Allahabad High Court
Vijendra Singh And 3 Others vs State Of U.P. on 31 January, 2018
Author: Vijay Lakshmi
Bench: Bala Krishna Narayana, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- CRIMINAL APPEAL No. - 2353 of 2014 Appellant :- Vijendra Singh And 3 Others Respondent :- State Of U.P. Counsel for Appellant :- Ratan Singh,Narendra Kumar Singh Counsel for Respondent :- Govt. Advocate Hon'ble Bala Krishna Narayana,J.
Hon'ble Mrs. Vijay Lakshmi,J.
(Delivered by Hon'ble Mrs. Vijay Lakshmi,J.) This appeal is directed against the judgment and order dated 2.6.2014 passed by the Additional Sessions Judge, Court No. 1, Etah, in S.T. No. 920 of 2007, State Vs. Vijendra Singh and others, arising out of Case Crime No. 457 of 2007, u/s 148, 307/149, 302/149, 404 I.P.C., P.S. Jaithra, District Etah, connected with S.T. No. 919 of 2007, State Vs. Nimendra Singh, u/s 25 Arms Act, P.S. Jaithra, District Etah, S.T. No. 921 of 2007, State Vs. Sukhbir Singh, u/s 25 Arms Act, P.S. Jaithra, District Etah, S.T. No. 922 of 2007, State Vs. Dharmendra Singh, u/s 25 Arms Act, P.S. Jaithra, District Etah, and S.T. No. 923 of 2007, State Vs. Vijendra Singh, u/s 25 Arms Act, P.S. Jaithra, District Etah, whereby each of the appellants has been convicted for the offences u/s 148, 307/149, 302/149, 404 I.P.C. and has been sentenced u/s 148 I.P.C. for one year's imprisonment, u/s 302/149 I.P.C. for imprisonment for life with fine of Rs. 4000/-, in default of payment of fine, additional imprisonment of three months, u/s 307/149 I.P.C. imprisonment for a period of seven years with fine of Rs. 3000/-, in default of payment of fine, additional imprisonment of two months and u/s 404 I.P.C. for two years' imprisonment with fine of Rs. 1000/- and in default of payment of fine, additional imprisonment of one month. Each of the appellants has also been convicted u/s 25 Arms Act and has been sentenced with two years imprisonment with fine of Rs. 2000/-, in default of payment of fine, additional imprisonment of two months. All the sentences were directed to run concurrently.
Heard Sri Ratan Singh learned counsel for the appellants as well as Sri Saghir Ahmed and Sri J.K. Upadhyay, learned Additional Government Advocates and Sri Awadhesh Kumar Shukla, State Law Officer. Perused the record.
Shorn of unnecessary details, the facts in brief are that on 5.6.2007 at 2.05 P.M. a first information report was lodged at Police Station Jaithra, District Etah, to the effect that there was long drawn enmity between the family of the complainant and the family of appellant no. 1 Vijendra Singh due to the reason that about 1¼ years ago some unknown person had shot fire on Dharmendra, the son of the appellant Vijendra Singh, who had lodged a first information report against the brother and son of the complainant namely Ram Prakash and Sukhbir at Police Station Jaithra and a criminal case in pursuance of the said FIR was pending in the District Court, Etah, against the brother of the complainant i.e. Ram Prakash. On 5.6.2007, the date in the aforesaid case was fixed in District Court, Etah, and the first informant along with his brother Ram Prakash, who was an accused in the case, had gone to attend the court proceedings by his motorcycle. After attending the court, when they both were returning and had reached near the field of Indrapal at about 1.00 P.M. the appellants Vijendra Singh, Dharmendra, Sureshvir, Omvir, Nimendra, Sukhvir Singh and three unknown persons, who all, armed with deadly weapons, were waiting in ambush behind the grove of Shisham trees, suddenly came forward and surrounded them from all sides. Sureshvir was armed with his double barrel licensed gun and the others had country made pistols and Rifles with them. Seeing the accused surrounding from all the sides when Ram Prakash stopped his motorcycle, the accused started firing indiscriminately due to which Ram Prakash sustained several firearm injuries and died on the spot. The first informant somehow managed to escape and saved himself by running away from the spot. Accused Vijendra Singh instructed the other accused to snatch the chain, which the deceased was wearing and to take out the cash kept in his pocket. At that time villagers Gautam Singh and Veer Singh had also come to the spot and had witnessed the entire occurrence. A huge crowd of villagers had gathered at the spot. All of them tried to apprehend the accused, but the accused, putting them into fear by indiscriminate firing in the air, ran away towards western side. The dead body of the deceased was lying on the spot when the FIR was lodged.
On the basis of the aforesaid FIR, Case Crime No. 457 of 2007 was registered at P.S. Jaithra on the same day i.e. 5.6.2007 at 14.05 hours against six named and three unknown accused. Check report was prepared and the relevant entries were made in the general diary by the police.
On 9.6.2007 at 3.45 P.M. three accused namely Vijendra Singh, Dharmendra Singh and Nimendra Singh were arrested by the police and the police recovered one country made pistol with two live cartridges from each of them i.e. total three country made pistols and six live cartridges were recovered from them and three separate cases u/s 25A Arms Act were registered at Crime Nos. 462, 463 and 464 of 2007 respectively, against each of them and check FIRs were prepared.
On 29.6.2007 the accused Sukhvir Singh was taken on police remand and on his pointing out, a country made pistol of 315 bore was recovered by the police at 10.30 A.M. As per the recovery memo (Ex. Ka-15) the accused Sukhvir took out the aforesaid country made pistol, wrapped in a polythene bag, digging it out from mud and sand and he confessed that it was the same country made pistol from which he had killed the deceased Ram Prakash.
During investigation, the police recovered the blood stained and plain earth from the place of occurrence, eight empty cartridges were found by the police at the place of occurrence, which were taken into possession and recovery memo was prepared. A red coloured Bajaj Boxer motorbike, belonging to the accused Sukhbir Singh, was found lying on the road unclaimed, which was also taken into custody by the police. The motorcycle belonging to the deceased was also taken into custody and recovery memos of both the motorcycles were prepared.
Inquest on the dead body was conducted and thereafter it was sent for postmortem. During postmortem the following ante-mortem injuries were found on the body of the deceased by the doctor:-
1. Lacerated wound on the back side of head, size 1.5 cm x 1 cm x Scalp deep.
2. Lacerated wound on the back side of head, 3 cm x 1 cm x scalp deep.
3. Firearm wound of entry 1 cm x 1 cm x bone deep at the left side of the head. The bone under the wound was found fractured.
4. Abrasion 3 cm x 2 cm on the back side of chest.
5. Firearm wound of entry size 1 cm x 1 cm x cavity deep with inverted margins. Tattooing present.
6. Firearm wound of exit in front and left side of chest, size 1 cm x 0.5 cm x cavity deep. This injury was connected to injury no. 5 through and through.
7. Firearm wound of entry 1 cm x 1 cm x cavity deep with inverted margins on the front side of abdomen.
8. Firearm wound of exit on the left side of chest 1.5 cm x 1 cm x cavity deep. A bullet was seen stuck in the wound.
During post-mortem, the doctor recovered two bullets, one from brain and the other from chest of the deceased. Both were sent to forensic lab for obtaining ballistic expert report.
According to the doctor, the cause of death was shock and hemorrhage as a result of ante-mortem injuries.
The clothes of the deceased were sent to Forensic Lab, Agra, for chemical examination.
The investigating officer obtained sanction from the District Magistrate for prosecuting all the accused u/s 25 Arms Act, prepared site plan, recorded the statements of witnesses and after concluding investigation submitted charge sheet against the accused Vijendra Singh, Dharmendra Singh, Nimendra Singh and Sukhbir under sections 147, 148, 302 read with 149, 307 read with 149 and 404 I.P.C. As no cogent evidence was found by the investigating officer against two accused namely Sureshvir Singh and Omvir Singh, both were exonerated. Four separate charge-sheets under section 25 Arms Act were also submitted by the investigating officer against each of the appellant.
As the offences in which the applicants were charge-sheeted, were triable by the Court of Sessions, the cases were committed to the Court of Sessions where charges u/s 148, 307/149, 302/149 and 404 I.P.C. were framed against the accused appellants. Separate charges u/s 25 Arms Act were also framed against all the accused. All the accused denied from the charges and claimed their trial.
The prosecution in order to prove its case produced ten witnesses in all. The brief description of the witnesses produced by the prosecution is as follows:
PW1 is the first informant Tok Singh. PW2 is S.I. Narendra Singh, who was posted as S.H.O., P.S. Nayagaon. He is the third investigating officer of this case. PW3 is Constable Makkhan Lal, who was also posted at P.S. Jaithra at the time of the occurrence. He has prepared the check FIR and has made relevant entries in the general diary. PW4 is Dr. Ram Prakash Goyal, who has conducted postmortem of the deceased. PW5 is S.I. Ram Bahadur Sharma, who was posted as S.H.O., P.S. Jaithra. He is the first investigating officer of this case. PW6 is Constable Mahesh Singh, who was one of the members of the police team, arresting the three accused Vijendra Singh, Dharmendra Singh and Nimendra Singh and recovering the country made pistols and live cartridges from them. PW7 is Ex. C.P. Raj Bahadur Singh, who was also one of the members of the police team, having apprehended the accused on 9.6.2007. PW8 is S.I. Virendra Singh. He is the second investigating officer of this case. PW9 is Constable Makkhan Lal, who has prepared the check FIRs of all the three cases, registered as Crime Nos. 462, 463 and 464 of 2007, u/s 25 Arms Act, and PW10 is S.I. Raj Bahadur Singh, who was leading the police team, which had apprehended the accused Vikram Singh, Dharmendra Singh and Nimendra Singh on 9.6.2007 and had recovered country made pistols and live cartridges from them.
Apart from the aforesaid oral evidence the prosecution has produced several documentary evidence like written reports, check FIRs, inquest report, site plan, memo of blood stained and plain earth, recovery memos of empty cartridges, motorcycles, country made pistols, reports of Vidhi Vigyan Prayogshala, charge-sheets, sanction orders of District Magistrate. All these documents have been duly proved and marked as exhibits during the trial.
After conclusion of the prosecution evidence the statements of the appellants were recorded u/s 313 Cr.P.C. in which they denied from the allegations and stated that false and planted recovery is shown to have been made from them. In fact nothing was recovered from their possession and they are innocent. They have also stated that the FIR in this case is ante-time and the witnesses have deposed against them due to enmity.
In defence the accused/ appellant produced five witnesses. A brief description of which is as follows:
The scribe of the written report Pinku has been produced as DW1 by the accused, who has stated that he had heard about the body of deceased Ram Prakash being brought at the police station and had gone there, Daroga Ji R. B. Sharma had called him and asked him to write the report. He wrote exactly what Darogaji dictated to him. At that time the first informant Tok Singh was not present at the police station. He has identified his handwriting on the written report (ext. Ka1). DW1 has been cross-examined by learned ADGC and during his cross-examination he has stated that he was in acquaintance with the deceased only and none of his family members was known to him, therefore, he cannot tell whether Tok Singh was present at the police station or not. He has denied he scribed the first information report, on the dictation of Tok Singh.
Sri Jagdish Chandra Mishra has been produced as DW2 and Sri Udai Pratap Singh, Advocate, has been produced as DW3. Both these witnesses have stated in support of 'plea of alibi' taken by the co-accused Sureshbir Singh and Ombir Singh, both of whom have been acquitted by the learned trial court on the basis of the above plea. Neither the State nor the complainant has filed any appeal against their acquittal, therefore, the statements of DW2 and DW3 are not relevant for disposal of the present appeal.
DW4 is Head Moharrir Ram Chandra Rathor, who has proved the entry dated 30.1.2009 in the general diary showing that the licensed gun of accused Vijendra Singh had been summoned by the court on 8.3.2007 from the safe custody of Raj Gun House and was kept at Malkhana by the then in-charge Kallu Lal Mishra.
DW5 Sheoraj Singh is the proprietor of Raj Gun House. He has stated that the DBBL licensed gun of 12 bore belonging to Sureshvir Singh was kept in his Gun House in safe custody at the time of occurrence. He has proved the receipt and certificate given by him to Sureshvir Singh as Ex. Kha-10 and Ex. Kha-11.
Learned court below discussed in detail the entire evidence adduced from both the sides. It found the plea of alibi taken by the accused Sureshvir and Omvir reliable and acquitted both of them from all the charges. However, the court below, found the prosecution case proved beyond reasonable doubts against the present appellants and convicted and sentenced them as mentioned earlier in the first paragraph of this judgment.
The only points for determination, which arise in the present appeal, are whether the prosecution has successfully proved its case beyond reasonable doubts against all the appellants or against any one of them and whether they have been rightly convicted and sentenced by the court below?
From the brief discussion of the evidence adduced from both the sides, it is clearly evident that the entire prosecution case is based upon single testimony of PW1. Because except PW1 no other witness of fact has been produced by the prosecution.
There is no doubt that as per well settled legal position, it is the quality and not the quantity of evidence, which is important and conviction can be based even on the sole testimony of a witness, if his evidence is found reliable and trustworthy. However, it is also well settled that the courts, while appreciating the evidence in cases of single testimony, are required to carefully test and scrutinize such statement before convicting an accused.
Now returning back to the case in hand, a careful glance at the statement of PW1 shows that he has stated that his family has long drawn enmity with the family of Thakur Vijendra Singh. About one year ago, some unknown person had shot fire on the son of Vijendra Singh namely Dharmendra Singh. Vijendra Singh had lodged a false FIR against the brother of the first informant- Ram Prakash (deceased/ victim) and his sons Sukhvir and Lochan and one another. During investigation, the names of Sukhvir and Lochan were found to be falsely implicated, hence they were exonerated. However, the aforesaid criminal case against the brother of the first informant Ram Prakash was pending in which 5.6.2007 was fixed in the court. On, that date, the first informant along with his brother Ram Prakash had gone to District Court, Etah, to attend the court proceedings. After attending the court, when they were returning to their village, the accused, who were waiting in the ambush behind Shisham trees, came out and fired indiscriminately. Vijendra Singh exhorted the other co-accused to snatch gold chain, which the deceased was wearing and to take out Rs. 8000/- kept in the pocket of the deceased.
PW1 has duly proved the written report by stating that he had dictated all the aforesaid facts to the scribe Pinku, who wrote the report, which was marked as exhibit Ka1.
PW1 has been cross-examined at length by the learned counsel for the accused challenging his very presence with the deceased at the time of occurrence and during his cross-examination PW1 has admitted that he was not an accused in the criminal case pending in the District Court, Etah, where the deceased had gone and he had not signed on any paper in the District Court. He could not assign any reason as to why he had gone to Etah along with the deceased. He has stated that he had not accompanied the police constables while they were taking the dead body for postmortem. He has stated that at the time of incident the deceased Ram Prakash was driving the motorcycle and he was sitting on the rear seat. As soon as Ram Prakash stopped motorcycle, he (PW1) alighted from motorcycle and ran away into field. He has further stated that accused had shot 3 or 4 fires on him also and about 5-6 fires on the deceased Ram Prakash. He has clarified that all the fires on him were shot by the assailants at the time when they were running away after the occurrence. He has stated that the deceased Ram Prakash was shot from a distance of 10-12 paces. He has further stated that the chain snatched by the accused did not cause any mark on the neck of the deceased. He has denied the fact that the licensed gun of Sureshbir was deposited in Raj Gun House on 8.3.2007. He has denied to have any knowledge about the fact that accused Sureshvir was working as a teacher in a Primary School. He has also denied from the suggestion that the accused Sureshbir and Ombir were not present at the place and time of occurrence.
Learned counsel for the appellants has assailed the reliability of the testimony of PW1 on the ground that PW1 has stated about the presence of Sureshbir and Ombir at the place of occurrence and has assigned them specific roles whereas they were not found present at the time of occurrence and that is why the police, after investigation did not submit charge-sheet against them. During trial on the application of prosecution moved u/s 319 Cr.P.C., they were summoned to face trial. Even after the trial, the court below also found that Sureshbir and Ombir were not present at the time of the occurrence and acquitted them. Acquittal of Sureshbir and Ombir was not challenged either by the complainant Tok Singh or by the State. All these are clear indication of the fact that the complainant Tok Singh has tried to falsely implicate all the family members of appellant Vijendra Singh due to enmity. Learned counsel has further contended that if PW1 can give false statement in order to implicate the innocent family members of the accused- appellant, how can his statement regarding complicity of the appellants be relied upon? Therefore, it is neither safe nor proper to convict the accused- appellants on the basis of single testimony of PW1.
Learned counsel has further contended that the prosecution case becomes also doubtful in view of the statement of DW1 Pinku, who is the scribe of the FIR, who has categorically stated that whatever Darogaji had dictated, he wrote in the first information report. The contention of learned counsel for the appellant is that in view of the statement of the scribe, the FIR itself, which is the foundation stone of a criminal case, becomes doubtful. As the scribe himself has stated that the FIR has been written on the dictation of police inspector, the whole prosecution story becomes doubtful, unreliable and unworthy of credit.
Drawing the attention of this court to the description of ante-mortem injuries mentioned in the postmortem report learned counsel has further contended that the injury nos. 1 and 2 are lacerated wounds and there is no evidence as to how the deceased sustained lacerated wounds. The attention of this court has also been drawn to the ballistic expert report showing that the cartridges and country made pistols sent for ballistic examination did not match with each other.
On the aforesaid grounds learned counsel for the appellants has contended that the prosecution in this case, miserably failed to prove its case beyond reasonable doubts against any of the appellants but the court below, only on the basis of surmises and conjectures and without a proper appreciation of evidence, convicted them by the judgment impugned, which is liable to be set aside.
Per contra, learned AGA has vehemently contested the appeal by arguing that the manner of occurrence as mentioned in the FIR and also in the statement of PW1 finds corroboration with the ante-mortem injuries as mentioned in the postmortem report. Site plan also supports the prosecution case. It is further contended by learned AGA that the lacerated wound on the back side of head as shown in the injury report, may be a result of forceful chain snatching. Learned AGA has further contended that the court below has discussed in detail the entire evidence led by the parties and has rightly convicted the appellants by the impugned order. Therefore, no interference is required by this court and the appeal is liable to be dismissed.
Having heard learned counsel the parties and after a careful analysis of the evidence as discussed above, we are of the considered view that the evidence of sole eyewitness in the present case cannot be held to be sufficient to convict the accused/appellants.
The reasons are as follows:-
(1) No doubt, the time honoured principle is that evidence has to be weighed and not counted and the legal system has laid emphasis on the value, weight and quality of evidence rather than the quantity, multiplicity or plurality of witness but the test is whether the evidence has a ring of truth and is it cogent, credible and trustworthy or otherwise. In so far as the statement of sole witness in the present case is concerned, we have no doubt that it suffers from several contradictions, anomalies and embellishments, and, therefore, it does not appear to be trustworthy and reliable.
(2) There is no immediate motive and the motive suggested by the prosecution does not appear to be strong enough for the accused (total nine in number) joining together to commit the murder of the deceased.
(3) The fact that except a single witness no one came forward to support the prosecution story, also raises suspicion in its reliability.
(4) Even the scribe of the FIR has not supported the prosecution case.
(5) Two accused Sureshbir and Ombir have been acquitted by the learned trial court because their participation in the occurrence was found false. This fact raises a doubt in the truthfulness of deposition of sole witness, who has assigned Sureshbir specific roles of snatching gold chain and Rs. 8000/- cash from the deceased and of firing to Ombir.
In Yakub Ismailbhai Patel Vs. State of Gujrat, (Criminal Appeal No. 62 of 2004, decided on 31.8.2004) and in Joseph Vs. State of Kerala (2013)1 SCC 465 it has been held that "when there is a sole witness to the incident, his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the other evidence. When the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable, otherwise it would be unsafe to convict the accused. If the sole witness had a grudge towards the accused then extra precaution is required.
Hon'ble Apex Court in the above cited case of Yakub Ismailbhai Patel has observed that:-
"An accused can be convicted on the testimony of sole witness if he/ she is completely reliable. If the sole witness had a grudge towards the accused, it could be said that he provided false testimony but if there is no such grudge there is no ground to doubt the credibility of the evidence provided. The test for relying on the testimony of a sole eyewitness is based on the rule of caution, expounded by this court in a judgment Joseph Vs. State of Kerala (2013)1 SCC 465."
In Ramji Surjya and another Vs. State of Maharashtra, AIR 1983 SC 810 it has been held that where there is only a sole eyewitness of a crime, conviction can be recorded on the basis of the sole testimony of such witness provided the court is satisfied that the witness is entirely truthful.
Their Lordships in the above cited case also observed that particularly in those cases where such witness also happens to be closely related to the deceased or if, he has ill-will or motive against the accused, procedure requires that some corroboration should be sought from other prosecution evidence in support of such solitary witness.
Now testing the facts of the present case on the touchstone of law as laid down by Hon'ble Apex Court in the cases cited above, it is clearly evident that admittedly, there was long drawn enmity between the parties, therefore, the sole testimony of PW1 on a close scrutiny, due to several inherent anamolies does not inspire confidence.
(6) PW1 has stated that out of the nine assailants, five fired 3 or 4 short on him with intention to kill but not even a single injury has been sustained by him.
(7) The occurrence is of 5.6.2007. Appellants Vijendra, Dharmendra and Nimendra have been arrested on 9.6.2007 at 6.00 P.M. with a country made pistol and two live cartridges kept in their pockets, which appears totally unnatural conduct on the part of an accused of murder.
(8) PW1 has admitted that he did not try to save the life of Ram Prakash. He did not even raise any alarm and he raised alarm after the villagers reached at the spot. This also appear unnatural conduct on the part of PW1.
However, the learned trial court, while appreciating the evidence, has failed to discuss any of the aforesaid facts. Therefore, we are of the firm view that it was neither safe nor proper to convict the appellants u/s 302 I.P.C. on the basis of sole testimony of PW-1 in this case. We, therefore, allow the appeal, set aside the impugned judgment and order dated 2.6.2014 and acquit the appellants of the offences for which they were charged. The appellants are in jail. They be released forthwith, if not wanted in any other case.
Keeping in view the provisions of section 437-A Cr.P.C. each appellant is directed to forthwith furnish a personal bond in the sum of Rs. One Lakh and two reliable sureties each in the like amount before the trial court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellants on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
Let a copy of this judgment along with lower court's record be sent back to the court concerned for immediate compliance.
Dated:31.01.2018 Pcl