L.N. Chhangani, J.
1. These two appeals - one through Jail and the other through an Advocate - have been filed by Radhey Shyam accused against the same order of the Additional Sessions Judge, Jaipur District dated the 1st February, 1960. By this order, he has convicted Radhey Shyam of an offence under Section 307 I.P.C. and has awarded a sentence of ton years' rigorous imprisonment and a sentence of fine of Rs. 500/- and in default to two years' rigorous imprisonment.
2. The facts on which the charge was founded are briefly these:
3. Kishanlal the complainant who is the injured is a resident of Gudha Katra in Tehsil Bandikui The accused Radheyshyam is a resident of Bandikui, There were some monetary transactions between Kishanlal the complainant and the father of the accused Radheyshyam, Kishanlal had obtained a money decree against Radheyshyam. His application for execution of the decree was pending in a Court at Bandikui. On 25-2-59 the complainant Kishanlal left his village for Bandikui to attend the Court.
The prosecution case further is that when Kishanlal was going to the Court he met the accused Radheyshyami at his shop at Bandikui which happened to be on the way. Kishanlal finding the accused there demanded the payment of the decretal amount. Radheyshyam asked him to accompany him to his Louse where he would arrange payment. Kishanlal thereupon left his cycle at the shop of the accused Radheyshyam and went with him to his house. In the house of the accused there is a room called the 'Baithafcroom'.
It has two doors one opening in the verandah and the other in the 'chowk'. The door opening in the verandah was open and the accused and the injured went to the 'Baithak-roorn' through this door. The door opening in the 'chowk' was closed. The accused made the complainant sit in the room. When the complainant demanded the payment of the money he told him that there were certain inaccuracies in the accounts and placed his bahies in support of his statement.
The complainant found nothing in the bahies to support the contention of the accused, The accused thereafter made a request to the complainant to accept a reduced amount in final satisfaction of the decretal amount. The complainant, however, refused to accept this request. The accused thereupon asked the complainant to scribe receipt and said that he would arrange payment. When the complainant was scribing the receipt Radheyshyam went outside and returned after some time.
In the meanwhile the complainant had completed the receipt and had placed it in his pocket. After the return the accused closed the door opening on the verandah and chained. The complainant unchained it but the accused rechained the door suggesting that there were other creditors of his and it would be proper to settle the matter secretly. Ultimately finding that the accused was not arranging any payment the complainant got up and began-to move.
Hardly had he gone a step or two when somebody struck him in the back. He turned round and saw that the accused was holding a sword and was aiming at him. He raised his hands to protect himself and received the sword blow on his hand with the result that the palms and the fingers were injured. The complainant then seized the accused and grappled with him. They then fell on the cot that was lying in the room of the accused.
The accused also bit his check. On an alarm persons from the neighbourhood reached and they brought the accused outside the 'Baithale-room' and subsequently the complainant was also taken out of the 'Baithak room'. One Ayodhya Prasad PW/10 wanted to take the complainant to the Hospital. The complainant insisted that he would first go to the Police Station, A 'Rikshaw' was arranged for the complainant and he went to the Police Station Bandikui and lodged report at about 11-30 A. M. Gopichand Head Constable was in charge of the Police Station, the Sub Inspector Police being out in connection with some investigation.
He recorded the report and noted the injuries on the person of the complainant. He got the complainant examined by a doctor in the hospital and then got him admitted there. He then left for the house of the accused for inspection of the site. He saw the accused Radheyshyam and a few ladies there, inspected the site and prepared the inspection memo in the presence of the motbirs. The accused produced before him a sword alleged to contain some blood stains, A recovery memo of the sword was prepared and wag signed by the accused In the meanwhile the Sub-Inspector, Police Gopal Lal having reached the Police Station and learnt of this case left for the spot and reached there at about 3-30 P. M. He took over the investigation from Gopichand. He recovered a blood stained 'chaddar' from the cot, a note book and a copy of the decree of the complainant lying there on the cot. Shirt and dhotti of the accused were blood stained and they were also recovered by the Sub-Inspector, Police. After completing the investigation the Police submitted a charge-sheet against the accused under Section 307 I.P.C. in the Court of First Class Magistrate, Bandikui, who after inquiry, committed the accused for trial to the Court of Session, Jaipur District. The case was tried by the Additional Sessions Judge.
4. The accused did not plead guilty. He admitted that the complainant Kishanlal had obtained a decree against him for Rs. 650/-. Although he did not know whether the execution case was fixed for hearing in the Court at Bandikui on 25th February, 1959 he admitted that he was at his shop at about 11 A. M. on that date. With regard to the events at his house the accused came forward with a counter version. Admitting that there was blood on the clothes of the complainant Kishanlal as well as on his own cloth, he pleaded that Kishanlal had-been injured from before and he came to him in an injured condition and grappled with him saying that he had got. him injured He admitted that when he and Kishanlal were standing there amongst the woman and children Ayodhya Prasad came there and as Kishanlal had some injuries on his hands he took him outside his house. He further stated that Kishanlal with one Vakil had gone to the Police Station to lodge information. He also went to the Police Station at about 11-30 or 11-45 A. M. to lodge a report but the Sub-Inspector Police refused to record any information and took him into custody.
5. The prosecution examined thirteen witnesses and produced 19 documents and exhibited 10 material articles. The accused led no defence.
6. The trial Judge accepted the prosecution version generally although he held that in some respects the prosecution has exaggerated and introduced falsehoods. The version of the accused that the complainant Kishanlal had been injured from before and had assaulted the accused was completely discarded by the learned Additional Sessions Judge. In the result, he found the accused guilty and recorded his conviction under Section 307 I.P.C.
7. I have heard Mr. Agarwal for the appellant and Mr. Chatterjee for the State.
8. At the outset Mr. Agarwal invited my attention to certain infirmities in the evidence of the complainant Kishanlal. It was pointed out that the witness had no respect for the sanctity of truth and made contradictory statements. The witness bad stated in Ext. D-1, the statement before the Committing Court; that when he went outside the 'Pol' he saw Badri and Rami standing there. At the trial stage he stated that that statement was wrong and that Badri and Rami met him. in the 'chowk'.
He further made inconsistent and contradictory statement as to who got him out from the 'Baithak-room'. In examination-in-chief he imputed that part to Ayodnya Prasad. In cross-examination, he resiled and stated that Ayodhya Prasad did not lift him from the cot and brought him outside and suggested that Badri and Rami brought him outside. Further there were certain discrepancies about the alleged disability in the hand of the accused Radheyshyam.
Besides these contradictions, and discrepancies the learned counsel also invited my attention to certain findings of the Additional Sessions Judge where the version given by Kishanlal was considered as untruthful and exaggerated. The Additional Sessions Judge did not believe the statement of Kishanlal that the accused had gagged his mouth at the time of grappling. Similarly, the Additional Sessions Judge did not accept his statement that he had scribed a recent at the house of Kishanlal.
9. On the basis of the above infirmities and the findings 0f the Additional Sessions Judge, the learned Advocate wanted me to completely discard the statement of the witness. On a very careful consideration of the above discrepancies and the findings of the Additional Sessions Judge, I am unable to accept the contentions of the learned counsel. Bearing in mind the fact that the accused and the injured were found grappling in the house of the accused and that the injured was bleeding nothing substantial turns upon the above discrepancies.
Similarly, on account of the prosecution having been disbelieved in some respects it will not be proper to reject the entire prosecution case as it cannot be said in the Present case that the entire prosecution case is a fabricated one. It is an Ordinary experience in this country and may be in other parts of the human world that not infrequently the prosecution or the defence do not place very straight and untarnished versions, and the Courts find twisting and colouring given and lies introduced in many cases.
Indeed there is a great variety of motives for disfeature. Sometimes they are resorted to simply in attempt to give more realistic touch to the prosecution version, to maintain or to secure consistency with one's earlier statements or varying statements of other witnesses or to avoid the consequences of statements of witnesses deemed hostile and in some cases only, in response to the unsympathetic and harassing attitude of the cross-examining counsel.
Naturally, therefore, the twists and distortions should not be unduly over-emphasised. They must be properly considered and appraised on a proper understanding of the varied human motivations and the Courts should be very slow to adopt a strict disciplinary attitude to reject prosecution cases and acquit the accused for every or any kind of departure from a straight version. The primary object of ascertaining truth and doing even justice both to the prosecution as well as the accused should never be lost sight of.
While to risk should be taken to convict innocent persons, purely theoretical and abstract considerations and a priori reasoning should not weigh much to beralise the escape of quietly persons which should be as rare as possible. In the light of the above guiding principle I have no doubt that the trial Court was perfectly justified in properly weighing the evidence and to arrive at a conclusion that in spite of some unreliable additions in the prosecution case, the main prosecution case is safely acceptable. In this connection it will be very useful to refer to certain important and basic facts.
In the first instance, although the accused did not admit the arrival of the complainant at his shop at Bandikui at about 10-30 or 11 A. M. he admitted his presence at the shop at 11 A.M. He did not, however, state how and why he left the shop and reached his house soon after to be found grappling with the injured. The fact that the complainant went to Bandikui to attend the Court and that he happened to meet the accused on the shop which lay on the way finds mention to the first information report. I do not see any good reason why this part of the case should not be accepted.
The only argument addressed in this connection is that there could have been available the other evidence that the injured reached the shop of the accused and placed his cycle consisting of the statement of oilier persons or subsequent recovery of the cycle from the shop and the same having not been led, this part of die prosecution case should not be accepted. I cannot accept this argument. Availability of other corroborative evidence and non-production, thereof cannot be ground for rejecting the evidence led in the case if it is otherwise persuasive and convincing,
10. The second and more important fact which is not disputable is that at the time of tile alleged incident the complainant and the accused were seen grappling in the room of the accused. The complainant had injuries on his person and was bleeding. There was some kind of alarm which attracted some neighbours who separated them. These facts unmistakably indicate that the complainant's version that he was injured by the accused is highly probable. The suggestion of the defence that the complainant was injured from before and went to the house of the accused and assaulted him appears to be highly improbable.
If the complainant had been injured elsewhere there was no reason why he should have gone to the house of the accused, grappled with the accused and found in that condition. The proper course for him would have been to go and report the matter at the Police Station, Apart from this, the defence did not indicate this line of defence during cross-examination. Not a single question was put to the complainant on this aspect of the matter. I am quite satisfied that the version of the complainant is acceptable and the suggestion of the defence that the complainant was injured from before his arrival at the house of the accused is wholly unacceptable.
11. Next, it was contended that the complainant's version that the accused had inflicted injuries with the sword should not be accepted. It was contended that the complainant having perjured in certain respects and having introduced exaggeration and falsehood cannot be implicitly relied upon. There is no corroboration of the use of the sword by other witnesses. On the other hand, Ayodhya Prasad, Badri and Rameshwar who immediately reached the spot contradict the complainant on this point.
They clearly state that they did not see any sword in the 'Baithak-room' of the accused. It is true that these witnesses do not support the complainant and do not see any sword but their evidence, which is of a negative character, cannot be taken to counteract and rebut the complainant's evidence that the sword was used. The use of the sword was mentioned in the first information report which was lodged immediately after the incident. The medical evidence also corroborates the complainant's statement that the sword may have been used.
Lastly, there is the recovery evidence. The accused produced the sword before Gopichand Head Constable and the memo prepared by Gopichand was signed by the accused. The sword was sealed then and there and was sent to the Chemical Analyser for examination. According to the report of the Chemical Analyser, the sword was positive for blood. According to the report of the Serologist and the Chemical Examiner to the Government of India, the scrappings from the sword indicated that the sword was stained with human blood.
The accused offers no explanation whatsoever for the presence of the human blood on the sword. He has merely denied the recovery of the sword from him. In my opinion, the recovery of a sword containing human blood is a circumstance corroborating the statement of the complainant that he was injured by the accused with the sword. Mr. Agarwal urged that there is no satisfactory evidence as to the production of the sword by the accused. Ho pointed out that of the two motbirs one Tarachand has not supported the prosecution. The other mother Badri had joined an election contest with the father of the accused and was not an independent witness.
He also suggested that the accused having gone to the police station must have been arrested and there could not have been the recovery of sword. The accused also sought to explain his signatures on the recovery memo by stating that he was made to sign some papers while in custody. Gopichand the head constable was not cross-examined to seriously challenging the recovery. It will not be proper to discard the evidence of Badri on the above ground. Tarachand motbir having gone against the memo bearing his signatures has rightly been rejected by the trial Court, I do not feel persuaded to reject tin's evidence.
12. Mr. Agarwal next strongly contended that the report of the Serologist and Chemical Examiner to the Government of India cannot be of any evidentiary value in this case as there is no evidence on record as to whether the scrappings of the sword examined by him were taken by the Chemical Analyser of the Rajasthan State from the sword which has been exhibited in the case. He has relied upon State v. Motia 1953 Raj LW 640 : AIR 1955 Raj 82. In that ease it was held:
It is necessary for the prosecution to produce evidence that steps were taken at once to seal the articles, and that from the time the articles came into the possession of the Police to the time they were sent for identification before a Magistrate or for examination of the Chemical Examiner the seals remained intact.
He urged that the principle in this case should be extended further and it should be held that it was necessary for the prosecution further to prove that the Chemical Analyser sent the scrappings of the particular sword to the Serologist and the Chemical Examiner to the Government of India. In the absence of such evidence the report of the Serologist and the Chemical Examiner to the Government of India cannot be considered at all.
For a proper consideration of the argument it will be proper to refer in a detailed manner the practice that is being followed in this behalf. The Police authorities in charge of investigation at the time of recovering articles seal them and send the sealed packets in the same condition to the Chemical Analyser to the Government of Rajasthan. The Chemical Analyser to the Government of Rajasthan makes some tests, forms some opinions. He then sends the same articles or scrappings and cutting from them to the Imperial Serologist and Chemical Examiner at Calcutta for further tests.
After receiving a report from him he sends list report to the Police authority sending the articles 'or examination stating in the report that the report of the Imperial Serologist and Chemical Examiner to the Government of India is also enclosed therein. Mow the main purpose for making the report of the Chemical Analyser admissible without his appearing in Court and giving a statement is to avoid unnecessary travels by the Chemical Analyser to appear 'in several criminal cases, There is a presumption that the tests to be adopted by the Chemical Analyser will be regular and there will be no chances of error or mal-practice. In this background it will be quite safe to presume that the Chemical Analyser after some tests by him will forward anticles or cuttings or scrappings to the Chemical Analyser to the Government of India and on receiving his report he will properly connect it with his opinion and forward both his report and the Imperial Serologist's report with regard to the examination, of the same and not different articles.
Although there are in fact two reports but it will be proper to treat them as one consolidated report and to admit it in evidence. It will be frustrating the object of Section 510 Cr. P.C. if the Chemical Analyser is required to be examined in Court for the purposes of proving that the cuttings or scraping from articles were taken by him from the articles in dispute in connection with a case and were sent to the Chemical Examiner to the Government of India.
It will be proper to infer from the two reports taken together that the same articles were examined by the Chemical Analyser to the Government of Rajasthan and the Chemical Examiner to the Government of India. I must hold that the rule laid down in Motiya's case 1953 Raj LW 640 : AIR 1955 Raj 82 cannot be extended to require the evidence of the Chemical Analyser or somebody in his office to formally prove that the strappings or cuttings forwarded to the Imperial Serologist related to the articles exhibited in Court.
13. I also feel very strongly inclined to observe that Motia's case 1953 Raj LW 640 : AIR 1955 Raj 82 merely lays down a rule of prudence for the appreciation of evidence and not a rigid and inflexible legal principle and its applicability should not be considered irrespective of the facts and circumstances of individual cases. In a given case if on account of the admissions of the defence or its omission to raise a contest and join controversy and otherwise, the possibility of tampering with articles, the subject matter of the reports of the Chemical Analyser can be reasonably eliminated, I cannot see why the absence of mere formal evidence should be allowed to be overemphasised and availed for the acquittal of the accused.
14. It must be noted in the present case that the accused did not join any serious controversy on, this aspect at the trial stage. Under the law, as now stands, it is open to any party to request the Court to summon and examine the Chemical Analyser in Court. The defence did not put in application or express any desire for summoning the Chemical Analyser and examining him in evidence. In this view of the matter, I am not inclined to agree with the learned counsel that the report of the Imperial Serologist is of no value in this case.
In this view of the matter I am clearly of the opinion that the recovery evidence does provide corroboration to the statement of the complainant that the accused used the sword in injuring the complainant. The conclusions arrived at by the Additional Sessions Judge that it was the accused who was responsible for the injuries on the person of the complainant and that the injuries were caused by the sword are quite correct and fully supported by the evidence on record and the probabilities and the circumstances of the case.
15. The next question raised by Mr. Agarwal is that no offence under Section 307 I.P.C. is made out. The injuries although by sharp edged weapon are all simple except injury No. 2 which is located over the left middle finger with the opening of the first interphalangeal with dislocation. The Additional. Sessions Judge while discussing the question of the intention of the accused has referred to the statement of the accused made at the time of inflicting the injuries. It is alleged that Radheyshyam had told that he would murder him so that all amounts may be paid up.
There is no mention of this statement in the first information report. It is doubtful whether the accused could have made any such statement or declaration at the time of the incident. One of the basis for the conclusion of the Additional Sessions Judge is, therefore, not available. There are further no satisfactory materials for an inference that the accused could have thought of a plan of meeting the accused at his shop and bringing him to his house and of causing his murder.
In the facts and circumstances of the case, I am inclined to think that the parties met in connection with the settlement of the decretal debts and there must have been certain quarrel during which the complainant Kishanlal was injured. In this background it will be hardly proper to safely conclude that the accused had the intention to cause the murder of the complainant and that he could not achieve that object on account of the circumstances independent of his will. It will be hardly safe to maintain the conviction of the accused under Section 307 I.P.C.
The injuries on the person of the accused are all simple except one and the one that is grievous is also not very serious and cannot be termed to be very fatal. On a consideration of the nature of the injuries, the facts and circumstances of the case and the background in which the fight took place it will be proper to alter the conviction of the accused from Section 307 I. P. C to one under Section 326 I.P.C., Further a sentence of four years' rigorous imprisonment will meet the ends of justice. The sentence of fine in view of the pecuniary position of the accused is uncalled for and need not be maintained.
16. I, therefore, partially accept this appeal, alter the conviction of the appellant to one under Section 326 I.P.C. and reduce the sentence to four years' rigorous imprisonment. The sentence of fine is set aside.