J.D. Jain, J.
(1) The appellant has been convicted of offences under Section 304 Part-1 and 324 of the Indian Penal Code (for short 'IPC') by an Additional Sessions Judge vide his judgment dated 30th July 1984. He has also been convicted of offence under Section 27 of the Arms Act. He has been awarded rigorous imprisonment for five years on the first count, rigorous imprisonment for one year on the second count and rigorous imprisonment for two years on the third count. However, all the sentences have been made to run concurrently. Feeling aggrieved he has preferred this appeal against his conviction and sentence.
(2) Succinctly the prosecution case is that the appellant and his elder brother Vinod Kumar were sent up for trial on charges under Sections 302/307/34 IPC. The appellant was further prosecuted for an offence under Section 27 of the Arms Act. The prosecution version as embodied in the Fir lodged by Smt. Bimla (PW4) was that on 20th July 1982 at about 10 P.M. Vinod Kumar elder brother of the appellant was dragging his wife Smt. Parveen (PW5) out of his house bearing quarter No. B-280, D.D.A. Quarters, New Ranjit Nagar and was beating her with fists and slaps. The reason for the beating was that earlier in the day an altercation had taken place between her and her mother-in-law Smt. Tara which was resented by both Vinod Kumar and the appellant, Ashok Kumar (deceased), who was real brother of Smt. Parveen, was residing in house bearing No. B-271, D.D.A. Quarters, New Ranjit Nagar, which was nearby the house of Vinod Kumar. Smt. Bimla Devi, who is also sister of the deceased, too was living with him at the relevant time. On hearing the noise coming from the street, both Ashok Kumar and Smt. Bimla went towards the house of Vinod Kumar. The latter used filthy language for all the family members of Parveen. Ashok Kumar took it ill and protested to Vinod Kumar saying that he should not abuse the entire family. Thereupon, Vinod Kumar caught hold of Ashok Kumar (deceased) and shouted that he was unduly interfering in his family affairs and spoiling the whole atmosphere of their family. He also exhorted the appellant to finish him then and there, (he actual words being 'Aaj Iska Kissa Hi Khatam Kar Do'. Thereupon, the appellant brought out a dagger. Vinod Kumar caught hold Ashok Kumar while appellant dealt a blow with dagger to him. Smt. Bimla tried to intervene and she sustained an injury with dagger. The appellant dealt another blow with the dagger which landed just on the left side of his chest and he fell down crying 'I am dying'. She tried to give support to her brother but he fell down. He was removed to the hospital but he was declared dead. Smt. Bimla too was taken to the hospital and was medically examined.
(3) At the trial all the three eye witnesses, namely, Smt. Bimla (PW4). Smt. Parveen (PW5) and Misri Lal (PW11) turned hostile. Smt. Parveen deposed that she never had any quarrel or differences with her mother-in- law, Smt. Tara and she did not know anything about this occurrence. She feigned complete ignorance as to how her brother Ashok sustained injuries. She was confronted with her police statement Ex. PW5/A but she totally denied the same. Similarly, Misri Lal denied having seen the occurrence. He too was confronted with his police statement Ex. PW1 I/A which was on the lines similar to the Fir lodged by Smt. Bimla but he too stood his ground saying that he never made any such statement to the police. As for Smt. Bimla Devi, she deposed that on 20.7.82 at about 10/10.30 P.M. she heard the shouts of her brother Ashok coming from the lane. Thereupon, she came down stairs and separated Raju i.e. the appellant and her brother. Vinod was not present at that time. However she sustained a knife injury which was dealt by the appellant. She wrapped up the injury with her dhoti and told Raju that she had been injured. When she gathered herself she found her brother Ashok also lying in injured condition. He had sustained a knife injury on the side of his chest. He was having both his hands on the back. Ashok Kumar told her that he had received a knife injury and was dying. He named Raju as the assailant who had inflicted knife injuries on him. Both Ashok and she were taken to the hospital and were medically examined but Ashok was declared dead, having died at the spot. She too was declared hostile and confronted with her police statement Ex. PW4/A i.e. Fir in this case. However, she denied the same in toto. In her cross-examination by the appellant, she affirmed having told the police about the dying declaration made by her deceased brother.
(4) The short submission made by the learned counsel for the appellant is that all the eye witnesses having turned hostile, there is no substantive evidence on the record to connect the appellant with the injures to Ashok Kumar (deceased) which proved fatal. The argument advanced precisely is that no reliance can be placed on the testimony of Smt. Bimla with regard to the so-called dying declaration made by Ashok Kumar (deceased) because this version of the story was spelt out by her for the first time in court whereas according to the Fir she was an ocular witness to the whole incident. Thus she stood self-condemned by completely resiling from her original version and coming out with an altogether new story.
(5) It is no doubt true that a witness who resiles from his/her previous police statement with regard to integral part of the prosecution version cannot be considered as a reliable witness and his version in court cannot be accepted without sufficient corroboration. As observed by the Supreme Court in Suraj Mal v. The State : 1979CriLJ1087 :
'Where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.'
(6) However, it is equally well settled that where a prosecution witness turns hostile that fact does not completely efface his evidence, His evidence still remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. In Sat Paul vs. Delhi Admin. : 1976CriLJ295 , it was observed that :
'Even in a criminal prosecution when a witness is cross examined and contradicted with the leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether...If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be credit worthy and act upon it.'
(7) Keeping in view these principles for appreciation of evidence in a criminal case, it cannot be said that Smt. Bimla is a rank liar. She has substantially adhered to her earliest police version with regard to the injury sustained by herself. As for the role played by Vinod, she exonerates him completely. The reason for it is not difficult to see. She is the real sister of Parveen and, thereforee, she has fallen in line with Parveen, wha would naturally desire to save her husband. It is thereforee, no wonder that Smt. Bimla has made a volte face as regards the role played by Vinod. Obviously she had not the same warmth of sentiments for Raju, who is the younger brother of Vinod. Hence, she has clearly accused him of causing a knife injury to her. Her testimony in this respect finds ample corroboration from medical evidence. The medico-legal certificate shows that she did receive an incised wound with sharp margins on the posterior aspect of her chest. Hence, I find no reason to disbelieve her so far injury to herself is concerned. As regards injury to the deceased, she has no doubt made a somersault but still that would be no reason to absolve the appellant from culpability with regard to the fatal injury sustained by Ashok deceased. As shall be presently seen, there is disciple evidence which countenances the finding of guilt against the appellant as returned by the trial Court.
(8) The first circumstance which is of very vital importance is that both Vinod and Raju were apprehended by the police on the very night of occurrence (i.e. early hours of 21.7.82) when they were sleeping underneath a tree in a park nearby the place of occurrence. The said park, according to both Inspector SatvirSingh(PW-17) and As [Ram Kishan is called 'Satyam Park'. On personal search of the appellant, a dagger (Ex.P 1) was recovered from the right side of his pants. It was seized vide memo Ex.PW 9/C Both the edges of the dagger were sharp as would be manifest from the testimony of Asi Ram Kishan and Inspector Satvir Singh, Ex.PW9/C being the outline sketch of the knife. According to the autopsy surgeon Dr. L.T. Ramani (PW2), the deceased had sustained an incised stab would on the left side of the chest. Its margins were regular and the inner end was tapering. The said injury communicated with left chest cavity through 9th intercostal space. Left lung showed cut through and its lower lobe injury continued on the left dome of diaphragm. So, the total depth of the wound was 4' from body surface. He was shown knife Ex. Pi and he opined that the injury found on the body of the deceased was possible by the same. No doubt, Ramesh (PW10), who was an alleged witness to the recovery of the dagger from the appellant, turned hostile and stated that nothing happened in his presence and nothing was recovered in his presence, but the reason for the same is quite comprehensible. He is real brother of the deceased and for that matter of Smt. Praveen. Anyhow, that would hardly be a ground to disbelieve both the police officials with respect to the recovery and seizure of dagger Ex.PI. Further, as seen above, the medical evidence clearly establishes that the vital injury in the instant case was possible by the same.
(9) Yet another circumstance of far reaching evidentiary value is that at the time of the arrest of the appellant and his companion Vinod, Inspector Satvir Singh noticed that the clothes worn by them had stains of blood. So, he took into possession T-shirt Ex.P5 of the appellant and shirt Ex.P6 of his co-accused Vinod vide memo Ex.PWs 10/A and 10/B. He then sent the said clothes Along with sample blood and blood stained clothes of the deceased and the blood stained clothes Ex.P2, P3, P4 & P5 of Smt. Bimla for Chemical examination and expert opinion of Serologist. A perusal of the reports Ex. PW17/C and PW17/D of the Chemical Examiner and the Serologist (Central Forensic Science Laboratory) would show that the clothes, namely, pants, underwear and banian of the deceased and T-shirt and bushirt of the accused had blood of the same group viz. 'AR'. That clearly establishes not only the presence of the appellant at the time and place of the occurrence but also that he came into contact with the deceased which resulted in his T-shirt being stained with the blood of the deceased. When confronted with this situation the appellant simply stated that he did not know. He has furnished no Explanationn whatsoever for the presence of stains of the blood of the deceased on his T-shirt. Surely it is a grave circumstance which amply supports prosecution version that it was the appellant and none else who had dealt the fatal blow to the deceased.
(10) (THESE two circumstances, thereforee, lend ample support to the prosecution version that it was the appellant who had caused the the death of the deceased by dealing a blow with dagger Ex.PI. The evidence of Smt. Bimla regarding the dying declaration of the deceased, thereforee, cannot be altogether discarded and can be safely acted upon in the light of these established facts.