Allahabad High Court
Ramzan vs State Of U.P. on 13 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2100, 2020 (2) ALJ 253
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 31 Case :- CRIMINAL APPEAL No. - 2089 of 2011 Appellant :- Ramzan Respondent :- State Of U.P. Counsel for Appellant :- Firoz Ahmad Khan Counsel for Respondent :- Govt. Advocate Hon'ble Mohd. Faiz Alam Khan,J.
Heard learned counsel for the appellant as well as learned A.G.A. appearing for the State and perused the record.
This Criminal Appeal has been preferred by the appellant against the judgment and order dated 29.11.2011 passed by Additional District & Sessions Judge (S.C./S.T. Act), Court No. 10, Faizabad in Session Trial No. 32/2010 "State Vs. Ramjan", arising out of Case Crime No. 504/2009, Police Station Raunahi, District Faizabad, whereby the accused-appellant/Ramjan was convicted under Section 504 I.P.C. and 3(1)(10) of S.C./S.T. Act and sentenced for 06 months simple imprisonment for the offence under Section 504 I.P.C. along with fine stipulation and for 01 year under Section 3(1)(10) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989( Herein after called SC/ST Act) with fine stipulation.
Brief facts necessary for the disposal of this appeal are that, informant Phoolbaran, who at the relevant time was working as a Electricity Lineman at 33/11 K.V. Electricity Sub Station Sohawal, Faizabad, submitted an application addressed to the S.H.O, P.S. Raunahi, District Faizabad alleging therein that on 02.05.2009 a consumer namely Shri Guddu Dubey informed him from his Mobile Number 9936303646 that a neutral electric wire of his Village Sanaha has broken and requested him to repair the same. On the direction of his Junior Engineer Shri A.P. Mishra, he informed the Consumer to contact the Franchise Contractor Shri Ramzan. It is further alleged in the application that, he( Informant) along with private worker Shri Ashok Yadav went to village Erkuna, where he met with the aforesaid consumer Shri Guddu and he ( Shri Guddu) made a call to the above mentioned contractor Shri Ramzan and put his phone on hand free mode. In conversation accused, who was a contractor at that point of time abused him (informant) and also addressed him with insulting castiest remarks and asked above mentioned Shri Guddu to move complaints against the informant. It is further alleged that the contractor Ramzan also threatened informant to murder. It is stated that, an application on the same day was submitted by him to the S.P., Faizabad and now Ramzan is pressurizing him to make compromise in the matter.
On the aforesaid application, an FIR at Case Crime No. 504/2009, under Sections 504, 506, 332 I.P.C. and 3(1)(10) of SC/ST Act was registered against the accused-appellant at P.S. Raunahi, District Faizabad.
The Investigating Officer after investigating the matter submitted a charge-sheet, in the matter, against accused-appellant under Sections 504, 506, 332 I.P.C. and 3(1) (10) of the SC/ST Act. The trial Court framed charges against the appellant under Sections 332, 504, 506 I.P.C. and 3(1) (10) of SC/ST Act to which, accused-appellant denied and claimed trial.
The prosecution submitted following documentary evidence before the trial Court:-
1. Exhibit-Ka-1 ( application dated 12.05.2009 given by informant to the S.D.O. Sohawal, Faizabad.)
2. Exhibit Ka-2 (application of informant dated 22.05.2009 given to the S.H.O., Raunahi, Faizabad.)
3. Exhibit Ka-3 (Chick FIR)
4. Exhibit Ka-4 (Copy of G.D. No. 15 dated 22.05.2009 time 10:30 am.)
5. Exhibit Ka-5 (Site Plan)
6. Exhibit Ka-6 (Charge-sheet.) Apart from the above documentary evidence, the prosecution, in order to prove its case testified following witnesses :-
P.W.-1/ Phoolbaran (Informant) P.W.-2/ Ashok Kumar Yadav ( Eye Witness) P.W.-3/ Brijesh Kumar @ Guddu (Eye Witness) P.W.-4/ Head Constable Raju Singh (who wrote the chick FIR and G.D.)
After the conclusion of the prosecution evidence, statement of the accused-appellant was recorded under Section 313 of the Cr.P.C., wherein he denied the occurrence and stated that the informant in connivance with others want his contractor ship cancelled and on that basis a false case has been instituted against him. No evidence in defence was adduced by accused-appellant before the Court below.
The trial Court after appreciating the evidence on record found that, the prosecution has failed to prove the charges, pertaining to Section 332 and 506 of the I.P.C. against appellant and acquitted him of these charges and found that prosecution has been able to prove charges under Section 504 I.P.C. and 3(1) (10) of the S.C./S/T. Act against the accused-appellant, beyond reasonable doubt and, therefore, sentenced the appellant in the manner described in the second paragraph of this judgment.
Learned counsel for the appellant while pressing the appeal submits that, the Court below has materially erred in convicting the appellant as the prosecution miserably failed to prove its case beyond reasonable doubt.
It is further submitted that the admitted case of the prosecution was that, one consumer namely Brijesh Kumar Dubey @ Guddu Dubey, in presence of the informant made a telephonic call to the appellant and put his Cell Phone on hand-free mode and the appellant while talking to him hurled filthy abuses with regard to the informant and also intimidate and addressed him with insulting castiest remarks and further advised Brijesh Kumar @ Guddu to make complaints against him. However, Brijesh Kumar @ Guddu and Shri Ashok Yadav have not supported the story of the prosecution, and categorically stated that no castiest remarks or abuses or anything, which may attract penal consequences was made or done by the accused-appellant.
It is further submitted that, Brijesh Kumar @ Guddu is the Star Witness of this case and he has testified that on the fateful day, when he made a telephonic call to Ramzan, he only asked him to move an application to the Lineman and further informed that when the same will be marked to him, he will get the fault repaired. Since the star witness of the case namely Brijesh Kumar @ Guddu and another eye witness Ashok Yadav did not support the story of the prosecution, the Court below has committed a grave error in convicting the appellant for the offences, which he has never committed.
It is further submitted that the Court below has committed grave illegality in transferring the burden of proving the innocence on appellant in utter disregard to the settled law that the burden of proving its case beyond reasonable doubt is always on prosecution and the same can never be shifted unless required by any Law.
It is further stated that the judgment of the trial Court is based on ''surmises and conjectures' and on presumptions, as the Court has presumed the commission of the offences of Section 504 I.P.C. as well as Section 3(1) (10) of S.C./S.T. Act.It is overwhelmingly stated that the trial Court could not presume the existences of certain facts on the proof of certain other facts unless provided by the law, therefore, the Court below has materially erred in presuming the guilt of the appellant against all norms of appreciation of evidence.
It is further submitted that the Court below has believed and based conviction on unreliable sole testimony of P.W.-1/Phoolbaran, who is admittedly inimical to the appellant.
It is further submitted that, the FIR is delayed and no reasonable explanation of the delay has been given either in the FIR or in the evidence tendered before the Court below. There are material contradictions in the testimony of the P.W.-1/Phoolbaran and the Court below has committed illegality in ignoring such material contradictions and also the fact that prosecution has failed to prove its case beyond reasonable doubt and, therefore, the judgment and order dated 29.11.2011 of the trial Court is liable to be set-aside.
Learned A.G.A., however, submits that the Court below has committed no error in convicting and sentencing the accused-appellant under Section 504 I.P.C. and Section 3(1) (10) of S.C./S.T. Act. According to learned A.G.A, the contents of the First Information Report was proved by the P.W.-1/Phoolbaran (Informant) as well as by the Hostile witnesses P.W.-2 namely Ashok Kumar Yadav, who was accompanying the informant at that point of time.
It is further submitted that P.W.-3 namely Shri Brijesh Kumar @ Guddu has turned hostile and did not support the version of the prosecution, but that alone could not affect the case of the prosecution adversely as P.W.-3 Shri Brijesh Kumar @ Guddu also proved the fact of making a call to the appellant and also that, he put his mobile phone on hand-free mode and, therefore, as per the settled law, pertaining to the hostile witness, his testimony can be taken to be true with respect to the fact that on the fateful day and time, he made a telephonic call to the appellant in presence of the P.W.-1/Phoolbaran (Informant) as well as P.W.-2 Ashok Yadav. The testimony of prosecution witnesses P.W.-1/Phoolbaran (Informant)and P.W.-2 Ashok Yadav, who are witnesses of fact is corroborating each other and there are no material contradictions in their evidence , therefore, the Court below has not committed any error in convicting and sentencing the accused-appellant, as the case of the prosecution was proved beyond all reasonable doubts before the Court below. Therefore, the Appeal filed by the appellant is liable to be dismissed.
It appears in the interest of things that the oral evidence produced before the Court below by the prosecution be summarily discussed here, so as to appreciate the arguments of learned counsel for the parties in a better way.
P.W.-1/Phoolbaran, who is the informant of this case in his examination in chief statement has proved the FIR as Exhibit-ka-2. He also supported the contents of the FIR, pertaining to the contention that, on 02.05.2009 at about 10:00 am in the morning, when he was posted at 33/11 K.V. Sub-Station Sohawal as Lineman, one Guddu Dubey of Village Sanaha called him on his mobile phone and informed him that a neutral electric wire of his village had broken and the same should be repaired. The work of repair of this village was assigned to a contractor/franchise Ramzan (Appellant) by an order passed by the Junior Engineer Shri K.P. Mishra. He informed Guddu Dubey that the fault has to be repaired by the appellant. After some time, on the same day, he went to Erkuna Market with P.W.-2/Ashok Yadav and, there he met with consumer Guddu Dubey and again informed him (Guddu Dubey) to contact the contractor Ramzan for the purpose.It is further stated that in his presence, Guddu Dubey made a call to appellant from his mobile phone and put his phone on hand-free mode, so that he (informant) may also hear the voice of appellant. During conversation with Guddu Dubey, Ramzan abused informant, intimidated him and also in his hearing addressed him with insulting castiest remarks and also instigated Guddu Dubey to make false complaints against informant. His Junior Engineer also asked him not to preach law and repair the fault. He on the same day submitted an application to S.D.O. under his writing and signature and when no action was taken for 10 days, he moved an application to departmental authorities, a copy of which was also given to the Executive Engineer as well as to the Trade Union. A copy of that application was produced by him (during his examination-in-chief) before the trial Court, which was marked as Exhibit-ka-1.
During his cross-examination, this witness admitted to have approached the leaders of Trade Union and also admitted that the Trade Union pressurized his department to take action in the matter. He further admitted that the job of the Lineman is to repair the Electric faults and also to look after the technical works of the Sub Station. It is also admitted by him that P.W.-2/Ashok Yadav was with him at the time of the incident, who was a private worker and he is authorized to do all work of Lineman like climbing on the electric pole and to repair the fault, etc. It is further contended by him, in his cross-examination that, this private person (Ashok Yadav-P.W.-2) is paid by the consumers for the work performed by him. On the day of incident, he was on duty from 8:00 to 4:00 pm., a log sheet is maintained at his Sub Station, however, no particulars are entered in the log book pertaining to his movements. He moved application after a month of the incident which he wrote at his Sub Station. He repelled a suggestion of the appellant that, Exhibit-ka-1 application, which has been tendered during Examination in Chief, has been manufactured to cover the delay occurred in lodging the FIR.
P.W.-2/Ashok Yadav in his Examination-in-chief admitted that, Phoolbaran (Informant) and Guddu Dubey of Village Sanaha and appellant (Ramzan) are known to him. On 02.05.2009, Guddu Dubey did not met with informant-Phoolbaran at Erkuna crossing, nor he complained about any electrical fault occurred in the Electricity Line nor he (Guddu Dubey) made any call to appellant Ramzan and appellant did not hurl any abuses or intimidate informant-Phoolbaran. He was with the informant on 02.05.2009 at about 10:00 am and during the course of his company with the informant, no incident, as alleged by the informant, had occurred. This witness was declared hostile by the prosecution and Public Prosecutor was permitted to cross examine him. In his cross-examination, he refused to have given the statement, as recorded by the Investigating Officer, under Section 161 of the Cr.P.C. He further stated that, on the instruction of the contractor Ramzan he used to perform the work of Lineman.
P.W.-3/ Brijesh Kumar Dubey @ Guddu Dubey, who is a resident of Village Sanaha, has stated that on 02.05.2009 at 9:30 am, he met informant-Phoolbaran at Erkuna crossing, as he was attempting to get an electric fault repaired. He contacted the informant on the advice of appellant Ramzan. He made a call to appellant Ramzan and asked him to repair the fault on which Ramzan told him (P.W.-3/ Brijesh Kumar @ Guddu) to approach the Lineman and to give him an application and, thereafter, he will get the fault repaired. He after informing the Lineman (Informant) returned back to his house and no incident, as claimed by the informant, had actually occurred and in his hearing appellant has not addressed the informant with any insulting castiest remarks nor any abuses were hurled by him.
This witness was also declared hostile and the public prosecutor cross-examined him, wherein he denied to have given a statement under Section 161 of the Cr.P.C., as recorded by the Investigating Officer. He further stated that on 02.05.2009, on the suggestion of the Lineman Phoolbaran, he made a call to appellant Ramzan from his Mobile Phone and requested him to repair the fault on which, appellant informed that he will get the fault repaired and, thereafter, the electric fault was repaired by appellant Ramzan. He maintained in his cross-examination that, during his conversation on phone, appellant Ramzan did not abuse or intimidate or insult the informant by making castiest remarks and he had a normal conversation with appellant.
P.W.-4/Constable Raju Singh, proved the Chick FIR, Exhibit-ka-3 and copy of the G.D., wherein the details of the FIR was noted, as Exhibit-ka-4. He also proved the Site Plan prepared by the Investigating Officer as well as the charge-sheet submitted by the Investigating Officer, as Exhibit-ka-5 and Ka-6, as he had witnessed the Investigating Officer doing work and can recognize his hand writing.
Having heard Ld. Counsel for the parties and after perusal of the record, the main point which emerges out for consideration before this Court in this appeal is, as to whether the prosecution has proved the charges levelled against appellant beyond all reasonable doubts or the trial Court has committed illegality and mistake in appreciation of evidence in convicting the appellant.
The evidence placed herein-before would reveal that the case of the prosecution was based on the testimony of P.W.-1/Phoolbaran to whom abuses were hurled and intimidation was given by the appellant as well as he was allegedly insulted by making castiest remarks, P.W.-2/Ashok yadav, who allegedly at that point of time was accompanying the informant as well as P.W.-3/ Brijesh Kumar @ Guddu, who allegedly made a call from his Cell Phone to the appellant and put his mobile phone on hand-free mode and the appellant from the other end hurled abuses and intimidated the appellant as well as addressed him with insulting castiest remarks. As is apparent from the testimonies of the P.W.-2/Ashok yadav and P.W.-3/ Brijesh Kumar Dubey @ Guddu, mentioned herein-before, both these independent witnesses have not supported the story of the prosecution and have categorically stated that no such incident had actually occurred. The prosecution cross-examined them and even after cross-examination, nothing has come out, which may be used by the prosecution for the purpose of proving its case.
The evidentiary value of the testimony of hostile witnesses was considered by Honble Supreme Court in Paul Mely and others v. Tamilnadu and others, AIR 2014 (SC) Supp. 1249 and after considering earlier authorities on the subject, held as under:-
"16.This Court in Ramesh Harijan v. State of U.P., AIR 2012 SC 1979 : (2012 AIR SCW 2990) while dealing with the issue held : (Para 18 of AIR, AIR SCW) "It is a settled legal proposition that the evidence of prosecution witness cannot be rejected in toto merely because the prosecution choses to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848; and Khujji alias Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853) : (1991 AIR SCW 2038)".
17. In State of U.P. v. Ramesh Prasad Misra and Anr., AIR 1996 SC 2766 : (1996 AIR SCW 3468), this Court held that evidence of a would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon.
A similar view has been reiterated by this Court in Sarvesh Narain Shukla v. Daroga Singh and Ors., AIR 2008 SC 320 : (2007 AIR SCW 6843); Subbu Singh v. State by Public Prosecutor, (2009) 6 SCC 462 : (2009 AIR SCW 3937); C. Muniappan and Ors. v. State of Tamil Nadu, AIR 2010 SC3718; and Himanshu alias Chintu v. State (NCT of Delhi), (2011) 2 SCC 36) : (AIR 2011 SC (Cri) 426).
Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence."
Keeping in view the above mentioned settled law, pertaining to the appreciation of evidence of hostile witnesses, it is apparent that the evidence of the hostile witness could not be brushed aside only on the basis that the witness has turned hostile, but such testimony or a part of it, if remains acceptable and truthful, even after cross-examination by the Public Prosecutor, the same can be used by the prosecution or even by the defence.
In the instant case, there are glaring contradictions in between the evidence of two hostile witnesses namely P.W.-2/Ashok yadav and P.W.-3/ Brijesh Kumar @ Guddu. P.W.-2/Ashok yadav has stated that, he was with the informant at relevant point of time when the alleged incident occurred and P.W.-3/ Brijesh Kumar @ Guddu did not met informant and also that, no telephonic call was made by Guddu Dubey to appellant Ramzan and no such incident has actually occurred. P.W.-3/ Brijesh Kumar @ Guddu, on the other hand has stated that, he went to Erkuna crossing at 9:30 am, where he met with the informant, as he was advised by the appellant to move an application to the Lineman and, thereafter, he will repair the fault. He stated to have made a call to the appellant on the suggestion of the Lineman (Informant), but no such incident as described by the informant had happened. According to him, the appellant told him on telephone to move an application to the Lineman and, thereafter, he will get the fault repaired and he ( P.W.-3/ Brijesh Kumar @ Guddu) after giving this information to the Lineman (Informant) came back to his house. He has categorically denied the fact that, any abuses or insulting castiest remarks or intimidation was given by the accused-appellant to informant in his presence on telephone. He maintained his statement in his cross-examination also. However one thing is common in the testimony of both hostile witnesses as they both have denied the occurrence of any incident as claimed by informant. Therefore, keeping in view these glaring contradictions occurring in the testimonies of these hostile witnesses namely P.W.2/Ashok Yadav and P.W.-3/ Brijesh Kumar @ Guddu, no benefit can be claimed by the prosecution by the evidence of these hostile witnesses. Now, when the two independent witnesses namely P.W.-2/Ashok yadav and P.W.-3/ Brijesh Kumar @ Guddu have turned hostile and have not supported the version of the prosecution, there remains solitary testimony of P.W.-1/Phoolbaran.
So far as value of evidence of solitary witness is concerned Section 134 of Evidence Act did 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 of evidence 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 "The contention that in a murder case, the Court should insist upon plurality of witnesses, is much broadly stated.
"The Indian Legislature has not insisted on laying down any such exceptions to the general Rule recognized in Section 134 quoted above. The Section has 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 is 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 and suspicion about the testimony of such a witness the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses.
Therefore, it is not the number, the quantity, but the quality which 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 around it, is cogent, credible and trustworthy, or otherwise."
In Lallu Manjhi vs. State of Jharkhand, AIR 2003 SC 854 Hon,ble Supreme Court held that Para 10, "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 AIR 2003SUPREME COURT 3617, Sucha singh v/s State of Punjab Honble Apex Court after considering Masalti and others vs. State of U.P. MANU/SC/0074/1964 and opined as under:-
State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana (2002 (3) SCC 76). "Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence.' (See Nisar Ali v. State of Uttar Pradesh (AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurcharan Singh and another v. (AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because18witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justicewould come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and another v. State of Madhya Pradesh, 1972 3 SCC 751) and Ugar Ahir and others v. State of Bihar (AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and others v.state of punjab (AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and another (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and others v. State of Bihar etc. (2002 (4) JT (SC) 186)."
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, Para 13 " 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 Para 17 "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."
Therefore, the gist of the aforesaid case laws propounded by the Hon'ble Supreme Court, is that every accused person is presumed to be innocent till prosecution, through reliable and acceptable evidence, proves its case beyond all reasonable doubt. In other words, in criminal trial, it is the duty of the prosecution to prove its case beyond all reasonable doubt. However, it is not each and every doubt which can be termed as reasonable and benefit of only that doubt can be claimed by the accused persons ,which is reasonable in the facts and circumstances of the case and which grow out of the evidence , itself.
Keeping in view the above mentioned Case Laws, it appears that the law pertaining to the case based on solitary witness is well-settled that, it is the quality and not the quantity, which matters under Evidence Act. If the testimony of a single witness is otherwise trustworthy and wholly reliable, in the facts and circumstances of the case, the conviction can be based on the basis of the statement of a single witness, but the pre condition is that the testimony of such witness should be wholly reliable and must have a ring of truth around it. In the background and touchstone of the above mentioned case laws, I will have to re-appreciate the testimony of P.W.-1/Phoolbaran. Keeping in view the arguments advanced by learned counsel for the appellant, to know whether the evidence adduced by the prosecution before the Court below has achieved the standard of proof beyond reasonable doubt, as the Court below has not taken pains to appreciate the evidence of this witness in depth.
Learned counsel for the appellant has submitted that the FIR has been lodged after much delay and no explanation of the same has been given, rendering the FIR as after thought and the same could not be believed. Keeping in view the above mentioned arguments of learned counsel for the appellant, perusal of the record shows that, it is admitted to P.W.-1/Phoolbaran in his cross-examination at Page No.3 that, he wrote the application (on which, FIR was lodged) after one month of the incident. However, during his Examination-in-chief, he produced a copy of an application dated 12.05.2009 allegedly submitted to the S.D.O., pertaining to the incident and the same application was proved by him as Exhibit-ka-1. However, no Official/Officer, who received this application or any other witness, who could testify that this application was actually submitted to the Office of the S.D.O. concerned has not been produced in evidence. A suggestion has also been given to P.W.-1/Phoolbaran by the appellant that Exhibit-ka-1 has been prepared subsequently to explain the delay in lodging the FIR. Even after this suggestion, no attempt appears to have been made by the prosecution to get this application proved by calling an independent witness from the office of the S.D.O., who could prove that, such an application was actually given by him. There is no mention of any receipt of Registry, which may reflect on the claim of the P.W.-1/Phoolbaran that, he had actually submitted this application pertaining to the incident, to the District Magistrate also. Therefore, it appears that the application Exhibit-ka-1 allegedly given to the S.D.O. concerned, has not been properly proved and in absence of it informing the police after 19 days of the alleged incident, raises a suspicion in the story of the prosecution. The court below has committed an error in relying on this application which has neither been produced during investigation nor proved by the prosecution as per the relevant provisions of the Indian Evidence Act.
Learned counsel for the appellant has also submitted that the testimony of solitary witness P.W.-1/Phoolbaran is not truthful and the prosecution has failed to prove its case beyond all reasonable doubts. As discussed earlier the two eye witnesses of the incident namely PW-2 Ashok Yadav and PW-3 Brijesh Dubey @ Guddu Dubey have not supported the prosecution story and the sole testimony in support of the prosecution story remains only of the Informant PW-1/Phool Baran. It has come in the evidence of P.W.-1/Phoolbaran that he is a member of Employees Union and office bearers of the Trade Union pressurized his department to take action against the appellant. It is stated by him that, one Jamuna Singh is an old and effective leader of Union, who at that point of time was the General Secretary of the Union. P.W.-1/Phoolbaran in his statement at Page No.3 has also stated that witness PW-2 Ashok Yadav was with him at the relevant point of time as a private worker and he used to do all works of Lineman as per the rules. However, he did not produce any document, pertaining to authorization of any work allegdly given to P.W.-2/Ashok Yadav by Electricity Department. Interestingly, he stated that this private person (P.W.-2/Ashok Yadav) is paid by consumers for the services rendered by him. There is nothing on record, which may suggest that, P.W.-2 Ashok Yadav was a private worker engaged by the Electricity Department and he ( P.W.-2/Ashok Yadav) in his statement has categorically stated that, he works as a private Lineman and if paid, he repair the electricity faults. He further stated that, he used to do repair work, whenever directed by the appellant. The evidence of P.W.-2/Ashok Yadav is in direct contrast of the evidence of informant, when he stated that, P.W.-2/Ashok Yadav was with him as a private worker engaged by the Electricity Department, rather it appears that, P.W.-2/Ashok Yadav was a labourer, who works as a Lineman on payment with the contractor (appellant-Ramzan). This casts a doubt on the claim of informant that P.W.-2 Ashok Yadav was with him at the time of alleged incident. Therefore, the evidence of informant, pertaining to this fact is also not acceptable.
P.W.-1/Phoolbaran at page No.3 of his cross-examination has stated that, on the day of occurrence, his duty was from 8:00 to 4:00 pm and a Log sheet is also maintained at his Sub Station, however, no detail is entered in the log book, pertaining to his movements. This part of the statement of the P.W.-1/Phoolbaran also do not appears to be true as it is a matter of common sense and general prudence that, when a log book is normally maintained at the Electric Sub Station, then every complaint of consumer should be normally entered in it along with the detail of the person, who has been assigned particular complaint. Therefore, this statement of P.W.-1/Phoolbaran also could not be believed that no detail of any movement pertaining to the Lineman is maintained in the Log book kept at the Sub Station, in absence of any copy of such log book is produced before the Court below, which may justify his claim. Interestingly, P.W.-1/Phoolbaran has also stated in his cross-examination that his job was to obey and comply the directions of the Junior Engineer or S.S.O., whosoever is present at Sub Station. He also stated that the work of the Lineman is also to repair the electricity line by climbing on electricity pole and also to do other technical works at Sub Station and also on lines connecting Sub Station with the Transformer. However, in his Examination-in-chief, he has stated that, soon after the incident, his Junior Engineer called him and told him to connect and repair the broken wire of the Village of Guddu Dubey and do not preach him the law and same day he informed his S.D.O. about the alleged incident in writing. It is apparent from his evidence also that the Junior Engineer under whom he was working had also asked him to repair the fault of Guddu Dubey's line, but he did not repair the same. It transpires that, he ( P.W.-1/Phoolbaran) instead of repairing the line on the pretext that the same has to be repaired by the appellant, who has been given the contact, asked P.W.-3/ Brijesh Kumar @ Guddu to approach the appellant, but neither J.E. K.P. Mishra nor S.D.O. of his department or any other official or officer was produced as a witness, who may testify that the job of repair of particular complaint of Guddu Dubey was entrusted to contractor Ramzan. Per contra as per his own statement Junior Engineer asked him (Informant) to repair the fault, which fortifies the statement of the P.W.-3/ Brijesh Kumar @ Guddu that appellant asked him to give information of the fault to the informant and thereafter he will get the same repaired. Keeping in view the whole testimony of this witness, it does not inspire the confidence of this Court and in the considered opinion of this Court the evidence of this witness i.e. P.W.-1/Phoolbaran is not either reliable or truthful. As per P.W.-1/Phoolbaran, he met with P.W.-3/ Brijesh Kumar @ Guddu in presence of P.W.-2/Ashok Yadav in the market of Erkuna and Guddu Dubey called appellant Ramzan from his Cell Phone, where after appellant hurled abuses, intimidated him and also took his name by insulting castiest remarks. P.W.-2/Ashok Yadav in his statement has categorically denied to have even met P.W.-3/ Brijesh Kumar @ Guddu at Erkuna market at relevant point of time and also that, neither Guddu called appellant from his mobile phone nor any incident, as claimed by the informant had happened. P.W.-3/ Brijesh Kumar @ Guddu, is the star witness of this case, as he is independent and is not having any relation/inclination towards the informant or with the appellant. He was only a consumer and wanted to get his electricity fault repaired. He has stated categorically that, though he met P.W.1/Phoolbaran (Informant) as well as P.W.-2/Ashok Yadav on 02.05.2009 at about 9:30 am at Erkuna crossing and on the advice of appellant Ramzan informed the lineman (P.W.-1/Phoolbaran) about the occurrence of fault and, thereafter, in front of P.W.-1/Phoolbaran and P.W.-2/Ashok Yadav made a call to appellant Ramzan from his Cell Phone but appellant Ramzan only advised him to move an application to the Lineman and after informing the lineman about the fault, he returned back of his home. He (Brijesh Kumar @ Guddu Dubey) has categorically stated that, appellant neither on his phone nor on the phone of P.W.-1/Phoolbaran has stated any castiest remarks or abuses and he is not aware of any such incident. This witness, though has been declared hostile and the public prosecutor chooses to impeach him by cross-examination, but he has maintained his statement of Examination-in-chief in his cross-examination also. Therefore, this witness (P.W.-3/ Brijesh Kumar @ Guddu) as well as P.W.-2/Ashok yadav, who are independent witnesses, and have not supported the prosecution story as well as the glaring contradictions and inherent inconsistencies occurring in the testimony of P.W.-1/Phoolbaran has made the case of prosecution as not reliable .
In criminal jurisprudence, there is presumption of innocence in favor of appellant and it runs all through the web of criminal jurisprudence that the prosecution has to prove its case beyond all reasonable doubt and also that the prosecution has to stand on its own legs. In instant case the two witnesses of fact i.e. P.W.-2/Ashok Yadav and P.W.-3/Brijesh Kumar @ Guddu Dubey have turned hostile and have not supported the prosecution. It may be recalled that both these witnesses were independent witnesses. The solitary testimony of P.W.-1/Phoolbaran, in the facts and circumstances of case is not truthful and reliable and keeping in view the law pertaining to solitary witness (discussed herein-before) conviction of appellant could not be sustained, solely on the unreliable evidence of informant. Therefore, the court below appears to have committed a manifest error in convicting the appellant. For the fore-going reasons and conclusions instant appeal deserves to be allowed and the appellant is entitled to be acquitted.
In the result this criminal appeal is allowed and consequently the conviction of appellant as recorded by the learned Additional Sessions Judge vide judgment dated 29.11.2011 passed in Session Trial No. 32/2010, arising out of Case Crime No. 504/2009, under Sections 504 I.P.C. and Section 3(1) (10) of S.C./S.T. Act, Police Station Raunahi, District Faizabad is set aside. Appellant is acquitted of the charges of Section 504 I.P.C. and Section 3(1) (10) S.C./S.T. Act, framed against him. He is on bail. His bail bonds stand cancelled and sureties are discharged. He need not to surrender. However he is directed to submit bail bonds subject to the satisfaction of the Trial court concerned as provided under Section 437A of the Cr.P.C., within 15 days from today before Trial Court. Lower court record, along with a copy of this judgment be transmitted to the trial Court, at the earliest.
Order Date:- 13.12.2019 Praveen