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PETITIONER: KOLI LAKHMANBHAI CHANABHAI

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT:       16/11/1999

BENCH: M.B.Shah, G.B.Pattanaik

JUDGMENT:

     Shah, J.

     This  appeal  is filed against the judgment and  order dated  February 21, 1997 in Criminal Appeal No.  395 of 1985 passed by the High Court of Gujarat whereby the Court partly allowed  the appeal of the State and set aside the  judgment and  order dated January 31, 1985 rendered in Sessions  Case No.85/84  by the Addl.  Sessions Judge, Junagadh  acquitting the  appellant and convicted him for the offence  punishable under Section 302 IPC and imposed sentenced for life.

     It is the prosecution story that original accused No.1 approached  the  father  of  PW2 Bhana  Puna  for  rendering assistance  for  construction  of   house  at  Una  district Junagadh.   Father  of PW2 gave some amount, which  resulted into  close relationship between two families.   Thereafter, deceased  Naran Puna had gone to Bombay for further  studies in the year 1974 and stayed with the family of accused No.1. It is alleged that accused No.1 was having five to six wives and  Narmada  was one of them with whom  deceased  developed some  relations;  Hence deceased was thrashed by the accused and  thereafter at the request of PW2 he was permitted to go to   Una.   Subsequently,  accused   No.1  (father  of   the appellant) and appellant (accused no.2) hatched a conspiracy at  Bombay that the deceased Naran Puna, younger brother  of PW2   be  done  to  death  on  account  of   misconduct   or misbehaviour  of deceased with the wife of accused No.1.  In the  present  appeal,  we are not required to  consider  the evidence  relating  to the said part of the incident as  the incident in question had taken place after ten year, on 17th July, 1984 between 3.00 to 4.00 p.m.  on Una - Veraval road. It  is  the prosecution version that accused No.2  inflicted several  knife  blows on deceased, Naran Puna on account  of enmity  and ill-will of accused no.1 with the deceased.  PW2 Bhana  Puna,  brother  of  the deceased on  receipt  of  the information at about 3.30 p.m.  that his brother was done to death  near  the  farm of Jaigurudev, rushed to  that  place where  he  found several persons among whom PW7 Babu  Govind and  PW11 Bhagwan Jana were present.  On inquiry, he  learnt that  Laxman  Channa  (appellant) had  committed  murder  of deceased  Naran.  He thereafter lodged FIR at 5.00 p.m.   at Una  Police  Station.  After completing  the  investigation, appellant  was  charged  with the offence  punishable  under

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section  302 IPC and original accused no.1 was charged  with the  offence punishable under section 302 read with  section 109  IPC and both of them were also charged with the offence punishable  under  section  120-B IPC.   The  learned  Addl. Sessions  Judge after recording the evidence of  prosecution witnesses  and  on appraisal and assessment thereof came  to the conclusion that the prosecution case was not established beyond  reasonable doubt, hence he acquitted the accused  by giving  benefit  of doubt.  Against that judgment and  order the  appeal filed by the State Government was partly allowed and  appellant was convicted as stated above.  That order is challenged in this appeal.

     At the time of hearing of this appeal, learned counsel for  the  appellant  submitted that Addl.   Sessions  Judge, Junagadh  has rightly given benefit of doubt to the  accused as  the  so-called  eyewitnesses   have  not  supported  the prosecution  version.   He has also submitted that the  High Court  erroneously  relied  upon the evidence of  PW7,  Babu Govind, who had been treated hostile by the prosecution, for arriving  at  the conclusion that appellant was seen by  him giving  the knife blows to the deceased.  He also  contended that  the incriminating evidence which is relied upon by the prosecution  for recovery of blood stained knife and clothes of the accused, could not be relied upon because the panchas have  not  supported  the said recovery.  As  against  this, learned  counsel for the respondent submitted that the  High Court  has scanned the entire evidence in proper perspective and,  therefore,  the judgment and order passed by the  High Court does not call for any interference.

     The  High Court, in our view, has rightly relied  upon some  part of the evidence of a hostile witness.  P.W.7  has not supported the prosecution story in its entirety.  He has stated before the Court that two persons were quarrelling at the  scene of incident and one of them was accused no.2, who was having a knife with him at the time of incident;  In his deposition,  he had identified the appellant as the  persons giving  knife blow on the deceased.  He has also stated that the  person  who was causing injury with knife  was  accused no.2.   His  evidence also establishes the prosecution  case with  regard to the time, place and weapon of offence  being knife  and  also that person having knife was accused  no.2. Some part of his evidence is corroborated by P.Ws 11 and 12. It has come on record that PW7 had immediately informed PW11 Bhagwan Jina and PW12 Nanu Bhima about the incident that two persons  were  fighting  near the Jaigurudev  Farm  and  one person  was having knife in his hand and that he has already inflicted  one blow.  PW12 has also further stated that  PW7 Babu  Govind  had informed that Laxman Chana  had  inflicted knife  blow.  This witness was cross-examined in detail with regard  to  this aspect but nothing could be found out  from the  cross-  examination.   On the basis  of  the  aforesaid information  P.W.   2 lodged the FIR at 5.00  p.m.   Accused no.2   (appellant)   was  arrested   and  from  his   person extensively  blood  stained  bush-shirt,  banian  and  other clothes  were seized.  Bush-shirt and banian contained human blood A group, which was blood group of the deceased.  The Investigating  Officer had prepared the seizure panchnama of the clothes and of the arrest of accused.  Further, the High Court  has  rightly  relied upon the discovery  of  Muddamal knife  at  the instance of the appellant, which  was  hidden beneath  ashes  of  the  fire place in the  kitchen  of  the appellant.   The said knife also contained blood having  A group.   For that purpose the High Court has relied upon the

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panch  witness  PW20,  Bhika  Lakhman, who  was  working  as Electric Supervisor in Una sugar factory.

     From the aforesaid evidence on record, in our view, it cannot  be  said that the High Court erred in  relying  upon some   portion   of  the  evidence  of  P.W.   7   who   was cross-examined  by the prosecution.  It is settled law  that evidence  of hostile witness also can be relied upon to  the extent  to  which  it   supports  the  prosecution  version. Evidence of such witness cannot be treated as washed off the record.   It remains admissible in the trial and there is no legal  bar  to  base his conviction upon  his  testimony  if corroborated  by other reliable evidence [Re:  Bhagwan Singh v.  State of Haryana (1976) 1 SCC 389 and Sat Paul v.  Delhi Administration  (1976)  1  SCC 727].  In the  present  case, apart  from  the evidence of P.W.7, the prosecution  version that  he saw that appellant was having knife in his hand and was quarreling with the deceased gets corroboration from the evidence of P.Ws 11 and 12 to whom he disclosed the incident immediately.   On the basis of the said information,  within one  hour,  FIR  was  lodged  disclosing  the  name  of  the appellant  as  the person who has inflicted the knife  blow. Number  of  incised wounds are found as per  the  Postmortem report.   The prosecution version gets further corroboration from  discovery  of  Muddamal knife containing  human  blood Group  A.   Further the bush-shirt and baniyan which  were put  on  by the accused at the time of incident were  having extensive  blood  stains  which were also  found  containing human  blood group A.  Learned counsel for the  appellant, however,  contended that accused is also having blood  Group A  and  that he was having injury on the thigh as per  the evidence  of the Doctor.  In our view, there is no substance in  his contention because as per the medical evidence,  the injuries  caused to the accused were minor and that  because of  such injuries, there would not be extensive  bloodstains on the bush-shirt and baniyan put on by the accused.  In his 313  statement  also, accused has not explained how  he  got bloodstains  on his bush-shirt and baniyan.  He has also not denied  the recovery of the said bush-shirt and baniyan from his person at the time of his arrest.

     Hence,  considering  the  above   stated  evidence  on record,  it  cannot  be said that High Court  committed  any error in convicting the appellant for the offence punishable under Section 302 IPC.

     In the result, the appeal is dismissed.