Allahabad High Court
Pappu @ Mewa Ram vs State Of U.P. on 1 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 1982, 2020 (1) ALJ (NOC) 28 (ALL) 2019 (108) ACC (SOC) 95 (ALL), 2019 (108) ACC (SOC) 95 (ALL)
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 46 Case :- CRIMINAL APPEAL No. - 2572 of 2005 Appellant :- Pappu @ Mewa Ram Respondent :- State Of U.P. Counsel for Appellant :- Kuldeep Johri Counsel for Respondent :- Govt. Advocate Hon'ble Virendra Kumar Srivastava,J
1. This appeal has been preferred against judgement and order dated 20.5.2005, passed by IInd Addl. District and Sessions Judge, Pilibhit in Session Trial No. 277 of 2003 (State of U.P. Vs. Pappu @ Mewa Ram and others), u/s 307, 324, 504, 506 I.P.C., arising out of Case Crime No. 303 of 2002, P.S.- Gajraula, Distt.- Pilibhit whereby the accused appellant- Pappu @ Mewa Ram (hereinafter referred as appellant) has been convicted u/s 307 I.P.C. and has been sentenced for rigorous punishment of two years and fine of Rs. 500/- and in case of default in payment of fine with an additional period of simple imprisonment of one month. He has been acquitted from the offence u/s 324/34, 504, 506 I.P.C. whereas the co-accused Govind Ram was acquitted from offence u/s 307/34, 324/34, 504, 506 I.P.C.
2. Briefly stated the facts of this case are that Bhojraj (P.W. 1), appellant- Pappu and other co-accused Govind Ram are resident of Village- Ajitpur Patpara, P.S. Gajraula, District- Pilibhit. They are real brothers but living separately. On 1.8.2002 when Bhojraj (P.W. 1) reached at his house from his field, he saw that somebody had dug a drain in his occupied land. On query his brother's wife told him that appellant- Pappu had dug that drain. At about 8:00 p.m. when he complained to Pappu in the presence of other co-accused Govind Ram, both the appellant- Pappu and other co-accused Govind Ram hurled abuses and when he objected, the appellant- Pappu with banka and co-accused Govind Ram with spade attacked on him. On alarm raised by him, his wife Bhup Devi (P.W. 2), Ram Dulare (P.W. 3), Bihari Lal (P.W. 4) and so many people reached there whereupon the appellant and co-accused fled away.
3. F.I.R. (Ex.Ka 1) was lodged at P.S.- Gajraula, Distt. Pilibhit on 1.8.2002 at 22:30 p.m., on the information given by Bhojraj (P.W. 1). He was sent to district hospital, Pilibhit by police for medical examination. Dr. M.L. Sharma (P.W. 5) examined him on 2.8.2002 at 2:10 a.m. and found following injuries:-
(i) Incised wound 4cm X 0.3cm bone deep on the head, 7cm above root of nose,
(ii) Incised wound 2cm X 0.5cm scalp deep on the head, 13cm above left ear pinna,
(iii) Incised wound 5cm X 2 cm bone deep on the posterio-lateral aspect of left leg, 11cm above lateral malleolus
(iv) Incised wound 1cm X 0.5cm muscle deep on the posterio-lateral aspect of the left leg, 4cm above ankle joint.
4. According to Dr. M.L. Sharma (P.W. 5), at the time of examination, all injuries were fresh and bleeding was present and these injuries may be caused on 1.8.2002 at 8:00 p.m. by sharp edged weapon , e.g. Banka.
5. Investigation was handed over to S.I. Ranvir Singh and thereafter to S.I. Harish Bahadur (P.W. 7) who inspected the place of occurrence, recorded the statement of witnesses and filed the charge sheet u/s 307, 324, 504, 506 I.P.C. against appellant- Pappu and other co-accused Govind Ram before the Magistrate concerned.
6. Since the offence was triable by the Sessions Court, learned Magistrate committed the case to Sessions Court, Pilibhit for trial after completing the formalities as required u/s 209 Cr.P.C. Appellant- Pappu and other co-accused Govind Ram were charged for offence u/s 307/34, 324/34, 504 and 506 I.P.C. They denied the charges and claimed for trial.
7. During trial the prosecution examined Bhojraj (P.W. 1), Bhup Devi (P.W. 2), Ram Dulare (P.W. 3), Bihari Lal (P.W. 4), Dr. M.L. Sharma (P.W. 5), H.C.P. Raghunandan Singh (P.W. 6) and S.I. Harish Bahadur (P.W. 7).
8. During trial an application (67-A) for compounding the offence was filed by Bhojraj (P.W. 1). The learned trial court upon conclusion of trial found that offence u/s 506 I.P.C. was not established. Further, trial court found that offence u/s 307 I.P.C. was also not proved against co-accused Govind Ram. On the basis of compounding application, trial court acquitted appellant- Pappu and co-accused Govind Ram from offence u/s 324/34 and 504 I.P.C. Thus co-accused Govind Ram was acquitted from all charges whereas appellant- Pappu was acquitted only from offence u/s 324/34, 504 and 506 I.P.C. He was found guilty only for offence u/s 307 I.P.C. and was sentenced to rigorous imprisonment for two years and fine of Rs. 500/-, in default whereof was further convicted for simple imprisonment for one month. Feeling aggrieved the appellant has preferred this appeal.
9. Heard learned counsel for the appellant and learned AGA for the State.
10. Learned counsel for the appellant has submitted that the said offence was committed in the dark night. Prosecution has failed to produce any source of light. All the witnesses except Bhojraj (P.W. 1) had not supported the prosecution version. His evidence is neither reliable nor trustworthy. Both parties had compromised before the trial court and co-accused Govind Ram was acquitted on the basis of compounding of offence by Bhojraj (P.W. 1) whereas learned trial court illegally re-examined Bhojraj (P.W. 1) on 19.5.2005, without giving any opportunity to the appellant for cross-examination and without recording any further statement u/s 313 Cr.P.C. and also without affording any opportunity to lead evidence in defence by appellant- Pappu, convicted him on 20.5.2005. Thus whole trial is against the settled principle of criminal law. The judgment and order passed by the learned trial court is liable to be set aside.
11. Per contra, learned AGA, vehemently opposing the submission of the learned counsel for the appellant, submitted that the appellant is real brother of injured Bhojraj (P.W. 1) who has suffered grievous injuries and conviction based on such sole injured eye witness cannot be interfered on the ground that other witnesses have not supported prosecution version. There is no need to prove source of light because the appellant was well-known to Bhojraj (P.W. 1). The judgment and order passed by the learned trial court is well reasoned and according to established norms of the law. Appeal is liable to be dismissed.
12. Bhojraj (P.W. 1) is an injured witness. Bhup Devi (P.W. 2) is his wife. Ram Dulare (P.W. 3) and Bihari Lal (P.W. 4) are neighbours of Bhojraj (P.W. 1). Bhup Devi (P.W. 2) has stated before the trial court that at the time of occurrence her husband had returned from his field. Some unknown people started to beat her husband. She did not know who had beaten him. Ram Dulare (P.W. 3) has also stated that he had not seen the alleged occurrence. According to him no dispute was happened before him at the time of occurrence. Bihari Lal (P.W. 4) has also not supported the prosecution version and said that at the time of occurrence he had gone in relation. Thus Bhup Devi (P.W. 2), Ram Dulare (P.W. 3) and Bihari Lal (P.W. 4), examined by the prosecution as eye witnesses, have not supported the prosecution case. They were declared hostile and cross-examined by the prosecution after permission of trial court but nothing came out in their cross-examination in support of prosecution story.
13. Now the question arises whether the prosecution case should be thrown only on the ground that except Bhojraj (P.W. 1) other witnesses had not supported the case. It is settled principle of criminal law that no specific number of witnesses is required for proving the prosecution case. It depends on facts and circumstances of each case. From perusal of legal proposition propounded by Supreme Court in Vadivelu Thevar Vs. State of Madras, AIR 1957 SC 614, it is clear that it is established principle of criminal law that Court can and may act on the testimony of a single witness provided he/she is wholly reliable. There is no legal impediment or bar in convicting an accused on the sole testimony of single witness. This principle is also based on the legal position provided in Section 134 of Evidence Act, 1872 which provides as under :-
"134. Number of witnesses No particular number of witnesses shall in any case be required for the proof of any fact."
14. In my view, the prosecution can succeed only on the testimony of single witness if his evidence is trustworthy and wholly reliable. Thus it has to be seen whether the statement of Bhojraj (P.W. 1) is reliable or not and if reliable and trustworthy what offence is made out from the evidence available on record.
15. So far as the submission of learned counsel for the appellant that the offence was committed in the dark night and prosecution has failed to produce any evidence regarding source of light and the evidence of Bhojraj (P.W. 1) is not reliable is concerned, from the perusal of record it transpires that appellant- Pappu is the real brother of Bhojraj (P.W. 1). Both are well-known to each other. They can identify to each other by their voice, gait and physique. The Supreme Court in Kedar Singh And Ors. vs. State of Bihar, 1999 SCC (Criminal) 907 held as under:-
".....That apart, the act of Shivjee Singh in immobilising the deceased while lying down and let Kedar Singh chop off his head should have been an act comparatively slower and by that time, PW-2 could have gathered his wits and identify the assailants. It has also to be observed that even on a full dark night there is never total darkness. There can be other means to identify another through the shape of his body, clothes, gait, manner of walking etc. Identification possible by voice too......"
Thus in the facts and circumstances of this case where Bhojraj (P.W. 1) is the real brother of appellant- Pappu and occurrence was happened at about 8:00 p.m. on 1.8.2002 and there was altercation between them at the time of occurrence, it cannot be said that Bhojraj (P.W. 1) had mistaken the identity of appellant- Pappu. Thus the submission of learned counsel for the appellant has no force.
16. Bhojraj (P.W. 1) in his examination-in-chief has stated that when he came from his field and saw that somebody had dug a drain in his land whereupon he enquired from his cousin brother's wife and she told that appellant Pappu had dug. He has further deposed that he had complained to Pappu where other co-accused Govind Ram was also present. Both the appellant- Pappu and co-accused Govind hurled abuses. Appellant- Pappu caused injury to him by banka and co-accused Govind by spade (fawada). He has not stated anything that appellant- Pappu had attacked on him with intention to causing his death. In cross-examination he has stated as under :-
"पप्पू ने बोगदा दो बार चलाया था दोनों बार मुझे लगा था. गोविन्द ने एक फावड़ा चलाया. मुझे कुल चार चोटें थी. एक चोट कैसे लगी मैं नहीं बता सकता. मैं कक्षा सात तक पढ़ा हूँ. थोड़ा बहुत लिख पढ़ लेता हूँ. "
17. Dr. M.L. Sharma (P.W. 5) also has not stated in his statement that injuries caused to Bhojraj (P.W. 1) was sufficient to cause death. Neither Bhojraj (P.W. 1) has stated nor prosecution has produced any evidence as to prove whether injuries of Bhojraj were so serious as dangerous to his life. Bhojraj (P.W. 1) has not stated whether he had been admitted in any hospital or any treatment by any medical officer was given to him or not.
18. From perusal of material available on record, it transpires that after examination of S.I. Harish Bahadur Singh (P.W. 7), prosecution had closed its evidence and statements of appellant- Pappu and co-accused Govind Ram were recorded u/s 313 Cr.P.C. on 7.5.2005. Compromise application 67 A was also filed by Bhojraj (P.W. 1) and appellant- Pappu and co-accused Govind. This application was verified by the learned trial court and case was fixed for argument on 10.5.2005. Further on 13.5.2005 arguments of both the parties were heard and case was fixed for 18.5.2005 for judgment. Meanwhile, on 17.5.2005 learned trial court summoned Bhojraj (P.W. 1) and 19.5.2005 was fixed for re-examination. On 19.5.2005 Bhojraj (P.W. 1) was re-examined. In his re-examination he has stated as under:
"पप्पू ने बांके के दो प्रहार मेरे सिर पर किये थे और दोनों से मुझे चोटें आयीं थीं.
पता नहीं की गोविन्दराम पप्पू द्वारा किये गए प्रहारों के समय था या नहीं."
19. From perusal of the record it further transpires that before re-examination of Bhojraj (P.W. 1), he neither in examination-in-chief nor in cross-examination had stated that the injuries present on his head were caused by appellant- Pappu whereas after his re-examination no opportunity was given to defence counsel for his cross-examination and additional statement of accused-appellant Pappu u/s 313 Cr.P.C., 1973 was also not recorded. Learned trial court, without affording further opportunity of hearing to defence after re-examination of Bhojraj (P.W. 1), pronounced the impugned judgment and order dated 20.5.2005.
20. It is pertinent to note at this juncture that the provision of Section 313(1)(b) Cr.P.C., 1973 provides for examination of accused after the examination of prosecution witness. This provision is as under :-
" (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court:
a. ................
b. shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case........."
A duty has been imposed by this provision on trial court to afford an opportunity to the accused to explain the circumstances which may tend to incriminate him. The purpose of affording an opportunity under this section is based on natural justice i.e. audi alteram partem.
21. The Apex Court, while discussing the importance of Section 313 Cr.P.C. in Parasu Ram Pandey Vs. State of Bihar, AIR 2004 SC 5068, has held as under :-
"........The manner in which the trial court recorded the statement under Section 313 Cr.P.C. of the accused persons, is not in accordance with law and, therefore accused-appellant are entitled for the benefit as they have not been provided with sufficient opportunity to explain the circumstances appearing in evidence against them. We have perused the statement under Section 313 Cr.P.C. and the question formulated by the trial court in the present case and we may say that it is far from satisfactory. This court time and again has laid down that it is obligatory on the part of the trial court to examine the accused for the purpose of enabling the accused personally to explain any circumstance appearing in evidence against him. If such opportunity is not afforded, the incriminating piece of evidence available in the prosecution evidence against the accused cannot be relied upon for the purpose of recording the conviction of the accused person. It is imperative on the court to record the statement under Section 313 Cr.P.C. of the accused persons so as to give opportunity to the accused persons to explain any incriminating circumstance proved by the prosecution. The duty cast on the court cannot be taken lightly. ......."
22. Section 138 of Evidence Act, 1872 which provides for order of examination is also relevant at this juncture, wherein it has been provided as under:-
"138. Order of examinations Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross -examined, then (if the party calling him so desires) re-examined.
The examination and cross - examination must relate to relevant facts but the cross -examination need not be confined to the facts to which the witness testified on his examination -in-Chief.
Direction of re-examination - The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in-re-examination, the adverse party may further cross-examine upon that matter."
23. It is settled principle of law of evidence that it is the mandatory duty of the trial court to provide an opportunity to adverse party to further cross-examine a witness after his re-examination and without affording such opportunity to defence, the statement in re-examination of such witness cannot be read in evidence. The object of cross-examination is to test the veracity of the witness and also to find out true facts. This right is a statutory right provided by the legislative to adverse party.
24. In my view failure to provide further opportunity to defence counsel to cross-examine Bhojraj (P.W. 1) after his re-examination and also failure to record statement of appellant- Pappu u/s 313 Cr.P.C. and to afford him an opportunity to explain the new fact came in re-examination is serious illegality committed by the trial court hence the statement recorded in re-examination by the trial court on 19.5.2005 cannot be read as evidence against appellant- Pappu and only on the basis of the said statement the appellant- Pappu cannot be held guilty for offence u/s 307 I.P.C.
25. It is pertinent to mention at this juncture that appellant- Pappu and co-accused Govind Ram had already been acquitted for the offence u/s 324/34 and 504 I.P.C. by trial court on the basis of compounding of offence by Bhojraj (P.W. 1).
26. In the light of above discussion, I am of the view that serious illegality has been committed by trial court and the impugned judgment and order passed by the learned trial court is not according to settled principle of law. The prosecution has failed to prove the offence u/s 307 I.P.C. against appellant- Pappu. The impugned judgment and order passed by the learned trial court is liable to be set aside.
27. Thus the appeal is allowed. The impugned judgment and order dated 20.5.2005, passed by IInd Addl. District and Sessions Judge, Pilibhit in Session Trial No. 277 of 2003 (State of U.P. Vs. Pappu @ Mewa Ram and others), whereby the appellant- Pappu has been convicted under Section 307 I.P.C., is hereby set aside.
28. Accused-appellant is on bail. He need not to surrender in this case. His personal bond and bail bond is cancelled and sureties are discharged. However, appellant is directed to comply with the provision of Section 437-A Cr.P.C.
29. Let a copy of this judgment alongwith lower court record be sent immediately to the court concerned for compliance.
Order Date :- 01.02.2019 Vandana