Case Note & Summary
The High Court of Judicature at Bombay heard a criminal appeal filed by the accused/appellant under Section 374 of the Code of Criminal Procedure, 1973, challenging the judgment and order dated 21.09.2021 passed by the Additional Sessions Judge, Malegaon in Sessions Case No. 26 of 2013. The trial court had convicted the accused under Section 307 of the Indian Penal Code, 1860, and sentenced him to rigorous imprisonment for 10 years and a fine of Rs. 10,000/-, with default simple imprisonment for 6 months. The accused was the original accused no. 1; two co-accused were acquitted by the trial court. The prosecution case was that on 12.11.2012 at 2.00 p.m. opposite Munna Auto Garage, Malegaon, the accused and two others caused injuries to Avinash Deore with a knife and attempted to cause his death. The FIR was lodged by the injured person's mother, Meena Deore, leading to registration of Crime No. 49 of 2012 with Camp Police Station, Malegaon for offences under Sections 307, 323, 504 read with Section 34 of the IPC. The injured was first taken to Civil Hospital, Malegaon, and later shifted to a private hospital; the medical officer certified injuries dangerous to life. The investigating officer recorded statements, conducted scene of offence panchanama, arrested the accused, seized clothes, and recovered a kitchen knife pursuant to the accused's disclosure statement. After investigation, a chargesheet was filed, the case was committed to Sessions, and a charge was framed against the accused and co-accused for the same offences. The accused pleaded not guilty and claimed trial. The prosecution examined seven witnesses. None except the investigating officer supported the prosecution case. The complainant mother (PW1) stated she did not know who assaulted her son and denied that she had lodged the complaint against the accused. The injured (PW2) stated that the accused and his two friends came to the spot and there was an altercation between the groups, resulting in injuries, but he did not know the cause of injuries. He also admitted in cross-examination that he did not know the boys who came to the spot. The panch witness (PW3) denied the recovery panchanama, and other eyewitnesses (PW4-PW6) denied knowing anything about the incident or the accused. The investigating officer (PW7) narrated the formal steps taken during investigation. The trial court convicted the accused relying on parts of PW2's testimony, the scene of offence panchanama, and injury certificates, holding that the evidence of a hostile witness cannot be discarded in toto and that the judicial officer has to drag truth from it. On appeal, the High Court noted that none of the witnesses, including the injured, supported the prosecution case. The prosecution did not treat PW2 as hostile nor seek permission under Section 154 of the Indian Evidence Act to cross-examine him. The High Court observed that the evidence of PW2 as relied upon by the prosecution only established that on the relevant date the accused and his friends came to the spot, there was an altercation, and the injured sustained injuries, but it did not prove that the accused caused the injuries. The spot panchanama and injury certificates only proved the incident location and injuries, not the identity of the assailant. Therefore, the High Court held that the trial court's reasoning was perverse and the conviction under Section 307 IPC was not sustainable. The appeal was allowed, the conviction and sentence were set aside, and the accused was acquitted.
Headnote
A) Criminal Law - Attempt to Murder - Conviction Based on Hostile Witness - Indian Penal Code, 1860, Section 307 - The trial court convicted the accused under Section 307 IPC relying solely on evidence of the injured witness who did not support the prosecution case. The High Court held that none of the witnesses, including the injured, supported the prosecution, and the trial court erred in selectively relying on part of the hostile witness's testimony to hold the accused guilty. Held that the conviction was unsustainable on such evidence (Paras 13-16). B) Evidence Law - Hostile Witness - Prosecution Failure to Cross-Examine Own Witness - Indian Evidence Act, 1872, Section 154 - The prosecution did not declare the injured witness hostile or seek permission from the court to cross-examine him under Section 154 of the Indian Evidence Act. The High Court observed that without such permission and cross-examination, the witness's testimony could not be used to prove the accused's guilt. Held that the trial court could not 'drag truth' from the witness without following the prescribed procedure (Para 16). C) Criminal Trial - Appreciation of Evidence - Corroborative Value of Spot Panchanama and Medical Certificates - Indian Evidence Act, 1872, Section 154 read with Indian Penal Code, 1860, Section 307 - The trial court relied on the spot panchanama and injury certificates as corroborating the injured witness's testimony. The High Court held that these documents only proved the occurrence of the incident and the injuries but did not establish the identity of the assailant. Held that such evidence could not corroborate the hostile witness's testimony to prove the accused's guilt (Paras 15-16). D) Criminal Procedure - Appeal Against Conviction - Scope of Appellate Interference - Code of Criminal Procedure, 1973, Section 374 - The accused filed an appeal under Section 374 CrPC challenging the conviction. The High Court found the trial court's reasoning perverse and based on no legal evidence. Held that the conviction was liable to be set aside and the accused acquitted (Paras 13-16).
Issue of Consideration
Whether the trial court erred in convicting the accused under Section 307 IPC based on evidence of injured witness who turned hostile and was not cross-examined by prosecution under Section 154 of Indian Evidence Act; whether prosecution proved attempted murder beyond reasonable doubt.
Final Decision
The High Court allowed the appeal, set aside the conviction and sentence imposed by the trial court, and acquitted the accused of the offence under Section 307 of the Indian Penal Code, 1860.
Law Points
- Conviction cannot be based solely on evidence of a prosecution witness who has not supported the prosecution case and has not been declared hostile under Section 154 of Evidence Act
- evidence of hostile witness cannot be selectively relied upon without permission to cross-examine
- medical and spot panchanama evidence can prove injury and incident but not identity of assailant absent credible testimony
