Full Judgment
A. Pasayat, J.
1. Petitioner calls in question legality of his conviction under Section 325 of the Indian Penal Code, 1860 (in short, IPC) and sentence of six months rigorous imprisonment as awarded by the learned Subdivisional Judicial Magistrate, Kuchinda (in short, 'SDJM' ) and confirmed in appeal by the learned Additional Sessions Judge, Sambalpur.
2. Background facts are as follows:
On 15-3-1988 in the evening petitioner (hereinafter referred to as the 'accused') went to the house of Ram Prasad Khadia (P.W.1) and demanded money, taken as advance for supply of broom sticks from his mother, Raibani Khadia (P.W.4). She replied that articles had been supplied already. Accused was enraged at this reply and abused her in filthy language. At this juncture Sri Bachha Khadia (P.W.7) arrived and tried' to intervene. The accused dealt a blow with bamboo stick which he was holding, on Sri Bachha's head which resulted in bleeding injury on his left eye. The injury was very serious in nature and virtually led to loss of eye-sight. The assault was witnessed by the informant (P.W.1), Subarna Khadia (P.W.2) and Jogendranath Pradhan (P.W.5). One Mangulu Munda, who was accompanying the accused was also alleged to be responsible for the crime. Information was lodged at Madhupali Police Station by P.W.1; upon which investigation was undertaken. On completion of investigation, charge-sheet was submitted. Both accused and Mangulu Munda faced trial for commission of offences punishable under Sections 323, 326, 294 read with Section 34, IPC.
3. Both accused and Mangulu pleaded innocence and a plea was taken that the injury sustained by the injured was on account of a fall.
4. On consideration of evidence on record, learned SDJM held that no case was established against Mangulu, but found the accused-petitioner guilty of an offence punishable under Section 325, IPC, and convicted and sentenced him as aforesaid. In appeal no relief was granted to the petitioner.
5. Legality of Judgment of courts below were assailed by Mr. S.K. Misra on following grounds, which according to him rendered prosecution version suspect.
(i) Close relationship of the prosecution witnesses with the injured;
(ii) Discrepancy in evidence about part of body where assault was made; and
(iii) Desirability to hold the petitioner guilty after acquittal of co-accused on the same set of evidence.
Alternatively, it is submitted that the petitioner has already undergone custodial sentence for more than two months, and considering the background in which the occurrence took place and the state of society to which the petitioner belongs there should be reduction in sentence. The learned Counsel for State supported the judgments of conviction and sentence.
6. There can be no sweeping generalisation regarding acceptability of evidence of a witness who is related to a victim. When feelings run high and there is personal cause for enmity there is likelihood to drag in an innocent person, against whom a witness has a grudge along with the guilty. But, foundation must be laid for such a criticism and the mere fact of relationship far from being foundation for falsehood is often a sure guarantee of truth. Each case must be judged on its own merits. The close relatives of a victim are likely to be most reluctant to spare the real assailant and falsely involve another person in place of the assailant. Relationship is not sufficient to suspect credibility, specially when presence on the spot is corroborated by other witnesses. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Like any other evidence, a relative's evidence is to be tested in the crucible of credibility and cogency. Desirability of the testimony being subjected to close and severe scrutiny arises when it is shown that there was likelihood of an attempt to falsely implicate an accused.
7. Considered in the above background, courts below have not committed any mistake in placing reliance on the evidence of relatives. Apart from that, there is unshaken testimony of the injured himself. There is not even a whisper or suggestion that either he or other witnesses had any animosity with the accused so as to provide a foundation for falsehood.
8. So far as part of body on which assault took place is concerned, the evidence of the doctor and that of the injured clearly shows that the injury was on the upper eye lid of left eye. Additionally evidence of P.W.4, the mother is there. No doubt there is some confusion on the part of P.Ws. 1 and 2, about location of the injury. The evidence of injured and his mother leaves no manner of doubt about location of injury. In that view of the matter, slight discrepancy about the place of assault in the evidence of P.Ws.1 and 2, does not affect credibility of the prosecution version.
9. So far as the effect of acquittal of co-accused on the basis of some set of evidence is concerned, it is trite law that merely because some co-accused has been acquitted that per se cannot be a ground for holding that prosecution version is tainted. If the said version is supported by cogent and credible evidence, so far any accused is concerned, there is nothing wrong in holding that person guilty, while acquitting his co-accused. The evidence may be deficient so far as co-accused is concerned. But that cannot justify a conclusion that prosecution has not come with clean hands to render its version improbable and incredible. Truth is to be separated from falsehood. It is only where they are so intermingled as to render the separation impossible, prosecution version is to be discarded. That is not the case here.
10. Coming to the alternative plea regarding sentence, I find that the occurrence took place six years back, and considering the social strata to which the parties belong, and genesis of dispute, Custodial sentence for the period already undergone would meet the ends of justice.
The revision application is accordingly disposed of.