S.K. Kar, J.
1. This revision petition is directed against the judgment and order dated 31.5.1995 passed in Criminal Appeal No. 11/95 by learned Single Judge, Golaghat, affirming the judgment/order dated 6.3.1995 passed by CJM, Golaghat, in case No. G.R. 893/89. The present petitioner Shri Minaram Sonowal, who was the accused in this case, was convicted under Section 326 of IPC and sentenced to R.I. for six months together with a fine of Rs. 1,000 etc. On the accusations brought against him and accepted as proved.
2. The brief facts are as follows : On 24.6.1989 at 3.00 p.m. while Sri Gunja Phukan was talking to his friend Bipul Bora alias Chutia at tri-junction point (Tiniall) of Amuguri village, accused Minaram Sonwal (petitioner) alighting from a truck suddenly started striking on Gunja Phukan indiscriminately with a dager (khukuri) resulting in serious cut injuries to his person lading to his unconsciousness.
3. FIR being lodged police registered Merapani PS. Case No. 92/89, under Section 326 of IPC (Case No. G.R. 893/89), investigated the same and submitted charge-sheet. Charge was framed by the trial court under Section 326 IPC, explained to the petitioner/accused to which the petitioner pleaded not guilty and trial proceeded.
4. In course of trial 6 witnesses were examined including the doctor and the I.O. They are the informant, Guna Ram Phukan (P.W.-1), Bipual Bora alias Chutia (P.W.-2), Nenai Sonowal (P.W.-3), Gunja Phukan, the victim (P.W.-4), Shri Tankeswar Dutta the I.O. (P.W.-5) and Dr. Ruhini Kr. Deka, the medical expert (P.W.-6). The statements of accused (petitioner) under Section 313 Cr.P.C. was recorded. Written argument from defence was received and finally trial court passed the impugned judgment as stated before-hand without giving the petitioner any benefit of the Probation of Offenders Act, 1958, in view of the gravity of the assault etc.
5. Defence plea appears to be a case of denial simpliciter with submission that petitioner was implicated out of grudge and victim was in habit of quarrelling with village boys taking liquor and brandishing 'khukuri', (It is not correct to say that there was no recording of statements of the accused under Section 313 Cr.P.C. as mentioned in para 5 of the revision petition).
6. The petitioner contends that there was gross errors committed by the learned courts below and the learned appellate court without arriving to its own independent findings had simply affirmed the views of the trial court and ignored the fact that the witnesses claimed to be eye witnesses by the prosecution did not support the accusation against the petitioner.
7. It requires no reiteration that revisional court, in exercising power under Section 397 Cr.P.C. particularly when there is concurrent findings of the facts by the two courts below, can only examine the correctness, legality or propriety of any finding recorded or order passed etc. But then, the power under Section 397 Cr.P.C. is discretionary and higher courts step in only to cure, in exceptional cases, any miscarriage of justice. Court is not supposed to behave as an appellate court while exercising jurisdiction of revisionary power under Section 397 Cr.P.C. Bearing in mind the law aforesaid, let us examine the evidence on record in order to see whether there is any error, illegality or impropriety in the findings of the two courts below, particularly in appreciating the evidence on record.
8. The victim, P.W.-4 giving his age 20 years on the date of his deposition (4.7.1992) was around 17 years of age on the date of occurrence which is 24.6.1989. As per his evidence on the date of occurrence he was returning from sugarcane field at about 3 p.m. to his house. At Amuguri Tiniali he met Bipul Chutia (P.W.-2) and started talking to him. He felt blow of a khukuri on his head from back side and making a quick turn he noticed the petitioner and recognised him. He raised his right hand to ward off further assault but received the second blow on the right wrist causing injury. He started desperately to run away but the petitioner chased him and inflicted two other blow on the side of back and left arm as a result he fell down on the ground and lost senses. When he came to his senses he found himself admitted in Golaghat Civil Hospital. During his cross-examination by defence it was brought into record that the P.W.-4 had no knowledge whether there were other persons around the place of occurrence at the time of incident. He stated that he was riding bicycle at that time and that Bipul did not resist the assault. That previously his house was adjacent to the house of the accused/petitioner in the village where the incident took place. A judicial scrutiny of evidence given by P.W.-4 will show that there is absolutely no infirmity in his evidence and his credibility remained unshaken.
9. Now, coming to the question of corroboration of the evidence given by P.W.-4, there is appropriate support from medical evidence given by P.W.-6, the doctor. The doctor clearly found four incised wounds of different sizes and nature caused by sharp weapon while examining P.W.-4 at about 8.30 p.m. (night) on the date of occurrence, i.e., 24.6.1989 itself. Some contradictions here and there were brought by cross-examination of P.W.-6 which have nothing to do with the findings of facts as recorded by him during medical examination of the victim. The statement given by the doctor that the victim was examined on police requisition and that he did not record in his report the exact location of injuries will in no way belie his other statements. The learned courts below have rightly over-looked these minor inconsistencies in the evidence of the doctor. In support of this view one may refer (2002) 5 SCC 100, para 13 where Hon'ble Apex Court held :
'Discrepancies must be shown in respect of material particulars of the case - minor discrepancies are of no consequence.'
10. It requires no elucidation that evidence is to be weighed and not counted, or in other words, we assess the qualitative value of the evidence instead of quantitative value. Section 134 of Evidence Act clearly lays down the law that 'no particular number of witnesses shall in any case be required for proof of any fact'. If reliable, even an uncorroborated evidence can be the basis of conviction. In the present case, however, P.W.-4 has been partially corroborated by other witnesses examined by prosecution. Witness P.W.-2 has corroborated the incidental and consequential facts, albeit declared hostile to prosecution, by stating that he knows both the assailant and the victim and that about 2 years back (which approximates the date of occurrence) at about 4 p.m. in the afternoon the incident took place. He was proceeding with split-bamboo pieces for construction of a shop at Amguri-Tiniali when noticed there the victim lying with bleeding injuries. He lifted the victim on bicycle and thereafter on shoulder to the house of the victim and informed the members of the house about the incident and returned and he had no knowledge what happened thereafter. The law is well-settled that there is no reason to discard the evidence of the 'hostile' witness. A witness at any time may turn hostile to person calling him but that cannot be, per se, a ground to dislodge the prosecution cases. Justice cannot be left at the mercy or at the whim of a particular witness. The evidence given by any witness is to be scrutinised and sifted in its totality and not in isolation. If a witness called by the person is found later not supporting him the law gives him a right to declare him 'hostile' and put leading questions which is otherwise permissible only in course of cross-examination. This clearly indicative of the fact that the party calling the witness is given an opportunity by law to test his veracity and to show to the court, if possible, why he has declined at the later stage to support the prosecution case. Hon'ble Apex Court in this context opined as follows while dealing with case of hostile witness :
'Even in a criminal prosecution when a witness is cross-examined and contradicted with leave of the court by party calling him, his evidence cannot as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands thoroughly discredited or can still be believed in regard to part of his testimony. 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 the 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. If in a given case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited the judge should, as a matter of prudance, discard his evidence in toto.'
AIR 1976 SC 294 ; Sat Paul v. Delhi Administration.
11. In the instant case as per statement of P.W.-2, the victim, assailant and himself were originally from the same village at time of incident but now victim is a resident of a different village at a little distance apart. There is thus a possibility of his giving a second thought in so far giving support to the case for the prosecution. Justice is not supposed to suffer at the hands of persons who change their minds at a later stage when trial takes place. The filing of the FIR was proved by deposition of P.W.-1 and contents of the FIR have full support from the evidence of P.W.-4. Oral testimony of P.W.-4 with proof of circumstances by other P.Ws is sufficient to prove the guilt here.
12. Coming to the question of delay in lodging of the FIR, it was stated by P.W.-5 the investigating officer of this case that the FIR was lodged at 11.30 A.M. (day) on 25.6.1989. Evidence of P.W.-1 to that effect is that he was informed about the injury sustained by his brother and he came and found his brother lying in unconscious condition in his house with injuries on his head, hands and back and his wife told that P.W.-2 left the injured victim and informed her that the accused Minaram assaulted the victim with a dao (chopper). P.W.-1 further states that he took the victim with the help of a other person and got admitted in the Golaghat Civil Hospital where the victim regained his senses at about 11.30 p.m. and on regaining his senses he told that the accused (Minaram) inflicted the injuries on him and thereafter he lodged the FIR (Ext.1). During his cross-examination no question was put to him connecting the question of delay, practically in spite of the cross-examination the evidence of P.W.-1 remained steady and firm. Evidence of P.W.-1 and P.W.-5 had clearly explained the delay in this case and there is nothing to agitate this matter now.
13. Concluding, it can be safely said that an overall assessment of a evidence adduced in this case will show that there is absolutely no infirmities in the statements of witnesses, save and except the fact that P.Ws.-2 and 3 have withheld a portion of their statements given before the I.O. earlier during the course of investigation. This omissions on the part of P.Ws 2/3, amounting to contradictions, have nothing to do with the question of their partial reliability as a credible witnesses. The other part of their evidence can safely be relied upon. Law is well-settled to that effect that a witness can be partly believed and partly disbelieved. It was held by Hon'ble Apex Court again in this context as below :
'Generally speaking oral testimony may be classified into three categories, namely, (1) wholly reliable, (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable.'
Marwadi Kishor Parmand v. State of Gujarat, 1994 IJR 191.
In this case P.W.-2 is a partly reliable one coming under third category. Any question of discarding such evidence would be a case of misconception and evidence cannot be discarded only on ground of hostility, if otherwise the witness is credible. I find both the courts below otherwise have quite ably discussed the evidence to arrive at a logical conclusion of facts. Evidence of doctor P.W.-6 reasonably agrees with the nature of injuries sustained. P.W.-4 stated he sustained four injuries on head, wrist, side of chest and left arm. P.W.-6 found all these injuries. It is worth remembering here that the defence has no version of its own save and except denial. It will be again, at the risk of repetition, to note that P.W.-2 has categorically stated that earlier at the time of incident he, the accused and the victim P.W.-4 were inhabitants of the same village and now the accused and he has remained in the same village but the victim has shifted to a different village to earn better livelihood. There is clear statement from in the deposition of I.O., P.W.-5 as follows :-
'Injured was treated at Golaghat Civil Hospital by the informant before-hand. Later on the statement of the injured was recorded and collecting medical report and chargesheet was submitted.'
Therefore, I.O. very categorically stated that there was no scope of police requisition for medical examination of the victim and the statement of doctor that he examined the victim on police requisition will have to be treated as made by inadvertance.
14. Be that as it may, after making my scrutiny and going very carefully and cautiously through the depositions recorded by the trail court, I find absolutely no infirmities. The evidence of P.W.-3 who was present at the place of occurrence, though declared hostile, will have little impact to disturb the otherwise logical conclusion arrived on the basis of evidence of P.Ws. 1, 4, 5 and 6. It will be important to note that in closing part of his deposition P.W.-3 stated that police has not recorded his statement and in his evidence P.W.-3 has claimed that he appeared at the place of occurrence at about 5 p.m. (occurrence at 3.00 p.m.) and could learn from 10 to 15 persons assembled there that some one inflicted dager blows on a person and thereafter he left the place of occurrence. So, P.W.-3 also stated that there was an occurrence of assault on a victim, though not named the victim. Concluding, it will be said that findings of courts below are based on acceptable evidence.
15. I find the objections raised in this petition are casual type without any material support from materials on the case record. It is not appropriate to say, as contended by petitioner, that the learned Session Judge did not apply his judicial mind in scrutinising the evidence afresh as the appellate court should do. It is very unfortunate that in the petition at para 5 it has been stated incorrectly, if not purposefully, that in course of entire trial the trial court did not record the statements of the petitioner/accused under Section 313 Cr.P.C. Even if it is accepted that a wrong view of law was expressed by trial court while discussing evidence of P.Ws 2 and 3 that, by itself, will not bring any infirmity in the judgment until and unless a case of perversity or prejudice is shown. Going through the judgments of the lower courts I find there is no such perversity and as such there is nothing to disturb the otherwise concurrent findings recorded by the two courts below by exercise of revisional powers.
16. The question of application of Probation of Offenders Act, under facts and circumstances of this case, was rightly refused by trial court as it was not seriously agitated also before trial court. The sentence, it appears is very lenient in view of the fact that the victim has stated on oath that he has been permanently disabled due to sustaining of the injuries and functioning of hand has been impaired.
17. In the result, there is no merit in the petition which stands rejected.
18. The earlier order of this court passed on 26.7.1995 in the connected Misc. Case No. 92/95 allowing bail to petitioner and suspending the sentence stands vacated with immediate effect. Sentence passed on the petitioner will be executed as per law.
19. Return the case records of lower courts without delay.