Conviction can be based on evidence of witness who has been cross-examined by the party relying upon it, if it finds corroboration & credit of witness remains unshaken: Delhi HC upholds conviction of man booked for culpable homicide attempt
Justice Anoop Kumar Mendiratta [15-01-2024]

Read Order: SURAJ v. STATE (NCT OF DELHI) (CRL.A. 1073/2023-DEL HC)

LE Correspondent

New Delhi, January 18, 2024:Considering the fact that the appellant-accused held a grudge against the complainant over the relations with his ex-girlfriend and the injuries were inflicted upon the complainant with avowed object or knowledge to cause death by causing several injuries with stones, the Delhi High Court has upheld the conviction u/s 308 IPC.

The facts of the case suggested that on 22.08.2021, injured Arjun (PW- 2) received a call from appellant Suraj to meet him. When Arjun reached at the spot along with his friend/neighbour Sunny (PW-1/complainant), he was confronted by appellant on the issue of Arjun having proximity with his ex-girlfriend namely Monika. Arjun was further assaulted by appellant who was joined by two- three other associates including Robin.

As Sunny raised alarm, appellant along with other co-accused fled from the spot. Arjun was removed to Dr.BSA Hospital, from wherein he was referred to Safdarjung Hospital. The information regarding the incident was reported to the police telephonically on the next day by sister of the injured (Neha/PW-5). The Appellant and the Co-accused Robin were arrested and charges were framed against them for the offences punishable under Section 308/34 IPC.

The appellant approached the Delhi High Court challenging the judgment whereby the appellant had been convicted under Section 308 IPC.

It was the appellant’s case that the findings of the Trial Court were based on surmises and conjectures since PW-1 Sunny (complainant) who is alleged to have been present at the spot did not support the case of the prosecution and was declared hostile.It was also urged that PW-4 Subhash, father of injured did not support the prosecution version and resiled from his statement under Section 161 Cr.P.C. qua role of co-accused Robin.The conviction of the appellant on the basis of testimony of solitary witness (injured) was stated to be bad in law.

The single-judge Bench of Justice Anoop Kumar Mendiratta was of the view that the Sessions Judge rightly inferred that from 06.47 PM on 23.08.2021 after receiving the information till preparation of rukka on the same day, the IO had spent 4-5 hours in the initial investigation of the case, collecting the MLCs and, consequently, the FIR could be registered only on 24.08.2021 at 12.21 AM. It was also noticed that day of occurrence was during peak of Covid pandemic, due to which there was possibility of no police personnel being on duty in the Hospital at the time of admission as revealed from MLC.

“As such, the delay in registration of FIR appears to have been satisfactorily explained by the prosecution and there does not appear to be any circumstances whereby the FIR may be considered to have been lodged as an afterthought and deliberations. The veracity cannot be doubted merely on account to delay in registration of FIR, in the facts and circumstances of the case”, the Bench held.

The High Court explained that the oral evidence may be either (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. It is well settled that accused can be convicted even on the sole testimony of a witness if it is wholly reliable. However, where the witness does not partly support the case of the prosecution qua the role of the co-accused or any other fact and is cross-examined on behalf of the prosecution, the same does not result in automatic rejection of his evidence, the Bench opined.

Referring toSection 154 of the Indian Evidence Act, 1872which provides that the Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse partyand sub-section 2 does not disentitle the person so permitted to rely on any part of the evidence of such witness.

“The evidence of a witness who has been cross-examined by the party relying upon it can be taken into account and conviction can be based, if it finds corroboration, and the credit of the witness has not been shaken, when taken as a whole. However, if the complete testimony of a witness is impugned and the witness squarely stands discredited, as a matter of prudence, the evidence should be discarded in toto”, the Bench observed while relying upon Sat Paul v. Delhi Admn., [LQ/SC/1975/379] .

The Bench observed that the testimony of PW-1 to the extent that he had accompanied PW-2 Arjun to the spot wherein the appellant was already present, could not be dented. Also, the fact that PW-1 fled from the spot since the appellant was in possession of a knife and as three-four associates of appellant followed, could be taken note of.

During cross-examination except on the point of presence and participation of co-accused Robin, testimony of PW-2 remained consistent. No material contradictions were brought in the short cross-examination on behalf of the appellant. It was opined by the High Court that merely because carrying of knife by the appellant was not mentioned by PW-2 in his statement, it couldn’t be a ground to disbelieve the testimony of PW-2.

“Minor alterations are bound to be there in a natural testimony on account of lapse of time and may have been missed to be disclosed at the time of recording of statement under Section 161 Cr.P.C. Non-seizure of stones or weapon of offence cannot be detrimental to the prosecution case as the injured was assaulted after covering his head with blanket”, the Bench held while adding that the non-seizure of the clothes of PW-2 by the investigating agency seemed inconsequential since the nature of injuries remained undisputed on record as proved in the MLC.

Further stating that the prosecution version cannot be doubted merely on the ground that no independent witness from public was joined in the investigation, the Bench opined, “It needs to be kept in perspective that minor discrepancies, infirmities and deficiencies unless they impact the root of the case and render the testimony unworthy of belief, cannot be given much credence as they may occur on account of errors of memory due to lapse of time.”

It was also observed that the testimony of PW-2 Arjun on the point of assault by the appellant could not be dented and there was no reason to falsely implicate the appellant. The motive of assault by appellant was apparently over relationship of PW-2 with Monika. The intention, knowledge and motive were writ large on the face of record and the assault was premeditated, since the victim was telephonically called at the place of occurrence and thereafter mercilessly assaulted.

Referring to Vadivelu Thevar v. The State of Madras, [LQ/SC/1957/42], the Bench said, “It is well settled that conviction can be based on solitary testimony of a credible witness though uncorroborated. The Courts should not insist on corroboration except in the cases where the nature of the testimony of the single witness itself requires as a rule of prudence that corroboration should be insisted upon like in case of a witness of an accomplice or of an analogous character.”

The Bench noticed that the assault was premeditated and there was clear evidence on record that accused/appellant held a grudge against the complainant over the relations with his ex-girlfriend Monika. After a failed attempt to cause harm with the stab blow, the injuries were inflicted with avowed object or knowledge to cause death by causing several injuries on the parietal region, which is a vital part of the body with stones. The offence fell within the ambit of Section 308 IPC.

The  convict in the present case was also involved in other offences. Thus, considering the grievous nature of offence, the Bench dismissed the appeal and held that the Trial Court had appropriately sentenced the appellant with rigorous imprisonment for three years and payment of fine of Rs10,000.