectly justified in convicting the appellant. I have considered the arguments of loth the learned counsel. It Stands fully established that the injured was stabbed with a sharpedged weapon on the date of occurrence. The medical evidence proves that there was a punctured wound vertical 1" x 1/2" deep into the left lung on »he left inter scapular region by a sharp-edged weapon on the back of the injured at the time of the medical examination by Dr. B. L. Mahatma, Medico Legal Officer, Kota, on the 30th January 1955. This examination was made at 7-30 p. m. , i. e. , within half an hour of the occurrence. There, therefore, does not remain any manner of doubt about the stabbing of the injured. The injury was caused on a vital part of the body and if the death had ensued, the case would have come under sec. 302 of the Indian Penal Code. As the death did not ensue, whose over caused the injury, was liable for an attempt to murder under sec. 307 of the Indian Penal Code. The only question that remains to be seen, is whether it was the appellant who caused the said injury. I have gone through the evidence with great care to find out if the appellant could be held responsible for the injury in question. It is beyond dispute that Hari Prakash was present at the time of the occurrence. Bharat Bhushan is himself the injured and so he is the best witness of the occurrence. So far as Rajendra Kumar is concerned, he has also come forward as an eye-witness but it is doubtful if he was present at that time. Hari Prakash (P. W. 3) has stated that he did not see that any of his relations was present at the lime of the occurrence, excepting the injured himself. P. W. 1 Bharat Bhushan has also not named Rajendra Kumar as one of the witnesses of the occurrence. Moreover, Rajendra Kumar has stated that the injured and the appellant were surrounded by a number of persons and that the witness was standing at a distance of about 5 or 6 paces from the place of occurrence. Rajendra Kumar has admitted that the light was not very bright. Under these circumstances, it is not probable that this witness would have been able to identity the assailant of the injured and also that he ran away on cycle with an open knife. So far as Kishorilal (P. W. 5) is concerned, learned counsel for the State has himself stressed that he was not present on the spot at the time of the occurrence. In his evidence Hari Prakash also says that at the time of the occurrence Kishorilal was inside the house and was taking food. The evidence of Kishorilal is, therefore, altogether discredited from the evidence of Hari Prakash. The investigation officer, Shri Brijendra Singh, has also stated that he did not record the statement of Kishorilal in his diary because on interrogation it was found out that he was not one of the eye-witnesses. I have, therefore, to consider the evidence of the injured Bharat Bhushan and Hari Prakash only with respect to the actual occurrence. The injured Bharat Bhushan stated that a day or two before the winter vacations of December, 1954 he was taking a stroll along the local tank when the appellant made disparaging remarks regarding the famales of his community. On this, the injured made similar disparaging remarks by way of retort regarding the females of the community of the appellant. These remarks cut the appellant to the quick and he threatened him that he would kill him. This is about the first incident. Then the witness proceeded to state that 2 or 3 days after the first incident, he was having a talk with certain persons when the appellant attacked him with a hockey stick. Then on the 13th January, 1953, at about 7-00 p. m. , when the witness was standing in front of Ram Sahaya's house and having a talk, the appellant came on a cycle and went inside the gali wherein Dr. Sud resided. Shortly after the appellant came on his cvele and behind him the boy Govind was also sitting on it. The appellant as well as Govind got down from the cycle and the appellant struck the witness with a lathi twice on his head. Then he (the appellant) fled towards his house. The witness as well as Hari Prakash and Brij Bahadur advanced towards the house of the appellant but when they had gone only a pace or two, the appellant came back with Raghubir Singh, Lalchand, Govind, Sashi Prakash and Dhanvesh. Brij Bahadur asked Raghubir Singh, who was the elder brother of the appellant why the witness had been beaten. Raghubir Singh said that the witness had stolen his cycle and when Brij Bahadur Sud why a report was not lodged at the police station with regard to the theft of the cycle. Raghubir Singh replied that a report had been lodged and the cycle also had been returned but the offender was not punished As Prithvi Singh and his companions appeared to be bent on a quarrel, the witness and his companions moved a little back. Sashi and Govind caught hold of him and asked him to go to his house. In the meanwhile, the appellant went towards the back of the witness and stabr> ed him in the back with a knife. The witness could see that it was the appellant, who had stabbed him when he turned back immediately after stabbing and the appellant was seen with his knife going inside the lane in which Dr. Premchand Sud resided. The witness cried to Hari Prakash that Prithvi Singh had stabbed him with a knife. Thereafter, the witness had blood vomits and collapsed and was given a support by Hari Prakash. When the witness regained his senses, he found himself in the hospital and the Sub-Inspector took down his statement and therein he stated that the appel-lant had stabbed him. In cross-examination, the witness Bharat Bhushan was confronted with his statement before the committing court and therein he had stated that the first incident took place 10-12 days before the winter vacations. There is no evidence in support of Bharat Bhushan's statement regarding the first incident. Moreover, he stated at the trial that the first occurrence took place a day or two before the winter vacations of 1954 whereas in his statement (Ex. D-l) with which he was confronted, he had stated that it took place before 10 or 12 days before the winter vacations. There are said to have been present a number of persons at the time of this incident but they have not been produced. Therefore, it cannot be said without doubt that the first incident took place as stated by this witness. About the second incident, the witness stated that Sashi Prakash, Chowthmal, Rajesh Kumar and Shiv Kumar were present when it took place but from among all these witnesses only Chowthmal has been produced No report was made regard- ing the incident. However, on reading the statement of Chowthmal, I find that there is no reason to disbelieve it and as the incident was only a very trivial one, it may be that the injured might not have thought it fit to lodge any report about it. As regards the occurrence itself, this witness Bharat Bhushan has given a very detailed account. However, the learned Sessions Judge did not find himself in a position to believe that part of the incident which related to the giving of stick blows by the appellant to the injured shortly before the actual incident of stabbing. Learned Sessions Judge has, on the other hand held that it was the injured Bharat Bhushan, who gave stick-blows to the appellant. It appears to me that as far as this incident of striking with a stick shortly before the actual occurrence is concerned, both the parties have told half-truth. To my mind, both Bharat Bhushan and the appellant indulged in exchange of stick blows and that is why according to medical examination two injuries by blunt weapon were found on the person of the injured. However, it is not very material for the decision of this case whether it was the appellant who gave stick blows to the injured or vice versa, or the parties indulged in the exchange of stick-blows. This incident at the most furnishes only the motive for one party injuring the other or falsely implicating him. I now proceed to consider the actual occurrence of stabbing. As 1 have said above, only two witnesses out of the four prosecution witnesses, namely Bharat Bhushan, Hari Prakash, Rajendra Kumar and Kishorilal, whose presence is undoubted at the time of this occurrence, are Bharat Bhushan, and Hari Prakash. Bharat Bhushan said in cross-examination that he could identify the appellant only when he was taking the knife out of his body (Bharat Bhushan's back) after the stabbing. Neither before the police nor before the committing court in his statements (Exhibits D. 4 or Ex. D. 1) with which he was confronted at the trial, did he say that he saw the appellant taking out the knife from his back. He could not give satisfactory explanation why he did not state so in those statements. According to the statement of this witness at the trial he did not see the appellant thrusting the knife into his body and that he saw it only when he was taking it out. In the face of his earlier statement, this statement at the trial becomes doubtful. Then Bharat Bhushan said at the trial that when the appellant was flying away from the spot after the occurrence, the knife, which was in his hand, was open. However, in his statement before the committing court with which he was confronted, he said that he did not know if the appellant held an open or a closed knife in his hand when he was seen flying away after the occurrence. This is Ex. D -3. The evidence of this witness shows that there was darkness at the time of the occurrence and the only light was that of a municipal lantern near Dr. Chandalal's house, 3 or 4 paces from the place of the occurrence. It is, therefore, very doubtful if in the dim light this witness would have been able to identify his assailant on looking as his back and could see that the assailant was holding an open knife in his hand. The other eye-witness Hari Prakash has said that he could identify the assailant as the appellant. He, however, said in his cross-examination that he came to know that the injured was stabbed with a knife when he (the injured) cried out that he had been stabbed. There is, therefore, reason to believe that the attention of this witness was not called towards the assailant till Bharat Bhushan had cried out. The statement of this witness, therefore, that he saw the appellant thrusting the knife into the back of the injured is not believable. Hari Prakash has pretended that there was sufficient light of lantern at the time of the incident, However, apart from evidence of the defence witnesses, it is in the evidence Kanhaiya (P. W. 2) that at the time of the occurrence, there was darkness on the side of the house of Dr. Chandalal where the occurrence took place. It is, therefore, very doubtful if Bharat Bhushan or Hari Prakash could identify the assailant of the injured.
(3.) THERE is yet another thing which throws a good deal of doubt on the question whether it was the appellant who was the assailant. According to Kishorilal (P. W. 5), the appellant had been identified as the assailant of the injured. Kishorilal pretends to be an eye-witness but I agree with the learned Sessions Judge that he was not. However, it is in the statement of Kishorilal as well as Hari Prakash that the latter had told the former hat it was the appellant who had stabbed the injured and that he should make a report at the police station. THERE was, therefore, no reason why Kishorilal should not have mentioned the name of the appellant as the assailant of the injured. Kishorilal says that he did not himself know the name of the assailant. It may be true but when Hari Prakash had given him the name of the assailant, there was no reason why his name should not have been mentioned in the first information report. Kishorilal admits that he knew the appellant by his face and he also knew that he was residing in the house adjacent to his own. Even if Kishorilal forgot to mention the name of the assailant at the time of the first information report, he could very well have said that the assailant was a boy residing in the house adjacent to his but he has not mentioned even this in the first information report. All that he has said therein is that somebody bad struck the injured with a sbarp-edged weapon. This clearly shows that the assailant had not been identified till then. It is in the evidence of Hari Prakash that the injured cried out immediately after the stabbing that the appellant had stabbed him. The evidence of Rajendra Kumar (P. W. 4) shows that the only thing which the injured had cried out, was that he had been stabbed. The evidence of Kanhaiya (P. W. 2) shows that on the spot there was no talk as to who had stabbed the injured. This also points to the conclusion that the assailant had not been identified. There is also one circumstance which shows that the assailant of the injured could not be identified. The prosecution witnesses are unanimous that nobody ran to catch hold of the assailant. It is improbable that nobody would run to catch hold of the assailant when he had been identified. At least Hari Prakash could have cried out that Prithvi Singh had stabbed the injured and that he had just fled away and should be caught hold of. No such thing: was done. If Prithvi Singh had been identified, it would not have been difficult to overtake him when he sped away on cycle soon after the occurrence. It appears to be somewhat strange that an assailant who had been identified and was seen running away soon after the incident should not have been followed, if not caught. It is still more improbable that he should not have even been named in the first information report. It also appears to be somewhat strange that the appellant would have been so much concerned for the knife that he should fly away along with it. If he were the real culprit, his first instinct would have been to throw away the weapon of crime and not to keep it with him, as, if he had been caught, the fact that he held the weapon of offence in his possession, would have been a very strong piece of evidence against him. The defence evidence shows that there was some scuffle between Govind and Bharat Bhushan and that Brij Bahadur, an uncle of the mother of the injured, who was drunk, tried to thrust the knife into the body of Govind, who was grappling with the injured but by some accident, it struck Bharat Bhushan. This story too does not appear to be correct because if Brij Bahadur had injured Bharat Bhushan, there was no reason to falsely implicate the appel-lant. True, Brij Bahadur was closely related to the injured and Hari Prakash and his relations would have tried to shield him if he were the real culprit, but it is too much to say that they would have falsely implicated the appellant when they knew that it was not he but some other person, who was the real culprit. Moreover, this theory was not put at the earliest stage in his examination in the committing magistrate's court and the appellant did not even suggest that Brij Bahadur might have been the real culprit. But. even if the defence story is not believable, responsibility cannot be laid on the appellant for the offence unless the prosecution by its evidence were successful in proving beyond reasonable doubt that it was the appellant who was the assailant. Evidence led by both the sides shows that Brij Bahadur was present on the spot. He was a close relation of the injured but he has not been produced and no reasons have been shown why he was not produced. Learned Sessions Judge has said that he was a relation of the injured and no good purpose would have been served by simply multiplying the evidence of relatives of the injured. This argument of the learned Sessions Judge docs not appeal to me. He has himself said that the evidence of a witness cannot be discarded simply because he is a relation of a party. Some blame has been laid at the door of Brij Bahadur and he was admittedly present when the occurrence took place and to my mind he was a material witness in the case. To my mind, it appears that there had been some quarrel between the appellant and the injured. The party of the injured, including the injured himself, not having been able to identity the real culprit, thought that it must be Prithvi Singh, who had quarrelled only a little be ore the occurrence with the injured, and under that belief, the appellant was implicated at a later stage sometime after the first information report had been made. It may be that the appellant or Raghubir Singh or some other person might have stabbed the injured, but only on conjectures, a court cannot convict an accused unless the prosecution is able to establish beyond reasonable doubt by legal evidence that it was the accused, who was responsible for the crime. Learned Sessions Judge had said in his judgment that the prosecution case was supported by the evidence of Ghasi Ram (P. W. 8) also. 1 have read the evidence of this witness but do not find anything in support of the prosecu-tion therein. Learned Sessions Judge was altogether unjustified in drawing support from the police statement of Ghasi Ram (P. W. 4) with which he was confronted by the learned public prosecutor in cross-examination. It is true that by the recent amendment in the Criminal Procedure code, it has been made permissible that a prosecution witness Can be confronted with his police statement by the prosecution tor the purpose of contradiction. The amendment, however, does not permit that a police statement should be used as substantive evidence. The learned Sessions Judge has, however, made use of the police statement as a substantive piece of evidence. It was held in the case of Brij Bhushan Singh vs. Emperor (1) that a statement made under sec. 164 Cr. P. C. cannot be used as a substantive piece of evidence. The statement can be used to cross-examine the person who made it and the result may be to show that the evidence of the witness is false but that does not establish that what he stated out of court under sec. 164 Cr. P. C. is true. If that is the position with regard to a statement under sec. 161 Cr. P. C. recorded by a magistrate, the statement before the police stands on a much weaker tooting and cannot be utilized for the purpose of establishing the prosecution case. ;