Allahabad High Court
State Of U.P. vs Shobharam Pandey & Anr. on 30 August, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 10 Case :- U/S 378 CR.P.C. No. - 65 of 2019 Applicant :- State Of U.P. Opposite Party :- Shobharam Pandey & Anr. Counsel for Applicant :- Govt. Advocate Hon'ble Ved Prakash Vaish,J.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard learned A.G.A. for the State and perused the record.
The instant application under Section 378 (3) of Cr.P.C has been moved on behalf of the State to grant leave to appeal against the judgment and order dated 23.10.2018 passed by the VIth Additional Sessions Judge, Gonda in Sessions Trial No. 282 of 2016 "State vs. Shobharam Pandey and Chotkau @ Vinod Kumar Pandey" arising out of Case Crime No. 468 of 2009, under Sections 307, 323, 504, 506 of I.P.C., Police Station Mankapur, District Gonda, whereby both the accused persons have been acquitted.
The brief facts necessary for the disposal of this application are that, an application under Section 156 (3) of Cr.P.C. was moved by the complainant Subedar Singh before the Magistrate concerned with the allegations that the accused persons namely Shobharam Pandey and Chotkau @ Vinod Kumar Pandey is having enmity with him and on 08.01.2009, they assaulted his servant while he was doing dusting in his shop. An application, pertaining to the incident was submitted by the complainant to the S.P. concerned. It is further alleged that on 14.10.2009 at about 1:00 pm in the afternoon, when complainant was sitting at his shop situated at ''Kurasan' and was talking to his brother Peshkar Singh and companion Subedar Singh, above mentioned Shobharam Pandey and Chotkau @ Vinod Kumar Pandey along with 3-4 unknown persons came there in Jeep No. U.P.42 C-5278 armed with "country-made pistol, lathi-danda, and farsa" and started abusing the complainant with filthy abuses and while threatening him of his life started assaulting him. He ran out of the shop, where on the instigation of the accused Shobharam Pandey, Chotkau @ Vinod Kumar Pandey took out a country made pistol and fired at him, whereby a grievous injury was sustained by the complainant on his right shoulder. On "hue and cry" made by the complainant, the accused persons fled away after threatening the complainant of his life. An information of the incident was given to the Police Station Kotwali Mankapur, but no FIR was registered. An application, pertaining to the incident was also forwarded to the S.P., Gonda and when no action was taken, an application under Section 156 (3) of Cr.P.C. was moved before the court concerned.
Vide order of the concerned Magistrate passed on an application moved under Section 156 (3) of Cr.P.C., an FIR at Case Crime No. 468 of 2009, under Sections 147, 323, 504, 506, 307 of I.P.C was registered at Police Station Kotwali Mankapur, District Gonda on 01.11.2009 against above mentioned accused persons.
The Investigating Officer after investigating the matter submitted charge-sheet against above accused persons under Section 323, 504, 506, 307 of I.P.C. The case was committed to the Court of Sessions, wherein the charges under Sections 323, 504, 506 and 307 of I.P.C. were framed against both the accused persons. The respondents/accused persons denied the charges and claimed trial.
Injured/Subedar Singh was examined by Doctor T.P. Jaiswal, E.M.O. District Hospital, Gonda on 15.10.2009 at 11:30 am and he found following injuries on his person.
Injury No.1/Lacerated wound 1 x 0.5 cm. on back of right shoulder 4 cm. below from tip of shoulder, blackening present, tattooing present- kept under observation, advised X-ray.
Injury No.2/Contusion 7.0 cm. X 1.5 cm on left side back of chest.
Injury No.3/Contusion 4.0 cm. X 2.0 cm on back of right fore arm 10 cm. above wrist.
Injury No.4/Contusion 2.0 x 1.0 cm on right calf muscle.
In the opinion of the Doctor, above mentioned Injury No.1 was a gun shot injury, which was kept under observation and also advised for X-ray's while other injuries were noted as simple, caused by hard and blunt object. Duration of all the injuries were found as of one day old. The X-ray of the right shoulder of the injured was also held on 16.10.2009 and a report was prepared and 02 Radio Opique Metallic shadows were seen beneath the injury caused by fire arm on right shoulder.
The prosecution to prove its case has produced following documentary evidence:-
1. Copy of application moved under Section 156 (3) of Cr.P.C., Exhibit-ka-1.
2. Affidavit of complainant/injured Subedar Singh, Exhibit-ka-2.
3. Another affidavit of complainant/Subedar Singh, Exhibit-ka-3.
4. Affidavit of witness Peshkar Singh, Exhibit-ka-4.
5. Affidavit of witness Dharnidhar Singh, Exhibit-ka-5.
6. Injury Report of injured Subedar Singh, Exhibit-ka-6.
7. X-ray Report, Exhibit-ka-7.
8. Charge-sheet, Exhibit-ka-8.
9. Chick FIR, Exhibit-ka-9.
10. Site Plan, Exhibit-ka-10.
The prosecution also produced following witnesses to bring home the charges against accused persons:-
P.W.-1/ Subedar Singh son of Babu Pratap Singh (Informant/injured).
P.W.-2/Subedar Singh son of Buddhisagar Singh (Eye witness) P.W.-3/Peshkar Singh (Eye witness) P.W.-4/Dharni Singh (Eye witness) P.W.-5/Doctor T.P. Jaiswal (Doctor, who examined the injuries of informant).
P.W.-6/S.H.O. Arun Pratap Singh (Investigating Officer) P.W.-7/Doctor R.C. Verma (Senior Technician, District Hospital, Gonda) P.W.-8/Shri Prakash Saroj (Pairokar, P.S. Mankapur, Gonda).
After completion of the evidence of the prosecution, the statement of accused persons was recorded under Section 313 of the Cr.P.C. Accused person/respondent Shobharam Pandey in his statement stated that, his son was murdered by informant/Subedar, his son and nephew and a false case has been instituted against him. They are having inimical relations with the informant. He is having a hardware shop at ''Kurasan Market'. Informant is a mighty person. He is innocent.
The accused respondent Chotkau @ Vinod Kumar Pandey in his statement has also stated that his real brother was killed by the informant and his family members and he is a witness of the incident. He is having a hardware shop at ''Kurasan Market'. Informant/complainant is a mighty person of the locality and despite filing of final report by the police twice, he influenced the Investigating Officer to file a charge-sheet in this matter and he is innocent.
The trial Court after taking into consideration, the oral and documentary evidence produced by the prosecution acquitted the accused persons of all the charges framed against them on the ground that the prosecution has failed to prove its case beyond all reasonable doubts against the accused persons.
Aggrieved by this judgment and order of acquittal of the Trial Court, this instant appeal along with an application to grant leave has been preferred by the State.
Learned A.G.A. while pressing the application for grant of leave to file criminal appeal has submitted that the Court below has committed a material illegality in appreciating the evidence available on record. The trial Court has not taken into consideration that all the witnesses of fact including the injured namely P.W.-1/Subedar Singh son of Babu Pratap Singh has proved the theory of the prosecution beyond all reasonable doubts.
While referring to the testimony of the injured P.W.-1/Subedar Singh son of Babu Pratap Singh, he submits that, this witness has corroborated the contents of the FIR and the testimony of the P.W.-1/Subedar Singh son of Babu Pratap Singh has been corroborated in material terms by the evidence of P.W.-2/Subedar Singh son of Buddhisagar Singh, P.W.-3/Peshkar Singh and P.W.-4/Dharni Singh. According to him, all the witnesses of fact have invariably stated that, on 14.10.2009 at about 1:00 pm. in the afternoon, the accused/respondents along with other 3-4 unknown persons came to the shop of the informant and assaulted him and on the instigation of Shobharam Pandey, accused Chotkau @ Vinod Kumar Pandey fired at Subedar Singh with a country-made pistol which hit him on the right shoulder. The testimony of the injured witness namely Subedar Singh son of Babu Pratap Singh has been corroborated by other witnesses of fact as well as by P.W.-5/Doctor T.P. Jaiswal and P.W.-7/Doctor R.C. Verma, in material terms, who have stated that the injury No.1 of the injured was caused by a fire arm and blackening and tattooing was also present around the injury. Apart from this injury, other three injuries were also caused to the injured. P.W.-7/Doctor R.C. Verma has proved to have done the X-ray and prepared the X-ray Report, wherein two Metallic/shadows have been found on the right shoulder. According to learned A.G.A., the testimony of the witnesses of fact have been corroborated by the medical evidence.
It is further submitted that, even if it is assumed that parties were on inimical terms and having strained relations and many cases of criminal and civil nature were pending in between them, even then the testimony of such witnesses cannot be thrown into the dustbin and as per the settled law, the same has to be analyzed and scrutinized with care and caution and if after careful scrutiny of such witnesses, the case of the prosecution reaches the standard of proof beyond reasonable doubt, there is no harm in convicting the accused persons. This settled legal position has been over-sighted by the trial Court and the trial Court without assigning acceptable reasons for disbelieving the testimony of the injured as well as of the eye witnesses have committed illegality in acquitting the accused persons/respondents. Therefore, leave to appeal be granted to the State to challenge the judgment and order of the trial Court.
Having heard learned A.G.A. and having perused the judgment of the trial Court as well as the record, it transpires that the trial Court acquitted the accused persons of the charges framed against them on the grounds that the site of the incident has not been proved, there is contradiction in the ocular and medical evidence, parties are inimical towards each other as many civil and criminal cases are pending in between them, incident is not probable and the prosecution has failed to prove its case beyond reasonable doubt.
We have carefully scrutinized the evidence of the prosecution placed before the Court below in the light of the settled principles, pertaining to the appreciation of evidence and have found that the parties are having a long standing enmity. The accused persons/respondents in their statement recorded under Section 313 of the Cr.P.C. have also alleged that brother of Vinod/son of Shobharam was allegedly murdered by Subedar Singh (Informant), his son and his nephew.
So far as the evidentiary value of a witness, who is alleged to be related to the informant or injured or inimical is concerned, this issue has been dealt with by the Hon'ble Supreme Court in "Gali Venkataiah vs. State of Andra Pradesh" reported in MANU/SC/8101/2007 and it is held as under:-
"7. We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
8. In Dalip Singh and Ors. v. The State of Punjab MANU/SC/0031/1953 : [1954]1SCR145 it has been laid down as under:
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 relation 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 there 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. However, we are not attempting any sweeping generalization. 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.
9. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan MANU/SC/0107/1973 : 1974CriLJ331 in which Vadivelu Thevar v. State of Madras MANU/SC/0039/1957 : 1957CriLJ1000 was also relied upon.
10. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:
We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in 'Rameshwar v. State of Rajasthan' MANU/SC/0036/1951 : 1952CriLJ547 . We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.
11. Again in Masalti and Ors. v. State of U.P. MANU/SC/0074/1964 : [1964]8SCR133 this Court observed: (p. 209-210 para 14):
But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses....
The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.
12. To the same effect is the decision in State of Punjab v. Jagir Singh MANU/SC/0193/1973 : 1973CriLJ1589 , Lehna v. State of Haryana MANU/SC/0075/2002 : [2002]1SCR377 and Gangadhar Behera and Ors. v. State of Orissa MANU/SC/0875/2002 : 2003CriLJ41 .
13. The above position was highlighted in Babulal Bhagwan Khandare and Anr. vs. State of Maharashtra MANU/SC/1026/2004 : (2005)10SCC404 and in Salim Saheb v. State of M.P. MANU/SC/8758/2006 : 2006(13)SCALE228"
It is worth to recall that Section 134 of Evidence Act do not require any particular number of witnesses to prove any fact. Plurality of witnesses in a criminal trial is not the legislative intent, it is not the quantity but quality which matters. Therefore, if the testimony of a witness is found reliable on the touch stone of credibility, accused can be convicted on the basis of testimony of even single witness. This principle was highlighted in ''Vadivelu Thevar V/s state of Madras; AIR 1957 SC 614', wherein it is held by Hon,ble Apex Court that, " We have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid down that no particular witnesses shall in any case be required for the proof of any fact."
" The Indian Legislature has not insisted or laying any such exceptions to the general rule recognized in Section 134 quoted above. The Section enshrines the well recognized maxim that "Evidence has to be weighed and not counted." It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of single witness only could be available in proof of the crime, would go unpunished. It here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstance of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution."
"Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony."
Vadivelu Thevar case (supra) was referred to with approval in Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251). It was held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
In Lallu Manjhi vs. State of Jharkhand, AIR 2003 SC 854 Hon,ble Supreme Court held that "The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable, nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness."
In State of Gujarat vs J.P Varu reported in 2016 Cr.L.J 4185 (Supreme Court) it has been propounded by the Supreme Court that, the burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favorable to the accused should be adopted.
In AIR 2013 SUPREME COURT 3150, Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan Hon,ble Supreme Court held that "Suspicion, however grave it may be, cannot take place of proof and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
Keeping in view the above mentioned settled law, pertaining to the appreciation of evidence, perusal of record further reveals that by alleged incident of firing by Vinod Kumar Pandey on the instigation of Shobharam Pandey, an injury on the right shoulder of the injured Subedar Singh is alleged to have been caused. P.W.-2/Subedar Singh son of Buddhisagar Singh as well as P.W.-3/Peshkar Singh and P.W.-4/Dharni Singh supported this version of the prosecution story and have stated that the fire arm injury was sustained by the injured on his right shoulder by the fire made by accused/respondent Vinod Kumar Pandey. Doctor, T.P. Jaiswal, who has been testified as P.W.-5 have categorically opined that injury No.1 (fire arm injury on the right shoulder) is a gun shot injury. The injuries on the person of the injured was noted on 15.10.2009 at 11:30 am, while the incident is alleged to have been happened on 14.10.2009 at about 1:00 pm. in the afternoon and Doctor has categorically stated in his statement that, all injuries on the person of the injured Subedar Singh might have been caused a day before. P.W.-7/Doctor R.C. Verma has further corroborated the story of the prosecution, when he testified to the affect that he performed the X-ray and prepared X-ray Report, wherein he found two metallic shadows. We have also carefully perused the testimony of the other formal witnesses and have not found any material error or illegality, which might have been committed by the Investigating Officer. Therefore, in our considered opinion, the findings concluded by the trial Court and have been made the basis of acquittal of the respondents are not based on the evidence available on record. The trial Court has given unnecessary importance to the minor contradictions and embellishments and have ignored the fact that the injury alleged to have been sustained by the injured could not be self-inflicted as the blackening and tattooing have also been found around the fire arm injury.
Taking into consideration the above principles of law as well as the evidence of the prosecution, in totality, recorded before the court below, we are of the considered view that it is a fit case, where a leave to appeal may be granted to the State to file an appeal and challenge the impugned judgment and order whereby the respondents have been acquitted.
Keeping in view the above facts and circumstances as well as the record, the prayer of the State to grant leave to file appeal is allowed and the leave to appeal is granted.
It is clarified that the observations made herein-above are only for the purpose of disposal of this application and shall not have any bearing on the final outcome of the appeal.
Since leave to appeal has been granted to the State the Appeal is admitted.
Keeping in view the provisions as contained under Section 390 of the Code bailable warrants of Rs. 20,000/- be issued against the respondents no. 1 and 2, namely Shobharam Pandey and Chotkau @ Vinod Kumar Pandey, who shall appear before the Chief Judicial Magistrate, Gonda on 17.10.2019. In case they appear or brought before the Chief Judicial Magistrate, Gonda and apply for bail, they shall be released on bail on furnishing personal bond and two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate, Gonda with an undertaking that they shall appear before this Court on the date of listing i.e. 22.10.2019.
The compliance report shall be submitted by the Chief Judicial Magistrate, Gonda well before the next date fixed and he shall be also under an obligation to transmit the photo stat copies of the personal bonds and sureties bonds so submitted by the respondents to this Court, while retaining the original with him.
List on 22.10.2019.
(Mohd. Faiz Alam Khan,J.) (Ved Prakash Vaish,J.) Order Date:- 30.08.2019/Praveen