Allahabad High Court
Satyanarain @ Babloo vs State Of U.P. on 25 October, 2018
Author: Vijay Lakshmi
Bench: Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Court No. - In Chamber Case :- JAIL APPEAL No. - 4304 of 2013 Appellant :- Satyanarain @ Babloo Respondent :- State Of U.P. Counsel for Appellant :- From Jail Counsel for Respondent :- A.G.A. Hon'ble Mrs. Vijay Lakshmi,J.
Hon'ble J.J. Munir,J.
(Delivered by Hon'ble J.J. Munir, J)
1. This jail appeal is directed against a judgment and order of Sri S.P. Arvind, the then Additional District and Sessions Judge/ Special Judge (SC/ST Act), Kannauj, dated 05.08.2013 passed in Sessions Trial No.231 of 1999, State vs. Babloo @ Satyanarain (arising out of Case Crime no.93/96), under Section 302/34 IPC and Section 3(2)(v) of the SC/ST Act, Police Station Tirwa, District Kannauj. By the said judgment and order, the learned Trial Judge has convicted the appellant, of offences punishable under Section 302 IPC and Section 3(2)(v) of the SC/ST Act, and, sentenced him in the following manner: (1) for the offence under Section 302 IPC, rigorous imprisonment for life, with a fine of Rs.10,000/-; (2) for the offence under Section 3(2)(v) of the SC/ST Act, rigorous imprisonment for life, with a fine in the sum of Rs.5000/-. Both sentences, have been ordered to run concurrently. In the event of default in payment of fine, imposed on the two counts, an additional term of simple imprisonment for three months, and, a month and a half, in that order, has been ordered.
2. Heard Sri Pradeep Chandra Tripathi, learned Amicus Curiae for the appellant and Sri Amrit Raj Chaurasiya, learned A.G.A. for the State, and, perused the record.
3. The prosecution case is that the elder brother of the first informant, and, now deceased, the late Subhash was employed as a agricultural labourer on the fields of one Krishna Dutt Paliwal, a native of the parties' village. It is asserted that in the night hours he was engaged in thrashing of the harvested wheat crop on the thrasher, and, in the morning hours returned home, after a whole night's work. He had settled down to rest when Paliwal's son, Juglu alias Daya Shankar, came over to the informant's home, at about 10 in the morning hours, and asked his brother, the deceased Subhash, to report back to work. To this, the deceased said that he was very tired, and, would not go back to work, right away. Upon those words, Juglu hurling abuses at his brother, took out his slippers that he employed to beat up the deceased, throwing him to the ground. This assault was objected to by the deceased, whereupon the informant, besides one Indal son of Banwari, and, another Bhikham son of Hiralal, both natives of his village, intervened and dissipated the altercation. Thereupon, Juglu went away home, abusing the deceased.
4. A little later, when the deceased along with others, was standing by the shop of one Moti Lal and talking amongst themselves, Babloo (the appellant), carrying a country-made pistol, Juglu carrying a knife, and, their father, Krishna Dutt Paliwal arrived, and, Paliwal exhorted his sons to assault, saying in vernacular, "Maro Salo Ko Bachne Na Paaye". Hearing that, Juglu assaulted the deceased with his knife, whereas Babloo opened fire. The bullet hit the deceased in the chest and he collapsed to the ground, clutching his chest. The accused moved away homewards, holding out threats. While retreating, Juglu was heard to say, that they would see whatever is to come. The informant, while reporting the matter to the police said, that his brother was in a critical condition, and, natives of the village had arranged a vehicle and were conveying him to Kannauj. Necessary action by the police was requested. The written information aforesaid, is marked as Ex. Ka-1.
5. It is on the basis of the aforesaid written First Information that a case was registered on 13.04.1996, at half past mid-day, giving rise to Case Crime no.93 of 1996, under Section 307 IPC and Section 3(2)(v) of the SC/ST Act. A chik FIR was drawn up at the Police Station, marked as Ex. Ka-4, the substance of which was recorded in the G.D. of the Station, marked as Ex. Ka-5.
6. The injured while being rushed to medical aid at Kannauj, was requisitioned by the police for a medico-legal examination of his injuries at the Vinod Dixit Hospital, Kannauj, where he was taken for emergency medical management. A memo of requisition for medical aid dated 13.04.1996 was addressed by the police of P.S. Tirwa, District Farrukhabad to the Superintendent, Vinod Dixit Hospital, Kannauj, Farrukhabad (Chitthi Majroobi). Acting on the aforesaid memo of requisition, apart from extending medical aid, a medico-legal examination of the victim was undertaken at the Hospital aforesaid, and, a medico-legal report of the injuries sustained, besides other medical parameters of the patient, since deceased, was drawn up. It is on record, as Ex. Ka-10.
7. The injured was referred by Vinod Dixit Hospital, Kannauj, to a Higher Centre for treatment, at Kanpur. However, on way from Kannauj to Kanpur, the victim Subhash died at about 4.00 p.m. near Uttaripura. Upon an information to the above effect by the informant, Prem Narain, also dated 13.04.1996, given at the Police Station, and, marked as Ex. Ka-3, the case was converted from one under Section 307 IPC to 302 IPC.
8. The police held an inquest on 14.04.1996, and, the inquest report is on record Ex. Ka-2. Thereafter, the body was sent for autopsy, and, a Postmortem Examination was undertaken on 14.04.1996 at 4.30 p.m.at the District Hospital, Fatehgarh. The cause of death was opined to be, shock and haemorrhage, as a result of ante-mortem injuries. The autopsy report is marked as Ex. Ka-6.
9. The Investigating Officer entered upon investigation, and, recorded statements of witnesses. He inspected the place of occurrence, wherefrom he recovered an empty, a bullet, collected samples of blood stained earth, and, unstained one, regarding which a memo of recovery was drawn. In consequence of inspection of the place of occurrence, a site plan was drawn up that is on record, and, marked as Ex. Ka-8. At the conclusion of investigation, the Investigating Officer found that there was sufficient evidence to charge sheet Babloo alias Satyanarain (the appellant), Juglu alias Daya Shankar, and, Krishna Dutt Paliwal, against all of whom a charge sheet was filed before the Magistrate, relating to offences punishable under Section 302 IPC and Section 3(2)(v) of the SC/ ST Act. The charge sheet is marked as Ex. Ka-11.
10. The Chief Judicial Magistrate, Kannauj took cognizance of the offence vide order dated 04.05.1996, and, after ensuring compliance with the provisions of Section 207 Cr.P.C., committed Satyanarain alias Babloo (the appellant), Juglu alias Daya Shankar, and, Krishna Dutt Paliwal, to the Sessions, vide order dated 27.10.1999.
11. The learned Sessions Judge, Kannauj, proceeded to frame charges against the appellant and the two other co-accused, Juglu alias Daya Shankar, and, Krishna Dutt Paliwal, vide his order dated 15.02.2000. The appellant, as well as the other co-accused, denied the charges, and, claimed trial.
12. The case stood transferred to the court of Additional Sessions Judge/ Special Judge (SC/ ST Act), Kannauj, where it came up for trial, and, was heard and decided by means of the impugned judgment and order dated 05.08.2013, last mentioned, convicting and sentencing the appellant, as detailed hereinbefore. Aggrieved, the present appeal has been filed.
13. It must be placed on record that it is common ground between parties, that pending trial, co-accused, Juglu alias Daya Shankar and Krishna Dutt Paliwal, died, and, therefore, the trial against them abated. Thus, it is the appellant alone who was convicted, and, it is he who is in appeal.
14. The prosecution have examined the following witnesses:
(1) Prem Narain Jatav, PW-1 (the first informant and brother of the deceased);
(2) Bhikham, PW-2 (the witness is a native of the village and and a witness of fact, who turned hostile);
(3) Const. Mool Chandra Verma, PW-3 (the witness is formal, who registered the case, drew up the chik and made relevant entries in the G.D. about registration);
(4) Dr. Raj Kishore, PW-4 (the witness is an expert, who examined the deceased, while he was alive at Vinod Dixit Hospital, Kannauj);
(5) Sub-Inspector M.P. Gupta, PW-5 (the witness was the Station Officer, P.S. Tirwa, District Kannauj at the relevant time, who held proceedings of inquest, drew up the site plan, and, collected material evidence from the place of occurrence etc., though he is not the Investigating Officer);
(6) Dr. Janardan Babu, PW-6 (the witness is an expert, and, the doctor who undertook the autopsy on the dead body of the deceased); and, (7) Ashok Kumar Tiwari, the Investigating Officer, Deputy Superintendent of Police, PW-7 (the witness was at the relevant time posted as Circle Officer, Kannauj, and, investigated the offence).
15. The following documentary evidence was relied upon by the prosecution:
(1) Written information given to the police by Prem Narain dated 13.04.1996 ..... Ex. Ka-1;
(2) Inquest report dated 14.04.1996 .... Ex. Ka-2;
(3) Application dated 13.04.1996, informing the police that victim Subhash Chandra passed away, on his way to Kanpur for medical aid, and, on the basis of which the case was converted to one under Section 302 IPC. Ex. Ka-3;
(4) Chik FIR dated 13.04.1996 ..... Ex. Ka-4;
(5) Photo lash ..... Ex. Ka-4; (6) Extract of G.D. Entry no.24/13.04.96 Ex. Ka-5; (7) Police Form 13 Ex. Ka-5; (8) Letter to CMO requisitioning autopsy Ex. Ka-6; (9) Postmortem Report dt. 14.04.1996 Ex. Ka-6; (10) Challan lash Ex. Ka-7; (11) Site Plan Ex. Ka-8; (12) Recovery memo of empty Ex. Ka-9; (13) Medico-legal report of injuries Ex. Ka-10; (14) Charge sheet in original Ex. Ka-11.
16. The following documentary evidence, purports to be produced on behalf of defence, and, is duly exhibited:
(1) Duplicate copy of Chik FIR dated 13.04.1996 giving rise to Case Crime no.93A of 1996, under Section 307 IPC, P.S. Tirwa, District Kannauj, lodged by Krishna Dutt Paliwal against Subhash son of Govardhan Lal (the deceased), and, 3 others.
..... Ex. Kha-1;
(2) G.D. Entry dated 13.04.1996 .... Ex. Kha-2.
17. At the close of evidence for the prosecution, the statement of the appellant under Section 313 Cr.P.C. was recorded on 18.05.2013 wherein, in response to most of the circumstances for the prosecution, put to the appellant, all that he has said in his defence, is "Galat Bayani Ki Hai" or "Galat. Sajish Kiya Hai". In response to question no.12, where he was asked why witnesses have deposed against him, the answer is, "Ranjishan. Jhooth". In answer to a specific question, whether he has anything more to say, the appellant has said: "Mujhe Phansaya Hai. Mai Nirdosh Hoon". Towards, almost the tail end of the statement, when the appellant was asked, if he wanted to enter defence, he answered in the negative by saying, "Ji Nahin". Thus, it is clear that the appellant did not enter defence.
18. Before proceeding ahead to evaluate the worth of the prosecution evidence, and, to consider the appellant's objection that on the basis of evidence on record, he has been convicted in error by the court below, this Court considers itself duty bound to straighten the record of these proceedings, on two counts. The documentary evidence enlisted above, carries in all, fourteen exhibits on behalf of the prosecution. However, the total number of exhibits numerically marked, do not exceed eleven. It appears that Exhibits Ka-4, Ka-5 and Ka-6 have been marked twice; that is to say, two documents have been marked as Exhibits Ka-4, Ka-5 and Ka-6, thus, decreasing the numerical count of documents, by duplication of the marked exhibit number. This fact, is more than evident from a perusal of the list of documents, bearing paper no. 77-A, available in the record of the trial court. Though, otherwise, it may seem a triviality, the double assignment of the same Exhibit number to documents different in their identity and character, may cause considerable confusion to all, whose concern, the proceedings of the case are, or in the future may be. This Court would think that the double assignment of numbers to two documents, is the result of some clerical miscarriage. In case, however, this kind of assignment of Exhibit numbers, is part of some methodology, prescribed either by court rules or practice, the same is most unmethodical, confusing and counter-productive. In the present matter, the record may be construed, bearing in mind the aforesaid numerical error, in the marking of documentary evidence for the prosecution.
19. The other disconcerting feature in the records of the present matter is, that the trial court has clearly recorded a finding, that the appellant has declined to enter evidence. That finding also accords with the statement of the appellant, recorded under Section 313 Cr.P.C. However, a perusal of the record shows that there are two documents, exhibited on behalf of the defence, details of which have been extracted above, marked as Exhibits Kha-1 and Kha-2. In the absence of the appellant entering defence, how documentary evidence on behalf of the defence has come to be exhibited, is seemingly without much explanation. Again, not much may turn upon the aforesaid crease in the record, but records of solemn proceeding like a criminal trial, and, a sessions trial at that, should be flawless and seamless. We do not propose, therefore, to look into the two documents that are exhibited on the defence side, except for the limited purpose of appreciating evidence, by way of cross-examination, even though some argument on that basis was advanced before us.
20. We, now proceed to analyze the evidence appearing against the appellant, and, consider submissions on his behalf, to persuade us to look at it the way, he urges.
21. A perusal of the injury report, Ex. Ka-10 shows that the deceased, during his medico-legal examination at the Vinod Dixit Hospital, Kannauj was detected to have suffered the following injuries to his person:
"Injuries No.(1) Fire arm injury 1.7cm x 0.8 cm x depth. Kept under observation. Present on Rt. side of chest 2.5cm above from Rt. nipple. Tattooing present around the wound in an area of 30.0cm x 18.0cm. Bleeding present. Margins are inverted and lacerated.
No.(2) Fire arm injury 1.7cm x 0.7cm x Depth. Kept under observation. Present on Rt. side of back. 7.0cm medial from inferior angle of Rt. scapula. Margins are everted and lacerated. Bleeding present. No tattooing and blackening present.
No.(3) Incised wound 1.0cm x 0.5cm x muscle deep present on anterior surface of lower end of Rt. Fore arm. Margins are clear cut. Bleeding present.
Opinion: Nature: Inj. No.(1) and (2) are kept under observation. Adv. Ref. To L.L.R. Hospital, Kanpur for X-Ray chest PA, for further management and expert opinion about nature while injury No.(3) is simple.
Cause: Inj. No.(1) and (2) are caused by discharge of fire arm. Inj. No.(3) is caused by sharp edged object.
Duration: About fresh."
22. The postmortem report, Ex. Ka-6, shows the following injuries:
"(1) A stitched wound 1cm x long, 1 stitch is present on Rt. side chest above Rt. nipple at 12 o' clock position. Pin point tattooing mark and wound in an area 35cm x 20 cm. Stitched and margin inverted lacerated echimosed bone and cavity deep.
(2)* Stitched wound 1.5cm long --- stitched Rt. Back of chest 6cm outer to mid line at the level ---. Stitched removed margin lacerated Bone deep corresponding to sixth vertebra.
(3)* A stitched wound 2.5 cm long, 1 stitch is present on Rt. Forearm. 4cm above Rt. wrist joint oblique. After stitch removed clean cut. Angle sharp.
(4)* Abraded contusion 6cm x 4cm on the right buttock (* the postmortem report in the records is tattered and torn, rendering a precise reproduction of injuries impaired. The description of injuries is one based on reconstruction from the PMR and the trial court judgment, read together.)
23. PW-1, Prem Narain, is the informant and brother of the deceased, Subhash. In his examination-in-chief, recorded on 05.09.2008, it is stated that the informant is a member of a scheduled caste known as Chamar, whereas the appellant (besides the other co-accused, who are no more) are Brahmin. He has given an account of the occurrence, saying that it took place on 13.04.1996 at 10 o' clock, in the morning hours. Jugal Kishore came over to his place and called his brother, Subhash, asking him to come over to work, to thrash his wheat crop. The deceased Subhash would work for Jugal Kishore. Subhash told him that he had worked the night over, thrashing his harvested crop, and, was tired. It was, therefore, not possible for him to come over. Thereupon, Jugal Kishore abused his brother in vulgar language, and, beat him with his slippers (Chappal), throwing him to the ground. In the meanwhile, Bhikham and Indal, who were watching the altercation, intervened to the rescue of his brother. It is said that the witness too, tried to save his brother.
24. The witness has gone on to say, that Jugal Kishore proceeded towards his house, uttering abuses. A little later Krishna Dutt Paliwal (since deceased), Babloo alias Satyanarain (the appellant), carrying country-made pistols, and, Jugal Kishore (since deceased) carrying a knife, alighted. The witness, Indal and Bhikham, were talking amongst themselves, near the shop of one Moti Lal. Krishna Dutt Paliwal exhorted others, to do his brother to death saying "Maro Sale Ko Bachne Naa Paye". Thereupon, Babloo came forward and shot his brother, that hit him in the chest. Jugal Kishore stabbed the witness's brother in the arm. In consequence of the gunshot, his brother, clutching his chest, sank to the ground. The witness says that the first information was scribed by one Ram Niwas, on his dictation, and, it was read over to him. He found it accurate, and, affixed his thumb impression. The written information was shown to the witness, that he affirmed it to be the document thumb marked and delivered by him to the police, whereupon it was exhibited, and, marked as Ex. Ka-1.
25. The witness has said further that he went to the police station with the written information, whereas his brother was conveyed by a Tempo, to the police station. An FIR was registered there. After registration of a case, along with the police, his brother was sent to Vinod Dixit Hospital (Kannauj), where he was medically examined. After his medical examination, the witness's brother was referred to Hallet Hospital, Kanpur. It is also testified that the Doctor at Kannauj, took down his brother's statement, and, thereafter, referred him to Hallet Hospital, Kanpur. On way to Kanpur, near a place called Uttari Pura, at about 4 p.m., his brother died. Thereupon, the dead body was brought back, and, at 6.00 p.m., information was given to the police, at the Station. The inquest was held, the following morning at 8 o' clock, near the police station. The inquest is signed by the witness, besides other Panch witnesses; the witness has also thumb marked the inquest. The inquest report was shown to the witness, which he affirmed as the document that was drawn up, and, thumb marked by him. The document was thereupon exhibited and marked as Ex. Ka-2. The witness says further that he had given a written information, about the death of his brother, got scribed by one Rati Ram, after having its contents read over to him, that he had thumb marked. He identified paper no.3, as the said application, whereupon, it was exhibited, and, marked as Ex. Ka-3.
26. The next witness of fact is Bhikham, PW-2, who is said to be an eye witness. In his examination-in-chief he has disowned being witness to the occurrence. He was declared hostile and cross-examined by the State, where he stood by his hostile stand, and, said, on being confronted by his statements, recorded under Section 161 Cr.P.C. during investigation by the police, that no police officer ever recorded his statement in connection with the crime. He stated that he does not know how the Investigating Officer recorded those statements, now being put to him. He denied being won over by the appellant. The defence, however, did not cross-examine him. There are no witnesses of fact, apart from PW-1 and PW-2.
27. The next witness examined on behalf of the prosecution is one Mool Chandra Verma, PW-3, who was posted at the relevant time at Police Station Tirwa, as a Constable-Moharrir. He has, in his examination-in-chief, proved the registration of the FIR, that was done by him on 13.04.1996, as also GD Entry no.24, relating to the case crime, also made by him on 13.04.1996 at 12.30 p.m. The chik FIR and the GD Entry, relating to Case Crime no.93/96, under Section 307 IPC and Section 3(2)(v) of the SC/ST Act, Police Station Tirwa, District Kannauj, on being proved by the said witness, have been marked as Ex. Ka-2 and Ka-3, respectively.
28. PW-4, Dr. Raj Kishore, is the autopsy doctor who has proved the postmortem report, in his examination-in-chief, on the basis of which, the postmortem report has been exhibited, and, marked as Ex. Ka-6.
29. S.I. M.P. Gupta, PW-5, is the then incumbent Station Officer, P.S. Tirwa, on the date of occurrence. He held the inquest and sent the body for autopsy, after undertaking necessary formalities of photographing the dead body, and, forwarding the same to the autopsy doctor, drawing up a challan lash, memo to the CMO and Reserve Inspector, respectively, that have been marked as Exhibits Ka-4, Ka-5, Ka-6 and Ka-7. Here Ex. Ka-4, is the document described as Photo Lash (photograph of the dead body). The Panchayatnama, is also shown to be proved by this witness, though already proved by the first informant, and, marked as Ex. Ka-2. It must be reiterated here, that there is duplication of numbering (noticed elsewhere in this judgment) in case of Exhibits, Ka-4, Ka-5 and Ka-6, in the following manner:
(1) Chik FIR dated 13.04.1996 ..... Ex. Ka-4;
(2) Photo lash ..... Ex. Ka-4;
(3) Extract of G.D. Entry no.24/13.04.96 Ex. Ka-5;
(4) Police Form 13 Ex. Ka-5; (5) Letter to CMO requisitioning autopsy Ex. Ka-6; (6) Postmortem Report dt. 14.04.1996 Ex. Ka-6;
These documents are to be distinctively read, ignoring the duplication, in the Exhibit numbers.
30. PW-6 is Dr. Janardan Babu, who took stand in the dock on 14.09.2011, when he testified in his examination-in-chief. He is the doctor who gave earliest medical attention to the deceased at Vinod Dixit Hospital, Kannauj on 13.04.1996, examined his injuries, drew up the medico-legal report dated 13.04.1996, and, referred him to a Higher Centre for management at Kanpur. He has proved the medico-legal report aforesaid, that has been marked, as Ex. Ka-10.
31. The last witness for the prosecution, is Ashok Kumar Tiwari, PW-7, whose examination-in-chief was recorded on 12.04.2013. He is the Investigating Officer, who investigated the matter, and, filed the charge sheet dated 27.04.1996, on the foundation of which the prosecution rests. He has proved the charge sheet that has been exhibited, as Ex. Ka-11.
32. The submission of Sri Pradeep Chandra Tripathi, learned Amicus Curiae is that apart from the prosecution generally failing to prove its case, against an innocent appellant beyond reasonable doubt, particularly liable to be discarded, as it rests on the solitary testimony of an interested witness, the deceased's brother, Prem Narain, PW-1. It is submitted that on the sole testimony of this witness, the appellant cannot convicted, in the absence of some corroborating evidence. It is further argued that a conviction, even if legally permissible, is unsafe to sustain on the solitary evidence of an interested witness. It is also urged, that the prosecution case projected by PW-1, carries intrinsic and material contradictions that cannot be explained away, and, further that the prosecution case as made by the PW-1, conflicts irreconcilably, on relevant and material facts with other witnesses, may be formal. It is submitted that on the state of evidence appearing in this appeal, the conviction is not sustainable.
33. The foremost submission of the learned Amicus Curiae to be considered is, whether the appellant can be convicted on the solitary testimony of an interested witness, without corroboration. Sri Tripathi has emphasized the fact that there were two other eye witnesses to the occurrence, Indal and Bhikham, according to the consistent prosecution case. Indal has not been examined whereas Bhikham has not supported the prosecution. Learned Amicus Curiae submits that two witnesses being available, with an admitted eye witness account, who have not proved the same in court, makes it most unsafe and imprudent to convict the appellant, if not altogether illegal, on the solitary testimony of an interested witness, like the deceased's brother. He submits that in a case like this, there should be corroboration by some evidence aliunde, to assure the court, that it is safe to displace the all cherished presumption of innocence.
34. The learned A.G.A. has repelled the above submission to say that there is consistent authority to hold, that conviction on solitary evidence can be sustained, provided it is consistent and dependable. In the present case, the learned A.G.A. submits that the testimony of the PW-1 is flawless, consistent and unvarnished. There is no reason to doubt its veracity, for the mere fact that it comes from the mouth of a single witness, who is related to the deceased by blood. It is submitted that there is no principle governing appreciation of evidence, that the solitary evidence of a witness related by blood, otherwise consistent and dependable, is to be discarded for that reason alone. It is pointed out that of the two other eye witnesses, one i.e. Bhikham, PW-2, has turned hostile, and, the other, Indal is dead. In this connection, the attention of the court has been invited to a death certificate available on record, dated 23.08.2003, issued by the Pradhan, paper no. 24B/8. It shows that on the date of the issue of that certificate, Indal was dead by 2 years and 8 months.
35. Generally speaking, the statute does not fix a qualifying number of witnesses, to prove any fact. In this connection, Section 134 of the Indian Evidence Act is explicit:
"Section 134. Number of witnesses.- No particular number of witnesses shall in any cases be required for the proof of any fact."
36. By now, there is not an iota of doubt, so far as the law goes, that it is the quality of evidence, rather than the quantity of it that matters. So far as evidence of persons related by blood is concerned, about that the law also is settled, that there is nothing disqualifying about the testimony of a close relative. In fact, on ground of relationship alone, it is wrong to dub him/ her, an interested witness. However, the testimony of a relative must be scrutinized carefully, to guard against the possibility of bias, malice or even emotion - all such factors that detract from the worth of evidence. In this connection, the decision of the Hon'ble Supreme Court in Namdeo vs. State of Maharashtra, 2007 (4) UC 228, where after a review of authority, spreading across more than half a century, their Lordships summarized the law relating to convictions based on the solitary evidence of a witness, thus:
"28. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the Legislature (Section 134, Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eye witness, therefore, has no force and must be negatived."
37. Again, in the said decision of their Lordships, the law regarding the viability of a conviction, based on the sole testimony of a witness related by blood to the deceased, was enunciated thus:
"29. It was then contended that the only eye witness PW6-Sopan was none other than the son of the deceased. He was, therefore, 'highly interested' witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive.
30. Before more than half a century in Dalip Singh v. State of Punjab, 1954 SCR 145 : AIR 1953 SC 364, a similar question came up for consideration before this Court. In that case, the High Court observed that testimony of two eye witnesses required corroboration since they were closely related to the deceased. Commenting on the approach of the High Court, this Court held that it was 'unable to concur' with the said view. Referring to an earlier decision in Rameshwar Kalyan Singh v. State of Rajasthan, 1952 SCR 377 : AIR 1952 SC 54, their Lordships observed that it was a fallacy common to many criminal cases and in spite of endeavours to dispel, "it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel".
31. Speaking for the Court, Vivian Bose, J. stated:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth"
(emphasis supplied) The Court, no doubt, uttered a word of caution:
"However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts".
(emphasis supplied)
34. In Dalbir Kaur (Mst.) v. State of Punjab, (1976) 4 SCC 158 : AIR 1977 SC 472, the accused killed his own father and real brother over a property dispute. Eye-witnesses to the 'gruesome, brutal and unprovoked' double-murder were near relatives of the deceased. It was, therefore, contended that they were 'interested' witnesses and their evidence should not be accepted for holding the appellants guilty.
37. Recently, in Harbans Kaur v. State of Haryana, (2005) 9 SCC 195, the conviction of the accused was challenged in this Court, inter alia, on the ground that the prosecution version was based on testimony of relatives and hence it did not inspire confidence.
Negativing the contention this Court said:
"There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused."
38. From the above case-law, it is clear that a close relative cannot be characterised as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy,conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."
(emphasis by Court)
38. Once again, so far as the worth of the testimony of a relative is concerned, their Lordships of the Supreme Court reiterated the same principles in Ashok Kumar Chaudhary and others vs. State of Bihar, 2008(2) ACR 2007 (SC), where it was held following the decision in re Namdeo vs. State of Maharashtra (supra):
"11. Very recently in Namdeo v. State of Maharashtra, 2007 AIR SCW 1835: 2007(2) CCSC 634: 2007(2) ACR 1522(SC), one of us (C.K. Thakker, J.) has said that a close relative cannot be characterized as an "interested" witness. He is a natural witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."
39. In a still recent times, regarding the advisability of conviction, based on solitary testimony of a witness, it has been held by the Hon'ble Supreme Court in Sudip Kumar Sen Alias Biltu vs. State of West Bengal and others, (2016) 3 SCC 26:
"11. It is well-settled that the court may act on a testimony of a single witness though uncorroborated, provided that the testimony of the single witness is found reliable. The Trial court which had the opportunity of seeing and hearing PW-6 found him wholly reliable and trustworthy and held that evidence of Sandipan Majumdar-PW6 cannot be doubted as far as the role attributed to A-1 to A-6 except Jishu Jain is concerned, which was affirmed by the High Court. We find no ground to interfere with the concurrent finding recorded by the Courts below as to the reliability of PW-6 and to record the conviction.
12. Observing that there is no impediment for recording conviction based on the testimony of a single witness provided it is reliable in Prithipal Singh & Ors. v. State of Punjab, (2012) 1 SCC 10, it was observed as under (SCC p. 29, para 49):-
"49. This Court has consistently 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 Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence." [See Vadivelu Thevar v. State of Madras, AIR 1957 SC 614, Sunil Kumar v. State (Govt. of NCT of Delhi, (2003) 11 SCC 367, Namdeo v. State of Maharashtra, (2007) 14 SCC 150 and Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91]"
40. The same view of the law has been unwaveringly followed by this Court, as would appear from what is said in Tufail Ansari vs. State of U.P., 2015(1) ACR 1024, where, considering the issue of sustainability of a conviction vis-a-vis the number of witnesses, it was held by a Division Bench of this Court:
"27. The non-production of Saumya in court, who was said to be only about 8 years in age at the time of incident and who claimed to have seen Anshu going along with the appellant Tufail on his motorcycle and who had disclosed this fact to her mother is also not very important as the child may have had little understanding and may have not been able to appear in court to give evidence and to withstand a gruelling cross examination by a seasoned defence lawyer. Also although convictions are recorded in cases on the sole testimony of child witnesses, if the Court finds the child as able to understand the need for speaking the truth and to depose rationally and considers her testimony to be reliable and trustworthy, but the testimonies of child witnesses are usually assailed for being the product of tutoring. There is also no requirement in law to multiply witnesses, if the testimony of the witnesses of fact who are examined are found to be implicitly reliable or are corroborated by the circumstances of the case. Section 134 of the Evidence Act only speaks of the quality and not the quantity of witnesses, and there is no legal requirement requiring the production of a particular number of witnesses. The basic test is whether the evidence is cogent, credible and reliable and trustworthy and that the non-examination of some material witnesses ceases to be significant, if credible testimony which inspires confidence of witnesses who have been examined is available, and there is no need for duplication of witnesses, and no adverse inference can be drawn from the non-production of a few witnesses. This has been emphasized in Namdeo v. State of Maharashtra, (2007) 14 SCC 150, Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91, Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145, Dahari v. State of U.P., (2012) 10 SCC 265, Harivadan Babubhai Patel v. State of Gujarat, (2013) 7 SCC 45 and more recently in Manjit Singh v. State of Punjab, (2013) 12 SCC 746 where the case law on the point has been considered in extenso."
41. It must, therefore, be held that there is no rule of law or of prudence that may require the evidence of a solitary witness, by reason of lacking support of numbers, to be unworthy of credence. A single witness, as a matter of principle, can most certainly be relied upon, if otherwise dependable, consistent and confidence inspiring, to found a conviction. There is also no such principle in law, or that governing appreciation of evidence, that the evidence of a witness related by blood, is to be looked upon with suspicion, for that reason alone. All that is required is that the testimony is scrutinized, with a little caution to detect, if there are any aberrations, on account of misplaced or irrational feelings of vengeance, malice, effusion of emotions, loss of objectivity, and, all that goes to impair rational judgment of humans. There is a clear expression of authority, that does not run counter to this well-sounded approach of caution, but shows the other side of the coin. It says that a relative's testimony may be safely relied upon, as it is unlikely, that knowing the real perpetrator, a relative would lie to falsely implicate an innocent. All this said, the principles are clear and admit of no doubt that the evidence of a relative, cannot be thrown out ipso facto, or even much doubted, for that reason alone.
42. Now, that there can be little doubt about the ground rules to evaluate evidence in a case based on the testimony of a single witness, and, a relative at that. A searching look at the evidence of PW-1 is essential.
43. The version of PW-1, in the FIR and in his dock evidence, broadly describes the occurrence in two parts. In the first instance, co-accused Juglu, since deceased (and a brother of the appellant) came over to the residence of the deceased and called him to work, where the latter was employed, as an agricultural labourer. The deceased expressed his inability on account of the fact that he had worked on the thrasher, the night over, at the appellant's field, and, badly needed sleep. This led the co-accused Juglu to abuse and assault the deceased. The deceased was rescued by the informant and two other natives of the village, that is, Bhikham (PW-2) and Indal (since deceased). Juglu went away abusing the deceased. A little later, in a second episode Juglu returned to the deceased's place, accompanied by the appellant (his brother) and Krishna Dutt Paliwal (since deceased and father of the appellant and the late Juglu). The appellant and the late Krishna Dutt Paliwal were armed with country-made pistols, whereas Juglu was armed with a knife. Upon Paliwal's exhortation, the appellant shot the deceased in the chest whereas Juglu stabbed him in the arm. The deceased clutching his chest, sank to the ground.
44. It has been argued by the learned Amicus Curiae that in the FIR, or in the statement under Section 161 Cr.P.C., or even in the examination-in-chief, there is no mention of a gunshot being sustained by the appellant Babloo, or the circumstances leading to that injury. It is submitted that, for a fact, after the first episode of altercation between Juglu and the deceased, Subhash, Subhash along with Indal, Ratiram and Sarvan, came together, and, acting as aggressors, shot the appellant Babloo in the chest, that hit him in the shoulder. In connection with the said incident, Krishna Dutt Paliwal took the appellant, his son Babloo, to the police station and got a case registered against Subhash, the deceased, and, his three co-accused, Indal, Ratiram and Sarvan. It is submitted that by that time the FIR giving rise to the present crime had already been registered, and, therefore, the FIR lodged by Paliwal, was registered as a cross-case, bearing Case Crime no.93-A of 1996, under Section 307 IPC, Police Station Tirwa, District Kannauj.
45. The learned Amicus Curiae has drawn the attention of the Court to the cross-examination dated 14.01.2009, where for the first time PW-1, has given an explanation for the gunshot injury, sustained by the appellant. He has stated that the injury sustained by the appellant came from the shot fired by his father, Paliwal aimed at his brother, the deceased, Subhash that missed target and instead hit his son, the appellant. It is pointed out with much emphasis that this fact was not mentioned by PW-1, in any of the prosecution's earlier accounts of the occurrence, including the FIR, the statements under Section 161 Cr.P.C., or the examination-in-chief of this witness. It is also pointed out, that during the course of his cross-examination aforesaid, he further acknowledged the fact, that he did not know whether the said facts were mentioned in the FIR. Upon being read out the contents of the FIR, the witness acknowledged that this fact is not mentioned there. The witness, however, has said that he did mention it to the Investigating Officer, whom he has described as Daroga ji, and, said that he does not know the reason why, it has not been recorded, in his statement by the police.
46. The witness, it is pointed out by the learned Amicus Curiae, when asked as to why he did not mention the fact of Paliwal wielding a gun, in his FIR, he said that he did not know whether he mentioned it there or not, but said, perhaps, he did not. On being read out the contents of the FIR, he acknowledged that it was not there. He said that he had mentioned it to the Investigating Officer and that he did not know the reason, if he has not recorded it in his statement. He has denied the suggestion, in his cross-examination, that he has come up with the explanation for the appellant's injury now, attributing it to an ill-aimed shot by the appellant's father meant for his deceased's brother, in order to come up with a defence for Indal, Sarvan and Ratiram, in the cross-case lodged by the appellant's father. Learned Amicus Curiae, however, says that this is the precise motivation for the witness, who is also the first informant, to have come up with a case, founded on cooked up allegations, to implicate the appellant, so as to bargain freedom for the accused, in the cross-case brought by his father.
47. It must be noticed, that the fact that there are injuries on both sides, is an assurance about the presence of the appellant on the date, time and place of occurrence. No doubt a cross-case has been lodged by the deceased's father of the appellant, who was an accused in the present case also, but there is nothing to show that any effort was made to seek consolidation of the two trials, where common evidence could be recorded relating to the occurrence. It is also significant to note that the appellant has not entered defence, and, come up with a case that it was a free fight, where the side of the deceased were the aggressors. In short, in the absence of the appellant entering defence, apart from the fact that consolidation of the two trials has not been sought, no plea of the kind of shooting in private defence, where the deceased was less fortunate, and, the appellant not exceeding that right can be entertained, much less determined. In fact, the manner in which the FIR relating to the cross-case, and, the relative GD entry, have come to be shown as defence documents in the present case, through the statement of PW-3, Constable-Moharrir, Mool Chandra Verma, is exceptionable, once the accused-appellant, has not entered defence and led evidence. These documents can, therefore, not be looked into as substantive evidence. It is, perhaps, for the said reason that these documents do not find mention in the trial court's judgment. This Court has confined itself to judge the veracity of the prosecution case, tested on the anvil of cross-examination, and, looked into these documents to appreciate, what is said in the cross-examination.
48. On an overall consideration of the matter, even if there is no mention or explanation for the injury sustained by the appellant, the best that can be made of the case, as it stands is, that in an altercation involving both sides, the deceased sustained fatal injuries, about which there is no exculpatory explanation even pleaded, much less proved, like an unexceeded right of private defence. Thus, the prosecution cannot be faulted on this ground.
49. So far as the question of basing the conviction entirely on the sole testimony of an eye-witness is concerned, the learned Amicus Curiae has argued that the conduct of this eye witness, PW-1, in suppressing the incident of the appellant sustaining injury in his FIR, his statement under Section 161 Cr.P.C. and in his examination-in-chief, shows that he is, in fact, an interested witness - interested to see that the accused in the cross-case are acquitted, in a trade off. But, there is no evidence on record, even a suggestion during cross-examination, that the witness actually attempted to bring pressure upon witnesses of the cross-case, or the appellant, in any manner, to withdraw from prosecution of that case, much less by proposing a bargain, on the edifice of the present case. The non-mention of the injury sustained by the appellant, and, the cross-case registered at the instance of appellant's father is, to all seeming, attributable to the natural conduct of a party, speaking about the injury sustained by him and not by the other side. There is nothing found by us in evidence that may legitimately make the witness, PW-1, a witness with an agenda or motivation to frame the appellant, so as to class him as an interested witness. The fact that the witness is the deceased's brother does not ipso facto make him an interested witness. There is, thus, no force in the contention of the learned Amicus Curiae appellant that it is unsafe to convict the appellant based on the sole testimony of PW-1, on account of his relationship to the deceased.
50. So far as the intrinsic worth of the prosecution case as established by the testimony of PW-1 is concerned, we find that it is fairly consistent about the date, time, place, manner of assault, the origin of it and even post-event developments, involving medical aid and report to the police. In this regard the learned Amicus Curiae has been at pains to point out that there is a glitch about what happened post-event. He has drawn the attention of the Court to the fact that while in the FIR, it is said that he had come to the police station to lodge the FIR whereas natives of the village had carried the deceased (then alive) to Kannauj for medical aid, but in his examination-in-chief, it has been categorically said that the deceased was first taken to the police station, the FIR lodged there, and, then along with the police, the deceased was taken to Vinod Dixit Hospital (Kannauj), where he was medically examined. It is further pointed out that this contradiction has persisted, and, in the cross-examination, PW-1 has said that from the place of occurrence the deceased was taken inside house, and, from there on a cot to a waiting tempo that ferried him to the police station. He then changed stand in the next breath to say, that seeing the precarious condition of the deceased, he was not taken to the police station, but sent in the company of his mother and aunt (Mami) to Vinod Dixit Hospital (Kannauj). We think that these discrepancies are minor, and, do not detract from the bulwark of the prosecution case, where there is consistency at all stages; about the origin of the dispute, the two episodes of altercation, precise manner of assault, the weapons wielded, the injury inflicted to the deceased by gunshot fired by the appellant, and, what generally happened, thereafter. Moreover, the consistent ocular version of PW-1 is precisely corroborated by the medico-legal evidence which shows a single gunshot wound of entry to the chest, with a corresponding exit wound to the back attributed to appellant, and, an incised wound to the right arm, attributed to the deceased co-accused, Juglu, delivering a knife blow. The nature and site of injuries flawlessly coalesce with the ocular version.
51. We find, therefore, that so far as prosecution case is concerned, the same is proved beyond reasonable doubt, by a consistent account based on the ocular testimony of PW-1, who is the most natural witness to the occurrence. It is also re-assuringly corroborated by medico-legal evidence, to the elimination of all lurking doubts.
52. In the result the appeal fails and is dismissed and the impugned judgment and order passed by the Trial Court is affirmed. Let a copy of this judgment be certified to the Trial Court and the records sent down at once. Let a certified copy of this judgment be forwarded at once to the appellant through the Jail Superintendent/ Jailer of the Jail, wherever he is serving the sentences.
53. Before parting with the matter this Court places on record its profound appreciation for the valuable assistance rendered by Sri Pradeep Chandra Tripathi, learned Amicus Curiae in this matter. The learned Amicus Curiae shall be entitled to receive in fee, a sum of Rs.11,000/-.
Order Date :- 25.10.2018 Anoop