Allahabad High Court
State Of U.P. vs Sanjay Mishra on 19 July, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 12 Case :- GOVERNMENT APPEAL No. - 1000205 of 2017 Appellant :- State of U.P. Respondent :- Sanjay Mishra Counsel for Appellant :- Govt. Advocate Hon'ble Mohd. Faiz Alam Khan,J.
Heard learned AGA for the State and perused the record.
The instant application under Section 378(3) of Cr.P.C. has been moved on behalf of the State to grant leave to appeal against the judgment and order dated 24.3.2017 passed by the Additional District and Sessions Judge, Court No.1, Barabanki in Sessions Trial No. 240/2011 State Vs. Sanjay Mishra arising out of Case Crime No. 1498 of 2008, under Sections 308, 323, 452 IPC, Police Station Kotwali Nagar, District Barabanki, whereby the opposite party/ accused- Sanjay Mishra was acquitted of all the charges.
Brief facts necessary for disposal of this application are that a written application was moved by the informant Malti Tiwari before the S.H.O. Police Station Kotwali Nagar, District Barabanki alleging therein that on 28.11.2008 at about 10.30 P.M. in the night the neighbour of informant Sanjay Mishra (accused) had come to her house for taking tea-leaves and when she refused he assaulted her with fists and kicks whereby she sustained injury on her head and became unconscious. Her necklace and earring was also missing and she is having suspicion that accused has taken the same. Charge sheet against the accused was filed under Sections 308, 323, 452 IPC and the charges were also framed by the trial court under Sections 308, 323, 452 IPC. the accused had denied the charges and claimed trial. The prosecution in order to prove its case had produced P.W.1 Dr. V.K. Srivastava, P.W. 2- Constable Clerk Waliullah Khan, P.W. 3- Investigating Officer- Shyam Babu Shukla and P.W.4- Malti Tiwari (informant/ injured).
In the documentary evidence the prosecution has produced Ext. Ka-1 Medical/ injury report Ext. Ka-2 Chick FIR, Ext. Ka-3 Tahrir, Ext. Ka-4 Qayami G.D., Ext. Ka-5 Letter to Superintendent of Police, Ext. Ka-6 Site Plan and Ext. Ka-7 charge sheet.
The trial court after conclusion of the prosecution evidence has recorded the statement of the accused under Section 313 of the Cr.P.C. wherein the accused person has denied the evidence of the prosecution and further stated that he has been made an accused only on account of enmity. He, however, refused to produce any defence witness. The trial court after taking into consideration the oral and documentary evidence produced by the prosecution acquitted the accused person of the charges framed against him under Sections 308, 323, 452 IPC.
Aggrieved by this judgement and order of acquittal passed by the trial court, this instant appeal along with an application to grant leave has been preferred by the State.
Learned AGA while pressing the application for grant of leave to file criminal appeal has submitted that court below has committed material illegality in appreciating the evidence available on record and has not taken into consideration the evidence available on record in right perspective and thus has committed material illegality.
It is also submitted that so much so the trial court had disbelieved the statement of the informant who was also injured and the injuries sustained by her were also corroborated by the statement of the doctor, namely, V. K. Srivastava and thus the trial court has unnecessarily tilted towards the accused person while it was the duty of the trial court to appreciate the evidence available on record having regard to the settled principles of appreciation of evidence.
It is also submitted that the trial court has also not considered that the offence of Section 452 IPC is also made out from the record and evidence but did not consider the testimony of the informant in right perspective and has given benefit of doubt to the accused person on surmises and conjectures.
Having heard learned counsel for the parties and having perused the judgement of the trial court as well as the record, it is transpired that the trial court has acquitted the accused person of the charges framed against him on the ground that having regard to the evidence of the prosecutrix the incident is alleged to have taken place near the gate of the lawn which is also proved by the site plan prepared by the Investigating Officer and thus the offence of Section 452 IPC is not proved. The trial court after considering and appreciating the evidence of P.W.4- Malti Tiwari and by noticing certain portions of her statement as not reliable had come to a conclusion that the witness is not truthful.
The trial court has also acquitted the accused person on the ground hat the informant had categorically stated that at the time of incident Kiran Dubey and Sarla had come at the scene of the crime but none of the independent witness has been presented and also that during the course of cross-examination the informant / injured has also stated to have not presented the X-ray report of P.W.4- Malti Tiwari and it is admitted by her that she had not undergone any X-ray and therefore there is no evidence with regard to the fracture allegedly sustained by P.W.4/ informant/ injured and also that there is no medical report with regard to the injuries sustained by her and thus the trial court was of the view that the prosecution has failed to prove its case beyond reasonable doubt.
I have very carefully scrutinized the evidence of the prosecution placed before the court below in the light of the settled principles pertaining to the appreciation of evidence and have found that in the first information report lodged by the informant- Malti Tiwari it has not been mentioned as to who has written this application while the informant / injured- Malti Tiwari has affixed her L.T.I. on the Tahrir on the basis of which first information report has been registered. Perusal of the record would also reveal that the medico legal examination report of the informant/ injured- Malti Tiwari was available on record, wherein three injuries of the nature to contused swelling over right side of the head and contusion over-left side of lower chest was noticed and complaint of pain all over abdomen was recorded. These injuries were kept under observation and were advised for x-ray. However, there is no x-ray report pertaining to these injures. Thus prima facie it appears that no x-ray report pertaining to any fracture sustained by the informant was placed on record and therefore the trial court has rightly held that there is no x-ray report with regard to the fracture sustained by the informant/ injured.
Perusal of the record would also suggest that the Investigating Officer has prepared the site plan of the place where the occurrence had taken place. P.W.4- Malti Tiwari at page no. 5 of her cross examination had admitted that when the accused person had arrived she was in her room. The main gate of the house was situated about 20 feet away from the room when the accused arrived at the main gate, it was closed and she had gone to the gate. The gate is adjacent to the lawn and the accused had asked her to open the door and the incident had happened there. The trial court having considered the statement of the informant / injured came to a conclusion that the incident as per the own version of the victim/ informant had happened outside the house, therefore Section 452 IPC is not attracted. Having regard to all the facts and circumstances of the case this conclusion of trial is based on the evidence available on record.
Now coming to acquittal of accused with regard to Sections 323 and 308 IPC the law with regard to the appreciation of evidence of the prosecution witness is well settled and is worth to recall that Section 134 of Evidence Act do not require any particular number of witnesses to prove any fact. Plurality of witnesses in a criminal trial is not the legislative intent, it is not the quantity but quality which matters. Therefore, if the testimony of a witness is found reliable on the touch stone of credibility, accused can be convicted on the basis of testimony of even single witness. This principle was highlighted in ''Vadivelu Thevar V/s state of Madras; AIR 1957 SC 614', wherein it is held by Hon,ble Apex Court that, "We have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid down that no particular witnesses shall in any case be required for the proof of any fact."
"The Indian Legislature has not insisted or laying any such exceptions to the general rule recognized in Section 134 quoted above. The Section enshrines the well recognized maxim that "Evidence has to be weighed and not counted." It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of single witness only could be available in proof of the crime, would go unpunished. It here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstance of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution."
"Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony."
Vadivelu Thevar case (supra) was referred to with approval in Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251). It was held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
In Lallu Manjhi vs. State of Jharkhand, AIR 2003 SC 854 Hon,ble Supreme Court held that "The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable, nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness."
In State of Gujarat vs J.P Varu reported in 2016 Cr.L.J 4185 (Supreme Court) it has been propounded by the Supreme Court that, the burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favorable to the accused should be adopted.
In AIR 2013 SUPREME COURT 3150, Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan Hon,ble Supreme Court held that "Suspicion, however grave it may be, cannot take place of proof and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
Keeping in view the above mentioned settled law, it is crystal clear that to secure conviction of the accused where the testimony of his single witness is being placed to prove the charge, the same has to be wholly reliable.
I have perused the evidence of P.W.4- Malti Tiwari in totality and have found that the same is full of material contradictions with regard to the genesis of the occurrence, also with regard to sustaining of injuries by her as well as with regard to lodging of the first information report as she has stated that various persons had arrived at the scene of the incident but had not produced even a single witness in support of her testimony. The medical report is not suggesting any fracture while she had stated that her ribs were broken. It is also not evident as to for what purpose the accused had come to her house. It is also reflecting that accused and injured- Malti Tiwari are neighbours. The law with regard to the proof in a criminal case is well settled that the prosecution is obliged to prove its case beyond all reasonable doubt and if there is any reasonable doubt the benefit of it is to be extended to the accused person.
Taking into account all the facts and evidence available on record, in the considered opinion of this Court no illegality or to say any irregularity appears to have been committed by the trial court in acquitting the accused person of the charges framed against him. Certainly the evidence of the sole witness of the prosecution Malti Tiwari could not be termed as wholly reliable. The presumption of innocence which was with the accused at the beginning of the trial has fortified by his acquittal therefore very strong grounds are required to show that the trial court has committed material illegality in appreciation of evidence. Simply the trial court has adopted probable view, it can not be said bad in law.
thus in the considered opinion of this court no illegality has been committed by the trial court in acquitting the accused person/opposite party- Sanjay Mishra, thus application moved by the State for grant of leave to appeal is hereby rejected.
Since the application for grant of leave to appeal is rejected, the appeal is consequently also rejected.
Order Date :- 19.7.2022 Muk